Criminal Law Web

Chapter 9. Causation

 

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

STEPHENSON L.J.: This appellant, Kenneth Joseph Roberts, was convicted on June 23, 1971, at Cheshire Quarter Sessions by a jury of an assault occasioning actual bodily harm, and he was fined £50 by the Chairman. He was tried on an indictment alleging, first of all, that he indecently assaulted a young woman of twenty-one; he was acquitted on that charge, but convicted of assault occasioning actual bodily harm to her. He appeals to this Court by leave of the single judge, who pointed out that what was involved here was really a point of law, on which no leave was necessary; and the point of law relates to a direction given by the learned judge to the jury who convicted him of this assault....

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

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

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

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

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

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

“Will you say whether the conduct of the prisoner amounted to a threat of causing injury to this young woman, was the act of jumping the natural consequence of the conduct of the prisoner, and was the grievous bodily harm the result of the conduct of the prisoner?”
That, said the Court, was a proper direction as far as the law went, and they were satisfied that there was evidence before the jury of the prisoner causing actual bodily harm to the woman.

“No-one could say,” said Darling J. when giving the judgment of the Court, “that if she jumped from the window it was not a natural consequence of the prisoner’s conduct. It was a very likely thing for a woman to do as the result of the threats of a man who was conducting himself as this man indisputably was.”

This Court thinks that that correctly states the law, and that Mr. Carus was wrong in submitting to this Court that the jury must be sure that a defendant, who is charged either with inflicting grievous bodily harm or assault occasioning actual bodily harm, must foresee the actions of the victim which result in the grievous bodily harm, or the actual bodily harm. That, in the view of this Court, is not the test. The test is: Was it the natural result of what the alleged assailant said and did, in the sense that it was something that could reasonably have been foreseen as the consequence of what he was saying or doing? As it was put in one of the old cases, it had got to be shown to be his act, and if of course the victim does something so “daft,” in the words of the appellant in this case, or so unexpected, not that this particular assailant did not actually foresee it but that no reasonable man could be expected to foresee it, then it is only in a very remote and unreal sense a consequence of his assault, it is really occasioned by a voluntary act on the part of the victim which could not reasonably be foreseen and which breaks the chain of causation between the assault and the harm or injury.

In those circumstances, bearing in mind that that is the law, can any fault be found with the summing-up of the learned Chairman? Undoubtedly, the learned Chairman took a strong line when, in his summing-up, he told the jury that, if the girl’s account of what induced her to jump out of the car was true, then their verdict would be guilty. But the jury had to consider: is the girl’s story, broadly speaking, about these two assaults - particularly the assault occasioning actual bodily harm with which this Court is concerned - right, or may the appellant’s story be true, in which he fails entirely to account for the girl’s jumping out of the car, except possibly by the alcohol she had taken, and her anger at his conduct - suggested not, apparently, by the appellant himself, but by his counsel? No fault can be found with the learned Chairman for in effect withdrawing this from the jury in the sense that he told them, “if you accept the evidence of the girl in preference to that of the man, that means that there was an assault occasioning actual bodily harm, that means that she did jump out as a direct result of what he was threatening her with, and what he was doing to her, holding her coat, telling her he had beaten up girls who had refused his advances, and that means that through his acts he was in law and in fact responsible for the injuries which were caused to her by her decision, if it can be called that, to get away from his violence, his threats, by jumping out of the car.”

The Court has come to the conclusion, after the assistance of the arguments of counsel on both sides, that the judge was right to tell the jury that it was their duty to convict if they accepted the evidence of the girl, and there was no misdirection involved in his telling them just that. For those reasons, the Court finds no misdirection in the summing-up, and nothing in the grounds of complaint made on behalf of the appellant, and this appeal against conviction must be dismissed.

Appeal dismissed.

 

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

Appeal against conviction.

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

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

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

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

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

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

Appeal dismissed

 

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

BELDAM L.J. The appellant, David William Cheshire, was convicted of the murder of Trevor Jeffrey at the Central Criminal Court on 31 January 1989. He was sentenced to life imprisonment. He now appeals against conviction with the leave of the single judge. On 14 March we heard an application under s. 23 of the Criminal Appeal Act 1968 to receive fresh evidence. For the reasons then given, we rejected that application and then heard argument on the appeal. We reserved our judgment.

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

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

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

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

‘due to a condition which was produced as a result of treatment to provide an artificial airway in the treatment of gunshot wounds of the abdomen and leg.’
And he said:
‘In other words, I give as the cause of death cardio-respiratory arrest due to gunshot wounds of the abdomen and leg.’
For the appellant it was conceded that the sequence of events which had led to the deceased’s death was that described by the pathologist but a consultant surgeon, Mr Eadie, gave it as his opinion that by 8 February 1988 the wounds of the thigh and the abdomen no longer threatened the life of the deceased and his chances of survival were good. In his view:
‘The cause of his death was the failure to recognise the reason for his sudden onset and continued breathlessness after the 8th February [and the] severe respiratory obstruction, including the presence of stridor [on 14 February]...’
The doctors who examined and treated the deceased in the week before his death ought to have diagnosed the serious clinical condition from which he was suffering. Mr Eadie was particularly critical of the failure to appreciate the serious implications of ‘stridor’ on the evening of 14 February. The deceased would not have died if his condition had been diagnosed and properly treated. The doctors had been negligent and this was the cause of his death.

One question for the jury at trial therefore was whether the Crown had proved, so that they were sure, that the shots fired by the appellant had caused the deceased’s death.

In this appeal it has been argued that the judge misdirected the jury on this issue. The appellant complains of a passage in which the judge said:
‘My direction to you is this, and I have to take the responsibility and you have to observe my direction: if the treatment could have been better, if it is no more than that, then the bullets caused the death, even if the treatment was incompetent, negligent. The bullets caused the death. For you to find that the chain was broken, the medical treatment or lack of medical treatment must be reckless. Mr Boal when opening used the words “gross negligence”. Mr Eadie observed to you that gross negligence he regarded as the same as recklessness, and he is right, and I am using the word “recklessness”, which is a strong word. Mere carelessness or mere negligence are not recklessness. Reckless conduct is where somebody could not care less. He acts or he fails to act careless of the consequences, careless of the comfort and safety of another person. It is that which you are looking for when you examine the medical evidence. The question is: Do you see it, because nothing less alters the situation. In closing speeches Mr Boal spoke of a high degree of negligence. Mr Stewart when cross-examining the witnesses spotted and highlighted acts which he said were not just inexperience, but negligence, and you may agree with him. But the direction I give you is what I have spoken. You are looking for recklessness.’
In this paragraph it is said that the judge virtually withdrew from the jury consideration of the doctor’s failure to diagnose the deceased’s clinical condition as the cause of his death because no juror would be likely to accept that a doctor treating a patient was reckless in the sense that he could not care less whether the patient lived or died....

Since the apportionment of responsibility for damage has become commonplace in the civil law, judges have sought to distinguish the blameworthiness of conduct from its causative effect. Epithets suggestive of degrees of blameworthiness may be of little help in deciding how potent the conduct was in causing the result. A momentary lapse of concentration may lead to more serious consequences than a more glaring neglect of duty. In the criminal law the jury considering the factual question, did the accused’s act cause the deceased’s death, will we think derive little assistance from figures of speech more appropriate for conveying degrees of fault or blame in questions of apportionment. Unless authority suggests otherwise, we think such figures of speech are to be avoided in giving guidance to a jury on the question of causation. Whilst medical treatment unsuccessfully given to prevent the death of a victim with the care and skill of a competent medical practitioner will not amount to an intervening cause, it does not follow that treatment which falls below that standard of care and skill will amount to such a cause. As Professors Hart and Honore comment, treatment which falls short of the standard expected of the competent medical practitioner is unfortunately only too frequent in human experience for it to be considered abnormal in the sense of extraordinary. Acts or omissions of a doctor treating the victim for injuries he has received at the hands of an accused may conceivably be so extraordinary as to be capable of being regarded as acts independent of the conduct of the accused but it is most unlikely that they will be....

A case in which the facts bear a close similarity to the case with which we are concerned is R. v. Evans and Gardiner (No 2) [1976] VR 523. In that case the deceased was stabbed in the stomach by the two applicants in April 1974. After operation the victim resumed an apparently healthy life but nearly a year later, after suffering abdominal pain and vomiting and undergoing further medical treatment, he died. The cause of death was a stricture of the small bowel, a not uncommon sequel to the operation carried out to deal with the stab wound inflicted by the applicants. It was contended that the doctors treating the victim for the later symptoms ought to have diagnosed the presence of the stricture, that they had been negligent not to do so and that timely operative treatment would have saved the victim’s life.

The Supreme Court of Victoria held that the test to be applied in determining whether a felonious act has caused a death which follows, in spite of an intervening act, is whether the felonious act is still an operating and substantial cause of the death.

The summing up to the jury had been based on the passage already quoted from Lord Parker CJ’s judgment in R v Smith and the Supreme Court endorsed a direction in those terms. It commented upon the limitations of R v Jordan and made observations on the difference between the failure to diagnose the consequence of the original injury and cases in which medical treatment has been given which has a positive adverse effect on the victim. It concluded (at 528):
‘But in the long run the difference between a positive act of commission and an omission to do some particular act is for these purposes ultimately a question of degree. As an event intervening between an act alleged to be felonious and to have resulted in death, and the actual death, a positive act of commission or an act of omission will serve to break the chain of causation only if it can be shown that the act or omission accelerated the death, so that it can be said to have caused the death and thus to have prevented the felonious act which would have caused death from actually doing so.’
Later in the judgment the court said (at 534):
‘In these circumstances we agree with the view of the learned trial Judge expressed in his report to this Court that there was a case to go to the jury. The failure of the medical practitioners to diagnose correctly the victim’s condition, however inept or unskilful, was not the cause of death. It was the blockage of the bowel which caused death and the real question for the jury was whether that blockage was due to the stabbing. There was plenty of medical evidence to support such a finding, if the jury chose to accept it.’
It seems to us that these two passages demonstrate the difficulties in formulating and explaining a general concept of causation but what we think does emerge from this and the other cases is that when the victim of a criminal attack is treated for wounds or injuries by doctors or other medical staff attempting to repair the harm done, it will only be in the most extraordinary and unusual case that such treatment can be said to be so independent of the acts of the accused that it could be regarded in law as the cause of the victim’s death to the exclusion of the accused’s acts.

Where the law requires proof of the relationship between an act and its consequences as an element of responsibility, a simple and sufficient explanation of the basis of such relationship has proved notoriously elusive.

In a case in which the jury have to consider whether negligence in the treatment of injuries inflicted by the accused was the cause of death we think it is sufficient for the judge to tell the jury that they must be satisfied that the Crown have proved that the acts of the accused caused the death of the deceased, adding that the accused’s acts need not be the sole cause or even the main cause of death, it being sufficient that his acts contributed significantly to that result. Even though negligence in the treatment of the victim was the immediate cause of his death, the jury should not regard it as excluding the responsibility of the accused unless the negligent treatment was so independent of his acts, and in itself so potent in causing death, that they regard the contribution made by his acts as insignificant.

It is not the function of the jury to evaluate competing causes or to choose which is dominant provided they are satisfied that the accused’s acts can fairly be said to have made a significant contribution to the victim’s death. We think the word ‘significant’ conveys the necessary substance of a contribution made to the death which is more than negligible.

In the present case the passage in the summing up complained of has to be set in the context of the remainder of the direction given by the judge on the issue of causation. He directed the jury that they had to decide whether the two bullets fired into the deceased on 10 December caused his death on 15 February following. Or, he said, put in another way, did the injuries caused cease to operate as a cause of death because something else intervened? He told them that the prosecution did not have to prove that the bullets were the only cause of death but they had to prove that they were one operative and substantial cause of death. He was thus following the words used in R v Smith.

The judge then gave several examples for the jury to consider before reverting to a paraphrase of the alternative formulation used by Lord Parker CJ in R v Smith.Finally, he reminded the jury of the evidence which they had heard on this issue. We would remark that on several occasions during this evidence the jury had passed notes to the judge asking for clarification of expressions used by the medical witnesses, which showed that they were following closely the factual issues they had to consider. If the passage to which exception has been taken had not been included, no possible criticism could have been levelled at the summing up. Although for reasons we have stated we think that the judge erred when he invited the jury to consider the degree of fault in the medical treatment rather than its consequences, we consider that no miscarriage of justice has actually occurred. Even if more experienced doctors than those who attended the deceased would have recognised the rare complication in time to have prevented the deceased’s death, that complication was a direct consequence of the appellant’s acts, which remained a significant cause of his death. We cannot conceive that, on the evidence given, any jury would have found otherwise.

Accordingly, we dismiss the appeal.

Appeal dismissed.

 

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

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

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

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

... [T]here was a very substantial body of evidence, both expert and lay, before the jury indicating that the kick was at least a contributing cause of death, outside the de minimis range, and that is all that the Crown was required to establish. It is immaterial that the death was in part caused by a malfunctioning epiglottis to which malfunction the appellant may, or may not, have contributed. No question of remoteness or of incorrect treatment arises in this case....

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

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

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

I would dismiss the appeal.

Appeal dismissed.

 

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

LAWTON L.J. read the following judgment of the court: On October 17, 1974, at Teesside Crown Court after a trial before Mocatta J. the defendant was acquitted of the murder of a girl named Jacolyn Woodhead but was convicted of her manslaughter on the ground of diminished responsibility (count 1). He was also convicted of wounding her with intent to do her grievous bodily harm (count 2) and of indecently assaulting her (count 3). He pleaded guilty to indecently assaulting two other women (counts 4 and 5). He was sentenced to life imprisonment on counts 1 and 2 and to concurrent sentences of 12 months’ imprisonment on counts 3, 4 and 5. He appeals with the leave of this court against his conviction on count 1 and, if his appeal is successful, he applies for leave to appeal against his sentence on count 2.

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

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

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

‘This is one of those relatively rare cases, you may think, with very little option open to you but to reach the conclusion that was reached by your predecessors as members of the jury in Reg. v. Holland, namely, “yes” to the question of causation that the stab was still, at the time of this girl’s death, the operative cause of death—or a substantial cause of death. However, that is a matter for you to determine after you have withdrawn to consider your verdicts.’
...In Reg. v. Holland, 2 Mood. & R. 351, the defendant in the course of a violent assault, had injured one of his victim’s fingers. A surgeon had advised amputation because of the danger to life through complications developing. The advice was rejected. A fortnight later the victim died of lockjaw. Maule J. said, at p. 352: “...the real question is, whether in the end the wound inflicted by the prisoner was the cause of death.” That distinguished judge left the jury to decide that question as did the judge in this case. They had to decide it as juries always do, by pooling their experience of life and using their common sense. They would not have been handicapped by a lack of training in dialectic or moral theology.

Maule J.’s direction to the jury reflected the common law’s answer to the problem. He who inflicted an injury which resulted in death could not excuse himself by pleading that his victim could have avoided death by taking greater care of himself: see Hale’s Pleas of the Crown (1800 ed.), pp. 427-428. The common law in Sir Matthew Hale’s time probably was in line with contemporary concepts of ethics. A man who did a wrongful act was deemed morally responsible for the natural and probable consequences of that act. Mr. Comyn asked us to remember that since Sir Matthew Hale’s day the rigour of the law relating to homicide has been eased in favour of the accused. It has been—but this has come about through the development of the concept of intent, not by reason of a different view of causation. Well-known practitioner’s textbooks, such as Halsbury’s Laws and Russell on Crime, continue to reflect the common law approach. Textbooks intended for students or as studies in jurisprudence have queried the common law rule. See Hart and Honoré, Causation in the Law, and Smith and Hogan....

Counsel for the appellant tried to overcome this line of reasoning by submitting that the jury should have been directed that if they thought the deceased’s decision not to have a blood transfusion was an unreasonable one, then the chain of causation would have been broken. At once the question arises—reasonable by whose standards? Those of Jehovah’s Witnesses? Humanists? Roman Catholics? Protestants of Anglo-Saxon descent? The man on the Clapham omnibus? But he might well be an admirer of Eleazar who suffered death rather than eat the flesh of swine or of Sir Thomas Moore who, unlike nearly all his contemporaries, was unwilling to accept Henry VIII as Head of the Church in England. Those brought up with the Hebraic and Christian traditions would probably be reluctant to accept that these martyrs caused their own deaths.

As was pointed out to counsel for the appellant in the course of the argument, two cases, each raising the same issue of reasonableness because of religious beliefs, could produce different verdicts depending on where the cases were tried. A jury drawn from Preston, sometimes said to be the most Catholic town in England, might have different views about martyrdom to one drawn from the inner suburbs of London. Counsel for the appellant accepted that this might be so; it was, he said, inherent in trial by jury. It is not inherent in the common law as expounded by Sir Matthew Hale and Maule J. It has long been the policy of the law that those who use violence on other people must take their victims as they find them. This in our judgment means the whole man, not just the physical man. It does not lie in the mouth of the assailant to say that his victim’s religious beliefs which inhibited him from accepting certain kinds of treatment were unreasonable. The question for decision is what caused her death. The answer is the stab wound. The fact that the victim refused to stop this end coming about did not break the casual connection between the act and death.

If a victim’s personal representatives claim compensation for his death the concept of foreseeability can operate in favour of the wrongdoer in the assessment of such compensation; the wrongdoer is entitled to expect his victim to mitigate his damage by accepting treatment of a normal kind: see Steele v. R. George & Co. Ltd. As counsel for the Crown pointed out, the criminal law is concerned with the maintenance of law and order and the protection of the public generally. A policy of the common law applicable to the settlement of tortious liability between subjects may not be, and in our judgment is not, appropriate for the criminal law.

The issue of the cause of death in a trial for either murder or manslaughter is one of fact for the jury to decide. But if, as in this case there is no conflict of evidence and all the jury has to do is to apply the law to the admitted facts, the judge is entitled to tell the jury what the result of that application will be. In this case the judge would have been entitled to have told the jury that the defendant’s stab wound was an operative cause of death. The appeal fails.

Appeal dismissed. The court refused to certify that the decision involved a question of law of general public importance.

 

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

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

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

(2) The Constitutionality of the Smithers Test

(a) Introduction

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

I should like to adopt two short passages from a case note on R. v. Larkin (1942), 29 Cr. App. R. 18, by G.A. Martin, as he then was, which appeared in 21 Can. Bar. Rev. 503 at pp. 504-5 (1943):
There are many unlawful acts which are not dangerous in themselves and are not likely to cause injury which, nevertheless if they cause death, render the actor guilty of culpable homicide, e.g., the most trivial assault, if it should, through some unforeseen weakness in the deceased, cause death, will render the actor guilty of culpable homicide....
In the case of so-called intentional crimes where death is an unintended consequence the actor is always guilty of manslaughter at least. The act of the accused in R. v. Larkin fell within the class of intentional crimes because he was engaged in committing an assault upon Nielsen, and the fact that he caused a different type of harm to that which he intended did not free him from criminal responsibility.
It seems to me that the adoption by the Supreme Court of this passage in a case comment is to be taken as stating only the legal definition of causation and, limited to that, is still valid. The fault element in the crime of manslaughter has now been authoritatively stated to require objective foreseeability of bodily harm which is neither trivial nor transitory, in the context of a dangerous act, such that the most trivial assault, not dangerous in itself and not likely to cause injury would not give rise to a conviction for manslaughter if it did somehow cause death: R. v. Creighton, supra. In my opinion, the test articulated in Smithers must now be understood in combination with the degree of fault expressed in the requirement of objective foreseeability of death. I will return to this point later when I consider the relation between causation and fault as a basis for the intervention of the criminal law.

As I understand it, the constitutional argument advanced by the appellant is a two-pronged proposition. First, it is argued that the articulation of a legal causation rule involves a moral judgment as to blameworthiness, rather than a scientific inquiry, and that the principles of fundamental justice require that the rule triggering criminal responsibility, in this case the causation rule, be commensurate with the moral blameworthiness of the conduct that it prohibits. Under this argument, it is said to be unfair to punish for manslaughter one whose moral blameworthiness, reflected by both his conduct and his intention, never went beyond a simple assault. In short, the de minimis test is said to be too remote to satisfy the requirements of s. 7. Second, it is argued that the present law defining causation is void for vagueness.

(b) Is the de minimis test too vague?

In my opinion, the vagueness point can be summarily dismissed as the appellant has not demonstrated in what way a different causation test, such as the substantial connection test, the “but for”, or the “causa causans” test, to refer only to a few that are well known in the legal literature, would add any precision to the rule such as to give better guidance to citizens as to how to conduct their affairs in order to avoid criminal liability, and so as to properly curtail the discretionary powers of law enforcement officials. Even though analytical rules have evolved which are as rigorous as the methodologies commonly employed in many of the social sciences, whichever test is adopted, one has to recognize that causation in criminal law, as in other branches of the law, cannot be articulated with mathematical precision. The constitutional standard of precision which defeats the doctrine of vagueness was expressed by the Supreme Court as one which provides guidance to legal debate: R. v. Nova Scotia Pharmaceutical Society, [1992] 2 S.C.R. 606, 74 C.C.C. (3d) 289. The criminal law of causation, both in Canada and throughout the Anglo-American system, has a long and reputable history of doctrinal debate, the aim of which is to bring that concept within the boundaries that delineate criminal responsibility. The de minimis test, under attack as unduly vague, is indistinguishable, on a vagueness standard alone, from the more stringent test of substantial cause which the appellant says should be substituted for it.

(c) Is the de minimis test too remote?
(i) The meaning of the de minimis test

The remaining constitutional argument suggests that the de minimis test is too remote to engage criminal responsibility for homicide. In R. v. Harbottle, supra, the Supreme Court considered the causation requirements which had to be met before a person guilty of murder could be found guilty of first degree murder under s. 231(5) of the Criminal Code, which provides that murder is first degree in respect of a person when death is caused by that person in the commission of certain enumerated offences. In light of the language of the section, its legislative history and its purpose, Cory J. concluded that a narrower test of substantial cause should be applied. Cory J. specifically contrasted that test with the de minimis test applicable in the case of manslaughter, remarking that there were distinctions in the degree of causation required for the different homicide offences.

The de minimis test was enunciated in Smithers, supra, in the context of a charge of manslaughter. However, it must be taken to apply to murder in the same way. The actus reus of murder is indistinguishable from that of manslaughter. What distinguishes the two forms of culpable homicide is the different degree of fault represented by the constitutional requirement of subjective foresight in the case of murder, in contrast to the objective foreseeability of serious bodily harm which suffices for a conviction for manslaughter. Causation is a legal concept that addresses an aspect of the prohibited conduct and, as such, has significance only in crimes where consequences must flow from acts or omissions.

Specific causation rules are contained in various provisions of the Code dealing with homicide, such as s. 222(1) and (6), and ss. 223 to 228. The common law provides the guiding principles. Issues of causation rarely arise in murder cases, probably because the requirement that the Crown prove beyond a reasonable doubt the mental element related to the bringing about of the consequence,i.e., the death of the victim, overshadows any concern that the consequence may not have been caused by the accused. In other words, if the jury is satisfied that the accused, in assaulting the deceased, intended to kill or intended to cause bodily harm that he knew was likely to cause death and was reckless as to that consequence, it will be rare for the jury to have a doubt as to whether the accused actually caused the death that he intended. In such a rare case, of course, a proper verdict could be attempted murder, assuming that the acts of the accused were not too remote: see Hart and Honoré, Causation in the Law, 2nd ed. (Oxford: Clarendon Press, 1985), pp. 390-91.

Causation, on the other hand, is central to the law of manslaughter. It is essentially the vehicle by which the same act or omission of the accused will be defined as an assault, or some other appropriate offence depending on the circumstances, or as a homicide.

Before embarking upon an analysis of the constitutional argument as such, it is useful to examine more closely the meaning of the Smithers test. The appellant contends that the case of Smithers has set a causation requirement in manslaughter lower than its equivalent in England or Australia. For example, counsel points out that in R. v. Harbottle, supra, Cory J. adopted the definition of substantial cause from the Australian case of R. v. Hallett, [1969] S.A.S.R. 141 (S.C. In Banco), as the applicable causation test for first degree murder only, while Hallett was a murder case setting out the basic principle of causation applicable in homicide generally (see also R. v. Jackson (1989), 44 A. Crim. R. 320 (Qd. C.A.) at p. 327, where the court followed the English case of R. v. Pagett (1983), 76 Cr. App. R. 279 (C.A.)).

In Pagett, the Court of Appeal noted that it is rarely necessary in homicide cases to give any direction to the jury on causation. Goff L.J., speaking for the court, added, at p. 288:
Even where it is necessary to direct the jury’s minds to the question of causation, it is usually enough to direct them simply that in law the accused’s act need not be the sole cause, or even the main cause, of the victim’s death, it being enough that his act contributed significantly to that result.
More recently, in R. v. Cheshire, [1991] 3 All E.R. 670 (C.A.), the court, per Beldam L.J., reiterated that test of “significant contribution” in the following terms, at p. 677:
It is not the function of the jury to evaluate competing causes or to choose which is dominant provided they are satisfied that the accused’s acts can fairly be said to have made a significant contribution to the victim’s death. We think the word “significant” conveys the necessary substance of a contribution made to the death which is more than negligible.
This is consistent with the articulation of the substantial cause test in R. v. Hennigan, [1971] 3 All E.R. 133, 55 Cr. App. R. 262 (C.A.), which does not appear to mean anything different than the Smithers test of “beyond de minimis”. In Hennigan, when dealing with the offence of dangerous driving causing death, Lord Chief Justice Parker said, at p. 135:
The court would like to emphasise this, that there is of course nothing in s. 1 of the Road Traffic Act 1960 which requires the manner of the driving to be a substantial cause, or a major cause, or any other description of cause, of the accident. So long as the dangerous driving is a cause and something more than de minimis, the statute operates. What has happened in the past is that judges have found it convenient to direct the jury in the form that it must be, as in one case it was put, the substantial cause. That was the case in which Finnemore J. gave a direction to the jury, in R. v. Curphey. That, in the opinion of this court, clearly went too far, and Brabin J. in a later case of R. v. Gould, left it to the jury in the form of “a substantial cause”.

Although the word does not appear in the statute, it is clearly a convenient word to use to indicate to the jury that it must be something more than de minimis, and also to avoid possibly having to go into details of legal causation, remoteness and the like.
I am not persuaded that, even when the terminology used is slightly different, the Canadian standard by which causation is established in homicide differs from the English or Australian standard such as to present an anomaly which might suggest that it is set too low. Harbottle is clear in holding that s. 231(5) of the Criminal Code imposes a higher degree of causation for first degree murder than is required merely to establish the homicide. Cory J. referred to a substantial and integral cause of death, requiring that the accused play a very active role—usually a physical role—in the killing. He used the expression “the actions of the accused must form an essential, substantial and integral part of the killing”. This test is not the same as the sometimes-called “substantial cause test” referred to in the English authorities dealing with causation in homicide, where the standard contemplated, in my view, is akin to the one in Smithers.

Finally, I add that the Smithers test is not an exhaustive statement of all the criminal causation rules which have a bearing on liability for homicide. Other rules, some provided for in the Code, some at common law, complement the general test of attributable cause which is at issue in this appeal (see, for example, the legislative choice to curtail liability expressed in s. 227 which restricts the applicability of the law of homicide to cases where death occurred within a year and a day).

(ii) The constitutionality of the de minimis test
As I see it, the appellant’s argument raises two issues: Whether the criminal law of causation amounts to a principle of fundamental justice within the meaning of s. 7 of the Charter, and, if so, whether the de minimis standard applicable in homicides infringes upon that principle of fundamental justice. Causation as a constitutional standard has not been addressed directly by the Supreme Court of Canada. However, in R. v. Creighton, supra, the court held that the offence of unlawful act manslaughter requires objective foreseeability of bodily harm which is neither trivial nor transitory, arising from a dangerous act. The Crown relies on the following statement by McLachlin J., at pp. 40-41:
In my view, the offence by unlawful act manslaughter, as defined by our courts and those in other jurisdictions for many centuries, is entirely consistent with the principles of fundamental justice. There is no need to read up its requirements; as it stands, it conforms to the Charter.
Although the constitutionality of the de minimis test was not at issue in Creighton, supra, the entire focus of the analysis in that case was on the required element of fault with respect to death having ensued from the unlawful act of the accused. McLachlin J. expressed the view that, in light of the “thin skull” rule, the distinction between foreseeability of death and foreseeability of bodily harm in manslaughter largely disappears. In expanding on that idea, she referred to R. v. Smithers, supra, in the following terms (p. 52):
In Smithers v. The Queen [[1978] 1 S.C.R. 506] at pp. 521-22, Dickson J., writing for a unanimous Court, confirmed this principle:
It is a well-recognized principle that one who assaults another must take his victim as he finds him....
Although causation in civil cases differs from that in a criminal case, the “thin skulled man” may appear in the criminal law as in the civil law....Even if the unlawful act, alone, would not have caused the death, it was still a legal cause so long as it contributed in some way to the death.
The thin-skull rule is a good and useful principle. It requires aggressors, once embarked on their dangerous course of conduct which may foreseeably injure others, to take responsibility for all the consequences that ensue, even to death. That is not, in my view, contrary to fundamental justice.
The idea of taking responsibility for the consequences of one’s actions expresses a link between causation and fault. Cory J. noted in R. v. Harbottle, supra, at pp. 320-21, the tendency of the courts to elevate the causation requirement when the mens rea for a form of murder was statutorily reduced. He referred to R. v. Black, [1966] 1 O.R. 683, [1966] 3 C.C.C. 187 (C.A.); R. v. Gourgon (No. 1) (1979), 9 C.R. (3d) 313 (B.C.S.C.), affirmed (1979), 19 C.R. (3d) 272 (B.C.C.A.); R. v. Dollan (1980), 53 C.C.C. (2d) 146 (Ont. H.C.J.), affirmed (1982), 35 O.R. (2d) 283, 65 C.C.C. (2d) 240 (C.A.); and R. v. Woods (1980), 57 C.C.C. (2d) 220, 19 C.R. (3d) 136 (Ont. C.A.), as examples of courts requiring a high level of causation for first degree murder at a time when it was possible to convict for murder on the basis of objective foresight alone. The fact that a more stringent causation requirement was used in these first degree murder cases demonstrated, in Cory J.’s opinion, an understandable attempt by the courts to impose an appropriate limitation to the reach of the first degree murder section because of the possibility of convicting of murder persons who had no intention to kill. Cory J. then noted that many of the concerns previously expressed by the courts have disappeared in light of the Supreme Court constitutional jurisprudence imposing a subjective mens rea for murder.

I refer to the link between causation and the fault element in crime, represented in homicide by foresight of death or bodily harm, whether subjective or objective, because it serves to confirm that the law of causation must be considered to be a principle of fundamental justice akin to the doctrine of mens rea. The principle of fundamental justice which is at stake in the jurisprudence dealing with the fault element in crime is the rule that the morally innocent should not be punished. This was the premise acceptable to all the judges in Creighton. McLachlin J. said, at pp. 60-61:
I agree with the Chief Justice that the rule that the morally innocent not be punished in the context of the objective test requires that the law refrain from holding a person criminally responsible if he or she is not capable of appreciating the risk.
In my opinion, causation is embodied in the same principle of fundamental justice and it requires that the law should refrain from holding a person criminally responsible for consequences that should not be attributed to him or her. This is so because criminal causation as a legal rule is based on concepts of moral responsibility, rather than on demonstrable mechanical or scientific formulas. This is expressed by Glanville Williams in the following terms:
When one has settled the question of but-for causation, the further test to be applied to the but-for cause in order to qualify it for legal recognition is not a test of causation but a moral reaction. The question is whether the result can fairly be said to be imputable to the defendant . . . If the term “cause” must be used, it can best be distinguished in this meaning as the “imputable” or “responsible” or “blameable” cause, to indicate the value-judgment involved. The word “imputable” is here chosen as best representing the idea. Whereas the but-for cause can generally be demonstrated scientifically, no experiment can be devised to show that one of a number of concurring but-for causes is more substantial or important than another, or that one person who is involved in the causal chain is more blameworthy than another.
(Williams, Textbook of Criminal Law, 2nd ed. (1983), at pp. 381-82.)
This finds support in Hart and Honoré, supra, in the chapters dealing with causation and responsibility, and causation and the principles of punishment. Moral judgment is engaged when causation is used not merely as an explanation for the unfolding of events, but as a way of making people account for their contribution to a result. The morally innocent could be wrongly punished if criminal causation was reduced to a simple sine qua non requirement.

This link between causation and the fault element, both being based on the same notion of moral responsibility, leads me to conclude that the appellant’s argument cannot succeed in light of Creighton. Not only must I consider that the approval of Smithers by McLachlin J., although obiter, disposes of the issue; more importantly, I think that the articulation of the fault element in unlawful act manslaughter in Creighton removes any danger that the de minimis causation test casts the net so broadly as to risk punishing the morally innocent. As the law of manslaughter stands, if a person commits an unlawful dangerous act, in circumstances where a reasonable person would have foreseen the risk of bodily harm which is neither trivial nor transitory, and the unlawful act is at least a contributing cause of the victim’s death, outside the de minimis range, then the person is guilty of manslaughter. Both causation and the fault element must be proved beyond a reasonable doubt before the prosecution can succeed. Combined in that fashion, both requirements satisfy the principles of fundamental justice in that any risk that the de minimis test could engage the criminal responsibility of the morally innocent is removed by the additional requirement of objective foresight.

Therefore, in my opinion, the appellant’s constitutional challenge fails on the basis of the Supreme Court decision in R. v. Creighton, supra, and the application of s. 1 of the Charter does not arise....

 

R. v. Nette
Supreme Court of Canada
[2001] 3 S.C.R. 488

A 95-year-old widow who lived alone was robbed and left bound with electrical wire on her bed with a garment around her head and neck. Sometime during the next 48 hours, she died from asphyxiation.... The accused was charged with first degree murder under s. 231(5) of the Criminal Code—murder while committing the offence of unlawful confinement—and tried before a judge and jury.... The trial judge charged the jury on manslaughter, second degree murder and first degree murder under s. 231(5) of the Code. In response to a request from the jury that he clarify the elements of first degree murder and the “substantial cause” test, the trial judge essentially reiterated his charge. Overall, he charged that the standard of causation for manslaughter and second degree murder was that the accused’s actions must have been “more than a trivial cause” of the victim’s death while, for first degree murder under s. 231(5), the accused’s actions also must have been a “substantial cause” of her death. On two occasions, however, once in the main charge and once in the re-charge, he described the standard of causation for second degree murder as “the slight or trivial cause necessary to find second degree murder” instead of “more than a trivial cause”. The jury found the accused guilty of second degree murder and the Court of Appeal upheld that verdict....

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

The second sub-question raised is whether there was evidence on the basis of which the jury was entitled to find that it had been established beyond a reasonable doubt that the kick caused the death. In answer to this question it may shortly be said that there was a very substantial body of evidence, both expert and lay, before the jury indicating that the kick was at least a contributing cause of death, outside the de minimis range, and that is all that the Crown was required to establish. [Emphasis added.]
To avoid resorting to the Latin expression, Lambert J.A., in the Court of Appeal’s ruling in this case ((1999), 141 C.C.C. (3d) 130), suggested an English version that I believe adequately reflects Smithers’ beyond de minimis standard (at para. 29):
In the Smithers case the relevant causal standard is described in the words “a contributing cause beyond de minimis”. If one were to avoid the Latin, which a jury may find confusing, the Smithers standard is “a contributing cause that is not trivial or insignificant”. See Crimji 6.45, para.17. [Emphasis added.]
In her reasons, my colleague also refers to the English translation of the Smithers test when she writes (at para. 54): “Since Smithers, the terminology of ‘beyond de minimis’ or ‘more than a trivial cause’ has been used interchangeably with “outside the de minimis range” to charge juries as to the relevant standard of causation for all homicide offences, be it manslaughter or murder.”

The terms “not trivial” and “not insignificant” are accurate and do not alter the Smithers standard which, it is worth noting, has withstood the test of time. As one author points out, Smithers is “the generally authoritative test of causation for all criminal offences” (J. Presser, “All for a Good Cause: The Need for Overhaul of the Smithers Test of Causation” (1994), 28 C.R. (4th) 178, at p. 178). In that regard, my colleague also recognizes that the Smithers causation standard is valid and applicable to all forms of homicide (at paras. 85 and 88):
As discussed above, I conclude that the test of causation is the same for all homicide offences and that it is not appropriate to apply a different standard of causation to the offences of manslaughter and murder. The applicable standard of causation has traditionally been articulated in this country on the basis of the language used in Smithers that the accused must be a cause of the death beyond de minimis. This standard has not been overruled in any subsequent decisions of this Court, including Harbottle.
...
There is only one standard of causation for homicide offences, including second degree murder. That standard may be expressed using different terminology, but it remains the standard expressed by this Court in the case of Smithers, supra. [Emphasis added.]
Having said so, my colleague suggests reformulating the Smithers beyond de minimis test, i.e., “a contributing cause [of death] that is not trivial or insignificant” in the language of a “significant contributing cause”. She asserts that (at para. 70):
There is a semantic debate as to whether “not insignificant” expresses a degree of causation lower than “significant”. This illustrates the difficulty in attempting to articulate nuances in this particular legal standard that are essentially meaningless.
Evidently, my colleague considers that this rephrasing is merely a matter of semantics and, in her view, it does not alter the current test. I respectfully disagree. In my opinion, this issue is a matter of substance, not semantics. There is a meaningful difference between expressing the standard as “a contributing cause that is not trivial or insignificant” and expressing it as a “significant contributing cause”. Changing the terminology of the Smithers test in this manner would drastically change its substance. On this point, I share Professor S. Yeo’s view in his article “Giving Substance to Legal Causation” (2000), 29 C.R. (5th) 215, at p. 219:
I submit that there is a material difference between describing something as “not an insignificant cause” on the one hand, and as “a significant cause” on the other. To ignore this difference is to ignore the reason for the use of a double negative in the first place. While the former description focuses the inquiry at the lower end of the scale of degrees of causation, the latter does not invoke such a focus. Using another set of words to illustrate my argument, when Mary says that she does not dislike John, she means, at most, that she is impartial towards him rather than that she likes him.
To claim that something not unimportant is important would be a sophism. Likewise, to consider things that are not dissimilar to be similar would amount to an erroneous interpretation. In the same vein, a substantial difference exists between the terms “not insignificant” and “significant”, and there is no doubt in my mind that to remove the double negative formulation from the Smithers causation test would effect a radical change to the law. I therefore agree with the position of both the respondent and the intervener that a “significant contributing cause” calls for a more direct causal relationship than the existing “not insignificant” or “not trivial” test, thus raising the standard from where it currently stands. As the respondent explains (see paras. 74 and 76 of the respondent’s factum):
It is further submitted that the term “significant cause” can also imply too high a causation standard. Like the term substantial, “significant” implies an elevated contribution, as the definition of the term includes “conveying information about the value of quantity ... important, notable, consequential.” (The New Shorter Oxford Dictionary, supra at 2860); The Respondent respectfully disagrees with the analysis of Lambert J.A. in the Court of Appeal below ... that the term significant can be equated with the term “not insignificant.” The term insignificant is defined as that which is “of no importance; trivial; trifling; contemptible.” (The New Shorter Oxford Dictionary, supra at 1379). Something that is not trivial or not trifling is not necessarily something that is important.
...
The imposition of a “substantial” or “significant” cause standard in a second degree murder case would permit a trier of fact to find that an accused did intend to cause the death of the victim, and that pursuant to that intent the accused contributed to the victim’s death in a manner that was not minimal, insignificant, or trivial, but then acquit the accused on the basis that the accused’s contribution could not be classified as an “important” [or “significant”] cause of death... . It is submitted that the wording of the standard which most accurately captures the proper broad causation threshold for second degree murder is that which instructs a jury that the accused’s conduct had to be a contributing cause of death which is more than insignificant, minimal, or trivial. [Emphasis added.]
Professor Yeo, in “Blamable Causation” (2000), 24 Crim. L.J. 144, makes an interesting observation in that regard (at p. 148):
The difference between this test [of a “significant contributing cause”] and the one of “beyond the de minimis range” is clearly seen when we place the discussion in the context of the tests for factual and blamable causation. First, the prosecution will have established factual causation if the triers of fact were satisfied that the proscribed result would not have occurred but for the defendant’s conduct. As noted earlier, this “but-for” test is made out if the defendant’s conduct was found to have been a more than trivial or negligible contribution of the result. Passing this initial test renders the defendant’s conduct a “contributing” cause to the result. The prosecution must then proceed to establish blamable causation by persuading the triers of fact that the defendant’s conduct was not just a contributing cause but that it “significantly” contributed to the result. [Emphasis added.]
Accordingly, I find that recasting the Smithers “beyond de minimis” test in the language of a “significant contributing cause” is unwarranted because it raises the threshold of causation for culpable homicide without any reasons for doing so and none, of course, is given since my colleague indicates that the proposed reformulation does not modify the Smithers standard.

Words have a meaning that should be given to them and different words often convey very different standards to the jury. In my view, describing a contributing cause as having a “significant” impact attaches a greater degree of influence or importance to it than do the words “not insignificant”. As a recent editorial of the Criminal Law Journal observes: “Semantics, popular usage of words and expressions, and common sense all have their respective critical roles to play in the determination of causation in the criminal law” (“Semantics and the threshold test for imputable causation” (2000), 24 Crim. L.J. 73, at pp. 74-75)....

In conclusion, I reiterate that the causation test in Smithers remains the law and to rephrase in the language of a “significant contributing cause”, as my colleague suggests, would draw the line at a different place, thus drastically changing the law. I have found no legitimate reason to reformulate the Smithers test, rather it is my opinion that such alteration should be strenuously proscribed since it will elevate the threshold of causation. As a result, I consider the current language of “a contributing cause [of death] that is not trivial or insignificant” to be the correct formulation that trial judges should use when expressing to the jury the standard of causation for all homicide offences.

I would dismiss the appeal.

The judgment of Iacobucci, Major, Binnie, Arbour and LeBel JJ. was delivered by
ARBOUR J.:—

I. Introduction

The present appeal raises the issue of causation in second degree murder. It requires a determination of the threshold test of causation that must be met before an accused may be held legally responsible for causing a victim’s death in a charge of second degree murder. We must also examine how the applicable standard of causation should be conveyed to the jury. ...

2. Factual Background

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

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

VI. Analysis

A. Introduction

There is no issue raised in this appeal with respect to the charge on first degree murder or manslaughter. The appellant’s only ground of appeal is the propriety of the charge on second degree murder and, specifically, the applicable standard of causation for second degree murder. The appellant’s position is that there is one standard of causation applicable to all forms of homicide and that the standard should be conveyed to the jury by using the words “substantial cause” that this Court said applied to the offence of first degree murder under s. 231(5) of the Criminal Code in Harbottle. The appellant says that the trial judge erred in effectively instructing the jury that the Smithers standard of “beyond de minimis” applied to the offence of second degree murder. Had the jurors been properly instructed on the standard of causation applicable to second degree murder, says the appellant, they might have acquitted the appellant on the second degree murder charge. The appellant therefore submits that the appeal should be allowed and a new trial ordered on the ground that the trial judge misdirected the jury on the standard of causation applicable to second degree murder.

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

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

B. The Standard of Causation for Homicide Offences

The parties and intervener on this appeal characterize the decision required of this Court in the present case as a choice between the terminology of “beyond de minimis” on the one hand and “substantial cause” on the other in describing the standard of causation for second degree murder to the jury. In my view, this characterization does not properly reflect the decision that is required in this case. It confuses the question of what the standard of causation for second degree murder is with the question of how the standard of causation for second degree murder should be expressed in charging the jury. In my view, these two separate questions are best dealt with sequentially.

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

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

When one has settled the question of but-for causation, the further test to be applied to the but-for cause in order to qualify it for legal recognition is not a test of causation but a moral reaction. The question is whether the result can fairly be said to be imputable to the defendant... . If the term “cause” must be used, it can best be distinguished in this meaning as the “imputable” or “responsible” or “blamable” cause, to indicate the value-judgment involved. The word “imputable” is here chosen as best representing the idea. Whereas the but-for cause can generally be demonstrated scientifically, no experiment can be devised to show that one of a number of concurring but-for causes is more substantial or important than another, or that one person who is involved in the causal chain is more blameworthy than another.
In a given case, the jury does not engage in a two-part analysis of whether both factual and legal causation have been established. Rather, in the charge to the jury, the trial judge seeks to convey the requisite degree of factual and legal causation that must be found before the accused can be held criminally responsible for the victim’s death.

While causation is a distinct issue from mens rea, the proper standard of causation expresses an element of fault that is in law sufficient, in addition to the requisite mental element, to base criminal responsibility. The starting point in the chain of causation which seeks to attribute the prohibited consequences to an act of the accused is usually an unlawful act in itself. When that unlawful act is combined with the requisite mental element for the offence charged, causation is generally not an issue. For example, in the case of murder, where an accused intends to kill a person and performs an act which causes or contributes to that person’s death, it is rare for an issue to arise as to whether the accused caused the victim’s death. As I discussed in Cribbin, supra, where the jury is faced with a charge of murder and is satisfied that the accused intended to kill or intended to cause bodily harm that he knew was likely to cause death and was reckless as to whether death occurred, it will rarely be necessary for the trial judge to charge the jury on the standard of causation. In such a case, the mens rea requirement generally resolves any concerns about causation. It would be rare in a murder case where the intention to kill or to cause bodily harm likely to cause death is proven for the accused to be able to raise a doubt that, while he intended the result that occurred, he did not cause the intended result. Where it is established that the accused had the subjective foresight of death or serious bodily harm likely to cause death required to sustain a murder conviction, as opposed to the lower manslaughter requirement of objective foreseeability of serious bodily harm, it would be unusual for an issue of causation to arise. Assuming a case arose where intention was established but causation was not proven, a proper verdict might be attempted murder:  Cribbin, at p. 564.

The law of causation is in large part judicially developed, but is also expressed, directly or indirectly, in provisions of the Criminal Code. For example, s. 225 of the Code provides that where a person causes bodily injury that is in itself dangerous and from which death results, that person causes the death notwithstanding that the immediate cause of death is proper or improper treatment. Similarly, ss. 222(5)(c) and 222(5)(d) provide that a person commits culpable homicide where he causes the death of a person by causing that person, by threats, fear of violence or by deception, to do anything that causes his death or by wilfully frightening a child or sick person. These statutory provisions and others like them in the Code preempt any speculation as to whether the act of the accused would be seen as too remote to have caused the result alleged, or whether the triggering of a chain of events was then interrupted by an intervening cause which serves to distance and exonerate the accused from any responsibility for the consequences. Where the factual situation does not fall within one of the statutory rules of causation in the Code, the common law general principles of criminal law apply to resolve any causation issues that may arise.

In light of the statutory rules mentioned above, and in light of general principles of criminal responsibility, the civil law of causation is of limited assistance. The criminal law does not recognize contributory negligence, nor does it have any mechanism to apportion responsibility for the harm occasioned by criminal conduct, except as part of sentencing after sufficient causation has been found. In the same way it provides for the possibility of attributing responsibility through the law of attempt, which has no equivalent in the civil context. As a result, I do not find the appellant’s submissions relating to the civil standard of causation to be helpful in elucidating the applicable criminal standard.

In determining whether an accused is guilty of first or second degree murder, the first step for the trier of fact is to determine whether murder has been committed, pursuant to ss. 229 or 230 of the Criminal Code:  Farrant, supra, at p. 141. Once this has been established, the remaining question is whether the offence should be classified as first or second degree murder in accordance with the criteria set out in s. 231 of the Code, which is, in essence, a sentencing provision:  Farrant, supra; R. v. Droste, [1984] 1 S.C.R. 208; R. v. Paré, [1987] 2 S.C.R. 618; R. v. Arkell, [1990] 2 S.C.R. 695; R. v. Luxton, [1990] 2 S.C.R. 711, and Harbottle, supra. Where, as here, the Crown relies on s. 231(5) of the Code, the jury must first find that the accused is guilty of murder before moving on to a consideration of whether the accused’s participation in the underlying offence and in the killing of the victim was so direct and substantial that a conviction for first degree murder is appropriate.

C. Did Harbottle Raise the Standard of Causation?

This Court has previously examined the issue of causation in the homicide context in relation to manslaughter in Smithers, supra, and in relation to first degree murder under s. 231(5) of the Code in Harbottle, supra. In considering causation in relation to second degree murder in the present cause, it is helpful to first discuss the facts and legal principles set out in Smithers and Harbottle, before moving on to a consideration of whether Harbottle raised the standard of causation for first degree murder under s. 231(5) of the Code only or for homicide offences generally. [Arbour J. reviews Smithers and continues:]

Since Smithers, the terminology of “beyond de minimis” or “more than a trivial cause” has been used interchangeably with “outside the de minimis range” to charge juries as to the relevant standard of causation for all homicide offences, be it manslaughter or murder. The standard of causation was more recently revisited by this Court in Harbottle, supra, in relation to a conviction of first degree murder under s. 214(5) (now s. 231(5)) of the Criminal Code. Harbottle involved the rape, forcible confinement and killing of a young woman. The appellant and his accomplice forcibly confined the victim and the appellant watched as his accomplice brutally sexually assaulted her and mutilated her with a knife. His accomplice then proceeded to kill the victim, first trying to slash her wrists and, when that proved unsuccessful, strangling her with her brassiere. To stop the victim from kicking to defend herself, the appellant held down her legs so that his accomplice could succeed in strangling her.

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

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

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

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

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

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

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

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

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

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

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

D. Explaining the Standard of Causation to the Jury

As I discussed earlier, it is important to distinguish between what the legal standard of causation is and how that standard is conveyed to the jury. The difference between these two concepts has been obscured somewhat in the present case by the parties’ focus on the terminology used to describe the standard of causation. I agree with the appellant’s submission that there is only one standard of causation for all homicide offences, whether manslaughter or murder. However, I do not agree with the appellant that the standard must be expressed for all homicide offences, including second degree murder, as one of “substantial cause” as stated in Harbottle. Nor must the applicable standard be expressed with the terminology of “beyond de minimis” used in the Smithers standard. ...

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

There is a semantic debate as to whether “not insignificant” expresses a degree of causation lower than “significant”. This illustrates the difficulty in attempting to articulate nuances in this particular legal standard that are essentially meaningless. I agree with Lambert J.A. that even if it were desirable to formulate a causation test for second degree murder that is higher than the Smithers standard for manslaughter but less strict than the Harbottle standard for first degree murder under s. 231(5), which I conclude it is not, it would be difficult to formulate such a test in a meaningful way and even more difficult for a jury to grasp the subtle nuances and apply three different standards of causation.

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

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

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

E. Is Causation an Issue on the Facts of the Present Appeal?

As I mentioned earlier, causation issues rarely arise in murder offences. Thus, in the usual case, it will be unnecessary for the trial judge to explain the applicable standard of causation to the jury in relation to either second degree murder or first degree murder. Causation issues arise more frequently in manslaughter cases, in which the fault element resides in a combination of causing death by an unlawful act, or by criminal negligence, and mere objective foreseeability of death. As the cases illustrate, causation issues tend to arise in factual situations involving multiple parties (e.g. Harbottle), thin skull victims (e.g. Smithers), intervening events (e.g. Hallett) or some combination of these factors.

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

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

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

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

The question to be asked is whether an act or series of acts (in exceptional cases an omission or series of omissions) consciously performed by the accused is or are so connected with the event that it or they must be regarded as having a sufficiently substantial causal effect which subsisted up to the happening of the event, without being spent or without being in the eyes of the law sufficiently interrupted by some other act or event.
Unlike Hallett, no intervening causes arose in the present case between the appellant’s action and the victim’s death.

Nor does this case present an illustration of the operation of the thin-skull rule in the criminal context. The thin-skull rule, which is a long-standing principle of tort law, provides that a wrongdoer must take his victim as he finds him: Dulieu v. White, [1901] 2 K.B. 669; Athey v. Leonati, [1996] 3 S.C.R. 458. Thus, the fact that a victim’s head injuries are aggravated beyond what would normally be expected because of the victim’s unusually thin skull does not relieve a tortfeasor of liability for the full extent of the harm that resulted from his wrongdoing. That principle applies equally in the criminal context and is reflected, in part, in ss. 222(5)(d) and 226 of the Criminal Code. As expressed by McLachlin J., as she then was, in Creighton, supra, at p. 52:
The thin-skull rule is a good and useful principle. It requires aggressors, once embarked on their dangerous course of conduct which may foreseeably injure others, to take responsibility for all the consequences that ensue, even to death.
The potential harshness of the application of the thin-skull rule in the criminal context is mitigated by the requirement that the accused have the requisite mens rea for the offence charged, which consists of “objective foreseeability of the risk of bodily harm which is neither trivial nor transitory, in the context of a dangerous act”:  Creighton, supra, at p. 45.

The present appeal does not present the classic thin-skull scenario where the victim’s death occurred unexpectedly as a result of the victim’s unusual and unforeseeable susceptibility to injury. It is clear on the medical evidence that the victim’s physical conditions related to her advanced age may have hastened her demise. However, there was no evidence to indicate that Mrs. Loski’s death would have occurred without the actions of the appellant and his accomplice. Nor is there any evidence that she was a thin-skull victim whose physical characteristics were unusual for a woman of her age. By all accounts, she was healthy and active. A much younger victim, subjected to the same treatment, may also have failed to survive. An example of a true thin-skull situation is Smithers, the facts of which are discussed earlier. There is also no evidence of any intervening cause which resulted in Mrs. Loski’s death. The various potential causes of death that are advanced by the appellant in the present case would all be caught by the statutory or common law principles that preclude an interruption of the chain of causation such as to eliminate the criminal responsibility of the accused.

In the appellant’s own submission, it is only in cases involving multiple causes that the jury need be charged on the applicable standard of causation. In my view, this is not such a case. The fact that the appellant’s actions might not have caused death in a different person, or that death might have taken longer to occur in the case of a younger victim, does not transform this case into one involving multiple causes. Clearly, where an accused person hog ties an elderly woman, places a ligature of clothing around her neck and abandons her, in the knowledge that she lives alone, without notifying anyone of her plight, it is not unexpected that death will result if no one rescues the victim in time.

In my view, it was unnecessary in this case to instruct the jury on the law of causation for homicide, beyond stating the need to find that the accused caused the death of the victim. I agree with Braidwood J.A. and McEachern C.J.B.C. in the Court of Appeal that there was no plausibility to the appellant’s submission that telling the jury that the standard of causation was “substantial cause” instead of “more than a trivial cause” could possibly have made any difference to the verdict of second degree murder. There was no evidence that anything other than the actions of the appellant and his accomplice caused Mrs. Loski’s death. Mrs. Loski’s death resulted from being left alone hog-tied in her bedroom with a ligature around her neck. Nothing that occurred following the actions of the appellant and his accomplice in tying her up and leaving her alone can be said to have broken the chain of causation linking them with her death. However, in relation to the charge of first degree murder, it was necessary for the trial judge to instruct the jury in accordance with Harbottle under s. 231(5) of the Code, given the requirement that the Crown establish that the physical actions of the accused form an essential, substantial and integral part of the killing of the victim.

As I stated in Cribbin, causation is a legal rule based on concepts of moral responsibility and is not a mechanical or mathematical exercise. On the facts of the present appeal, the jury properly found that the appellant caused Mrs. Loski’s death and must bear legal responsibility for having done so. The central issue at trial was whether there was sufficient evidence of the necessary intent to put the charge of murder to the jury. The defence made an application at trial to withdraw murder from the jury. The question before Wilkinson J. on this application was whether there was some evidence on which the jury could conclude that the appellant meant to cause bodily harm to Mrs. Loski that he knew was likely to cause death within the meaning of s. 229(a)(ii) of the Criminal Code. Wilkinson J. denied the defence application to withdraw the charge of murder from the jury.

In my view, the real issue of concern in this case with respect to the charge of murder was not whether or not the appellant caused the victim’s death, but whether or not he knew that his actions were likely to cause her death. Did he know that the actions taken by him and by his accomplice were likely to cause Mrs. Loski’s death?  Did he know that someone of Mrs. Loski’s age would likely die from the effects of being hog-tied?  Did he anticipate that the gag might slip?  Did he foresee that no one might come by her house and rescue her before she died?

F. The Charge to the Jury and the Verdict

As discussed above, I conclude that the test of causation is the same for all homicide offences and that it is not appropriate to apply a different standard of causation to the offences of manslaughter and murder. The applicable standard of causation has traditionally been articulated in this country on the basis of the language used in Smithers that the accused must be a cause of the death beyond de minimis. This standard has not been overruled in any subsequent decisions of this Court, including Harbottle.

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

VII. Conclusion and Disposition

For these reasons, I conclude that the trial judge correctly charged the jury on the applicable standard of causation for second degree murder in expressing the standard as one in which the accused must have been more than an insignificant or trivial cause of the victim’s death. There is only one standard of causation for homicide offences, including second degree murder. That standard may be expressed using different terminology, but it remains the standard expressed by this Court in the case of Smithers, supra. The terminology of substantial cause in Harbottle is used to indicate the increased degree of participation in the killing that is required to raise the accused’s culpability to first degree murder under s. 231(5) of the Code. Harbottle did not raise the standard of causation that applies to all homicide offences from the standard expressed in Smithers....

 

R. v. Sinclair
[2009] M.J. No. 252
Manitoba Court of Appeal

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

.... The law of intervening cause is not highly developed in Canada. However, both the Supreme Court of Canada and this Court have said that the effect of the accused's acts must have subsisted up to the happening of the event, without being spent or without being in the eyes of the law sufficiently interrupted by some other act or event: R. v. Hallett, [1969] S.A.S.R. 141 (Australia S.C.); R. v. Harbottle, [1993] 3 S.C.R. 306 (S.C.C.), at 324; R. v. Nette, 2001 SCC 78, [2001] 3 S.C.R. 488 (S.C.C.) at para. 78; R. v. Reid, 2003 NSCA 104, [2003] N.S.J. No. 360 (N.S. C.A.) at paras. 72-73.

47     While foreseeability of risk is sometimes used in the analysis for the concept of intervening act, we prefer the descriptors extraordinary or unusual. This avoids confusion with the question of foreseeability that arises in the context of the mens rea analysis. As already noted, both Arbour J. in Nette, and Cromwell J.A. in Tower, referred to Hallett, in which the South Australia Supreme Court indicated that "extraordinary" as opposed to the "ordinary" operation of natural forces can constitute an intervening event....
48     Thus, the intervening act must, in some way, be extraordinary or unusual. Being run over by a car when left helpless, lying in the middle of the road, is not an extraordinary or unusual event. We repeat the judge's words in her reasons (at para. 40): "They left him in the road, apparently not able to move out of the way. In such circumstances, the ordinary course of events would be that a car may strike him" (emphasis added). We agree with the judge that the condition of Mr. McLean's car and his momentary inattention "[do] not change this" (at para. 36).

 

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

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

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

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

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

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

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

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

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LRCC § 2(6)

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MPC § 2.03

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Chapter 10. Inchoate Crimes

A. Attempt

1. Concepts and Types of Attempt

LRCC § 4(3)

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StGB §§ 22-23

* * *

MPC §§ 5.01, 5.05(1)

2. Mens Rea

 

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

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

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

“Alexander Von Heyking was a student at the University of British Columbia. He had a part time job as a taxi-driver in the City of Vancouver. On the night of April 28, 1970 he was flagged down by Lajoie and a female companion and directed to drive to a West End address. On arrival, Lajoie locked the driver’s door and before Von Heyking had turned around. Lajoie fired a shot which missed Von Heyking. When the driver turned he saw Lajoie holding a small black hand gun and while he was shaking it Lajoie said, “Give me your money.” Lajoie and the female alighted from the car. The driver radioed for help and then got out and ran. Lajoie ran after him. When Lajoie was some 30 feet behind him, Von Heyking felt his arm suddenly go numb. Lajoie turned and ran and the driver hailed a passing car which took him to the hospital. There was blood on the back of the driver’s shirt some six inches below the shoulder and he correctly concluded that Lajoie had shot him. The following morning a surgeon extracted the bullet. It had passed about an inch below the level of the artery, about an inch from one of the lungs and about three inches from the heart. It is apparent that the victim luckily escaped death. Lajoie was, inter alia, charged with attempted murder.

In charging the jury, the learned trial Judge said, in part, “in order that this person may be found guilty of the crime of the attempt to murder... you must be satisfied beyond a reasonable doubt that at the time he did that shooting he had the intent to kill that taxi driver.” The jury found the accused guilty, not of attempted murder, as charged, but of the lesser offence of discharging a firearm with intent to endanger life.”
The question of law, which is in issue in this appeal, as a result of the dissent of Taggart J.A., in the Court of Appeal, is as to whether the learned trial Judge should have directed the jury that the intent, which must be established to support a charge of attempted murder, is proven if the jury is satisfied, beyond a reasonable doubt, that the appellant meant to cause bodily harm that he knew was likely to cause death and was reckless whether death ensued or not. Branca J.A., and Nemetz J.A., were of the opinion that the learned trial Judge erred in failing to direct the jury in this way. Taggart J.A., took the opposite view.

The charge of attempted murder is defined by s. 210 {now repealed, replaced by s. 222} of the Criminal Code, 1953-54 (Can.), c. 51 [now R.S.C. 1970, c. C-34] {now R.S.C., 1985, c. C-46}, which reads as follows:
210. Every one who attempts by any means to commit murder is guilty of an indictable offence and is liable to imprisonment for life.
An attempt is defined in and by s. 24 of the Criminal Code as follows:
24(1) Every one who, having an intent to commit an offence, does or omits to do anything for the purpose of carrying out his intention is guilty of an attempt to commit the offence whether or not it was possible under the circumstances to commit the offence.
(2) The question whether an act or omission by a person who has an intent to commit an offence is or is not mere preparation to commit the offence, and too remote to constitute an attempt to commit the offence, is a question of law.
Section 201 (now s. 212) of the Criminal Code defines culpable homicide amounting to murder as follows:
201. {now s. 229} Culpable homicide is murder
(a) where the person who causes the death of a human being
(i) means to cause his death, or
(ii) means to cause him bodily harm that he knows is likely to cause his death, and is reckless whether death ensues or not;
There is judicial authority to support the submissions of both the appellant and the respondent in respect of the issue now in question. The appellant relies upon the judgment of the Appellate Division of the Supreme Court of Alberta in R. v. Flannery (1923), 40 C.C.C. 263, [1923] 3 D.L.R. 689, [1923] 3 W.W.R. 97; the judgment of the Court of Criminal Appeal in R. v. Whybrow (1951), 35 Cr. App. R. 141; and the judgments of the Quebec Court of Queen’s Bench in R. v. Menard (1960), 130 C.C.C. 242, 33 C.R. 224, [1960] Que. Q.B. 398n, and Tousignant v. The Queen (1960), 130 C.C.C. 285, 33 C.R. 234, [1960] Que. Q.B. 767n. The respondent relies upon the later judgment of the Quebec Court of Queen’s Bench in R. v. Walker, [1964] 2 C.C.C. 217, 42 C.R. 311, [1963] Que. Q.B. 578, and the judgment of the Court of Appeal for Ontario in R. v. Ritchie, [1970] 5 C.C.C. 336, [1970] 3 O.R. 417. These authorities were reviewed in the judgments in the Court of Appeal. The difference of view can be illustrated in the following passage from the reasons of Nemetz J.A. [pp. 413-4]:
In charging the jury as he did, the Judge was following a line of authority enunciated in R. v. Flannery, 40 C.C.C. 263. [1923] 3 D.L.R. 689, [1923] 3 W.W.R. 97; R. v. Menard, 130 C.C.C. 242, 33 C.R. 224, [19601 Que. Q.B. 398n; Tousignant v. The Queen, 130 C.C.C. 285, 33 C.R. 234. [1960] Que. Q.B. 767n. and R. v. Whybrow (1951), 35 Cr. App. R. 141 at pp. 146-7. In the Whybrow case, Goddard, L.C.J., said in part:

“In murder the jury is told—and it has always been the law—that if a person wounds another or attacks another either intending to kill or intending to do grievous bodily harm, and the person attacked dies, that is murder, the reason being that the requisite malice aforethought, which is a term of art, is satisfied if the attacker intends to do grievous bodily harm. Therefore, if one person attacks another, inflicting a wound in such a way that an ordinary, reasonable person must know that at least grievous bodily harm will result, and death results, there is the malice aforethought sufficient to support the charge of murder. But, if the charge is one of attempted murder, the intent becomes the principal ingredient of the crime. It may be said that the law, which is not always logical, is somewhat illogical in saying that, if one attacks a person intending to do grievous bodily harm and death results, that is murder, but that if one attacks a person and only intends to do grievous bodily harm, and death does not result, it is not attempted murder, but wounding with intent to do grievous bodily harm. It is not really illogical because, in that particular case, the intent is the essence of the crime while, where the death of another is caused, the necessity is to prove malice aforethought, which is supplied in law by proving intent to do grievous bodily harm.”
With great respect, it is difficult for me to resolve the illogicality referred to by Goddard L.C.J., with such facility. I prefer to follow the reasoning set out by Schroeder J.A., in R. v. Ritchie [1970] 5 C.C.C. 336. [1970] 3 O.R. 417. He said, in part [at pp. 342-3]:
“I feel great difficulty in concluding that the attempt is only proven when a direct intent rather than an indirect intent within the meaning of s. 201(a)(ii)is established. The attempt to commit murder must surely be an attempt to commit the act with the intent as defined in s. 201 (a)(i) and (ii) of the Code. Section 24 and s. 201 must be read together and due regard must be had to both sections in determining whether or not an attempt to murder has been established.
The bare intention does not constitute a crime and an innocent act acquires the quality of criminality only if it is coupled with an unlawful and malicious intent. There is nothing in the statement of this proposition to suggest that the mens rea for attempt should be restricted to direct intention. In R. v. Cunningham, [1957] 2 Q.B. 396at pp. 399-400, the Court of Criminal Appeal adopted the following principle which had been propounded by the late Professor C. S. Kenny in the first edition of his Outlines of Criminal Law published in 1902and repeated at p. 186 of the 16th edition published in 1952:
‘In any statutory definition of a crime, malice must be taken not in the old vague sense of wickedness in general but as requiring either (1) An actual intention to do the particular kind of harm that in fact was done; or (2)recklessness as to whether such harm should occur or not (i.e., the accused has foreseen that the particular kind of harm might be done and yet has gone on to take the risk of it). It is neither limited to nor does it indeed require any ill will towards the person injured.’”
(I note that this quotation from Kenny is substantially repeated in the 19th ed., p. 211.)

In England (vide R. v. Whybrow, supra; R. v. Grimwood, [1962]2 Q.B. 621, and R. v. Loughlin, [1959] Crim. L.R. 518) and in the United States (vide Thacker v. Commonwealth (1922),114 SE 504) the curious result is that a greater blameworthy state of mind must be proven on a charge of attempting to commit murder than of actually committing murder. In essence, these cases hold that on a charge of attempted murder nothing less than an intention to kill must be proven to establish the guilt of the accused. I cannot agree that this is the law in Canada.

I am in agreement with the reasons of the majority in the Court of Appeal. We are concerned in this case with the application of certain specific provisions of the Criminal Code. Section 201 (a) provides that culpable homicide is murder where the person who causes the death of a human being means either: (1) to cause his death, or (2)to cause him bodily harm that he knows is likely to cause death and is reckless whether death ensues or not.

Section 210 of the Criminal Code provides that every one who attempts by any means to commit murder is guilty of an indictable offence and is liable to imprisonment for life. Murder may be committed if the accused means to cause death, but it may also be committed if he means to cause bodily harm knowing that it is likely to cause death and is reckless whether death ensues or not. If it can be established that the accused tried to cause bodily harm to another of a kind which he knew was likely to cause death, and that he was reckless as to whether or not death would ensue, then, under the wording of s. 210, if death did not ensue an attempt to commit murder has been proved.

Section 210, which took effect when the new Criminal Code was proclaimed in 1954, is worded differently from its predecessor, s. 264 of the old [1927] Criminal Code. That section provided that:
264. Every one is guilty of an indictable offence and liable to imprisonment for life who, with intent to commit murder, . . .
There then followed eight paragraphs defining various acts; e.g., the administration of poison, wounding and shooting. The last paragraph, para. (h), read: “by any other means attempts to commit murder,” which wording is similar to the wording of the later s. 210. It should be noted, however, that para. (h) was only operative subject to the preliminary governing words “with intent to commit murder.” When s. 210 was enacted those words were eliminated.

It was those words which were considered in the Flannery case, when they were construed, in their context, as meaning an actual intent to kill.

It was this kind of intent which was in the mind of Goddard, L.C.J., in the Whybrow case when he referred to intent becoming the principal ingredient of the crime of attempted murder.

The word “intent” does not appear in s. 210. It appears in the definition of an attempt in s. 24, but the reference there is to “having an intent to commit an offence.” For the reasons already given, it is my view that, in the light of the wording of s. 210, there may be an intent to do that which constitutes the commission of the offence of murder without that intent being to kill the victim.

This Court dealt with a situation somewhat analogous to the present one in R. v. Trinneer, [1970] 3 C.C.C. 289, 10 D.L.R. (3d) 568, [1970] S.C.R. 638. That case was concerned with the conviction of the accused on a charge of non-capital murder. This charge was based on the application to the accused of s. 21 (2) of the Criminal Code, which provides:
(2) Where two or more persons form an intention in common to carry out an unlawful purpose and to assist each other therein and any one of them, in carrying out the common purpose, commits an offence, each of them who knew or ought to have known that the commission of the offence would be a probable consequence of carrying out the common purpose is a party to that offence.
The accused and a companion, Frank, who was armed with a hunting knife, to the knowledge of the accused, forcibly drove a woman to a lonely point some distance out of Vancouver, with the intention of robbing her. Frank took her some distance from the car, in which the accused remained. Frank inflicted multiple stab wounds on the woman, which resulted in her death.

The issue of law was as to whether, on these facts, the accused knew or ought to have known that the commission of the offence of murder would be a probable consequence of the carrying out of the common purpose of robbery. The Court of Appeal had held that this could only be established if the accused knew or should have known that the death of the deceased would be a probable consequence of carrying out the robbery.

In allowing the appeal and restoring the conviction this Court held that the “commission of the offence,” referred to in s. 21(2), as applied to the offence of murder, contemplated and included commission of that offence in the manner defined in s. 202(a) and/or (d)(now s. 213), which provided:
202. {now s. 230} Culpable homicide is murder where a person causes the death of a human being while committing or attempting to commit . . . robbery . . . whether or not the person means to cause death to any human being and whether or not he knows that death is likely to be caused to any human being, if
(a) he means to cause bodily harm for the purpose of
(i) facilitating the commission of the offence, or
(ii) facilitating his flight after committing or attempting to commit the offence,
and the death ensues from the bodily harm; ...
(d)he uses a weapon or has it upon his person
(i) during or at the time he commits or attempts to commit the offence, or
(ii) during or at the time of his flight after committing or attempting to commit the offence,
and the death ensues as a consequence.
As the offence of non-capital murder was complete when Frank intentionally caused bodily harm to the victim resulting in her death, while committing robbery, whether or not he meant to cause her death or knew that death was likely to be caused, it was not necessary, in applying s. 21 (2) to the accused, to show that he knew or ought to have known that death was a probable consequence of carrying out the robbery.

In relation to the present case the important point is that, in applying s. 21 (2) to the offence of murder, this Court held, in the Trinneer case, that “the commission of the offence” meant commission in any of the ways contemplated by the Criminal Code and not merely its commission in the form of an intentional killing. Similarly, in my opinion, when s. 24(1) refers to “an intent to commit an offence,” in relation to murder it means an intention to commit that offence in any of the ways provided for in the Criminal Code, whether under s. 201{now s. 229} or under s. 202 {now s. 230}.

I would dismiss the appeal.

Appeal dismissed.

 

R. v. Ancio
Supreme Court of Canada
[1984] 10 C.C.C. (3d) 385

McINTYRE J.:—This appeal involves consideration of the mental element required for proof of the crime of attempted murder, the subject of this Courts earlier judgment in Lajoie v. The Queen (1973), 10 C.C.C. (2d) 313, 33 D.L.R. (3d) 618, [1974] S.C.R. 399.

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

Shortly after his arrest the respondent stated to the police:

I just went over to see my wife. I had phoned her earlier. I broke the window and went in. Then I heard what sounded like a gun go off. You are lucky you got there when you did. I had him by the throat and I would have killed him.
According to the respondent’s account of events, the gun was discharged accidentally, although under tests conducted by the police the weapon was not found to be prone to accidental discharge.

The respondent was charged with a number of offences arising out of this affair but only one, that of attempted murder, is involved in this appeal. It was contained in the first count of the information and was in these terms:
. . . did attempt to murder Michael Kurely by discharging a sawed off shotgun at him contrary to s. 222 {now s. 239} of the Criminal Code of Canada.
He elected trial by judge alone and was convicted. The conviction was quashed in the Court of Appeal and a new trial directed [63 C.C.C. (2d) 309, 34 O.R. (2d) 437]. This appeal is taken by leave of this Court. ...

The Crown contended in this Court that the Court of Appeal was in error in holding that the mens rea in attempted murder was limited to an intention to cause death (s. 212(a)(i) {now s. 229(a)(i)}), or an intention to cause bodily harm knowing it to be likely to cause death and being reckless whether death ensues (s. 212(a)(ii)). The Crown’s position was stated in its factum in these words:
...the intention for attempted murder is not restricted to an actual intention to kill or an intention to cause grievous bodily harm that one knows is likely to cause death and is reckless whether death ensues or not, but extends to an intention to do that which constitutes the commission of the offence of murder as defined in ss. 212 and 213 {now s. 229 and 230} of the Criminal Code. It is the Crown’s position that s. 24 and s. 213(d) in combination form the basis for a conviction of attempted murder. (Emphasis added.)
The respondent supported the judgment of the Court of Appeal which followed the judgment of this Court in Lajoie v. The Queen (1973), 10 C.C.C. (2d) 313, 33 D.L.R. (3d) 618, [1974] S.C.R. 399. In that case it was held that a conviction for attempted murder could be sustained where the Crown had shown on the part of the accused either an intent to kill the potential victim or an intent to cause bodily harm which he knows is likely to cause death and is reckless whether death ensues or not. Although reference was made in Lajoie to the possibility of committing attempted murder as defined in s. 213 (see concluding sentence on p. 319 C.C.C., p. 624 D.L.R., p. 408 S.C.R.), the respondent and the Court of Appeal in the case at bar adopted the view that this was merely obiter and MacKinnon A.C.J.O. disposed of the matter in these words [at p. 318]:
To interpret the quoted statement broadly is not necessary to the decision in R. v. Lajoie, supra. I do not read the judgment of the Court to require us to give it the consequences I have recited. The essential issue determined by R. v. Lajoie was that there can be a finding of an attempt to murder when it is proven beyond a reasonable doubt that the accused meant to cause the victim bodily harm which he knew was likely to cause death and was reckless whether death ensued or not.
The respondent submitted that the Crown’s position, that s. 213(d) coupled with s. 24(1) described a further intent sufficient to warrant a conviction for attempted murder, should not be accepted because there was no authority to extend the concept of a constructive intent further than Lajoie had taken it. While contending on the facts of this case that he was not obliged to go further, he argued that in reason and logic a specific intent to kill should be the only intent sufficient to ground a conviction for attempted murder. It was said that the effect of the Crown’s argument in extending the concept of an attempt to s. 213(d) of the Criminal Code would be to justify a conviction for attempted murder in the absence of any mental element with respect to the causing of death which would be to ignore the words of s. 24(1) specifically requiring an intent to commit the offence in question.

Lying at the heart of the controversy which arises in this case is the judgment of this Court in Lajoie, supra....

A great deal of the confusion surrounding the nature of the intent required to found a conviction for attempted murder may well stem from an assumption that murder and attempted murder are related offences which must share the same mental elements. A brief review of the historical development of the law relating to the two offences demonstrates that the crime of attempt developed as a separate and distinct offence from the offence of murder.

In very early times murder was simply the killing of a human being. The law was concerned with the injury done to the family of the deceased and the compensation which should follow. The consequence of the killing was the important feature and the intent or mens rea was of little if any significance. Special mental elements were recognized in statutes as early as the 13th century, and by the 14th century the concept of malice aforethought had developed (see 13 Richard II Stat. 2, c. 1). Thus two elements came to be recognized in murder: the killing, and the malice aforethought, which in modern times has come to mean the necessary intent or intents.

As the common law developed, the mental element required for the commission of murder expanded to include both constructive intent and knowledge of the likelihood of death as a result of a person’s acts., with recklessness as to whether death ensued or not. ...

The offence of attempts developed much later than the offence of murder. In early times an attempt to commit an offence was not itself a crime. It was considered that in the absence of a guilty act intention alone was not punishable. The modern offence of attempting the commission of a crime is said to have its origin in the Court of Star Chamber. An early venture into this field is found in The Case of Duels (1615), 2 St. Tr. 1033, which involved proceedings against one William Priest for sending a written challenge to duel and one Richard Wright for carrying it and a stick that was to be the measure of the length of the weapons to be employed. It was asserted by Sir Francis Bacon, then Attorney-General, at p. 1041, that:
For the Capacity of this Court, I take this to be a ground infallible: that wheresoever an offence is capital, or matter of felony, though it be not acted, there the combination or practice tending to that offence is punishable in this court as a high misdemeanor. So practice to impoison, though it took no effect; waylaying to murder, though it took no effect; and the like; have been adjudged heinous misdemeanors punishable in this court. Nay, inceptions and preparations in inferior crimes, that are not capital, as suborning and preparing of witnesses that were never deposed, or deposed nothing material, have likewise been censured in this court, as appeareth by the decree in Garnon’s Case.
The court in its decree gave effect to the Attorney-General’s submission saying, in part, at p. 1046:
And the court with one consent did declare their opinion: That by the ancient law of the land, all inceptions, preparations, and combinations to execute unlawful acts, though they never be performed, as they be not to be punished capitally, except it be in case of treason, and some other particular cases of statute law, so yet they are punishable as misdemeanors and contempts: and that this court was proper for offences of such nature.
The practice of the Court of Star Chamber in this respect became firmly established in that court (see Hall, General Principles of Criminal Law, 2nd ed. (1960), p. 565, et seq.) and was in time adopted in the Court of King’s Bench. It has been said that the origin of the doctrine of criminal attempt as it is known in the common law was Lord Mansfield’s judgment in R. v. Scofield (1784), Cald. Mag. Rep. 397. Scofield was charged in an indictment with “wickedly, unlawfully and maliciously intending devising and contriving to feloniously set fire to, burn and consume a certain house”. ...

In Canada the common law offence of attempt was codified in the 1892 Criminal Code as s. 64...

It is clear from the foregoing that in common law and under the criminal law of Canada criminal attempt is itself an offence separate and distinct from the crime alleged to be attempted. As with any other crime, the Crown must prove a mens rea, that is, the intent to commit the offence in question and the actus reus, that is, some step towards the commission of the offence attempted going beyond mere acts of preparation. Of the two elements the more significant is the mens rea. In R. v. Caine, supra, Laidlaw J.A., speaking for the Ontario Court of Appeal, said, at p. 27 C.C.C., p. 488 D.L.R.:
Criminal intention alone is insufficient to establish a criminal attempt. There must be mens rea and also an actus reus. But it is to be observed that whereas in most crimes it is the actus reus which the law endeavours to prevent, and the mens rea is only a necessary element of the offence, in a criminal attempt the mens rea is of primary importance and the actus reus is the necessary element.
and in Russell on Crime, 12th ed., p. 175, it is said:
Since the mischief contained in an attempt depends upon the nature of the crime intended, the criminality lies much more in the intention than in the acts done.
This proposition was accepted by Lord Goddard in Whybrow, supra, at p. 147, where he stated “that the intent becomes the principal ingredient of the crime.”

The common law recognition of the fundamental importance of intent in the crime of attempt is carried forward into the Criminal Code. A reading of s. 24 of the Code and all its predecessors since the enactment of the first Code in 1892 confirms that the intent to commit the desired offence is a basic element of the offence of attempt. Indeed, because the crime of attempt may be complete without the actual commission of any other offence and even without the performance of any act unlawful in itself, it is abundantly clear that the criminal element of the offence of attempt may lie solely in the intent. As noted by Glanville Williams, Criminal Law: The General Part, 2nd ed. (1961), § 207, p. 642, in discussing attempts:
An actus reus ... need not be a crime apart from the state of mind. It need not even be a tort, or a moral wrong, or a social mischief.
The question now arises: What is the intent required for an attempt to commit murder? As has been indicated earlier, the Crown’s position is that the intent required for a conviction on a charge of attempt to murder is the intent to do that which will, if death is caused, constitute the commission of murder as defined in ss. 212 and 213 of the Code, sothat a combination of ss. 24 and 213(d) can form the basis for a conviction of attempted murder. The respondent, on the other hand, argues that although the authorities presently limit the intent to that which would constitute murder as defined in s. 212 of the Code, logic and principle dictate that the intent should be limited to the specific intent to kill described in s. 212(a)(i).

While it is clear from ss. 212 and 213 of the Criminal Code that an unintentional killing can be murder, it is equally clear that whatever mental elements may be involved and whatever means may be employed there cannot be a murder without a killing. Section 24 of the Code defines, in part, the offence of attempt as having an intent to commit an offence. As Estey J. observed in R. v. Quinton (1947), 88 C.C.C. 231 at pp. 236-7, [1948] D.L.R. 625 at p. 630, [1947] S.C.R. 234 at pp. 235-6, in referring to the then s. 72 (now s. 24):
This section requires that one to be guilty of an attempt must intend to commit the completed offence and to have done some act toward the accomplishment of that objective.
The completed offence of murder involves a killing. The intention to commit the complete offence of murder must therefore include an intention to kill. I find it impossible to conclude that a person may intend to commit the unintentional killings described in ss. 212 and 213of the Code. I am then of the view that the mens rea for an attempted murder cannot be less than the specific intent to kill.

As I have said earlier, there is a division of opinion upon this point and strong arguments have been raised in favour of the Crown’s position that a “lesser intent”, such as that provided in s. 212(a)(ii) or even no intent at all relating to the causing of death as provided in s. 213(d), may suffice to found a conviction for attempted murder. This view is supported in Lajoie. In my view, with the utmost respect for those who differ, the sections of the Criminal Code relied on in that case do not support that position.

As noted above, Martland J.’s analysis of the intent required to found a conviction for attempted murder is based primarily on the change in wording of s. 222. In my opinion, emphasis on the amendment of this section is unwarranted for two reasons. First, s. 222 does not define or create the offence of attempted murder. The scheme of the Criminal Code in relation to attempts has been the same from its inception. One section defines the offence of attempts generally (s. 72, now s. 24). Another sets out the penalties for attempts (s. 57, now s. 421), and a third creates a separate penalty for attempted murder (s. 264, s. 210 in Lajoie, now s. 222). Rather than defining or creating an offence, s. 222 merely fixes a penalty for a specific attempt. Despite the categorization of the various means of committing murder set out in the old s. 264, there is no essential difference between the old and the new sections in this respect.

Secondly, the elimination of the words “with intent to commit murder” from s. 264 is not significant. Section 24 defines an attempt as “having an intent to commit an offence”. Because s. 24 is a general section it is necessary to “read in” the offence in question. The offence of attempted murder then is defined as “having an intent to commit murder”. This does not differ from the old s. 264 reference to “with intent to commit murder”, which Martland J. acknowledged was interpreted, in R. v. Flannery, to require the specific intent to kill.

Martland J. placed further emphasis on s. 222 of the Criminal Code by relying on the words “attempts by any means” to support his conclusion that murder may be attempted in any of the “ways” set out in ss. 212 and 213. In my view, the reference to “any means” in s. 222 refers to ways in which a murder could be accomplished, such as by poisoning, shooting, or stabbing. The earlier version of s. 222 (s. 232 in 1892, s. 264 in 1906) listed the various methods by which a killing could be effected, but the illustrations were replaced in the 1953-54 revision with a general reference to murder “by any means”. In any event, ss. 212 and 213 have nothing to do with the means of killing. They are concerned solely with describing the mental elements which will suffice to make a completed killing murder. The fact that certain mental elements, other than an intent to kill, may lead to a conviction for murder where there has been a killing does not mean that anything less than an intent to kill will suffice for an attempted murder.

It was argued, and it has been suggested in some of the cases and academic writings on the question, that it is illogical to insist upon a higher degree of mens rea for attempted murder, while accepting a lower degree amounting to recklessness for murder. I see no merit in this argument. The intent to kill is the highest intent in murder and there is no reason in logic why an attempt to murder, aimed at the completion of the full crime of murder, should have any lesser intent. If there is any illogic in this matter, it is in the statutory characterization of unintentional killing as murder. The mens rea for attempted murder is, in my view, the specific intent to kill. A mental state falling short of that level may well lead to conviction for other offences, for example, one or other of the various aggravated assaults, but not a conviction for an attempt at murder. For these reasons, it is my view that Lajoie should no longer be followed.

I would accordingly dismiss the Crown’s appeal and confirm the Court of Appeal’s order for a new trial.

[Dickson, Beetz, Estey, Chouinard, Lamer, and Wilson JJ. concurred with McIntyre J. Ritchie J., dissenting, would have followed Lajoie.]

Appeal dismissed.

 

3. “Actus Reus”: Incomplete Attempts

 

R. v. Cline
Ontario Court of Appeal
[1956] 115 C.C.C. 18

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

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

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

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

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

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

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

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

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

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

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

[A number of authorities were then examined.]

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

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

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

Criminal intention alone is insufficient to establish a criminal attempt. There must be mens rea and also an actus reus. But it is to be observed that whereas in most crimes it is the actus reus which the law endeavours to prevent, and the mens rea is only a necessary element of the offence, in a criminal attempt the mens rea is of primary importance and the actus reus is the necessary element.

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

“It may perhaps be permissible to emphasize this by saying that in most crimes the mens rea is ancillary to the actus reus, but in the attempt the actus reus is ancillary to the mens rea.
Likewise, the learned author of Russell on Crime, 10th ed., vol. 2, p. 1784, says: “Since the mischief contained in an attempt depends upon the nature of the crime intended, the criminality lies much more in the intention than in the acts done. Hence, the courts sought for proof only of a sufficient physical element to satisfy the maxim that mens rea alone is not a crime.”

While it is not difficult to define the mens rea of an attempt, a precise and satisfactory definition of the actus reus is perhaps impossible. Jervis C.J. said in R. v. Roberts (1855), Dears. 539 at p. 550, 169 E.R. 836, referred to in Russell, op. cit., p. 1787, note 22: “‘It is difficult, and perhaps impossible, to lay down a clear and definite rule to define what is, and what is not, such an act done, in furtherance of a criminal intent, as will constitute an offence.”

Kenny’s Outlines of Criminal Law, 14th ed., p. 82, says: “No abstract test can be given for determining whether an act is sufficiently proximate to be an ‘attempt’.”

It may, however, be said with authority that: “An actus reus...need not be a crime apart from the state of mind. It need not even be a tort, or a moral wrong, or a social mischief.” Glanville Williams, op. cit., s. 150, p. 494.

The consummation of a crime usually comprises a series of acts which have their genesis in an idea to do a criminal act; the idea develops to a decision to do that act; a plan may be made for putting that decision into effect; the next step may be preparation only for carrying out the intention and plan; but when that preparation is in fact fully completed, the next step in the series of acts done by the accused for the purpose and with the intention of committing the crime as planned cannot, in my opinion, be regarded as remote in its connection with that crime. The connection is in fact proximate.

After considering the nature of a criminal attempt and the principles as they were developed and established in the common law, together with the cases to which I have referred, and others, I state these propositions in my own words to guide me in the instant case: (1) There must be mens rea and also an actus reus to constitute a criminal attempt, but the criminality of misconduct lies mainly in the intention of the accused. (2) Evidence of similar acts done by the accused before the offence with which he is charged, and also afterwards if such acts are not too remote in time, is admissible to establish a pattern of conduct from which the Court may properly find mens rea. (3) Such evidence may be advanced in the case for the prosecution without waiting for the defence to raise a specific issue. (4) It is not essential that the actus reus be a crime or a tort or even a moral wrong or social mischief. (5) The actus reus must be more than mere preparation to commit a crime. But (6) when the preparation to commit a crime is in fact fully complete and ended, the next step done by the accused for the purpose and with the intention of committing a specific crime constitutes an actus reus sufficient in law to establish a criminal attempt to commit that crime.

I apply those propositions to the evidence in the instant case. The appellant intended to commit the crime of indecent assault. He made a plan in detail to carry out his intention. The plan comprised a series of acts which form a clear-cut pattern of conduct, and the accused followed that pattern of conduct on all occasions. On the occasion in question, and in precise accordance with that pattern of conduct, he chose a time and place where he might procure a victim necessary for the consummation of the crime. He went to that place at the chosen time. Before or after doing so he put on large sun-glasses to disguise his identity. He then waited for the opportunity to pursue his planned conduct to the end. His preparation to commit the intended crime was fully complete. He was ready to embark on the course of committing the intended crime. It was necessary only to lure a victim to a secluded place. He approached Peter C. and, with deliberately planned falsehood and deceit, endeavoured to persuade that young boy to accompany him. If the boy had been successfully lured to a destination chosen by the appellant, can there by any reasonable doubt that the crime of indecent assault would have been committed by the accused? If the conduct of the accused did not amount to an attempt to commit that crime, then I know not what it was. The acts of the appellant from the first moment he approached Peter C. were not preparation. They were not too remote to constitute an attempt to commit, the offence of indecent assault, and I so decide as a matter of law pursuant to s. 24(2) of The Criminal Code.

My opinion is the result of the application of the relevant principles of law to the particular facts in this case. Therefore, I do not derive much help from decisions in other cases involving different facts. However, I mention the following cases: [A number of cases were noted, including Barker.]

R. v. Barker, [1924] N.Z.L.R. 865. The act of the accused in walking with a boy, and with the intention of committing an indecent assault upon him, was held a sufficient act to constitute an attempt to commit that offence. ...

My conclusion is that the conviction for the offence of indecent assault and the sentence imposed by the learned magistrate for that offence should be set aside. In place thereof this Court should find the appellant guilty of an attempt to commit the offence of indecent assault with which he was charged, and this Court should sentence the appellant to a term of imprisonment of five years. I would not interfere with the sentence of preventive detention imposed on the appellant by the learned magistrate.

Conviction for assault set aside
and one for attempt substituted.

 

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

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

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

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

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

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

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

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

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

Neither of the respondents testified in his defence.

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

Section 24 of the Code defines an attempt as follows:

24.(1) Every one who, having an intent to commit an offence, does or omits to do anything for the purpose of carrying out his intention is guilty of an attempt to commit the offence whether or not it was possible under the circumstances to commit the offence.
(2) The question whether an act or omission by a person who has an intent to commit an offence is or is not mere preparation to commit the offence, and too remote to constitute an attempt to commit the offence, is a question of law. (Emphasis supplied.)
In order to establish the commission of the offence of attempted robbery charged, it was necessary for the Crown to prove that the respondents:
1. Intended to do that which would in law amount to the robbery specified in the indictment (mens rea), and
2. took steps in carrying out that intent which amounted to more than mere preparation (actus reus).

By virtue of s. 24(2) of the Code, the existence of element (i) is a question of fact, but whether the steps taken are sufficient to satisfy element (ii)is a question of law.

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

(1) There must be mens rea and also an actus reus to constitute a criminal attempt, but the criminality of misconduct lies mainly in the intention of the accused....
(5) The actus reus must be more than mere preparation to commit a crime. But (6) when the reparation [sic] to commit a crime is in fact fully complete and ended, the next step done by the accused for the purpose and with the intention of committing a specific crime constitutes an actus reus sufficient in law to establish a criminal attempt to commit that crime.
Thus, proof of the respondents’ intention to commit the robbery particularized in the indictment, which is a question of fact, was the central issue in the case. Mr. Doherty for the Crown contended before us that on the facts found by the trial Judge, he erred in law in failing to draw the legal conclusion of guilt required by the facts accepted by him as proved, and, in particular, erred in law in holding that the acts of the respondents, found by him to have been proved, had not gone beyond mere preparation. Counsel for the respondents, on the other hand, contended that the trial Judge’s reasons for judgment, considered in their entirety, show that he acquitted the respondents because he entertained a reasonable doubt whether they had the intent to rob the Aunt Lucy’s store, the existence of which intent was essential to constitute the attempt charged.

A detailed examination of the trial Judge’s reasons for judgment is necessary in order to endeavour to ascertain the basis upon which he acquitted the respondents. The trial Judge said:
Turning to count 1, that is the count that effects [sic.] both Sorrel [sic.] and Bondett, namely, this attempted robbery count. There are many conclusions that I have drawn from the credible evidence, beyond a reasonable doubt, and I say that those conclusions complete substantially the Crown’s case subject only—and I say only—to the thorny question as to whether or not the events in question constitute an attempt within the meaning of the Criminal Code.
After referring to certain discrepancies in the evidence of the Crown witnesses, which he did not consider material, the trial Judge continued:
The Crown’s case on count 1 has been proved beyond a reaonable [sic.] doubt in my finding on the matters of identity of the accused, the date, the place and, subject only to what I am going to be saying on the matter of attempt, as to the allegation that the attempted robbery, if there was an attempted robbery, was committed in respect of Peter Mason of Aunt Lucy’s Kentucky Fried Chicken.
He then held that Mr. Mason, as the manager of the store, had the custody of the money in the store, and said:
It brings me down then to the sole remaining question, did what took place at the time and at the place, as referred to by the witnesses Arbuckle and Mason, constitute an attempt at robbery? I may say that I found the evidence of both of those witnesses to be satisfactory, credible, and my findings are based on that evidence. I as well look to the evidence at the trial as to the manner of departure from the premises—from in front of the premises—by the two accused and the actions that they were performing when seen and practically immediately apprehended by the police. I am finding that between them they rid themselves of the balaclavas which could raise the inference of guilty mind; but that, of course, raises the question: a mind having a sense of guilt of what? They may have thought that what they did at the front of the store was criminal in some way and that they should take some steps to cover up—whether they were right in that belief or not. Was what they had actually done illegal as being an attempt to rob, whether they believed it or not, that still leaves to me the question: was what they did within the ambit of an attempt to rob? The inference is pretty plain, and I think I would be naive to conclude otherwise, that they were up to no good on that occasion, that they may well have had robbery of the store in mind. But, again, I am driven back to the provisions of the Code that differentiate between mere preparation and the actual commencement of steps to commit the robbery.

I am obliged to counsel for their references to cases on the point, one of which endeavours to lay down tests for the assistance of the Court, and subsequent cases, but all of which have their own set of facts and circumstances with which the Court then in those cases had to deal. It is an extremely thin line, but whether thin or otherwise, if my finding is that that line had been crossed beyond mere preparation, the finding—if it were to be made—that the line had been crossed would be sufficient to bring me to a conclusion beyond a reasonable doubt. Nevertheless, the fineness of the line is a bother to me. I am conscious of the fact that the accused timed their arrival at the store such that they could expect a fund of money to be in the till, such they could expect there would likely be few if any persons there other than the store personnel, and that they had costumed themselves for the purpose of disguising their features to render subsequent identification difficult, but I am also of the view that it is important for me to consider the fact that apart from rattling the door and perhaps rattling on the window—that would be consistent with an innocent person’s endeavour to get in the food store—there was no gesture of threat of violence or threat of force. The case before me is attempted robbery and not attempted break, enter and theft, or break and enter with intent, or conspiracy, or whatever. So that the endeavour to open the door would—any way that it should have been before me—what was done by way of attempt to open the door could relate more to a charge of attempted breaking rather than the charge of robbery. In brief, in my finding, the accused by virtue of I suppose good luck of not having been able to progress further in doing whatever they were going to do had not yet crossed the line between mere preparation and attempt. Accordingly, I am finding that count 1 as regards both accused has not been proved on that narrow ground, and I have endorsed the indictment on count 1: both accused not guilty.
It will be observed that while the trial Judge made an express finding that he was satisfied beyond a reasonable doubt that the respondents were the two men who had approached the store, and that one of them had a gun, he made no similar finding with the necessary intent to rob. Mr. O’Hara, on behalf of the respondent Sorrell particularly emphasized the following passages in the trial Judge’s reasons, relative to intent, which Mr. O’Hara characterized as “powerful expressions of doubt”, namely: “...they may well have had robbery of the store in mind”, and “...what was done by way of attempt to open the door could relate more to a charge of attempted breaking rather than the charge of robbery”. In our view, the trial Judge’s reasons are more consistent with a finding that the necessary intent to commit a robbery was not proved beyond a reasonable doubt, than with a finding that such intent was established by the evidence. In any event, the Crown has not satisfied us that the trial Judge found the existence of an intent to rob.

The Crown’s right of appeal under s. 605(1)(a) of the Code is confined to a ground of appeal that involves a question of law alone. The failure of the trial Judge to draw the appropriate inference of intent from the facts as found by him, is an error of fact, and does not raise a question of law. ...

If the trial Judge had found that the respondents intended to rob the store, the acts done by them clearly had advanced beyond mere preparation, and were sufficiently proximate to constitute an attempt: see Hendersen v. The King (1948), 91 C.C.C. 97, [1949] 2 D.L.R. 121, [1948] S.C.R. 226, per Kerwin, J., at p. 98 C.C.C., p. 228 S.C.R., per Estey, J., at pp. 114-16 C.C.C., pp. 243-6 S.C.R., per Locke, J., at pp. 116-17 C.C.C., p. 246 S.C.R.; R. v. Carey (1957), 118 C.C.C. 241, [1957] S.C.R. 266, 25 C.R. 177, per Kerwin, C.J.C., at pp. 246-7, per Rand, J., at p. 251. If the trial Judge had found that the respondents had the necessary intent his finding that the acts done by the respondents did not go beyond mere preparation and did not constitute attempted robbery, would constitute an error of law that would not only warrant, but require our intervention.

Because of the doubt that he entertained that the respondents had the necessary intent to commit robbery, however, his error in law in holding that the respondents’ acts did not go beyond mere preparation, could not have affected the verdict of acquittal, unless, of course, his self-misdirection with respect to what constituted mere preparation, led him into error in entertaining a reasonable doubt whether the requisite intent had been proved. This question is one of considerable difficulty. The following passage (included in those previously quoted), would tend to support the conclusion that the trial Judge was led into error with respect to the existence of the necessary intent by self-misdirection that the respondents’ acts had not gone beyond mere preparation:
It is an extremely thin line, but whether thin or otherwise, if my finding is that that line had been crossed beyond mere preparation, the finding—if it were to be made—that the line had been crossed would be sufficient to bring me to a conclusion beyond a reasonable doubt. Nevertheless, the fineness of the line is a bother to me.
The trial Judge then proceeded, however, to refer to the matters in the passages previously quoted, relating to the issue of intent, which gave him difficulty in finding that the required mental element was present. The issue of intent was basic and, the trial Judge, in our view, could not logically or appropriately make a determination whether the acts of the respondents went beyond mere preparation until he had first found the intent with which those acts were done. The issue whether the acts of the respondents went beyond mere preparation could not be decided in the abstract apart from the existence of the requisite intent.

In the present case, there was no evidence of the intent to rob other than that furnished by the acts relied on as constituting the actus reus. There was no extrinsic evidence in the form of statements of intention, or admissions by the respondents showing what their intention was.

The prosecution in this case was forced to rely exclusively upon the acts of the accused, not only to constitute the actus reus, but to supply the evidence of the necessary mens rea. This Court in R. v. Cline, supra, rejected the so-called “unequivocal act” test for determining when the stage of attempt has been reached. That test excludes resort to evidence aliunde, such as admissions, and holds that the stage of attempt has been reached only when the acts of the accused show unequivocally on their face the criminal intent with which the acts were performed. We are of the view that where the accused’s intention is otherwise proved, acts which on their face are equivocal, may none the less, be sufficiently proximate to constitute an attempt. Where, however, there is no extrinsic evidence of the intent with which accused’s acts were done, acts of the accused, which on their face are equivocal, may be insufficient to show that the acts were done with the intent to commit the crime that the accused is alleged to have attempted to commit, and hence insufficient to establish the offence of attempt.

Counsel for the respondents while conceding that the trial Judge’s reasons are not free of ambiguity, submitted that they are reasonably open to the interpretation that he was searching for evidence that satisfied him beyond a reasonable doubt that the accused intended to rob the store in question, and at the end of his quest was not satisfied beyond a reasonable doubt, that the acts done by the accused supplied the necessary proof of intent.

We think that this submission accurately states the basis upon which the trial Judge acquitted the respondents, and the Crown has not satisfied us that but for the self-misdirection with respect to which complaint is made, that the verdict of the trial Judge would not necessarily have been the same. It is not to the point that, on the evidence, we would have reached a different conclusion with respect to the respondent’s intentions.

For the reasons given the appeal must be dismissed.

Appeal dismissed.

 

R. v. Deutsch
Supreme Court of Canada
[1986] 27 C.C.C. (3d) 385; [1986] 2 S.C.R. 2

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

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

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

I

During the period covered by the indictment, which is the three months ending on or about September 3, 1981, the appellant was carrying on a business known as Global Franchises Marketing, which was engaged in selling franchises of various kinds. During this period the appellant placed an advertisement in newspapers in Ottawa, Hamilton and Toronto inviting applications for the position of secretary/sales assistant and conducted interviews with three women who responded to the advertisement and with a police officer who posed as an applicant for the position and recorded the interview on a tape recorder. The advertisement read as follows:

ENJOY TRAVEL
Secretary—Sales Assistant to Sales Executive. $600-$800 per month to start plus commission, bonuses, company benefits and expenses. Must be free to travel extensively. Call 746-2440 ask for Mel.
In the interviews the appellant indicated that a secretary/sales assistant would be expected to have sexual intercourse with clients or potential clients of the company where that appeared to be necessary to conclude a contract. The appellant also indicated that a successful secretary/sales assistant could earn as much as $100,000 per year through commission or bonus on the sale of franchises. The appellant did not make an offer of employment to the three applicants who testified at his trial. After hearing what the position required they said they were not interested and the interviews terminated. Nor did he make an offer of employment to the police officer who posed as an applicant, but when she told him she was interested in the position, despite its requirements, he told her to think it over and let him know.

The appellant was tried upon an indictment containing two counts: attempting to procure female persons to become common prostitutes, and attempting to procure female persons to have illicit intercourse with another person. Graburn Co. Ct. J. acquitted the appellant on both counts. He found that the appellant intended a person hired for the position should have sexual relations with clients or potential clients, but he held, as a matter of law, that the acts or statements of the appellant did not, in the absence of an offer of employment, constitute the actus reus of an attempt to procure. In his opinion they were mere preparation. He accordingly did not find it necessary to decide whether the sexual intercourse contemplated by the appellant would be illicit sexual intercourse within s. 195(1)(a) or make those who engaged in it common prostitutes within s. 195(1)(a), as it then read.

The Ontario Court of Appeal (Martin, Houlden and Robins JJ.A.), 5 C.C.C. (3d) 41, dismissed the appeal from the acquittal on the charge of attempting to procure female persons to become common prostitutes, but allowed the appeal from the acquittal on the charge of attempting to procure female persons to have illicit sexual intercourse with another person and directed a new trial of the appellant on that count of the indictment. The Court held that the trial judge erred in concluding that the acts or statements of the appellant could not, in the absence of an offer of employment, constitute an attempt to procure rather than mere preparation. It held that there was evidence from which the trial judge could have concluded that there was both the mens rea and the actus reus required for an attempt to procure. The Court also held that the sexual intercourse contemplated by the appellant would be illicit sexual intercourse within s. 195(1)(a). The appellant appeals from the judgment of the Court of Appeal with respect to the second count of the indictment.

The appellant, who appeared in person on the appeal, expressed his grounds of appeal in several different ways, but in my opinion there are only two issues that require consideration by the Court:
1. Whether the Court of Appeal erred in holding that the acts or statements of the appellant could, as a matter of law, constitute an attempt to procure rather than mere preparation, and
2. Whether the Court of Appeal erred in holding that the sexual intercourse contemplated by the appellant would be illicit intercourse within s. 195(1)(a) of the Code.
...

III

I turn now to the question whether the acts or statements of the appellant could, as a matter of law, constitute the actus reus of an attempt to procure a person to have illicit sexual intercourse with another person, contrary to s. 195(1)(a) of the Code. The general provision of the Code defining the constituent elements of an attempt to commit an offence is s. 24, which provides:

24.(1) Every one who, having an intent to commit an offence, does or omits to do anything for the purpose of carrying out his intention is guilty of an attempt to commit the offence whether or not it was possible under the circumstances to commit the offence.
(2) The question whether an act or omission by a person who has an intent to commit an offence is or is not mere preparation to commit the offence, and too remote to constitute an attempt to commit the offence, is a question of law.
The issue is whether, if there was the necessary intent, the acts of the appellant were mere preparation to commit the offence of procuring a person to have illicit sexual intercourse with another person or whether any of them was a step in the commission of the offence, and the extent to which that distinction is to turn on the relative remoteness of the act in question from what would have been the completion of the offence. This issue, as s. 24 indicates, is a question of law. The appellant contends that the Court of Appeal erred in holding that one of the acts of the appellant could, if there was the necessary intent, constitute the actus reus of an attempt to procure....

Several different tests for determining whether there is the actus reus of attempt, as distinct from mere preparation to commit an offence, have been identified as reflected at one time or another in judicial decisions and legislation. All of them have been pronounced by academic commentators to be unsatisfactory in some degree. For a thorough analysis of the various tests, with suggestions for an improved test, see Meehan, The Law of Criminal Attempt: A Treatise (1984), ch. 5, and Stuart, Canadian Criminal Law (1982), p. 529 ff.. There is a succinct appraisal of the various tests in the English Law Commission’s Report No. 102 of 1980 entitled, Criminal Law: Attempt, and Impossibility in relation to Attempt, Conspiracy and Incitement. It has been frequently observed that no satisfactory general criterion has been, or can be, formulated for drawing the line between preparation and attempt, and that the application of this distinction to the facts of a particular case must be left to common sense judgment.

In my opinion the distinction between preparation and attempt is essentially a qualitative one, involving the relationship between the nature and quality of the act in question and the nature of the complete offence, although consideration must necessarily be given, in making that qualitative distinction, to the relative proximity of the act in question to what would have been the completed offence, in terms of time, location and acts under the control of the accused remaining to be accomplished. I find that view to be compatible with what has been said about the actus reus of attempt in this Court and in other Canadian decisions that should be treated as authoritative on this question....

In Detering v. The Queen (1982), 70 C.C.C. (2d) 321, 142 D.L.R (3d) 87, [1982] 2 S.C.R. 583, which involved a conviction for attempted fraud, Laskin C.J.C. raised a question, as I read his reasons, as to the weight to be given to the proximity test in the essential task under s. 24 of the Code of distinguishing between preparation and attempt. With reference to the contention of counsel that “proximity was an essential requirement in the sense, to put it generally, that the actions of the accused must go beyond mere preparation and close (a question of degree) to the realization of his purpose”, Laskin C.J.C. said at pp. 3234 C.C.C., pp. 89-90 D.L.R., p. 586 S.C.R.:
This leaves for consideration the so-called proximity principle. It may well be that this is envisaged by the reference to remoteness in s. 24(2), but I do not see that it advances the essential issue in attempt which requires going beyond mere preparation. Nor do I find cogency in the appellant’s submission that if there is impossibility this does not bring any act of the accused closer to realization so as to establish proximity. I read s. 24(1) as making a different distinction, one merely requiring proof of intent and of the accused going beyond mere preparation by making, as in this case, a false representation even though not resulting in full realization of his objective.
In my opinion, relative proximity may give an act which might otherwise appear to be mere preparation the quality of attempt. That is reflected, I think, in the conclusion of the majority in Henderson and in the conclusion of the Ontario Court of Appeal with respect to actus reus in R. v. Sorrell and Bondett (1978), 41 C.C.C. (2d) 9. But an act which on its face is an act of commission does not lose its quality as the actus reus of attempt because further acts were required or because a significant period of time may have elapsed before the completion of the offence.

In the case at bar the Court of Appeal agreed with the trial judge on the applicable meaning of “procure”. The meaning selected by the trial judge and approved by the Court of Appeal was “to cause, or to induce, or to have a persuasive effect upon the conduct that is alleged.” Martin J.A. expressed his agreement at p. 49 with the following statement of the issue by the trial judge: “The question for decision is did Mr. Deutsch attempt to cause or attempt to induce or attempt to have a persuasive effect upon the woman in question to have illicit sexual intercourse with another person. . .”. I agree that the sources referred to by the trial judge and Martin J.A. support the meaning given by them to the word “procure”.

The Court of Appeal differed with the trial judge as to what would have constituted the completed offence of procuring a person to have illicit sexual intercourse with another person. The trial judge held that the offence of procuring would have been completed, in the particular context of this case, by the acceptance of an offer of employment. The Court of Appeal held, citing R. v. Johnson (1963), 48 Cr. App. R. 25, and R. v. Aruba, [1969] 2 C.C.C. 365, 66 W.W.R. 190, that the offence of procuring a person to have illicit sexual intercourse with another person is not committed unless sexual intercourse actually takes place. In the appeal to this Court the respondent accepted this statement of the law as to what is required for the complete offence of procuring a person to have illicit sexual intercourse with another person. It was not challenged, and I accept it for purposes of deciding whether the acts of the appellant could, as a matter of law, constitute the actus reus of an attempt to procure.

I agree with the Court of Appeal that if the appellant had the necessary intent to induce or persuade the women to seek employment that would require them to have sexual intercourse with prospective clients then the holding out of the large financial rewards in the course of the interviews, in which the necessity of having sexual intercourse with prospective clients was disclosed, could constitute the actus reus of an attempt to procure. It would clearly be a step, and an important step, in the commission of the offence. Before an offer of employment could be made in such circumstances an applicant would have to seek the position, despite its special requirement. Thus such inducement or persuasion would be the decisive act in the procuring. There would be little else that the appellant would be required to do towards the completion of the offence other than to make the formal offer of employment. I am further of the opinion that the holding out of the large financial rewards in the course of the interviews would not lose its quality as a step in the commission of the offence, and thus as an actus reus of attempt, because a considerable period of time might elapse before a person engaged for the position had sexual intercourse with prospective clients or because of the otherwise contingent nature of such sexual intercourse.

For these reasons I would dismiss the appeal. I agree with the Court of Appeal that because the trial judge did not make a finding as to whether or not there was the necessary intent to procure there must be a new trial.

Appeal dismissed.

* * *

People v. Lehnert
Supreme Court of Colorado
163 P.3d 1111 (2007)

The defendant, Charity Lehnert, was charged with attempted first degree murder, possession of explosive or incendiary parts, committing a crime of violence, and two less serious offenses of drug possession. She was convicted of all but the drug charges, and she was sentenced to terms of thirty years for attempted murder and six years for possession of explosive devices, to be served concurrently.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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


4. Impossibility

 

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

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

I.  Facts

3      Arye Dynar, a Canadian citizen, was the subject of a failed “sting” operation attempted by the Federal Bureau of Investigation in the United States. Mr. Dynar was indicted together with Maurice Cohen, who is also a Canadian citizen, in the United States District Court of Nevada. The United States indictment charged both Mr. Dynar and Mr. Cohen with one count of attempting to launder money in violation of Title 18, United States Code, sec. 1956(a)(3), and one count of conspiracy to violate Title 18, United States Code, sec. 1956(a)(3), contrary to Title 18, United States Code, sec. 371. The Government of the United States requested their extradition by Diplomatic Note dated November 30, 1992. This appeal relates to the request for the extradition of Mr. Dynar.
4      The events that formed the basis of the indictment began with a telephone call placed on January 2, 1990, from Canada, by Mr. Dynar to a former associate, Lucky Simone, who was living in Nevada. The call was apparently made to seek investors for a business operation in the United States. Lucky Simone had, unbeknownst to Mr. Dynar, become a confidential informant working for FBI agent William Matthews. He informed Agent Matthews of Mr. Dynar’s call, and Agent Matthews requested that Mr. Simone return the call. Mr. Simone gave his consent for Agent Matthews to record the conversation.
5      Affidavit evidence filed by the Requesting State indicates that, during the 1980s, Mr. Dynar was the subject of investigations in the United States pertaining to the laundering of substantial amounts of money originating in the State of Nevada. Agent Matthews’ involvement in the investigation of Mr. Dynar’s activities began in 1988. When Mr. Dynar made contact with Lucky Simone in 1990, Agent Matthews deposed that he decided to determine whether or not Mr. Dynar was still involved in laundering money which was the proceeds of crime. He had Mr. Simone introduce a second confidential informant, known as “Anthony”, to Mr. Dynar. Anthony was instructed to ask if Mr. Dynar would be willing to launder large sums obtained as a result of illegal trafficking. When asked, Mr. Dynar agreed with alacrity to launder money for Anthony.
6      A great many conversations between the two men were recorded over the course of some months. On all of these occasions, Anthony was in Las Vegas, Nevada and Mr. Dynar was in Canada. Eventually, Mr. Dynar and Anthony arranged an initial meeting. The meeting was purportedly to allow Anthony to give money to Mr. Dynar for laundering as a first step towards developing a relationship in which Mr. Dynar would regularly launder money for him. During several of the conversations, it was made clear that the money to be laundered was “drug money”. Mr. Dynar insisted more than once that the amounts had to be large in order to make his efforts worthwhile. The conversations also disclosed that Mr. Dynar had an associate named “Moe”, who was subsequently identified as Maurice Cohen. Agent Matthews recorded all of the conversations in Las Vegas pursuant to the applicable law of the United States, which only requires the consent of one party for the lawful interception of the conversation. Special Agent Charles Pine of the Internal Revenue Service (IRS) was able to identify the voice of Maurice Cohen in the background of several of the conversations.
7      The initial plan of the American authorities was to set up the transfer of funds to Mr. Dynar in the United States. However, Mr. Dynar believed that he was the subject of a sealed indictment in the United States charging him with laundering very large sums of money and that if he travelled to that country, he would be arrested. It was accordingly agreed that Mr. Dynar’s associate, Maurice Cohen, would meet Anthony’s associate in Buffalo. Mr. Cohen was to take the money to Toronto where it would be laundered by Mr. Dynar. It would then be taken back to Buffalo by Mr. Cohen on the following day, after a commission for Mr. Dynar had been deducted.
8      In Buffalo, Mr. Cohen met with Special Agent Dennis McCarthy of the IRS, who was posing as Anthony’s associate. The conversations that took place between them in preparation for the transfer of funds were recorded by Agent McCarthy. They contain several statements to the effect that Mr. Cohen was working for Mr. Dynar, as well as some explanations of the logistics of the laundering scheme. In the end, however, the money was not transferred to Mr. Cohen. The FBI aborted the operation by pretending to arrest Agent McCarthy just prior to the transfer of the money. Mr. Cohen was allowed to return to Canada.
9      A committal hearing under s. 13 of the Extradition Act, R.S.C., 1985, c. E-23, was held before Keenan J. of the Ontario Court (General Division). In support of the request for extradition of Mr. Dynar and Mr. Cohen, the United States as the Requesting State relied upon affidavits from the investigating officers and transcripts of the recorded telephone conversations. This evidence formed the basis for the decision to commit Mr. Dynar for extradition....
12      Mr. Dynar appealed to the Ontario Court of Appeal from Keenan J.’s committal decision, and sought judicial review of the Minister’s decision to order his surrender. Galligan J.A., for a unanimous court, allowed the appeal and the application for judicial review on the basis that the activities of Mr. Dynar would not constitute a criminal offence in Canada, even though they did constitute an offence under the applicable United States law: (1995), 25 O.R. (3d) 559, 85 O.A.C. 9, 101 C.C.C. (3d) 271. Mr. Dynar was therefore discharged.
13      The Minister of Justice and the United States have appealed Mr. Dynar’s discharge....

II. Applicable Legislation

14      The relevant statutory provisions are not the United States provisions under which Mr. Dynar has been indicted, but the provisions of the Canadian Criminal Code, R.S.C., 1985, c. C-46, and the Narcotic Control Act, R.S.C., 1985, c. N-1. It is these enactments which will determine whether the conduct of Mr. Dynar in the United States would constitute offences in this country. See McVey (Re); McVey v. United States of America, [1992] 3 S.C.R. 475.
15      The Criminal Code provision that establishes the substantive "money laundering" offence is:

462.31 (1) Every one commits an offence who uses, transfers the possession of, sends or delivers to any person or place, transports, transmits, alters, disposes of or otherwise deals with, in any manner and by any means, any property or any proceeds of any property with intent to conceal or convert that property or those proceeds and knowing that all or a part of that property or of those proceeds was obtained or derived directly or indirectly as a result of
(a) the commission in Canada of an enterprise crime offence or a designated drug offence; or
(b) an act or omission anywhere that, if it had occurred in Canada, would have constituted an enterprise crime offence or a designated drug offence.
16      A similar offence is contained in the Narcotic Control Act:
19.2 (1) No person shall use, transfer the possession of, send or deliver to any person or place, transport, transmit, alter, dispose of or otherwise deal with, in any manner and by any means, any property or any proceeds of any property with intent to conceal or convert that property or those proceeds and knowing that all or a part of that property or of those proceeds was obtained or derived directly or indirectly as a result of
(a) the commission in Canada of an offence under section 4, 5 or 6; or
(b) an act or omission anywhere that, if it had occurred in Canada, would have constituted an offence under section 4, 5, or 6.
17      The relevant provisions of the Criminal Code which provide criminal liability for attempt and conspiracy are:
24. (1) Every one who, having an intent to commit an offence, does or omits to do anything for the purpose of carrying out the intention is guilty of an attempt to commit the offence whether or not it was possible under the circumstances to commit the offence.
(2) The question whether an act or omission by a person who has an intent to commit an offence is or is not mere preparation to commit the offence, and too remote to constitute an attempt to commit the offence, is a question of law.

465. (1) Except where otherwise expressly provided by law, the following provisions apply in respect of conspiracy:
. . .
(c) every one who conspires with any one to commit an indictable offence not provided for in paragraph (a) or (b) is guilty of an indictable offence and liable to the same punishment as that to which an accused who is guilty of that offence would, on conviction, be liable;
18     Finally, the role of the extradition judge in a committal hearing is provided for under the Extradition Act, as amended by S.C. 1992, c. 13. In particular, the following provisions are relevant to this appeal:
9. . . .
(3) For the purposes of the Constitution Act, 1982, a judge who is a superior court judge or a county court judge has, with respect to the functions that that judge is required to perform in applying this Act, the same competence that that judge possesses by virtue of being a superior court judge or a county court judge.

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

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

...

IV. Issues

35      The major issue which arises on the appeal is whether Mr. Dynar's conduct would have amounted to an offence under Canadian law if it had occurred in Canada. This question in turn has two parts: whether an accused who attempts to do the "impossible" may be guilty of attempt and whether an accused who conspires with another to do the impossible may be guilty of conspiracy....

V. Analysis

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

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

462.31.(1) Every one commits an offence who uses, transfers the possession of, sends or delivers to any person or place, transports, transmits, alters, disposes of or otherwise deals with, in any manner and by any means, any property or any proceeds of any property with intent to conceal or convert that property or those proceeds and knowing that all or a part of that property or of those proceeds was obtained or derived directly or indirectly as a result of [the commission of a designated offence].

19.2.(1) No person shall use, transfer the possession of, send or deliver to any person or place, transport, transmit, alter, dispose of or otherwise deal with, in any manner and by any means, any property or any proceeds of any property with intent to conceal or convert that property or those proceeds and knowing that all or a part of that property or of those proceeds was obtained or derived directly or indirectly as a result of [the commission of a designated offence].

....
47      Because the money that the U.S. undercover agents asked Mr. Dynar to launder was not in fact the proceeds of crime, Mr. Dynar could not possibly have known that it was the proceeds of crime. Therefore, even if he had brought his plan to fruition, he would not have been guilty of any completed offence known to Canadian law. But this is not the end of the story.
48      We conclude that the steps that Mr. Dynar took towards the realization of his plan to launder money would have amounted to a criminal attempt and a criminal conspiracy under Canadian law if the conduct in question had taken place entirely within Canada. We reach our conclusion on the basis of the wording in the applicable provisions of the Criminal Code interpreted in the light of the underlying theory of impossible attempts and conspiracies.

(2) The Law of Attempt
49      The Criminal Code creates the crime of attempt to commit an offence:
24.(1) Every one who, having an intent to commit an offence, does or omits to do anything for the purpose of carrying out the intention is guilty of an attempt to commit the offence whether or not it was possible under the circumstances to commit the offence.
On its face, the statute is indifferent about whether or not the attempt might possibly have succeeded. Therefore it would seem, at first blush, not to matter that Mr. Dynar could not possibly have succeeded in laundering money known to be the proceeds of crime. So long as he attempted to do so, he is guilty of a crime.
50      In our view, s. 24(1) is clear: the crime of attempt consists of an intent to commit the completed offence together with some act more than merely preparatory taken in furtherance of the attempt. This proposition finds support in a long line of authority. See, e.g., R. v. Cline (1956), 115 C.C.C. 18 (Ont. C.A.), at p. 29; R. v. Ancio, [1984] 1 S.C.R. 225, at p. 247; R. v. Deutsch, [1986] 2 S.C.R. 2, at pp. 19-26; R. v. Gladstone, [1996] 2 S.C.R. 723, at para. 19. In this case, sufficient evidence was produced to show that Mr. Dynar intended to commit the money-laundering offences, and that he took steps more than merely preparatory in order to realize his intention. That is enough to establish that he attempted to launder money contrary to s. 24(1) of the Criminal Code.
51      However, the respondent argues that Parliament did not intend by s. 24(1) to criminalize all attempts to do the impossible, but only those attempts that the common law has classified as "factually impossible". An attempt to do the factually impossible, according to the respondent, is an attempt that runs up against some intervening obstacle and for that reason cannot be completed. The classic example involves a pickpocket who puts his hand into a man's pocket intending to remove the wallet, only to find that there is no wallet to remove.
52      Traditionally, this sort of impossibility has been contrasted with "legal impossibility". An attempt to do the legally impossible is, according to those who draw the distinction, an attempt that must fail because, even if it were completed, no crime would have been committed. See Eric Colvin, Principles of Criminal Law (2nd ed. 1991), at pp. 355-56.
53      According to the respondent, the Criminal Code criminalizes only attempts to do the factually impossible. An attempt to do the legally impossible, in the absence of an express legislative reference to that variety of impossibility, is not a crime.
54      As support for this interpretation, the respondent offers two arguments. The first is that Parliament based s. 24(1) on an English provision whose purpose was to overrule a decision of the House of Lords that had made factual impossibility a defence. See Barry Brown, "'Th' attempt, and not the deed, Confounds us': Section 24 and Impossible Attempts" (1981), 19 U.W.O. L. Rev. 225, at pp. 228-29. On the strength of this argument, the New Zealand Court of Appeal accepted that New Zealand's equivalent to s. 24(1) criminalizes attempts whose completion is factually impossible but not those whose completion is legally impossible. See R. v. Donnelly, [1970] N.Z.L.R. 980 (C.A.), at pp. 984 and 988.
55      The respondent's second argument is that Parliament, had it intended to criminalize attempts to do the legally impossible, would have used the words "whether or not it was factually or legally impossible" in s. 24(1). As examples of statutes that were intended to criminalize attempts to do the legally impossible, the respondent cites provisions of statutes from the United Kingdom and from the United States:
1. -- (1) If, with intent to commit an offence to which this section applies, a person does an act which is more than merely preparatory to the commission of the offence, he is guilty of attempting to commit the offence.
(2) A person may be guilty of attempting to commit an offence to which this section applies even though the facts are such that the commission of the offence is impossible.
(3) In any case where --
(a) apart from this subsection a person's intention would not be regarded as having amounted to an intent to commit an offence; but
(b) if the facts of the case had been as he believed them to be, his intention would be so regarded,
then, for the purposes of subsection (1) above, he shall be regarded as having had an intent to commit that offence.
(Criminal Attempts Act 1981 (U.K.), 1981, c. 47.)

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

56      A third argument, which the respondent does not advance, is that the words "under the circumstances" restrict the scope of s. 24(1) to attempts to do the factually impossible. An attempt that is not possible "under the circumstances", according to this argument, is by implication possible under some other set of circumstances. Otherwise, there would be no need to mention circumstances -- the mere mention of impossibility would suffice. President North of the New Zealand Court of Appeal made this very argument in Donnelly, supra, at p. 988:
In my opinion the significant words in s. 72 (1) [New Zealand's equivalent to s. 24(1) of the Criminal Code] are "in the circumstances", which seem to me to imply that in other circumstances it might be possible to commit the offence. This I think points to the conclusion that s. 72 (1) went no further than to ensure that a person who had the necessary criminal intent and did an act for the purpose of accomplishing his object was guilty of an attempt even although it so happened that it was not possible to commit the full offence.
57      In addition there is another way of turning the same language to the respondent's advantage. "Circumstances", in ordinary parlance, are facts. Laws, by contrast, are not circumstances. Accordingly, applying the rule that expressio unius est exclusio alterius, the mention in s. 24(1) of attempts that are circumstantially or factually impossible may be taken to exclude attempts that are legally impossible. The question, as one Canadian writer has framed it, is whether "'the circumstances' referred to in [s. 24(1)] include the legal status of the actor's conduct": Brown, supra, at p. 229.
58      Still another argument in favour of the respondent's position, though one that reflects judicial policy rather than the strict ascertainment of legislative intent, is that penal statutes, if ambiguous, should be construed narrowly, in favour of the rights of the accused. "[T]he overriding principle governing the interpretation of penal provisions is that ambiguity should be resolved in a manner most favourable to accused persons": R. v. McIntosh, [1995] 1 S.C.R. 686, at para. 38.
59      Although some of these arguments have a certain force, what force they have is greatly attenuated when it is realized that the conventional distinction between factual and legal impossibility is not tenable. The only relevant distinction for purposes of s. 24(1) of the Criminal Code is between imaginary crimes and attempts to do the factually impossible. The criminal law of Canada recognizes no middle category called "legal impossibility". Because Mr. Dynar attempted to do the impossible but did not attempt to commit an imaginary crime, he can only have attempted to do the "factually impossible". For this reason, Mr. Dynar's proposal that s. 24(1) criminalizes only attempts to do the factually impossible does not help him.
....
65      There is, however, a relevant difference between a failed attempt to do something that is a crime and an imaginary crime. It is one thing to attempt to steal a wallet, believing such thievery to be a crime, and quite another thing to bring sugar into Canada, believing the importation of sugar to be a crime. In the former case, the would-be thief has the mens rea associated with thievery. In the latter case, the would-be smuggler has no mens rea known to law. Because s. 24(1) clearly provides that it is an element of the offence of attempt to have "an intent to commit an offence", the latter sort of attempt is not a crime.
66      Nor should it be. A major purpose of the law of attempt is to discourage the commission of subsequent offences. See Williams' Textbook of Criminal Law, supra, at pp. 404-5. See also Brown, supra, at p. 232; Eugene Meehan, "Attempt -- Some Rational Thoughts on its Rationale" (1976-77), 19 Crim. L.Q. 215, at p. 238; Don Stuart, Canadian Criminal Law (3rd ed. 1995), at p. 594. But one who attempts to do something that is not a crime or even one who actually does something that is not a crime, believing that what he has done or has attempted to do is a crime, has not displayed any propensity to commit crimes in the future, unless perhaps he has betrayed a vague willingness to break the law. Probably all he has shown is that he might be inclined to do the same sort of thing in the future; and from a societal point of view, that is not a very worrisome prospect, because by hypothesis what he attempted to do is perfectly legal.
67      ... Only attempts to commit imaginary crimes fall outside the scope of the provision. Because what Mr. Dynar attempted to do falls squarely into the category of the factually impossible -- he attempted to commit crimes known to law and was thwarted only by chance -- it was a criminal attempt within the meaning of s. 24(1). The evidence suggests that Mr. Dynar is a criminal within the contemplation of the Canadian law and so the double criminality rule should be no bar to his extradition to the United States.
73      .... The absence of an attendant circumstance is irrelevant from the point of view of the law of attempt. An accused is guilty of an attempt if he intends to commit a crime and takes legally sufficient steps towards its commission. Because an attempt is in its very nature an incomplete substantive offence, it will always be the case that the actus reus of the completed offence will be deficient, and sometimes this will be because an attendant circumstance is lacking....
74      So it should not be troubling that what Mr. Dynar did does not constitute the actus reus of the money-laundering offences. If his actions did constitute the actus reus, then he would be guilty of the completed offences described in s. 462.31 of the Criminal Code and s. 19.2 of the Narcotic Control Act. There would be no need even to consider the law of attempt. The law of attempt is engaged only when, as in this case, the mens rea of the completed offence is present entirely and the actus reus of it is present in an incomplete but more-than-merely-preparatory way.
75      The respondent argues [nonetheless] that, in determining whether an accused has the requisite mens rea for attempt, a court should consider only those mental states that supply the accused's motivation to act.
76      This proposal is a way of overlooking an accused's mistaken beliefs. Thus, the respondent argues that he did not have the requisite mens rea because he desired only to make money by doing a service to Anthony, the undercover agent. It did not matter to Mr. Dynar whether the money was the proceeds of crime or not. He would have been just as happy to convert funds for the United States Government as for some drug kingpin. Mr. Dynar's only concern was that he should receive a commission for his services.
77      The theoretical basis for this thinking appears in Professor George Fletcher's attempted defence of the distinction between factual impossibility and legal impossibility (in Rethinking Criminal Law (1978)). Fletcher, on whom the respondent relies, says that an accused's legally relevant intention comprises only those mental states that move the accused to act as he does (at p. 161):
[M]istaken beliefs are relevant to what the actor is trying to do if they affect his incentive in acting. They affect his incentive if knowing of the mistake would give him a good reason for changing his course of conduct.
Because most facts are, from the accused's point of view, of no consequence, what the accused thinks about most facts is legally irrelevant.
78      Thus, to take one of Fletcher's examples, it does not matter what day a criminal thought it was when he committed a crime, because whatever he might have thought the day was, he would still have acted as he did. In Fletcher's view, similar reasoning explains why it is not a crime to deal with "legitimate" property thinking that one is dealing with the proceeds of crime (at p. 162):
[I]t seems fairly clear that the fact that the [goods were] stolen does not affect the actor's incentive in paying the price at which [they were] offered to him by the police. If he were told that the goods were not stolen, that would not have provided him with a reason for turning down the offer. If they were not stolen, so much the better. It follows, therefore, that it is inappropriate to describe his conduct as attempting to receive stolen [goods].
79      But this view confounds motivation and intention. If attention were paid only to the former, then the number of crimes would be greatly, if not very satisfactorily, reduced, because what moves many criminals to crime is some desire relatively more benign than the desire to commit a crime. We suspect that only the most hardened criminals commit crimes just for the sake of breaking the law. To at least many malefactors, it must be a matter of indifference whether their actions constitute crimes. Probably most thieves would not turn up their noses at the opportunity to loot a house simply because it has been abandoned and so is the property of no one. The goal is the making of a quick dollar, not the flouting of the law. In this, we again agree completely with Glanville Williams, who said:
Normally, motivation is irrelevant for intention. Every receiver of stolen goods would prefer to have non-stolen goods at the same price, if given the choice; but if he knows or believes the goods are stolen, he intends to receive stolen goods. We have to say that a person intends his act in the circumstances that he knows or believes to exist. This being the rule for consummated crimes, no good reason can be suggested why it should differ for attempts.
("The Lords and Impossible Attempts, or Quis Custodiet Ipsos Custodes?", [1986] Cambridge L.J. 33, at p. 78.)
80      In this case, it is almost certainly true that Mr. Dynar would have been content to convert the United States Government's money even if he had known that it had nothing to do with the sale of drugs. Presumably his only concern was to collect his percentage. The provenance of the money must have been, for him, largely irrelevant. But, from the point of view of the criminal law, what is important is not what moved Mr. Dynar, but what Mr. Dynar believed he was doing. "We have to say that a person intends his act in the circumstances that he knows or believes to exist." And the evidence is clear that Mr. Dynar believed that he was embarked upon a scheme to convert "drug money" from New York City.
81      Looking to intent rather than motive accords with the purpose of the criminal law in general and of the law of attempt in particular. Society imposes criminal sanctions in order to punish and deter undesirable conduct. It does not matter to society, in its efforts to secure social peace and order, what an accused's motive was, but only what the accused intended to do. It is no consolation to one whose car has been stolen that the thief stole the car intending to sell it to purchase food for a food bank. Similarly, the purpose of the law of attempt is universally acknowledged to be the deterrence of subsequent attempts. A person who has intended to do something that the law forbids and who has actually taken steps towards the completion of an offence is apt to try the same sort of thing in the future; and there is no assurance that next time his attempt will fail.
82      Applying this rationale to impossible attempts, we conclude that such attempts are no less menacing than are other attempts. After all, the only difference between an attempt to do the possible and an attempt to do the impossible is chance. A person who enters a bedroom and stabs a corpse thinking that he is stabbing a living person has the same intention as a person who enters a bedroom and stabs someone who is alive. In the former instance, by some chance, the intended victim expired in his sleep perhaps only moments before the would-be assassin acted. It is difficult to see why this circumstance, of which the tardy killer has no knowledge and over which he has no control, should in any way mitigate his culpability. Next time, the intended victim might be alive. Similarly, even if Mr. Dynar could not actually have laundered the proceeds of crime this time around, there is hardly any guarantee that his next customer might not be someone other than an agent of the United States Government.
83      The import of all of this is that Mr. Dynar committed the crime of attempt; and for having done so he should be extradited to the United States. The facts disclose an intent to launder money and acts taken in furtherance of that design. Section 24(1) of the Criminal Code requires no more....

* * *

People v. Dlugash
Court of Appeals of New York
41 N.Y.2d 725 (1977)

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

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

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

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

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

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

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

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

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

B.   Counselling

 

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

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

464. ...
(a) every one who counsels another person to commit an indictable offence is, if the offence is not committed, guilty of an indictable offence and liable to the same punishment to which a person who attempts to commit that offence is liable;
15     The actus reus for counselling will be established where the materials or statements made or transmitted by the accused actively induce or advocate—and do not merely describe—the commission of an offence: R. v. Sharpe, [2001] 1 S.C.R. 45, 2001 SCC 2, at para. 57, per McLachlin C.J.
....
21     Our concern here is with the imposition of criminal liability on those who counsel others to commit crimes. In this context, "counsel" includes "procure, solicit or incite": see s. 22(3) of the Criminal Code.
22     In their relevant senses, the Canadian Oxford Dictionary (2nd ed. 2004) defines "counsel" as "advise" or "recommend (a course of action)"; "procure" as "bring about"; "solicit" as "ask repeatedly or earnestly for or seek or invite", or "make a request or petition to (a person)"; and "incite" as "urge". "Procure" has been held judicially to include "instigate" and "persuade": R. v. Gonzague (1983), 4 C.C.C. (3d) 505 (Ont. C.A.).
23     Those who encourage the commission of crimes in any of these ways are criminally responsible for their conduct by way of "secondary liability".
24     The rationale underlying secondary liability was described by the Law Reform Commission of Canada as "straightforward, obvious and justifiable" -- in principle, though not always in practice: Working Paper 45, Secondary Liability: Participation in Crime and Inchoate Offences (1985), at p. 5.
25     According to the Commission (at pp. 5-6):
... the rationale for secondary liability is the same as that for primary liability. Primary liability attaches to the commission of acts which are outlawed as being harmful, as infringing important human interests and as violating basic social values. Secondary liability attaches on the same ground to their attempted commission, to counselling their commission and to assisting their commission.

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

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

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

His motivation was monetary, and he sought to pique the curiosity of readers who might acquire the information in the same way that he was initially attracted to the information. Further, he struck me as utterly unsophisticated and naÔve to the point that he cannot be said to have been wilfully blind or reckless. [Emphasis added; para. 53.]
40     Essentially, on my reading of this passage, the trial judge acquitted Mr. Hamilton on this count because his motivation was mercenary as opposed to malevolent.
41     In my respectful view, this was an error of law requiring our intervention.
42     The distinction between motive and intent has been well understood by Canadian courts since at least 1979, when Dickson J. stated:
In ordinary parlance, the words "intent" and "motive" are frequently used interchangeably, but in the criminal law they are distinct. In most criminal trials, the mental element, the mens rea with which the court is concerned, relates to "intent", i.e. the exercise of a free will to use particular means to produce a particular result, rather than with "motive", i.e. that which precedes and induces the exercise of the will. The mental element of a crime ordinarily involves no reference to motive. ...
(Lewis v. The Queen, [1979] 2 S.C.R. 821, at p. 831)

43     Cory and Iacobucci JJ. also underlined this distinction in United States of America v. Dynar, [1997] 2 S.C.R. 462, emphasizing the importance, as a matter of legal policy, of maintaining it with vigilance: "It does not matter to society, in its efforts to secure social peace and order, what an accused's motive was, but only what the accused intended to do. It is no consolation to one whose car has been stolen that the thief stole the car intending to sell it to purchase food for a food bank" (para. 81). See also R. v. Hibbert, [1995] 2 S.C.R. 973.
44     In this case, of course, the motive attributed to the accused was far less laudable. He sought to make "a quick buck" by encouraging the intended recipients of his Internet solicitation to purchase a device that generated credit card numbers easily put to fraudulent use.
45    The trial judge's conclusion that Mr. Hamilton did not intend to induce the recipients to use those numbers is incompatible with the plain meaning of the "teaser" e-mail and with her other findings of fact, including her finding that Mr. Hamilton well understood that use of the generated numbers was illegal. Her assertion that "[h]is motivation was monetary" immediately after her reference to these facts demonstrates an error of law as to the mens rea for counselling the commission of a crime, and warrants a new trial.

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

B. Why Criminalize Acts of Counselling?

65     The criminalization of counselling the commission of an offence creates a form of secondary liability. Where the counselled offence is committed, the act of counselling constitutes participation; where the counselled offence is not committed, the crime is said to be inchoate. Black's Law Dictionary (8th ed. 2004) defines an inchoate crime as "[a] step toward the commission of another crime, the step in itself being serious enough to merit punishment." The rationale for imposing criminal liability for participation and inchoate offences is the same as that for primary liability. As noted by my colleague Fish J., the Law Reform Commission of Canada, as it was then called, provided a useful summary of the rationale in its Working Paper 45, Secondary Liability: Participation in Crime and Inchoate Offences (1985)....
66     Of course, subject to minimal constitutional requirements, it is up to Parliament to draw the line between criminal and permissible behaviour. However, the language used to express Parliament's intention is often imprecise and open to competing interpretations. In adding flesh to Criminal Code provisions it is important not to overreach the purpose of the criminal sanction at the expense of other important social values. This is particularly so in a case such as this one where the conduct in question consists of communications.

C.        The Actus Reus for Counselling an Offence Not Committed

67     As stated earlier, only mens rea is at issue on this appeal. However, in order to properly determine the fault requirement for any offence, it is necessary to consider the actus reus of the offence so as to identify the circumstances and consequences to which the offence is directed. The actus reus under s. 464 consists of "counsel[ling] another person to commit an indictable offence" (or an offence punishable on summary conviction). Hence, there must be:

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

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

D.        The Mens Rea for Counselling an Offence Not Committed

75     No constitutional challenge is raised in this case. Nonetheless, the Court must be mindful of the potential overbreadth of a criminal sanction whose sole target is speech. As reiterated in Sharpe, Parliament is presumed to have intended to enact legislation in conformity with the Charter (para. 33). This concern over the potential sweep of the provision does not end with the analysis of the requisite actus reus and the level of risk targeted by Parliament. The persons who could potentially fall within the reach of the criminal law must be considered. Because of the stigma attached to a criminal prosecution and to a conviction, it is important that the offence not catch the morally innocent.
76     The requisite mens rea is not expressly set out in s. 464. However, this is not unusual. The mental element of an offence is not always described in the enactment. Often it must be inferred from the nature of the prohibited activity and the harm it is meant to guard against. In this case, because of the nature of the offence, our earlier discussion on the requisite actus reus can largely inform the determination of the necessary mens rea. As we have seen, it is not sufficient that the communication simply raise the possibility of affecting its recipient; it must actively seek to persuade that person to commit the crime. It follows that the counsellor must, at the very least, intend to persuade the person counselled to commit the offence. In this respect, it is my view that mere recklessness as to the counselled person's reaction to the communication is insufficient. In other words, it is not enough that the counsellor, knowing that the communication is objectively capable of persuading a person to commit an offence, goes ahead and does the act anyway. If mere recklessness as to the communication's potential power of persuasion were to suffice, some may argue that the publication of Shakespeare's Henry VI, with its famous phrase "Let's kill all the lawyers", should be subject to state scrutiny!
77     Hence, the counsellor must intend to persuade the person counselled to commit the offence. Simply intending the communication, as advocated by the Crown at trial, is not sufficient. An additional question has been posed, mostly in academic writings: must the counsellor also intend that the offence be committed? This is often referred to as a "dual mens rea" requirement. In my view, in all but the most unusual circumstances, it is not necessary to adopt a distinct "two-step" approach to determine whether the accused possesses the necessary mens rea. It is logical to infer that the counsellor who intends to persuade the person counselled to commit an offence intends that the offence be committed. However, unusual circumstances did arise in R. v. Janeteas (2003), 172 C.C.C. (3d) 97 (Ont. C.A.), and it became necessary for the court to examine whether the counsellor must also intend the commission of the counselled offence. The question was fully canvassed by Moldaver J.A. who concluded that such an intent was required. I agree with his analysis.
78     The peculiar facts of Janeteas are as follows. Mr. Janeteas came to befriend J.B. and her mother B.G., subsequently learning of J.B.'s marital difficulties with her husband Dr. M.B. According to Mr. Janeteas, he began to fear for Dr. M.B.'s safety as a result of conversations with J.B. and B.G. in which they made it known that they wanted to have Dr. M.B. harmed or even killed. He felt that Dr. M.B. should be warned, and in an attempt to obtain hard evidence, tape-recorded a conversation with J.B. and B.G. in which he actively encouraged them to have Dr. M.B. harmed or killed and expressed his willingness to make the necessary arrangements. He then met with Dr. M.B., and over the next few months was able to obtain $35,000 from him. Moldaver J.A. found that Mr. Janeteas did not possess the requisite mens rea, stating, at para. 43:

The present case is one of those rare instances where, despite the appellant's intention that his words be taken seriously, the Crown does not maintain that he intended the commission of the crimes counselled. While the appellant's actions were reprehensible, I am not convinced that the reach of the criminal law should be extended, at the expense of established principle, to ensnare the likes of the appellant.

79     The Crown's position before this Court is consonant with this "dual" mens rea requirement. The Crown is no longer contending, as it did at trial, that an accused's intention in respect of the commission of the counselled offence is irrelevant. The Crown, however, submits that recklessness as to whether the person counselled will commit the offence suffices. Hence, on that approach, the counsellor's knowledge, without more, of the communication's objective potential to persuade would meet the standard. For the same reasons expressed in respect of the actus reus, it is my view that this interpretation, which would result in criminal liability even when the counsellor does not intend to see that act committed, but is simply reckless as to the reaction of the person counselled, would unduly widen the scope of criminality. As aptly noted by the intervener Canadian Civil Liberties Association, the interpretation advocated by the Crown would risk criminalizing legitimate forms of protest, advocacy or dissent and, arguably, even the reproduction and distribution, for historical or teaching purposes, of classic texts. The value placed on freedom of expression militates in favour of a more restricted interpretation.
80     [T]he restricted meaning of the word "counsel", as an active inducing, procuring or encouraging the commission of an offence, connotes the [a] requirement that there be a subjective intent to persuade the person counselled to commit the offence. This requirement, from a logical standpoint, can only be met if the counsellor intends that the offence be committed. Recklessness alone cannot suffice....
81    There is no question that the Crown is correct in saying that the Internet poses particular risks because of the ease with which mass communications may be disseminated worldwide. The particular nature of communications through cyberspace may well provide justification to limit the diffusion of the most dangerous expression on a lesser standard, even on objective grounds alone. However, it is my view that the remedy does not lie in an expansive interpretation of the offence of counselling. The offence of counselling, applying as it does to all crimes, is too blunt an instrument to address this situation without imperiling a range of harmless and/or valuable expression.
82     For these reasons, I agree with the Court of Appeal that the more demanding standard of subjective mens rea should apply: the counsellor must intend that the counselled offence be committed for the offence to be made out. As noted by the Ontario Court of Appeal in Janeteas and the Alberta Court of Appeal in this case, this approach has the support of many in the legal community. For Canadian writings, see: D. Stuart, Canadian Criminal Law: A Treatise (4th ed. 2001), at pp. 227 and 703; K. Roach, Criminal Law (3rd ed. 2004), at pp. 125-26; E. Colvin, Principles of Criminal Law (2nd ed. 1991), at p. 377. For American academic support, see: W. R. LaFave, Substantive Criminal Law (2nd ed. 2003), vol. 2, at pp. 194-95; J. Dressler, Understanding Criminal Law (3rd ed. 2001), at pp. 415-16. For British support, see: A. Ashworth, Principles of Criminal Law (4th ed. 2003), at p. 466; G. Williams, Textbook of Criminal Law (2nd ed. 1983), at p. 442; Smith & Hogan, Criminal Law (9th ed. 1999), at p. 271.

E. Application to This Case

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

The trial judge did not err as alleged by the Crown. As she was entitled to do, the trial judge considered motive as part of her fact findings. But her decision was based on other facts relating to the respondent's knowledge. She found, for example, that the respondent had not read most of the "Top Secret" files. She also found that he was not interested in their contents and that he was, overall, "naive, lazy or ignorant". Dealing with the credit card number generator, the trial judge accepted the respondent's testimony that he did not think any generated numbers could be used because they lacked an expiry date. On the basis of these facts, she found the respondent lacked sufficient knowledge of the consequences of his actions to satisfy the mens rea requirement. It is clear that she understood the nature of the test she was bound to apply and did not err in law.

* * *

LRCC § 4(4)

* * *

MPC § 5.02

C. Conspiracy

 

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

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

I

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

II

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

III

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

If the offence of conspiracy is an auxiliary to the law which creates the crime agreed to be committed, and if the object of making such agreements punishable is to prevent the commission of the substantive offence before it has even reached the stage of an attempt, there appears to be little justification in attaching penal sanction to an act which falls short of a conspiracy to commit the substantive offence.

In the instant case the substantive offence was fraud. To hold that there is an offence of attempting to conspire to defraud is tantamount to convicting a person of an attempt to attempt to defraud. [p. 95]
16     Dubin J.A. concluded that "there is no such offence as attempt to conspire to commit a further substantive offence" (p. 98), "leav[ing] for further consideration whether there could be an attempt to conspire where the conspiracy is the substantive offence, and the question of remoteness would not arise, as distinguished from a case such as this where the offence alleged was a conspiracy to commit a further substantive offence" (p. 99).
17     This case, like Dungey, concerns an attempt to conspire to commit a substantive offence. The trial judge nonetheless found that Dungey turned on its own particular facts and had no application here. In his view:
[TRANSLATION] It is true that an attentive reading of [Dungey] may lead to the conclusion - a conclusion that some in Canada have perhaps too quickly arrived at - that this offence does not exist. However, the Court of Appeal did not itself rule on its existence, having determined that the facts did not lend themselves to such a judgment. [para. 38]
18     The majority of the Quebec Court of Appeal quoted this passage with approval (at para. 32) and found that Dubin J.A., in the passage I have quoted at para. 17, left open the decisive question in this case: Is an attempt to conspire to commit a substantive offence - here, theft and culpable possession - a crime in Canada?
19     On the contrary and with respect, this is the very question answered by the Court of Appeal in Dungey. It answered that question in the negative, as would I, and it did so in the clearest of terms, which I again reproduce: "[T]here is no such offence as attempt to conspire to commit a further substantive offence" (p. 98).
20     The question left open by Dungey relates instead to offences such as conspiracy in restraint of trade and conspiracy to commit treason or seditious conspiracy, where conspiracy is the substantive offence: See A. W. Mewett and M. Manning, Mewett & Manning on Criminal Law (3rd ed. 1994), at p. 345; D. Stuart, Canadian Criminal Law: A Treatise (4th ed. 2001), at p. 705, fn. 424. And that question, unlike the one that concerns us here, remains open to this day.
21     In support of its conclusion, the majority of the Court of Appeal referred as well to R. v. May (1984), 13 C.C.C. (3d) 257 (Ont. C.A.). The conviction in May was for conspiracy to obstruct justice. Obstruction of justice, a distinct offence under the Criminal Code, is framed in the language of attempt: "every one who wilfully attempts in any manner to obstruct, pervert or defeat the course of justice". It was argued on that basis that the charge of conspiracy to obstruct justice impermissibly combined two forms of inchoate liability. This was said to violate the policy considerations underlying Dungey.
22     In brief reasons delivered orally, Martin J.A. found it unnecessary to consider in detail the reasons set out in Dungey. Speaking for a unanimous court, he considered it sufficient to say that obstruction of justice was a substantive offence and that the accused's submission failed for that reason alone.
23     Nothing in May supports the view that it is a crime in Canada to attempt to conspire to commit a substantive offence. On the contrary, Martin J.A. specifically noted that the court in Dungey "held that the offence of attempting to conspire to commit a substantive offence is not an offence under Canadian law" (p. 260 (emphasis in original)). And, in characterizing obstruction of justice as a substantive offence, he simply applied the legal principles set out in Dungey to the facts in May. Despite the inchoate elements of its statutory definition, obstruction of justice was held to fall within the exception posited by Dubin J.A. in Dungey.
24     I turn now to a third relevant Canadian decision.
25     In R. v. Kotyszyn (1949), 8 C.R. 246, 95 C.C.C. 261 (Que. C.A.), the accused was a suspected professional abortionist ("avorteuse professionnelle"). She was approached by an undercover police officer who claimed to be pregnant and in need of an abortion. The accused agreed to perform the abortion for $100, which was paid by the "boyfriend" - a sergeant-detective. The accused and her "pregnant" client then entered a bedroom. With her implements visibly laid out, the accused declared that she was ready to proceed. The officer thereupon revealed her true identity, arrested the accused and charged her with: (1) conspiracy to commit an abortion; and (2) attempted conspiracy to commit that same indictable offence.
26     At the close of the Crown's case, acquittals were entered on both charges. Agreement - an essential ingredient of conspiracy - was not made out, since the apparent co-conspirator, an undercover police officer, only wished to set a trap and not to have an abortion. Conceding that no conviction could therefore lie on the first charge, the Crown appealed only the acquittal on the charge of attempted conspiracy. Though for somewhat different reasons, all five members of the court agreed that the appeal should be dismissed.
27     Mackinnon J. (ad hoc), with whom Galipeault and Barclay JJ.A. concurred, held that the charge did not properly attach to the facts of the case. The accused had gone much further than a mere attempt to agree and, if anything, the charge ought to have been for conspiracy. On that charge, however, she had already been finally acquitted. In this light, the Crown's appeal on the count for attempt was seen as an improper endeavour to circumvent the accused's acquittal on the substantive charge.
28     Of the five members of the court, only Gagnè J.A. discussed attempted conspiracy. He held that attempting to conspire was a crime:
[TRANSLATION] Certainly, there may be an attempt to conspire. A presents herself at the home of B and suggests to her an agreement to commit an offence. B refuses. There is no conspiracy, but an attempt on the part of A, an attempt which did not succeed. If she succeeded, that is to say, if there had been acquiescence, the offence of attempt disappeared; it is that of conspiracy that is committed. [p. 265 C.C.C.]
Gagnè J.A. found, however, that this construct could not be applied to the case before him, since the accused had not proposed the agreement, but merely acquiesced in the officer's proposition: [TRANSLATION] "It is not she who suggested the agreement, it is the other person. She acquiesced" (p. 265 C.C.C.).
29     By emphasizing offer rather than acquiescence as the touchstone for responsibility, Gagnè J.A. focussed on enticing another into crime - the evil meant to be caught by counselling. Under our law, it will be remembered, "counsel" includes "procure", "solicit" or "incite": See s. 22(3) of the Criminal Code. By treating counselling and attempt as legal equivalents, Gagnè J.A. mistook counselling for attempted conspiracy.
30     To conflate counselling and attempt to conspire is to rely on semantics where principle fails. While it may well be true that to counsel another to conspire is, in the ordinary sense of the word, to "attempt" (or try) to form a conspiracy, not all efforts to conspire amount, in law, to counselling. Yet we are urged by the Crown in this case to recognize attempted conspiracy as an offence different from, and wider than, the established offence of counselling.
31     In R. v. Hamilton, [2005] 2 S.C.R. 432, 2005 SCC 47, this Court held that "the actus reus for counselling is the deliberate encouragement or active inducement of the commission of a criminal offence" (para. 29 (emphasis in original)): See also R. v. Sharpe, [2001] 1 S.C.R. 45, 2001 SCC 2, at para. 57, per McLachlin C.J. This relatively high threshold for the actus reus of incitement is an essential safeguard. As Charron J. (dissenting, but not on this point) observed at para. 72, "[i]t is th[e] concern of potential overbreadth that informed this Court's adoption in Sharpe of a more restricted meaning of counselling". Charron J. noted as well that counselling an offence not committed is rarely prosecuted (para. 48).
32     Here, the Crown proposes an actus reus for attempted conspiracy that, if not open-ended, is much broader than the actus reus of counselling. Even a tentative and vain effort to reach an unlawful agreement would suffice (respondent's factum, at para. 40). The safeguard that governs counselling would thus be removed for attempted conspiracy. Even if we were to criminalize an attempt to conspire as a form of counselling, I fear that the Crown attempts in this case to squeeze from it more than it yields.
33     I also note that the court in Kotyszyn declined to recognize attempt to conspire as a way of addressing what are sometimes called "unilateral conspiracies". The justification for criminalizing such acts would be that, from the perspective of a compliant accused, the degree of moral turpitude is no different when an accepted invitation to crime is genuine than when it is made by an agent provocateur or double agent. There is at least a baseline of moral blameworthiness in such cases because the accused has agreed to join an ostensibly criminal enterprise. Arguably, the offender should thus be punished equally in both cases.
34     In the United States, a free-standing doctrine of unilateral conspiracy has bridged what was seen in that country as a gap in the law of conspiracy. Would-be conspirators are guilty of unilateral conspiracy where there is no true conspiracy because the agreement of their interlocutors is feigned: See American Law Institute, Model Penal Code and Commentaries (Official Draft and Revised Comments) (1985), s. 5.04(1)(b). As one American court noted, the unilateral conspiracy approach rendered attempt to conspire superfluous: People v. Schwimmer, 411 N.Y.S. 2d 922 (App. Div. 1978), at pp. 925-28.
35     A consistent line of case law in this country precludes us from adopting the American approach. Most notably, the recent decision of this Court in United States v. Dynar, [1997] 2 S.C.R. 462, takes a strictly bilateral view of conspiracy. See also R. v. O'Brien, [1954] S.C.R. 666, at p. 670, quoted with approval and reaffirmed in Dynar, at para. 88; R. v. Lessard (1982), 10 C.C.C. (3d) 61 (Que. C.A.); R. v. Campeau, [1999] Q.J. No. 5436 (QL) (Que. C.A.). It is thus well established in Canada that there must be actual agreement for a conspiracy to be formed. And actual agreement requires genuine intention. The unilateral conspiracy doctrine, however well-established in the American legal environment, is thus not viable here.
36     Recognition of attempted conspiracy as a crime might well capture cases of feigned agreement, but this sort of change in the law is best left to Parliament. Moreover, the evil targeted by criminalizing unilateral conspiracies will in any event normally be caught under our law by the offence of "counselling an offence not committed". That offence, to which I referred earlier, is set out in s. 464 of the Criminal Code:
464. Except where otherwise expressly provided by law, the following provisions apply in respect of persons who counsel other persons to commit offences, namely,
(a) every one who counsels another person to commit an indictable offence is, if the offence is not committed, guilty of an indictable offence and liable to the same punishment to which a person who attempts to commit that offence is liable; and
(b) every one who counsels another person to commit an offence punishable on summary conviction is, if the offence is not committed, guilty of an offence punishable on summary conviction.
37     It seems to me as well that this would be an inappropriate occasion for this Court to recognize attempt to conspire as a crime for unilateral conspiracies, even if it were within our power and we were inclined on principle to do so. This is not a case with only one willing party. Nor was there any agreement, bogus or bona fide, for Mr. Dèry to join. The appeal turns entirely on whether criminal liability attaches to fruitless discussions in contemplation of a substantive crime that is never committed, nor even attempted, by any of the parties to the discussions. I am satisfied that it does not.
38     This conclusion is consistent with the state of the law in other jurisdictions that share with us a common legal heritage - and little contemporary support for characterizing attempt to conspire as a crime. In England, the crime of attempt to conspire was abolished by the Criminal Law Act 1977 (U.K.), 1977, c. 45, modified by the Criminal Attempts Act 1981 (U.K.), 198l, c. 47. Most courts in the United States that have considered the existence of the alleged crime of attempt to conspire have rejected it. See N. Zimmerman, Attempted Stalking: An Attempt-to-Almost-Attempt-to- Act (2000), 29 N. Ill. U.L. Rev. 219, at p. 222. There does not appear to be a record of any convictions of attempt to conspire in either Australia or New Zealand, and the crime was specifically abolished in Australia and in several of its states: See Australian Criminal Code Act 1995, s. 11.1(7), Criminal Code 2002 (A.C.T.), s. 44(10), and the Crimes Act 1958 (Vict.), s. 321F(3).
39     The Attorney General of Canada has brought to our attention decisions in other common law jurisdictions that appear to recognize the crime of attempting to conspire. Even then, however, attempt to conspire has served essentially as a stand-in for counselling or incitement (see Parshu Ram v. R. (1967), 13 F.L.R. 138 (Fiji C.A.), and Kabunga S/O Magingi v. R. (1955), 22 E.A.C.A. 387 (East African C.A.)), or as a means to capture unilateral conspirators (see Harris v. Rex (1927), 48 N.L.R. 330 (Supreme Court of South Africa, Natal Provincial Division)). In none of these jurisdictions has attempt to conspire expanded the sphere of criminal liability in the manner urged upon us here.

IV

40     The argument in favour of attempted conspiracy is that the provisions governing inchoate liability can be stacked one upon the other, like building blocks. Pursuant to s. 463(d), attempting to commit any "offence for which the offender may be prosecuted by indictment" is an indictable offence punishable by half the maximum penalty for the attempted offence. Conspiracy to commit an indictable offence is itself an indictable offence, punishable by the maximum penalty provided for the underlying substantive offence: S. 465(1)(c). Likewise, it is argued, attempt to conspire is an offence punishable by half the penalty provided for the completed conspiracy.
41     I agree with Forget J.A. that this argument is seductive in appearance but unsound in principle (para. 79). It assumes, but does not establish, that attempt to conspire is an offence under the Criminal Code, and it leaves unresolved the question whether the definition of attempt in s. 24 captures, as a matter of law, an attempt to conspire.
42     In virtue of s. 24, a test of proximity separates "mere preparation" from attempt:

24. (1) Every one who, having an intent to commit an offence, does or omits to do anything for the purpose of carrying out the intention is guilty of an attempt to commit the offence whether or not it was possible under the circumstances to commit the offence.
(2) The question whether an act or omission by a person who has an intent to commit an offence is or is not mere preparation to commit the offence, and too remote to constitute an attempt to commit the offence, is a question of law. [Emphasis added]
43     The intent of the legislator in s. 24(2) is to fix the threshold of criminal responsibility. Applying the test provided, courts must situate on a continuum from antisocial contemplation to prohibited conduct—or bad thought to substantive crime­—the point where the criminal law intervenes. This continuum was aptly described a half-century ago by Laidlaw J.A. in R. v. Cline (1956), 115 C.C.C. 18 (Ont. C.A.):
The consummation of a crime usually comprises a series of acts which have their genesis in an idea to do a criminal act; the idea develops to a decision to do that act; a plan may be made for putting that decision into effect; the next step may be preparation only for carrying out the intention and plan; but when that preparation is in fact fully completed, the next step in the series of acts done by the accused for the purpose and with the intention of committing the crime as planned cannot, in my opinion, be regarded as remote in its connection with that crime. The connection is in fact proximate. [p. 28]
44     In Dynar, Cory and Iacobucci JJ. observed that conspiracy is an act that precedes the next step after preparing to carrying out a plan:
Conspiracy is in fact a more "preliminary" crime than attempt, since the offence is considered to be complete before any acts are taken that go beyond mere preparation to put the common design into effect. The Crown is simply required to prove a meeting of the minds with regard to a common design to do something unlawful. [Emphasis added; para. 87.]
And they explained that "the reason for punishing conspiracy before any steps are taken toward attaining the object of the agreement is to prevent the unlawful object from being attained and therefore to prevent this serious harm from occurring" (para 90 (emphasis added)). The serious harm referred to is not the conspiracy but the substantive offence. By criminalizing conspiracy, the legislature has intervened earlier along the continuum because of the increased danger represented by a cohort of wrongdoers acting in concert. See G. Cùtè-Harper, P. Rainville and J. Turgeon, Traitè de droit pènal canadien (4th ed. 1998), at pp. 661-63.
45     The question this Court must now answer is whether acts that precede a conspiracy are sufficiently proximate to a substantive offence to warrant criminal sanction. In Dungey, Dubin J.A. answered this question in the negative:
Notwithstanding that the charge was one of conspiracy, the conduct of the respondent should be viewed as a step preparatory to committing the substantive offence of fraud and, in that sense, what he did would be too remote to constitute an attempt. [p. 98]
In R. v. Chan (2003), 178 C.C.C. (3d) 269 (Ont. C.A.), Simmons J.A. was of a similar view:
Strictly inchoate crimes are a unique class of criminal offences in the sense that they criminalize acts that precede harmful conduct but do not necessarily inflict harmful consequences in and of themselves. It can thus be appreciated that it could extend the criminal law too far to reach behind those acts and criminalize behaviour that precedes those acts. [para. 69]
46     I agree with these observations. In Dungey, Dubin J.A. left the door open to a possible exception for substantive conspiracy precisely because, in that context, "the question of remoteness would not arise" (p. 99) since substantive conspiracies are themselves the legislative focus of the perceived harm, and not simply the risk of its possible commission.
47     Given that conspiracy is essentially a crime of intention, and "[c]riminal law should not patrol people's thoughts" (Dynar, at para. 169, per Major J.), it is difficult to reach further than the law of conspiracy already allows. Even if it were possible, it has never been the goal of the criminal law to catch all crime [TRANSLATION] "in the egg", as the Attorney General for Canada has put it in this case (Factum, at para. 58). In this sense, conspiracies are criminalized when hatched. And they can only be hatched by agreement.
48     This basic element of conspiracy - agreement - exposes the otherwise hidden criminal intentions of the parties to it. This demonstrates their commitment to a prohibited act. By contrast, the criminal law intervenes later in the progression from thought to deed where someone acts alone. Overt steps are then thought necessary to disclose and establish with sufficient certainty the criminal intention that is an essential element of the attempt to commit an offence.
49     By its very nature, moreover, an agreement to commit a crime in concert with others enhances the risk of its commission. Early intervention through the criminalization of conspiracy is therefore both principled and practical.
50     Likewise, the criminalization of attempt is warranted because its purpose is to prevent harm by punishing behaviour that demonstrates a substantial risk of harm. When applied to conspiracy, the justification for criminalizing attempt is lost, since an attempt to conspire amounts, at best, to a risk that a risk will materialize.
51     Finally, though Mr. Dèry discussed a crime hoping eventually to commit it with others, neither he nor they committed, or even agreed to commit, the crimes they had discussed. The criminal law does not punish bad thoughts of this sort that were abandoned before an agreement was reached, or an attempt made, to act upon them.

V

52     For these reasons, I would allow the appeal, set aside Mr. Dèry's convictions and order that acquittals be entered instead.

 

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


[For the facts of the case, see supra.]

(3) Could Mr. Dynar's Conduct Justify His Surrender on the Conspiracy Charge?

84     Mr. Dynar's extradition has also been requested on a charge of conspiracy. The warrant of committal issued by Keenan J. listed the two charges against Mr. Dynar that are the subject of the American indictment, and indicated that the conduct underlying both charges would constitute crimes in Canada. As a result, Mr. Dynar was extraditable on both. The conduct which would establish a prima facie case for the conspiracy charge is somewhat different from that which would establish the prima facie case for the attempt charge. Thus it is necessary to determine whether Mr. Dynar's conduct in combination with Mr. Cohen's could also constitute the crime of conspiracy in this country. The applicability of the defence of "impossibility" under Canadian criminal law is as much an issue with respect to the conspiracy charge as it is with regard to the attempt charge.
85     The issue is not whether Mr. Dynar's conduct can support a conviction for conspiracy (or for that matter for attempt), but only whether a prima facie case has been demonstrated that would justify his committal for trial if his conduct had taken place in Canada. Section 465(1)(c) of the Criminal Code makes it an offence to conspire with another person to commit any indictable offence, other than murder or false prosecution, which are governed by paragraphs (a) and (b) of the same subsection. There is no doubt that laundering proceeds of crime is an indictable offence in Canada. The question that must be decided, however, is whether a conspiracy can exist even where all the elements of the full indictable offence are not present because the circumstances are not as the accused believed them to be.

(a) What is a Criminal Conspiracy?

86     In R. v. O'Brien, [1954] S.C.R. 666, at pp. 668-69, this Court adopted the definition of conspiracy from the English case of Mulcahy v. The Queen (1868), L.R. 3 H.L. 306, at p. 317:
A conspiracy consists not merely in the intention of two or more, but in the agreement of two or more to do an unlawful act, or to do a lawful act by unlawful means. So long as such a design rests in intention only, it is not indictable. When two agree to carry it into effect, the very plot is an act in itself, and the act of each of the parties . . . punishable if for a criminal object. . . .
There must be an intention to agree, the completion of an agreement, and a common design. Taschereau J., in O'Brien, supra, at p. 668, added that:
Although it is not necessary that there should be an overt act in furtherance of the conspiracy, to complete the crime, I have no doubt that there must exist an intention to put the common design into effect. A common design necessarily involves an intention. Both are synonymous. The intention cannot be anything else but the will to attain the object of the agreement. [Emphasis in original.]
87     In Papalia v. The Queen, [1979] 2 S.C.R. 256, at p. 276, Dickson J. (as he then was) described the offence of conspiracy as "an inchoate or preliminary crime". In setting out the necessary elements of the offence, he noted at pp. 276-77 that:
The word "conspire" derives from two Latin words, "con" and "spirare", meaning "to breathe together". To conspire is to agree. The essence of criminal conspiracy is proof of agreement. On a charge of conspiracy the agreement itself is the gist of the offence: Paradis v. R., at p. 168. The actus reus is the fact of agreement: D.P.P. v. Nock, at p. 66. The agreement reached by the co-conspirators may contemplate a number of acts or offences. Any number of persons may be privy to it. Additional persons may join the ongoing scheme while others may drop out. So long as there is a continuing overall, dominant plan there may be changes in methods of operation, personnel, or victims, without bringing the conspiracy to an end. The important inquiry is not as to the acts done in pursuance of the agreement, but whether there was, in fact, a common agreement to which the acts are referable and to which all of the alleged offenders were privy. [Emphasis added.]
Conspiracy is in fact a more "preliminary" crime than attempt, since the offence is considered to be complete before any acts are taken that go beyond mere preparation to put the common design into effect. The Crown is simply required to prove a meeting of the minds with regard to a common design to do something unlawful, specifically the commission of an indictable offence. See s. 465(1)(c) of the Criminal Code.
88     A conspiracy must involve more than one person, even though all the conspirators may not either be identified, or be capable of being convicted. See for example O'Brien, supra; Guimond v. The Queen, [1979] 1 S.C.R. 960. Further, each of the conspirators must have a genuine intention to participate in the agreement. A person cannot be a conspirator if he or she merely pretends to agree. In O'Brien, Rand J. held at p. 670 that:
a conspiracy requires an actual intention in both parties at the moment of exchanging the words of agreement to participate in the act proposed; mere words purporting agreement without an assenting mind to the act proposed are not sufficient.

Where one member of a so-called conspiracy is a police informant who never intends to carry out the common design, there can be no conspiracy involving that person. Nonetheless, a conspiracy can still exist between other parties to the same agreement. It is for this reason that the conspiracy in this case is alleged to involve Mr. Dynar and Mr. Cohen, and not the confidential informant "Anthony".
89     There can be no doubt that a criminal conspiracy constitutes a serious offence that is properly extraditable. Indeed, it was so recognized in the 1976 treaty between Canada and the U.S. in force at the time of the sting operation. The crime has a long and malevolent history. Conspirators have plotted to overthrow monarchs from biblical times through the time of the Plantaganets and Tudors. Guy Fawkes conspired with others to blow up the parliament buildings. Today conspirators plot to carry out terrorist acts, to commit murders or to import forbidden drugs. Society is properly concerned with conspiracies since two or more persons working together can achieve evil results that would be impossible for an individual working alone. For example, it usually takes two or more conspirators to manufacture and secrete explosives or to arrange for the purchase, importation and sale of heroin. The very fact that several persons in combination agree to do something has for many years been considered to constitute "a menace to society": O'Brien, supra, at p. 669. In fact, the scale of injury that might be caused to the fabric of society can be far greater when two or more persons conspire to commit a crime than when an individual sets out alone to do an unlawful act.
90     As a result, it is obvious that the reason for punishing conspiracy before any steps are taken towards attaining the object of the agreement is to prevent the unlawful object from being attained, and therefore to prevent this serious harm from occurring. See Glanville Williams, Criminal LawThe General Part (2nd ed. 1961), at p. 710. It is also desirable to deter similar conduct in the future. Those who conspire to do something that turns out to be impossible betray by their actions a propensity and aptitude to commit criminal acts; and there is no reason to believe that schemers who are thwarted on one occasion will not be successful on the next. Thus, the rationale for punishing conspirators coincides with the rationale for punishing persons for attempted crimes. Not only is the offence itself seen to be harmful to society, but it is clearly in society's best interests to make it possible for law enforcement officials to intervene before the harm occurs that would be occasioned by a successful conspiracy or, if the conspiracy is incapable of completion, by a subsequent and more successful conspiracy to commit a similar offence.

(b) Is Impossibility a Defence to Conspiracy?

91     By virtue of the "preliminary" nature of the offence of criminal conspiracy, the mere fact that money was not transferred to Mr. Cohen for laundering by Mr. Dynar would not preclude a finding that a conspiracy existed between them. Criminal liability will still ensue, as long as the agreement and the common intention can be proved. Does it make any difference to the potential liability of the conspirators that they could not have committed the substantive offence even if they had done everything that they set out to do? Put another way, should conspirators escape liability because, owing to matters entirely outside their control, they are mistaken with regard to an attendant circumstance that must exist for their plan to be successful? Such a result would defy logic and could not be justified.
92     Impossibility as a defence to a charge of criminal conspiracy has received comparatively little attention by courts or academic writers. Director of Public Prosecutions v. Nock, [1978] 2 All E.R. 654 (H.L.), is the leading English case which considered the applicability of the defence of impossibility in a charge of conspiracy. In that case, the conspiracy was found to consist of an agreement to produce cocaine on a particular occasion from a specific substance. The agreement was impossible to carry out because the substance chosen was incapable of producing cocaine. The impossibility of carrying out this agreement was the basis for the conclusion that the same distinction between factual and legal impossibility that we have criticized in the law of attempt ought to apply to the law of conspiracy. The respondent relies upon Nock, and urges the adoption of legal impossibility as a defence to criminal conspiracy in Canada. This submission cannot be accepted.
93     In England, Nock has been specifically overtaken by the Criminal Attempts Act 1981, s. 5, which now makes criminal liability for conspiracy possible where the accused are mistaken as to an attendant circumstance that is necessary to prove the full offence. Effectively, this precludes the defence of legal impossibility as understood in Nock, supra, but preserves the defence for "imaginary crimes". As we have seen, the latter term encompasses situations where individuals do something they believe contravenes the law when it does not. Thus, for example, in England it is not a crime to conspire to purchase Scotch whisky, because the purchase of that whisky is not a crime known to English law.
94     Section 465(1)(c) of the Canadian Criminal Code does not specifically state that criminal liability for conspiracy can ensue where the substantive offence is impossible to commit. However, even in the absence of such an explicit legislative direction, the analysis of the House of Lords in Nock should not be accepted. The case has been rightly subjected to both academic and judicial criticism, and to the extent that it is based on the same distinction between factual and legal impossibility that has been applied in the law of attempt, it too is conceptually untenable.
95     In England, the acceptance of legal impossibility as a defence to conspiracy in Nock was predicated on the adoption by the House of Lords of the same position regarding the law of attempt: see Haughton v. Smith, [1973] 3 All E.R. 1109. The House of Lords has now expressly overruled the Haughton decision in R. v. Shivpuri, [1986] 2 All E.R. 334. They did so on the basis that quite apart from the provisions of the Criminal Attempts Act 1981, the distinction between factual and legal impossibility is untenable in the law of attempt. The application of the distinction in Nock must now be questioned as well, even in the absence of legislative amendment. Accordingly, the desirability of using the Nock principles in Canada has been appropriately doubted by Cadsby Prov. Ct. J. in R. v. Atkinson, [1987] O.J. No. 1930. The New Zealand Court of Appeal has also rejected Nock, except perhaps in the case of "imaginary crimes": R. v. Sew Hoy, [1994] 1 N.Z.L.R. 257.
96     A number of Canadian academic authorities have also been justly critical of the use of the distinction between factual and legal impossibility in the law of conspiracy, and in particular, have criticized the Nock case for this reason. Most writers take the position that if the distinction between factual and legal impossibility is rejected in the case of attempt, it should a fortiori be rejected for conspiracy. Thus, for example, Colvin in Principles of Criminal Law, supra, at p. 358, indicates, in a discussion that deals primarily with the law of attempt, that he prefers the view that "impossibility of execution is never a defence to inchoate liability in Canada". Since this position is clear in the Criminal Code with regard to attempt, "there is no good reason to treat conspiracy and other forms of inchoate liability any differently".
97     Professor Stuart in Canadian Criminal Law, supra, at pp. 644-45, convincingly contends that the same rationale for rejecting the distinction between factual and legal impossibility in the law of attempt should apply to the law of conspiracy. He puts his position in this way (at p. 644):
If conspiracy is considered, as it has been suggested that it should, as a preventive crime owing its existence to the fact that it is a step, even though a limited one, towards the commission of a full offence, it is difficult to see why the approach to impossibility should differ.
98     According to Professor Alan Mewett and Morris Manning in Mewett & Manning on Criminal Law (3rd ed. 1994), at p. 341, if it were not for the decision in Nock, the question as to whether impossibility should constitute a defence to the offence of conspiracy ought not to arise at all. In Nock, the House of Lords held that because the offence can never materialize, "[t]here was no actus reus because there was no act of agreeing to commit an offence". Mewett and Manning criticize this reasoning as unsound because "[i]t is wrong to think that there is something that can, in the abstract, be called an actus reus". It is the agreement that is the actus, and the intention to do the act that is unlawful (the mens rea) that turns the agreement into an actus reus, or a "guilty act". These authors would restrict the availability of the defence of impossibility to situations of "true" legal impossibility (which we have referred to as imaginary crimes), where persons conspire to do something that is not a crime known to law regardless of whether the facts are as the accused believe them to be.
99     Canadian courts have only rarely considered this issue. In R. v. Chow Sik Wah, [1964] 1 C.C.C. 313, the Ontario Court of Appeal, in a case involving conspiracy to commit forgery, held at p. 315 that "[i]n a prosecution for conspiracy a conviction may not be registered if the operation for the commission of which the accused allegedly conspired would, if accomplished, not have made the accused guilty of the substantive offence". The respondent obviously finds comfort in this case.
100     Although some of the language in Chow Sik Wah suggests a more general acceptance of the defence of legal impossibility in a case of conspiracy, the case was decided on a much narrower basis. There the substantive offence was defined as involving the making of a false document, knowing it to be false. The resolution of the case turned on the definition of "false document". Kelly J.A. held that the photograph of the false document was not itself a false document. Therefore, the crime could not be committed regardless of the intention of the accused. There was no issue as to mistaken belief regarding particular circumstances. The accused simply intended to do something which was not prohibited by law. In addition, Kelly J.A. found that the Crown had not established that the photograph was intended to be used to induce anyone to believe that the reproduced document was genuine.
101     Chow Sik Wah should only be accepted as authority for the proposition that impossibility can be a defence to a charge of conspiracy where the conspirators intend to commit an "imaginary crime". This approach to impossibility and conspiracy has also been taken in older cases dealing with economic conspiracies: see for example Howard Smith Paper Mills Ltd. v. The Queen, [1957] S.C.R. 403, at p. 406, citing R. v. Whitchurch (1890), 24 Q.B.D. 420.
102     None of these authorities stands in the way of a conclusion that, from a purely conceptual perspective, the distinction between factual and legal impossibility is as unsound in the law of conspiracy as it is in the law of attempt. As we concluded in discussing impossible attempts, cases of so-called "legal" impossibility turn out to be cases of factual impossibility and the distinction collapses, except in cases of "imaginary crimes". Conspiracy to commit such fanciful offences of course cannot give rise to criminal liability.
103     Furthermore, like attempt, conspiracy is a crime of intention. The factual element—or actus reus—of the offence is satisfied by the establishment of the agreement to commit the predicate offence. This factual element does not have to correspond with the factual elements of the substantive offence. The goal of the agreement, namely the commission of the substantive offence, is part of the mental element—or mens rea—of the offence of conspiracy.
104     The conspiracy alleged in the case at bar involves the commission of an offence that requires knowledge of a circumstance as one of its essential elements. When a substantive offence requires knowledge of a particular circumstance, the Crown is required to prove a subjective element, which is best described as belief that the particular circumstance exists. The Crown is also required to prove an objective element, namely the truth of the circumstance. It is the presence of the objective circumstance that translates the subjective belief into knowledge or "true belief".
105     However, since the offence of conspiracy only requires an intention to commit the substantive offence, and not the commission of the offence itself, it does not matter that, from an objective point of view, commission of the offence may be impossible. It is the subjective point of view that is important, and from a subjective perspective, conspirators who intend to commit an indictable offence intend to do everything necessary to satisfy the conditions of the offence. The fact that they cannot do so because an objective circumstance is not as they believe it to be does not in any way affect this intention. The intention of the conspirators remains the same, regardless of the absence of the circumstance that would make the realization of that intention possible. It is only in retrospect that the impossibility of accomplishing the common design becomes apparent.
106     If the failure of a conspiracy as a result of some defect in the attendant circumstances were to be considered to constitute "legal" impossibility and as such a defence to a charge of conspiracy, the fact that the conspirators are not culpable becomes a matter of pure luck, divorced from their true intentions. This result is unacceptable. Rather it would be consistent with the law of conspiracy to hold that the absence of the attendant circumstance has no bearing on the intention of the parties, and therefore no bearing on their liability.
107     It has long been accepted that conspirators can be punished for their agreement (actus reus) and their intention to commit the offence (mens rea). This is true even though the police intervene to prevent the conspirators from committing the substantive offence which was the aim of the conspiracy. By the same token, it should make no difference to the culpability of the conspirators if the police intervene in a way that makes the offence impossible to commit because, for example, the money to be laundered is not derived from crime. The conspirators could still be properly convicted on the basis that the agreement to do the unlawful object is considered dangerous to society and reprehensible in itself.
108     This approach does not substitute a different mental element for the offence of conspiracy from that required for the substantive offence of money laundering. In those offences that require knowledge, the mental element is belief. Therefore, the subjective state of mind of a money launderer is the belief that the money is derived from an illicit source. Similarly, the subjective state of mind of the person who conspires with others to launder money is also the belief that the money is derived from an illicit source. For the substantive offence to be committed, the objective circumstance —the existence of actual proceeds of crime—must also exist. But this is not the objective element of the offence of conspiracy. The essential element of conspiracy is the existence of the agreement to put the intention of the conspirators into effect.
109     It follows from all that has been said above that a conspiracy to commit a crime which cannot be carried out because an objective circumstance is not as the conspirators believed it to be is still capable of giving rise to criminal liability in Canada. Legal impossibility cannot be invoked as a defence to the charge.

(c) Application of These Principles to this Case

110     The only reason that the conspiracy alleged to exist between Mr. Dynar and Mr. Cohen was considered "impossible" was because one external circumstance—the existence of actual proceeds of crime—was absent. Yet, the absence of this circumstance is not a defence to a charge of conspiracy.
111     There is evidence that Mr. Dynar was a member of a conspiracy that included Mr. Cohen. On several occasions in the wiretapped conversations between Anthony and Mr. Dynar, Maurice Cohen was implicated as the intimate associate of Mr. Dynar in his money laundering operations. In the recorded conversations that took place between Mr. Cohen and Agent McCarthy in Buffalo, Mr. Cohen clearly indicated that he was working for Mr. Dynar and demonstrated a basic knowledge of the exchanges that took place between Mr. Dynar and Anthony. The very fact that Mr. Cohen showed up in Buffalo as arranged between Mr. Dynar and Anthony supports an inference that he and Mr. Dynar were acting in concert.
112     At a minimum, the evidence clearly supports the existence of an agreement to launder what the conspirators believed were the proceeds of crime. Furthermore, there is evidence that the agreement extended beyond the scheme that was being discussed in the "sting" operation. Mr. Dynar spoke of his operations as well-established, with worldwide affiliates, and of his ability to launder large sums of illicit money very quickly. Mr. Cohen demonstrated an intimate knowledge of the logistics of money laundering in Canada, which he indicated was a function of his association with Mr. Dynar. Finally, the appearance of Mr. Cohen in Buffalo, as arranged between Anthony and Mr. Dynar, was an overt act that suggested that Mr. Dynar's claims about his abilities, and about his association with Mr. Cohen, were not mere "puff" and exaggeration. It is reasonable to infer that Dynar's claims, pursuant to the agreement between Dynar and Cohen, were intended to be translated into action.
113     An RCMP officer, qualified as an expert in organized crime, testified to the interpretation of various references made by Mr. Dynar to the origin of the money. In the expert's opinion, Mr. Dynar was clearly under the impression that he would be laundering money derived from the drug trade. The evidence discloses that Mr. Cohen was under the same impression. This is demonstrated by his desire to ensure that he was not detected by the Canadian border officials while transporting the funds into Canada. It can therefore be said that both alleged conspirators had the requisite intention to commit the substantive offence of laundering money.
114     It is clear that the evidence presented demonstrated a prima facie case for extradition purposes, since it would warrant committing Mr. Dynar and Mr. Cohen for trial for conspiracy in Canada if their conduct had taken place here. Keenan J. was therefore correct in holding that Mr. Dynar was extraditable on both the charge of attempt to launder money, and conspiracy to launder money.

* * *

LRCC § 4(5)

* * *

MPC § 5.03(1), (5), (6)


Chapter 11. Liability for Another’s Conduct

A.        Concepts and Types of Derivative Liability

LRCC §§ 4(1), 4(2)

* * *

StGB §§ 25-27, 29

* * *

MPC § 2.06(1)-(3), (6)(c)

B.        Complicity

 

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

DICKSON, J.:—The appellants were twice tried and convicted on a charge of rape. The indictment alleges that on June 26, 1975, they did unlawfully have sexual intercourse with Brenda Ross without her consent. They were sentenced to serve six years in penitentiary. In an appeal taken following the second trial, the Manitoba Court of Appeal found error on the part of the trial Judge, but by a three to two majority sustained the conviction by applying s. 613(1)(b)(iii) {now s. 686(1)(b)(iii)} of the Code [37 C.C.C. (2d) 90]. It is from that judgment that the present appeal is taken.

The facts

A rather detailed recital of the facts is essential to an understanding of the issues. In June, 1975, Brenda Ross was 16 years of age. On the night of the alleged offence, accompanied by a friend, Anne McGibney, she went to the Waldorf Hotel in the City of Winnipeg to listen to a band and drink beer.

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

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

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

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

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

If you accept the evidence of Brenda Ross, and if after weighing all the evidence you come to the conclusion that you are satisfied beyond a reasonable doubt that the two accused did have sexual intercourse with Brenda Ross without her consent, then you may find them both guilty as charged.

If, on the other hand you have a reasonable doubt that either one or both accused participated in this way, then you must give that particular accused the benefit of that reasonable doubt and acquit the accused on the charge.
That is all the case was about. The Judge chose, however, to instruct the jury upon parties to an offence under s. 21 of the Code, and it is in this respect that the convictions are challenged. The general effect of s. 21 is to make equally culpable (i) the person who actually commits the offence; (ii) any person who aids or abets in committing the offence, and (iii) persons who form an intention in common to carry out an unlawful purpose leading to the commission of the offence....

Section 21(1) of the Criminal Code

The second ground of appeal was set out in the formal judgment of the Court of Appeal in this manner:

2. That the Learned Trial Judge erred in charging the Jury with respect to Section 21(1) of the Criminal Code, as there was insufficient evidence in law to make the Appellant ... a party to the offence.
...On s. 21(1) of the Code, the jury was instructed as follows:
Secondly, I should also instruct you on the law relating to parties to an offence. Section 21(1) of the Criminal Code, reads as follows:

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

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

To find that the accused is guilty of aiding or abetting the commission of an offence by another person, it is only necessary to show that he understood what was being done and by some act on his part assisted or encouraged the attainment of that act.
Mere presence at the scene of a crime is not sufficient to ground culpability. Something more is needed: encouragement of the principal offender; an act which facilitates the commission of the offence, such as keeping watch or enticing the victim away, or an act which tends to prevent or hinder interference with accomplishment of the criminal act, such as preventing the intended victim from escaping or being ready to assist the prime culprit. Thus, in an early work, Foster’s Crown Law, p.350, we read:
... in order to render a person an accomplice and a principal in felony, he must be aiding and abetting at the fact, or ready to afford assistance if necessary, and therefore if A. happeneth to be present at a murder, for instance, and taketh no part in it, nor endeavoureth to prevent it, nor apprehendeth the murderer, nor levyeth hue and cry after him, this strange behaviour of his, though highly criminal, will not of itself render him either principal or accessory.
The leading case of R. v. Coney (1882), 8 Q.B.D. 534, decided that non-accidental presence at the scene of the crime was not conclusive of aiding and abetting. The accused were present at a prize fight, then illegal, though taking no part in the management of the fight. It did not appear that the accused said or did anything. The Chairman of the Quarter Sessions directed the jury that, prize fights being illegal, all persons who went to a fight to see the combatants strike each other, and being present when they did so, were guilty of assault unless they were casually passing by. If they stayed at the place, they encouraged it by their presence although they did not say or do anything. Eight of the 11 Judges hearing the case reserved were of the opinion that the direction was not correct. Two passages from the judgment of Cave, J., at p. 539 bear repeating:
Now it is a general rule in the case of principals in the second degree that there must be participation in the act, and that, although a man is present whilst a felony is being committed, if he takes no part in it, and does not act in concert with those who commit it, he will not be a principal in the second degree merely because he does not endeavour to prevent the felony, or apprehend the felon.
and [at p. 540]:
Where presence may be entirely accidental, it is not even evidence of aiding and abetting. Where presence is not accidental it is evidence, but no more than evidence, for the jury.

Hawkins, J., in a well-known passage had this to say, pp. 557-8:
In my opinion, to constitute an aider and abettor some active steps must be taken by word, or action, with the intent to instigate the principal, or principals. Encouragement does not of necessity amount to aiding and abetting, it may be intentional or unintentional, a man may unwittingly encourage another in fact by his presence, by misinterpreted words, or gestures, or by his silence, on non-interference, or he may encourage intentionally by expressions, gestures, or actions intended to signify approval. In the latter case he aids and abets, in the former he does not. It is no criminal offence to stand by, a mere passive spectator of a crime, even of a murder. Non-interference to prevent a crime is not itself a crime. But the fact that a person was voluntarily and purposely present witnessing the commission of a crime, and offered no opposition to it, though he might reasonably be expected to prevent and had the power to do so, or at least to express his dissent, might under some circumstances, afford cogent evidence upon which a jury would be justified in finding that he wilfully encouraged and so aided and abetted. But it would be purely a question for the jury whether he did so or not. So if any number of persons arrange that a criminal offence shall take place, and it takes place accordingly, the mere presence of any of those who so arranged it would afford abundant evidence for the consideration of a jury of an aiding and abetting.
...The case of R. v. Salajko, [1970]1 C.C.C. 352, [1970]1 O.R. 824, 9 C.R.N.S. 145 (Ont. C.A.), is like the instant case in many respects. A girl was raped by 15 young men in a lonely field. Three were charged. Two of these were identified as having had intercourse with the girl. She admitted, however, that the third accused, Salajko, though seen to be near the girl with his pants down while she was being raped by others, did not have intercourse with her. The Crown placed its case against him on s. 21(1)(b) and (c) of the Criminal Code. One might be forgiven for thinking that it was open to the jury to infer encouragement by conduct, but the Ontario Court of Appeal thought otherwise. Chief Justice Gale, delivering the judgment of the Court, stated that in the absence of evidence to suggest something in the way of aiding, or counselling, or encouraging on the part of the accused with respect to that which was being done by the others, there was simply no evidence upon which a jury could properly arrive at a verdict of guilty against the particular accused. The learned Chief Justice also found error in the trial Judge’s charge which seemed to indicate that a person could abet another in the commission of an offence if, knowingly, he stood by while the offence was being committed.

Finally, there are the cases of R. v. Black, [1970] 4 C.C.C. 251, 10 C.R.N.S. 17, 72 W.W.R. 407, and R. v. Clarkson, [1971] 3 All E.R. 344. The victim in Black’s case was conveyed to a clubhouse where he was subjected to various sordid indignities. Many of the accused took an active part in torturing the victim while others stood around laughing and yelling. The British Columbia Court of Appeal confirmed the convictions, being of the view that the spectators furnished encouragement to the perpetrators of the outrages and their mere presence in the circumstances of the case ensured against the escape of the victim. There was thus something more than “mere presence”, as in R. v. Coney, supra. Most important, the trial Judge directed the jury in language drawn from the judgment of Hawkins, J., in Coney and reviewed the evidence relating to the presence of the accused in clear terms.

In contrast to R. v. Black isthe case of R. v. Clarkson, a decision of the Court Martial Appeal Court. A girl was raped in a room in a barracks in Germany by a number of soldiers. Another group of soldiers clustered outside the door and later “piled in” to the room. They remained there for a considerable time while the girl was raped. There was no evidence that the appellants had done any physical act, or uttered any word which involved direct physical participation or verbal encouragement. There was no evidence that they touched the girl, or did anything to prevent others from assisting her or to prevent her from escaping. The Appeal Court held that it was not enough that the presence of the accused, in fact, gave encouragement. “It must be proved that the accused intended to give encouragement; that he wilfully encouraged” (p. 347). There must be, the Court held, an intention to encourage and encouragement in fact. The convictions were quashed.

The case at bar

In the case at bar I have great difficulty in finding any evidence of anything more than mere presence and passive acquiescence. Presence at the commission of an offence can be evidence of aiding and abetting if accompanied by other factors, such as prior knowledge of the principal offender’s intention to commit the offence or attendance for the purpose of encouragment. There was no evidence that while the crime was being committed either of the accused rendered aid, assistance or encouragement to the rape of Brenda Ross. There was no evidence of any positive act or omission to facilitate the unlawful purpose. One can infer that the two accused knew that a party was to be held, and that their presence at the dump was not accidental or in the nature of casual passers-by, but that is not sufficient. A person cannot properly be convicted of aiding or abetting in the commission of acts which he does not know may be or are intended: per Viscount Dilhorne in Director of Public Prosecutions for North Ireland v. Maxwell, [1978]3 All E.R. 1140 at p. 1144 (H.L.). One must be able to infer that the accused had prior knowledge that an offence of the type committed was planned, i.e.,that their presence was with knowledge of the intended rape. On this issue, the Crown elicited no evidence.

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

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

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

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

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

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

 

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

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

Where D has a right to control the actions of another and he deliberately refrains from exercising it, his inactivity may be a positive encouragement to the other to perform an illegal act, and, therefore, an aiding and abetting. A husband who stands by and watches his wife drown their children is guilty of abetting the homicide. His deliberate abstention from action gives encouragement and authority to his wife's act. If a licensee of a public house stands by and watches his customers drinking after hours, he is guilty of aiding and abetting them in doing so. Again in Du Cros v. Lambourne, [[1907] 1 K.B. 40] it was proved that D's car had been driven at a dangerous speed but it was not proved whether D or E was driving. It was held that, nevertheless, D could be convicted. If E was driving she was doing so in D's presence, with his consent and approval; for he was in control and could and ought to have prevented her from driving in a dangerous manner. D was equally liable whether he was a principal or an abettor.

We refer also to the judgment of this Court in R. v. Halmo, [1941] 76 C.C.C. at p. 116. In that case this Court upheld the conviction of the appellant on a charge of aiding, abetting, counselling and procuring one Mayville to drive a motor vehicle recklessly or in a manner dangerous to the public contrary to section 285(6) (as it then existed) of the Criminal Code. The appellant was the owner of a car which was being driven by Mayville. Robertson C.J.O. after referring to a number of authorities said at p. 120:

These cases and many others establish the principle that the conduct of the accused, to constitute aiding and abetting, need not be some active participation at the moment the crime is committed. Here the appellant, the owner of the motor-car, had placed it in the hands of Mayville to drive, as his servant, he himself also riding in the car. He was there when Mayville, in an intoxicated condition, resumed driving on leaving the restaurant at Chatham, and he then permitted Mayville to continue to drive in spite of early and continued evidence of his incapacity.

In the above cases, the person having a right and a duty to control the actions of another, was present when the illegal acts occurred.

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

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

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

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

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

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

18     We are disposed to think that the words "necessaries of life" in section 197 may be wide enough to include not only food, shelter, care, and medical attention necessary to sustain life, but also necessary protection of a child from harm. It is, however, not necessary to decide that question since, in any event, a parent is under a legal duty at common law to take reasonable steps to protect his or her child from illegal violence used by the other parent or by a third person towards the child which the parent foresees or ought to foresee. In our opinion such parent is criminally liable under the Code for failing to discharge that duty in circumstances which show a wanton or reckless disregard for the child's safety, where the failure to discharge the legal duty has contributed to the death of the child or has resulted in bodily harm to the child....
21     A parent may be criminally negligent in permitting a child to remain in an environment where, to the knowledge of the parent, it is subject to brutal treatment by the other parent or a third person with whom the parent is living, and may be convicted of manslaughter where the death of the child has been caused by such brutal treatment: see Palmer v. State of Maryland 164 A 2d 467 (1960); Commonwealth of Pennsylvania v. Howard 402 A 2d 674 (1979); State of South Dakota v. Zobel 134 N.W. 2d 101 (1965).
22     Although there was no direct evidence that the appellant knew of the mistreatment of the child by his wife, it would be open to the jury to infer such knowledge from the circumstances, including the long continued mistreatment of the child, the visible evidence of bruises and the fact that the appellant was living in the same house with his wife and the child. It would be for the jury to weigh those circumstances together with the evidence previously referred to, of witnesses who observed the child and did not appear to be alarmed....

 

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

[Appeal by the accused Anthony and Marcia Dooley from convictions for second degree murder, and an appeal by Marcia from sentence. She had been sentenced to life imprisonment without eligibility for parole for 18 years, based on the trial judge's findings that she had struck the fatal blow and had inflicted the vast majority of the prior abuse. The appellants were spouses and had been charged with murdering Anthony's seven-year-old son. Post-mortem medical examinations revealed extensive injuries sustained through prior abuse.]

The judgment of the Court was delivered by
D.H. DOHERTY J.A.:–

4     It was accepted at trial that one of the appellants caused Randal's death. Each blamed the other. The perpetrator of the fatal assault was guilty of at least manslaughter (causing death by means of an unlawful act contrary to s. 222(5)(a)). It was also clear on the evidence that the parent who did not actually inflict the injury that caused Randal's death was guilty of at least manslaughter for failing to protect Randal from the assaultive parent and/or failing to obtain medical care for Randal the night he died (criminal negligence causing death contrary to s. 220). As I read the trial record, the appellants' liability for manslaughter, through their failure to provide medical assistance to Randal on the day he died, was beyond any realistic debate....
6     At trial, the Crown argued that Randal died as a result of a head injury inflicted within 24 hours of his death. The Crown maintained that one of the appellants (probably Marcia) had inflicted the fatal head injury. The Crown contended that the perpetrator was guilty of murder as defined in s. 229(a)(ii) in that he or she caused bodily harm to Randal knowing that the bodily harm was likely to cause death and being reckless as to that result. ....
7     The Crown argued that the parent who did not commit the fatal assault (probably Tony) was guilty of second degree murder as an aider and abetter. The Crown advanced the position that the non-perpetrator parent had a legal duty to intervene and stop the other parent's abuse of Randal. On the Crown's theory, the failure to perform that legal duty assisted or encouraged the perpetrator in the continuation of their abuse of Randal. ... The Crown contended that the non-perpetrator failed to intervene for the purpose of aiding or abetting the perpetrator in the commission of murder. As with its case against the perpetrator, the Crown relied on the non-perpetrator's knowledge of the ongoing assaults against Randal and his severely compromised physical condition as of the day he died....
116     Counsel for the appellants submit that the trial judge erred in law by failing to properly instruct the jury on the conduct requirement of aiding and abetting. They submit the jury must be instructed that to find liability as an aider or abetter, the non-perpetrator's conduct must have the effect of assisting or encouraging the perpetrator in the infliction of the fatal assault. In their factum, counsel for Tony Dooley argued that conduct or an omission could only have the effect of aiding and abetting if that conduct or omission "caused" the perpetrator to commit the homicide. I do not understand counsel to have gone so far as to argue that the Crown must prove that "but for" the act of aiding or abetting, the homicide would not have occurred. Rather, as I understand the submission, the jury should have been told that before the alleged act of aiding or abetting could render the non-perpetrator liable for the homicide as an aider or abetter, that alleged act must have played some causative role in bringing about the homicide....
121     While I am satisfied that in order to find liability there must be a connection between the offence and the acts of alleged aiding or abetting, I would not use the language of causation to describe that connection. The connection required in the context of accessorial liability varies. Some kinds of culpable assistance have no causative link to the crime committed. If "A" holds the victim down while the perpetrator kills the victim, "A" could not escape liability if, before "A" held him down, the victim had been rendered defenceless by the acts of others. Similarly, if "A" encouraged the perpetrator to commit a homicide and the perpetrator did so after receiving that encouragement, "A" could not escape liability even if the perpetrator would have killed the individual irrespective of the encouragement. The varying nature of the causal link between the accessorial act and the substantive crime renders a description of accessorial liability in terms of causation difficult and unhelpful: see J.C. Smith, "Aid, Abet, Counsel, or Procure" in P.R. Glazebrook, ed., Reshaping the Criminal Law: Essays in honour of Glanville Williams (London: Stevens & Sons, 1978), at p. 120; K.J.M. Smith, "Complicity and Causation", [1986] Crim. L. Rev. 663.
122     Another reason for avoiding the language of causation when describing accessorial liability arises in the context of a jury charge. Causation must be explained to a jury in terms of the perpetrator's liability for the alleged crime. Causation in the accessorial context can take on quite a different meaning. An attempt to explain two different kinds of causation to a jury in the same case could well lead to confusion.
123     The authorities take a wide view of the necessary connection between the acts of alleged aiding or abetting and the commission of the offence. Any act or omission that occurs before or during the commission of the crime, and which somehow and to some extent furthers, facilitates, promotes, assists or encourages the perpetrator in the commission of the crime will suffice, irrespective of any causative role in the commission of the crime. The necessary connection between the accessory's conduct and the perpetrator's commission of the crime is captured by phrases such as "actual assistance or encouragement" or "assistance or encouragement in fact" or as the appellants argue, conduct that "has the effect" of aiding or abetting: R. v. Mariani (2007), 220 C.C.C. (3d) 74 (Ont. C.A.), at p. 93; R. v. Calhaem, [1985] Q.B. 808 (C.A.), at pp. 814-16; R. v. Bryce, [2004] 2 Cr. App. R. 592 (C.A.), at paras. 72-76; A.G. v. Able, [1984] Q.B. 795, at p. 809; R. v. Clarkson, [1971] 3 All E.R. 344 (Ct. Martial App. Ct.), at pp. 347-48; Peter Gillies, Criminal Law, 4th ed. (North Ryde, Austl.: LBC Information Services, 1997), at pp. 162-63; Fisse, Howard's Criminal Law, at p. 326; Rose, Parties to an Offence, at p. 25.
124     While the phrases set out above, and others, I am sure, could be used to explain the necessary connection between the accessorial act and the perpetrator's commission of the crime, often the plain words "assistance", "encouragement" or "help", without more, will convey the same message. This is especially true where it is accepted that the alleged perpetrator was aware of the alleged acts of aiding or abetting when he or she committed the offence. ...

 

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

LAMER C.J.C.:—

Facts

The two respondents, Sutcliffe Logan Jr. and Warren Leroy Johnson, together with two other co-accused, Hugh Logan (the brother of respondent Logan) and Clive Brown, were all charged with a number of offences arising from a series of robberies in the Toronto area. This appeal pertains only to the charges against the two respondents for attempted murder which resulted from an incident during one of the robberies.

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

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

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

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

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

Relevant statutory provision

Criminal Code, s. 21:

21.(1) Every one is a party to an offence who
(a) actually commits it,
(b) does or omits to do anything for the purpose of aiding any person to commit it, or
(c) abets any person in committing it.
(2) Where two or more persons form an intention in common to carry out an unlawful purpose and to assist each other therein and any one of them, in carrying out the common purpose, commits an offence, each of them who knew or ought to have known that the commission of the offence would be a probable consequence of carrying out the common purpose is a party to that offence.
...

Issues

The following constitutional questions were stated by the Chief Justice:

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

Analysis

R. v. Vaillancourt

The appellant is challenging the constitutionality of s. 21(2) in general and, in particular, of the objective component of the section (“ought to have known”). However, the Court of Appeal, quite correctly, did not declare the objective component of s. 21(2) inoperative for all offences. They dealt specifically with the operation of the provision in relation to the offence of attempted murder and the possibility that a party to an attempted murder could be convicted upon proof of objective intent, whereas a conviction of the principal would require proof of subjective intent. More generally, as a basis for their decision, the court determined that it is a principle of fundamental justice that a party to any offence cannot be found guilty of the offence based on a lower standard of requisite mens rea than that required for convicting the principal.

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

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

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

Requisite mens rea for conviction pursuant to s. 21(2)

Therefore, the question whether a party to an offence had the requisite mens rea to found a conviction pursuant to s. 21(2) must be answered in two steps. First, is there a minimum degree of mens rea which is required as a principle of fundamental justice before one can be convicted as a principal for this particular offence? This is an important initial step because if there is no such constitutional requirement for the offence, the objective component of s. 21(2) can operate without restricting the constitutional rights of the party to the offence. Secondly, if the principles of fundamental justice do require a certain minimum degree of mens rea in order to convict for this offence, then that minimum degree of mens rea is constitutionally required to convict a party to that offence as well.

Step one: s. 7 and attempted murder

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

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

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

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

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

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

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

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

Section 1 analysis

...Given that a minimum degree of mens rea (subjective foresight) is constitutionally required to convict a principal of the offence of attempted murder, the restriction of s. 7 in this case is in convicting, through the operation of s. 21(2), a non-principal who does not have that same degree of mens rea. It is not the legislative objective of s. 21(2) as a whole which this court must scrutinize, but only the legislative objective of that portion of s. 21(2) that restricts the accused’s rights under s. 7 of the Charter in issue in the present case. This differential treatment of parties and principals charged with attempted murder is the restriction which must undergo the s. 1 test.

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

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

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

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

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

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

Conclusion

I would, therefore, as did the Court of Appeal, declare inoperative the words “or ought to have known” when considering under s. 21(2) whether a person is a party to any offence where it is a constitutional requirement for a conviction that foresight of the consequences be subjective, which is the case for attempted murder. Once these words are deleted, the remaining section requires, in the context of attempted murder, that the party to the common venture know that it is probable that his accomplice would do something with the intent to kill in carrying out the common purpose.

I would dismiss the appeal. ...

L’HEUREUX-DUBÉ J.:—Having had the advantage of the reasons of my colleague, Chief Justice Lamer, and given my position in R. v. Martineau [ante, p. 353] and R. v. Rodney [post, p. 408], released concurrently, I cannot completely agree either with his reasons or with his answers to the constitutional questions although I concur in his ultimate disposition of this appeal.

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

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

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

222. Everyone who attempts by any means to commit murder is guilty of an indictable offence and liable to imprisonment for life.
As this court held in R. v. Ancio (1984), 10 C.C.C. (3d) 385, 6 D.L.R. (4th) 577, [1984] 1 S.C.R. 225, a conviction for attempted murder requires proof of the specific intent to kill. No lesser mens rea will suffice. Parliament has decided to create a distinct offence for attempted murder, recognizing that the results of criminal acts are not to be ignored. The death of a victim renders a standard of objective foreseeability constitutionally permissible. When the attempt does not result in death, logic as well as principles of fundamental justice enshrined in the Canadian Charter of Rights and Freedoms, dictate that the specific intent to commit the attempted murder crime must be conclusively proven. As I said in Martineau [ante, p. 375]:
If both components, actus reus as well as mens rea, are not considered when assessing the level of fault attributable to an offender, we would see manslaughter and assault causing bodily harm as no more worthy of condemnation than an assault. Mere attempts would become as serious as full offences.
When mere attempts are at issue, mens rea assumes a dominant role. The rationale for invoking a test of subjective foresight for attempted murder does not stem from the crime’s relationship to the crime of completed murder, but rather from its connection to crimes of attempt generally. Therefore, I do not choose to follow my colleague’s dialectic on the impact of fundamental justice, or of constitutional compulsion upon parliamentary sovereignty when legislating with respect to these crimes. The motivation for requiring subjective foresight for attempt crimes radiates from the primacy of the mens rea component, not from any potential penalties or social stigma that might attend conviction for the completed offence.

Part of the policy justification for enacting s. 213(a), invoked in Martineau, was that the act of killing cannot be disassociated from the mental element that motivated it. An exclusive examination of intent would ignore the fact that someone has been unlawfully killed. In the aftermath of such a killing it is appropriate to ask whether such a killing was objectively foreseeable, given the circumscribed list of predicate offences under s. 213, coupled with the intent to inflict bodily harm. For mere attempts, no other unlawful act is necessary. Intent is what is being punished by s. 222, not the act itself. The mens rea criteria for the full offence of murder and mere attempt are necessarily different. As McIntyre J., for the court, held in Ancio at pp. 401-2 C.C.C., pp. 593-4 D.L.R.:
Indeed, because the crime of attempt may be complete without the actual commission of any other offence and even without the performance of any act unlawful in itself, it is abundantly clear that the criminal element of the offence of attempt may lie solely in the intent.
. . .
The completed offence of murder involves a killing. The intention to commit the complete offence of murder must therefore include an intention to kill. I find it impossible to conclude that a person may intend to commit the unintentional killings described in ss. 212 and 213 [now ss. 229 and 230] of the Code. I am then of the view that the mens rea for an attempted murder cannot be less than the specific intent to kill.
After citing this authority, the Ontario Court of Appeal concluded at p. 400 C.C.C., p. 104 D.L.R.:
... in so far as s. 21(2) permits a conviction of a party for the offence of attempted murder on the basis of objective foreseeability, a lesser degree of mens rea than is required for the principal, it is contrary to the principles of fundamental justice. Nor do we think that this departure from the principles of fundamental justice can be saved by s. 1 of the Charter.
The solution adopted by the Court of Appeal, at p. 401 C.C.C., p.105 D.L.R., was to read down the provision as follows:
Thus, on a charge of attempted murder, where s. 21(2) is invoked to determine the liability of a party to the offence, the words of s. 21(2), “ought to have known”, must be held to be inoperative and cannot be resorted to by the trier of fact to determine the guilt of such an accused person.
The words “ought to know” are not to be read out of the section in all cases. This measure of objective foreseeability is certainly appropriate when the mens rea of the principal can be ascertained according to an objective standard as well. For example, a party to a completed murder can be convicted under s. 21(2) in its present form, if, as in Martineau and Rodney, the stringent criteria of s. 213(a), including the objective foreseeability of death, have all been proven. That is precisely the “guaranteed minimum” degree of mens rea prescribed by this court in R. v. Vaillancourt, supra.

However, in the present case no killing took place. The crime was one for which the specific intent of the principal had to be shown. In those instances where the principal is held to a mens rea standard of subjective foresight, the party cannot constitutionally be convicted for the same crime on the basis of an objective foreseeability standard. In this regard the actus reus component of the offence cannot be ignored. Policy considerations addressed in Martineau justify treating completed killings more harshly than attempted ones. If someone who attempts to kill cannot be convicted unless the Crown proves that he had the specific intent to do so, then he who accompanied the principal cannot be convicted if the Crown merely shows that the attempted murder was objectively foreseeable.

Therefore, I would dismiss this appeal.

 

R. v. Kirkness
 [1990] 3 S.C.R. 74; [1990] S.C.J. No. 119
Supreme Court of Canada

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

 

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

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

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

[T]he person aiding or abetting the crime [of murder] must intend that death ensue or intend that he or the perpetrator cause bodily harm of a kind likely to result in death and be reckless whether death ensues or not.
It is implicit in this statement that there is no requirement under s. 21(1)(b) that the person charged as a party "desire" that the victim die (that is, subjectively wish that this result come to pass), just as the principal's intent to kill is not negated even if, all other things being equal, he or she regrets the fact that he or she is killing the victim. Similarly, in R. v. Jackson, [1993] 4 S.C.R. 573, the Court commented on the mental element for conviction of murder as a party under s. 21(1). Writing for the Court, McLachlin J. stated (at p. 581):
In this case, Jackson [the principal] committed the offence of murder. It was open on the evidence for the jury to find that Davy aided and abetted him in that offence, and is guilty under s. 21(1)(b) and (c) of the Criminal Code. If he possessed the necessary mens rea for murder he could be guilty of murder.
Since the mens rea requirement for murder is satisfied if the accused means to cause the victim bodily harm that he knows is likely to cause his death, it can be inferred that the Court in Jackson did not believe that s. 21(1) imposed any additional requirement that an aider or abettor subjectively approve of or desire the victim's death.

 

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

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

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

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

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

The same rationale applies regardless of the principal offence in question. Even in respect of murder, there is no "additional requirement that an aider or abettor subjectively approve of or desire the victim's death" (Hibbert, at para. 37 (emphasis deleted)).
17     As for knowledge, in order to have the intention to assist in the commission of an offence, the aider must know that the perpetrator intends to commit the crime, although he or she need not know precisely how it will be committed. That sufficient knowledge is a prerequisite for intention is simply a matter of common sense. Doherty J.A. in R. v. Maciel, 2007 ONCA 196, 219 C.C.C. (3d) 516, provides the following useful explanation of the knowledge requirement which is entirely apposite to this case (at paras. 88-89):

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

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

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

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

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

24     Professor Don Stuart makes the useful observation that the expression "deliberate ignorance" seems more descriptive than "wilful blindness", as it connotes "an actual process of suppressing a suspicion". Properly understood in this way, "the concept of wilful blindness is of narrow scope and involves no departure from the subjective focus on the workings of the accused's mind" (Canadian Criminal Law: A Treatise (5th ed. 2007), at p. 241). While a failure to inquire may be evidence of recklessness or criminal negligence, as for example, where a failure to inquire is a marked departure from the conduct expected of a reasonable person, wilful blindness is not simply a failure to inquire but, to repeat Professor Stuart's words, "deliberate ignorance".
25     In this case, I agree with Martin J.A. that the trial judge erred in law by failing to consider wilful blindness. As he noted, even Mr. Briscoe's own statements to the police suggest that he had a "strong, well-founded suspicion that someone would be killed at the golf course" (para. 30) and that he may have been wilfully blind to the kidnapping and prospect of sexual assault. His statements also show that he deliberately chose not to inquire about what the members of the group intended to do because he did not want to know. As he put it, "whatever you guys wanna do just do it. Don't do it around me I don't want to see nothing I don't know what the fuck you're gonna do." The trial judge relied heavily upon the statements in his reasons but did not refer to the doctrine of wilful blindness. Of course, whether Mr. Briscoe had the requisite mens rea for the three offences was a question for the trier of fact, and Mr. Briscoe is entitled to the benefit of any reasonable doubt on this issue. However, from a legal standpoint, it is my respectful view that the evidence cried out for an analysis on wilful blindness. In these circumstances, the Court of Appeal rightly concluded that the trial judge's failure to consider Mr. Briscoe's knowledge from that perspective constitutes a legal error which necessitates a new trial on all charges.
26     In my view, the Crown has met its heavy onus on appealing an acquittal of showing that the errors of the trial judge "might reasonably be thought, in the concrete reality of the case at hand, to have had a material bearing on the acquittal" on the three charges: R. v. Graveline, 2006 SCC 16, [2006] 1 S.C.R. 609, at para. 14 (per Fish J.). Consequently, I would dismiss the appeal and confirm the order for a new trial.

 

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

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

[26] I have grounded the Count 1 to 5 findings of guilty against the accused on Code s. 21(1)(a). He was a s. 21(1)(a) actual committer. The fact that on the evidence before me there was another s. 21(1)(a) actual committer - the driver of the BMW - is, in law, of no moment. Another way to put it is that if two people participate directly in the actus reus of an offence, each of them is a s. 21(1)(a) actual committer of the offence if the mens rea required for conviction is established by the Crown: (citations omitted.)

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

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

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

... for purposes of liability under s. 21(1)(a) of the Code, ... agreement to carry out a common purpose is not necessary. The question is whether there is an indication of common participation, not common purpose.
78     None of the foregoing articulations of the law supports the appellant's submission that an additional nexus such as a "race" or a "chase" was necessary to support the trial judge's conclusion that under s. 21(1)(a), the appellant was a principal offender or, as he described it, an actual committer. The fact that a nexus was found in the cases to which the appellant referred does not make it a requirement in every case. [An] agreement to carry out a common purpose is not necessary.
79     In my opinion, no issue can be taken with the trial judge's conclusion that an intention in common is not demanded for the appellant's criminal liability to be founded on s. 21(1)(a).

 

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


The judgment of the Court was delivered by
1     M. ROSENBERG J.A.:—The appellant appeals in writing from his conviction and sentence for conspiracy to commit murder. The appellant was tried as a youth by a court composed of Van Melle J. and a jury. He was sentenced to an 18 month custody and supervision order. ...
3     ... In the fall of 2002, two sisters agreed to kill their mother. While the older sister, R, first came up with the idea, the younger sister, T, joined in the agreement. At different times, the sisters may have abandoned the plan, but it was clear that by January 2003, they had a settled intention to kill their mother. The two sisters were ultimately convicted of first degree murder. The motive for the murder was the deceased's behaviour as a result of her alcoholism. At the time the sisters were 16 and 15 years of age. The appellant, then 15 years of age, was a close friend of T and they were dating prior to their arrests....
11     Although the Crown's main position was that the appellant was a principal in the conspiracy to commit murder, Crown counsel asked the trial judge to leave liability on the basis that the appellant was a party to the conspiracy under s. 21(1) of the Criminal Code. The trial judge agreed to do so, feeling that she was bound by decisions of this court. ...
12     Later in the charge, the trial judge reviewed the position of the Crown, which set out the basis for its theory of party liability:
It is the position of the Crown that [the appellant] can be convicted of conspiracy as either a full partner like [T] and [R] or if he was a party to the conspiracy. He is a party to the conspiracy by aiding, which means assisting, or abetting, which means encouraging [T] and [R] in their plan to murder—in the plan to murder [the deceased].

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

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

(i)         There is no offence known to law of party to conspiracy.
(ii)        Alternatively, while a person may be a s. 21(1) party to conspiracy under subpara. (c) by encouraging the conspiracy, one cannot be a party under subpara. (b) by aiding the conspiracy....

14     Appellate courts in this and other provinces have held that s. 21(1) of the Criminal Code applies to conspiracy to commit a substantive offence, such as murder. In Ontario, the seminal case is R. v. McNamara (No. 1) (1981), 56 C.C.C. (2d) 193 (Ont. C.A.)....
18     In R. v. Vucetic (1998), 129 C.C.C. (3d) 178 (Ont. C.A.), this court again considered party liability for a conspiracy. In that case, it was argued, as here, that a person could not be a s. 21(1) party to a conspiracy. The court disagreed, holding as follows at para. 6:
Despite the able argument presented by counsel for the appellant, we are not persuaded that we should, or could, ignore the clear statement of the law in R. v. McNamara, albeit as obiter, that a person may become a party to the criminal offence of conspiracy (as opposed to a participant in the conspiracy) by virtue of s. 21 of the Code; R. v. McNamara, supra, at 453.

19     The appellant seeks to avoid the binding effect of McNamara and Vucetic by reference to the subsequent decision of the Supreme Court of Canada in R. v. Dèry, [2006] 2 S.C.R. 669, where the court held that there was no offence known to law of attempted conspiracy. In Dèry, the Supreme Court of Canada agreed with this court's decision in R. v. Dungey (1979), 51 C.C.C. (2d) 86 (Ont. C.A.), which had held to the same effect; that one cannot be convicted of attempt to conspire to commit a substantive offence. Dèry and Dungey turn on the issue of remoteness. The crime of conspiracy is more preliminary than the crime of attempt and acts that precede a conspiracy are not sufficiently proximate to a substantive offence to warrant criminal sanction. At paras. 49 and 50 of Dèry, Fish J. speaking for the court, explained the rationale for the crimes of conspiracy and attempt and why that rationale did not justify a crime of attempt to conspire:

49        By its very nature, moreover, an agreement to commit a crime in concert with others enhances the risk of its commission. Early intervention through the criminalization of conspiracy is therefore both principled and practical.

50        Likewise, the criminalization of attempt is warranted because its purpose is to prevent harm by punishing behaviour that demonstrates a substantial risk of harm. When applied to conspiracy, the justification for criminalizing attempt is lost, since an attempt to conspire amounts, at best, to a risk that a risk will materialize.

20     In my view, the holding in Dèry does not warrant reconsideration of this court's decisions in McNamara and Vucetic. Party liability for conspiracy does not suffer from the problem of remoteness identified in Dèry with respect to attempt to conspire. A person can be liable as a s. 21(1) party to conspiracy only if the Crown proves an agreement by at least two other people to commit a substantive offence. If no agreement materialized, the alleged party's conduct would be at most an attempt to conspire and would fail on the holding in Dèry. If, however, the accused is a party to the conspiracy, for example, by either encouraging someone to join the conspiracy or aiding or abetting the furtherance of its object (a matter I will explore below), the risk of commission of the criminal offence has sufficiently materialized to warrant criminal sanction.
...
23     I can see no principled basis for limiting party liability to abetting to the exclusion of aiding. Aiding a conspiracy within the meaning of s. 21(b) is no less harmful than abetting. Liability for aiding a conspiracy would require proof that the accused did or omitted to do something for the specific purpose of aiding another to commit the offence of conspiracy. That degree of mens rea imports a sufficient level of fault to warrant criminal liability. As pointed out in McNamara, it would not be enough that the accused's acts had the effect of aiding the conspiracy, the accused must also have the requisite mens rea.
24     The appellant submits, however, that even if a person can be liable as a party to conspiracy either for aiding or abetting, liability is limited to aiding or abetting the formation of the conspiracy or to aid or abet someone to join the conspiracy. This is the position taken by the Alberta Court of Appeal in R. v. Trieu (2008), 429 A.R. 200 (C.A.). In that case, the court noted that the essence of the conspiracy is the agreement and that the crime is carried out whether or not the unlawful object is achieved. The court would therefore limit liability to acts for the purpose of aiding or abetting the actual formation of the agreement. ...
26     Again, I can see no basis in principle for refusing to follow McNamara and Vucetic on this issue. I appreciate the point made in Trieu that the essence of a conspiracy is an agreement, but it is not an agreement in the abstract; it is an agreement to attain a common goal, a particular unlawful object. In R. v. Cotroni, [1979] 2 S.C.R. 256 at p. 277, Dickson J. speaking for the majority adopted the following from R. v. Meyrick and Ribuffi (1929), 21 Cr. App. R. 94 (C.C.A.), at p. 102:
It is not enough that two or more persons pursued the same unlawful object at the same time or in the same place; it is necessary to show a meeting of minds, a consensus to effect an unlawful purpose.
Dickson J. continued on the same page: "There must be evidence beyond reasonable doubt that the alleged conspirators acted in concert in pursuit of a common goal."
27     Admittedly, including party liability for aiding or abetting pursuit of the unlawful object blurs the line between the conspiracy and the substantive offence. The distinction, however, is that party liability for conspiracy requires proof of an agreement, there is no requirement of proof that the unlawful object was attained. Liability as a party to the substantive offence requires proof that the substantive offence was committed. Thus, in this case, the appellant could be guilty of conspiracy if he aided or abetted the sisters within the meaning of s. 21(1) to pursue their unlawful object, even if they ultimately did not carry out the plan or the deceased had survived the attempt on her life.

C.        Abandonment

 

R. v. Ball
[2011] B.C.J. No. 39; 2011 BCCA 11
British Columbia Court of Appeal
 Vancouver, British Columbia

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

Curiously, Canadian authority is lacking on the question of whether an aider and [sic] abettor can raise the defence that he abandoned his purpose. This argument has succeeded in respect of the doctrine of common intent under section 21(2) [see R. v. Whitehouse (1940), 75 C.C.C. 65; [1941] 1 D.L.R. 683 "Whitehouse"] and should be equally applicable here. There is abundant English authority for such a defence [R. v. Becerra (1975) 62 Crim. App. R. 212 (C.A.); R. v. Grundy [1977] Crim. L. Rev. 543 (C.A.)], provided that the accused took effective steps to attempt to prevent the commission of the offence.
45     In Whitehouse the accused was a party to a robbery in which the victim was struck and killed by one of Whitehouse's accomplices. Whitehouse argued that he could not be found liable under s. 21(2) of the Code for murder as he had run off before the killing occurred. In dealing with that submission, Sloan J.A. said this at para. 7:
Can it be said on the facts of this case that a mere change of mental intention and a quitting of the scene of the crime just immediately prior to the striking of the fatal blow will absolve those who participate in the commission of the crime by overt acts up to that moment from all the consequences of its accomplishment by the one who strikes in ignorance of his companions' change of heart? I think not. After a crime has been committed and before a prior abandonment of the common enterprise may be found by a jury there must be, in my view, in the absence of exceptional circumstances, something more than a mere mental change of intention and physical change of place by those associates who wish to dissociate themselves from the consequences attendant upon their willing assistance up to the moment of the actual commission of that crime. I would not attempt to define too closely what must be done in criminal matters involving participation in a common unlawful purpose to break the chain of causation and responsibility. That must depend upon the circumstances of each case but it seems to me that one essential element ought to be established in a case of this kind: where practicable and reasonable there must be timely communication of the intention to abandon the common purpose from those who wish to dissociate themselves from the contemplated crime to those who desire to continue in it. What is "timely communication" must be determined by the facts of each case but where practicable and reasonable it ought to be such communication, verbal or otherwise, that will serve unequivocal notice upon the other party to the common unlawful cause that if he proceeds upon it he does so without the further aid and assistance of those who withdraw. The unlawful purpose of him who continues alone is then his own and not one in common with those who are no longer parties to it nor liable to its full and final consequences.
...
47     Beyond the question of what is required to abandon one's role as an aider or abettor or party under s. 21(1), it seems logical that a person who commits a crime as a co-perpetrator (in the rare case where it cannot be said that he or she aided or abetted the others) should be able to argue that he is responsible for whatever occurred during the time of his involvement but not for what occurred after his involvement ended.
48     Those questions need not be explored on this appeal. The evidence in this case supports the conclusion that Mr. Ball ended his part in the assaults after the damage had been done. In his statement to the police Mr. Ball described his physical engagement with Ian Johnston and how he moved back and over to the area where Bradley Johnston was being attacked at the same time as Mr. Rosborough continued to strike Ian Johnston. Mr. Ball followed that description with this statement:
And then as I started to walk over there I see Don back hand the guy with the orange hair and Chris pulling on Paul to get him off and then I got up and I was saying stop too and then Paul got off and then that was the end of it the two guys walked the other way and everyone else walked the other way.
49     In my view this evidence does not demonstrate that Mr. Ball ended his involvement in the assaults before Bradley Johnston might have been fatally injured. It does show that after or at the same time Bradley Johnston was struck by Mr. Clarke for the last time, Mr. Ball believed that there had been enough violence and that he called, as did others, for the fight to end. This cannot amount to an abandonment no matter how the argument is put.

 

* * *

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

The judgment of the court was delivered by Martin J.A. (orally):

1          The appellant appeals from his conviction by the verdict of a general sessions jury on an indictment alleging that he:
... between the 30th day of May, 1982, and the 1st day of June, 1982, at the City of Timmins, in the District of Cochrane, did procure Charles Charbonneau to commit an indictable offence of first degree murder, which offence was not committed, contrary to the Criminal Code of Canada [R.S.C. 1970, c. C-34], Section 422 {now s. 464}.

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

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

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

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

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

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

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

422. Except where otherwise expressly provided by law, the following provisions apply in respect of persons who counsel, procure or incite other persons to commit offences, namely,
(a) every one who counsels, procures or incites another person to commit an indictable offence is, if the offence is not committed, guilty of an indictable offence and is liable to the same punishment to which a person who attempts to commit that offence is liable; and
(b) every one who counsels, procures or incites another person to commit an offence punishable on summary conviction is, if the offence is not committed, guilty of an offence punishable on summary conviction.

9          It was an offence at common law to solicit or incite another person to commit either a felony or a misdemeanour and s. 422(a) merely codifies the common law rule. The word "procure" in the context in which it is used in s. 422 means to instigate, persuade or solicit.

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

The common law offence of incitement (or solicitation) is committed when one person 'counsels, procures or commands' another to commit a crime whether or not the other actually commits it. (If he commits it the inciter will, of course, be an accessory and will normally be charged as such; but on a charge of incitement it is no defence to show that the crime was actually committed.)
Any persuasion or encouragement (including a threat) is sufficient; so probably, is a mere suggestion.
11          The word "procure", which I have indicated is equivalent to incite, does not necessarily mean that the inciter must originate or initiate the transaction and a person may be convicted of incitement although the plan originated with the party alleged to have been incited: see Glanville Williams, Criminal Law (The General Part), 2nd ed. (1961), at p. 612, para. 195. He also states in his Textbook of Criminal Law, at p. 310:
A person who has incited a crime can still (in general) escape complicity in it if he expressly and clearly countermands the crime or withdraws his assent before it is committed, but he will remain liable for any previous incitement, as an inchoate offence.
12          Counsel for the appellant advanced as one of the grounds of appeal, in his statement of law and fact, that the learned trial judge erred in failing to instruct the jury that a renunciation by the appellant of the previous act of incitement constituted a defence. The offence of procuring under s. 422 is complete when the solicitation or incitement occurs even though it is immediately rejected by the person solicited, or even though the person solicited merely pretends assent and has no intention of committing the offence. There is no authority in either the Canadian or Commonwealth decisions in support of the view that renunciation of the criminal purpose constitutes a defence to a charge of "counselling, procuring or inciting" under s. 422, although renunciation is an affirmative defence under s. 5.02(3) of the American Model Penal Code to a charge of criminal solicitation: see "Abandoning Criminal Intent" by Martin Wasik, [1980] Crim. L. Rev. 785. ...

Annotation (by Allan Manson):

... Martin J.A. [ruled] that the defence of abandonment is not available with respect to the offence of counselling another to commit an offence not subsequently committed. In his view, the offence is complete when the initial solicitation is made with the requisite intention and any renunciation or abandonment of intention after that point affords no defence. Relying heavily on Glanville Williams, Criminal Law (The General Part), 2nd ed. (1961), and Textbook of Criminal Law (1978), Martin J.A. accepted that a renunciation of intention could apply to sever the liability of a counsellor as a party to the subsequent offence (s. 22 of the Criminal Code, R.S.C. 1970, c. C-34), but rejected the notion of abandonment for the offence of counselling (s. 422). Thus, as far as the defence of abandonment is concerned, counselling is placed in the same category as its related inchoate offences of attempt and conspiracy....

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

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

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

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

 

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

REPPY, J.

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

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

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

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

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

* * *

StGB § 24

* * *

MPC §§ 2.06(6)(c), 5.01(4), 5.02(3), 5.03(6)

* * *

N.Y. Penal Law § 40.10 Renunciation.

1. In any prosecution for an offense, other than an attempt to commit a crime, in which the defendant's guilt depends upon his criminal liability for the conduct of another ..., it is an affirmative defense that, under circumstances manifesting a voluntary and complete renunciation of his criminal purpose, the defendant withdrew from participation in such offense prior to the commission thereof and made a substantial effort to prevent the commission thereof.

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

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

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

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

            D. Vicarious Liability (Respondeat Superior)


 

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

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

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

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

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

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

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

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

“We now turn to the cases in which knowledge has been imputed to a licensee because of the knowledge of his manager or servant. It is unnecessary to go through them all because the principle which applies was laid down, not for the first time, in Linnett v. Metropolitan Police Comr. ([1946] 1 All E.R. 380). All the cases on the subject were quoted and, in giving judgment, I said ([1946] 1 All E.R. 382):
‘The principle does not, in my opinion, depend merely upon the legal relationship between the two persons, the person who actually permitted with knowledge and the person who is convicted although he had no actual knowledge. The point does not, as I say, depend merely on the fact that the relationship of master and servant exists; it depends on the fact that the person who is responsible in law as the keeper of the house, or the licensee of the house if the offence is under the Licensing Act [1872], has chosen to delegate his duties, powers and authority to somebody else.’” ...
A quotation also from an article in the Modern Law Review, the issue of July 1954, vol. 17, No. 4, at p. 295, might be useful: “A glance at the avalanche of new offences created during the past decade by statute and regulation reveals the frequent resort by the legislature to such epithets as ‘knowingly,’ ‘permitting,’ ‘allowing,’ and ‘suffering,’ or such double-barrelled expressions as ‘knowingly suffers,’ ‘knowingly permits,’ or ‘wilfully suffers or permits.’ Space does not permit a full analysis of the cases in which one or other of these words or phrases has been the subject of interpretation by the courts, but it can be said with confidence that the general consensus of judicial opinion deems it necessary in such cases for mens rea, in the form of knowledge of all the elements constituting the prohibited act or conduct, to be proved.”

Therefore, the appeal is allowed and the conviction quashed without costs. There will also be the usual order for refund or repayment of any monies paid in or deposited by the accused for costs or otherwise.

Appeal allowed.


            E. Corporate Liability


                        1. Statutory definitions of personhood


Canada

 

Interpretation Act R.S.C., 1985, c. I-21

General definitions

S. 35 (1) In every enactment, …

person / personne: “person”, or any word or expression descriptive of a person, includes a corporation.

corporation / personne morale: “corporation” does not include a partnership that is considered to be a separate legal entity under provincial law


India

 

The Indian Penal Code, 1860

Ch. II. General Explanations

S. 6. Definitions in the Code to be understood subject to exceptions …

S. 11. "Person" – The word "person" includes any Company or Association or body of persons, whether incorporated or not.

South Africa

 

Close Corporations Act, 1984 (Act No. 69 of 1984)

P. 1, s. 2: Formation and juristic personality of close corporations …

(2) A corporation formed in accordance with the provisions of this Act is on registration in terms of those provisions a juristic person and continues, subject to the provisions of this Act, to exist as a juristic person notwithstanding changes in its membership until it is in terms of this Act deregistered or dissolved. …

(4) A corporation shall have the capacity and powers of a natural person of full capacity in so far as a juristic person is capable of having such capacity or of exercising such powers.


United States

 

California Business & Professions Code

Department of Consumer Affairs – Consumer Affairs – General Provisions and Definitions

S. 302. As used in this chapter, the following terms have the following meanings: …

(d) "Person" means an individual, partnership, corporation, limited liability company, association, or other group, however organized.

(e) "Individual" does not include a partnership, corporation, association, or other group, however organized.


Haw. Rev. Stat.

Hawaii Penal Code Codification – Preliminary Provisions

§ 701-118: General definitions. In this Code, unless a different meaning plainly is required: …

(7) "Person," "he," "him," "actor," and "defendant" include any natural person, including any natural person whose identity can be established by means of scientific analysis, including but not limited to scientific analysis of deoxyribonucleic acid and fingerprints, whether or not the natural person's name is known, and, where relevant, a corporation or an unincorporated association; …


N.Y. Penal Law

§ 10.00 – Definitions of terms of general use in this chapter. Except where different meanings are expressly specified in subsequent provisions of this chapter, the following terms have the following meanings: …

7. "Person" means a human being, and where appropriate, a public or private corporation, an unincorporated association, a partnership, a government or a governmental instrumentality.

§ 125.05 – Homicide, abortion and related offenses; definitions of terms. The following definitions are applicable in this article: …

1. "Person," when referring to the victim of a homicide, means a human being who has been born and is alive.



                        2. Foundations of Corporate Criminal Liability

 

New York Central and Hudson River Railway Co. v. United States

Supreme Court of the United States

212 U.S. 481 (1909)

 

MR. JUSTICE DAY delivered the opinion of the court:

This is a writ of error to the Circuit Court of the United States for the Southern District of New York, sued out be the New York Central and Hudson River Railroad Company, plaintiff in error. In the Circuit Court the railroad company and Fred L. Pomeroy, its assistant traffic manager, were convicted for the payment of rebates to the American Sugar Refining Company and others, upon shipments of sugar from the city of New York to the city of Detroit, Michigan. …

 

Numerous objections and exceptions were taken at every stage of the trial to the validity of the indictment and the proceedings thereunder. The principal attack in this court is upon the constitutional validity of certain features of the Elkins act. 32 Stat. 847. That act, among other things, provides:

 

1) That anything done or omitted to be done by a corporation common carrier subject to the act to regulate commerce, and the acts amendatory thereof, which, if done or omitted to be done by any director or officer thereof, or any receiver, trustee, lessee, agent or person acting for or employed by such corporation, would constitute a misdemeanor under said acts, or under this act, shall also be held to be a misdemeanor committed by such corporation, and upon conviction thereof it shall be subject to like penalties as are prescribed in said acts, or by this act, with reference to such persons, except as such penalties are herein changed.

* * *

 [***621]  "In construing and enforcing the provisions of this section, the act, omission or failure of any officer, agent or other person acting for or employed by any common carrier, acting within the scope of his employment, [**306]  shall in every case be also deemed [*492]  to be the act, omission or failure of such carrier, as well as of that person."

 

It is contended that these provisions of the law are unconstitutional because Congress has no authority to impute to a corporation the commission of criminal offenses, or to subject a corporation to a criminal prosecution by reason of the things charged. The argument is that to thus punish the corporation is in reality to punish the innocent stockholders, and to deprive them of their property without opportunity to be heard, consequently without due process of law. And it is further contended that these provisions of the statute deprive the corporation of the presumption of innocence, a presumption which is part of due process in criminal prosecutions. It is urged that as there is no authority shown by the board of directors or the stockholders for the criminal acts of the agents of the company, in contracting for and giving rebates, they could not be lawfully charged against the corporation. As no action of the board of directors could legally authorize a crime, and as indeed the stockholders could not do so, the arguments come to this: that owing to the nature and character of its organization and the extent of its power and authority, a corporation cannot commit a crime of the nature charged in this case.

 

Some of the earlier writers on common law held the law to be that a corporation could not commit a crime. It is said to have been held by Lord Chief Justice Holt (Anonymous, 12 Modern, 559) that "a corporation is not indictable, although the particular members of it are." In Blackstone's Commentaries, chapter 18, § 12, we find it stated: "A corporation cannot commit treason, or felony, or other crime in its corporate capacity, though its members may in their distinct individual capacities." The modern authority, universally, so far as we know, is the other way. In considering the subject, Bishop's New Criminal Law, § 417, devotes a chapter to the capacity of corporations to commit crime, and states the law to be: "Since a corporation acts by its officers and agents their purposes, motives, and intent are just as much those of the corporation as are the things done. If, for example, the invisible, intangible essence of air, which we term a corporation, can level mountains, fill up valleys, lay down iron tracks, and run railroad cars on them, it can intend to do it, and can act therein as well viciously as virtuously." … It is held in England that corporations may be criminally prosecuted for acts of misfeasance as well as nonfeasance (Queen v. Great North of England Railway Company, 9 Queen's Bench, 315). …

 

In this case we are to consider the criminal responsibility of a corporation for an act done while an authorized agent of the company is exercising the authority conferred upon him. … [T]he agents were bound to respect the regulation of interstate commerce enacted by Congress, requiring the filing and publication of rates and punishing departures therefrom. Applying the principle governing civil liability, we go only a step farther in holding that the act of the agent, while exercising the authority delegated to him to make rates for transportation, may be controlled, in the interest of public policy, by imputing his act to his employer and imposing penalties upon the corporation for which he is acting in the premises.

 

It is true that there are some crimes, which in their nature cannot be committed by corporations. But there is a large class of offenses, of which rebating under the Federal statutes is one, wherein the crime consists in purposely doing the things prohibited by statute. In that class of crimes we see no good reason why corporations may not be held responsible for and charged with the knowledge and purposes of their agents, acting within the authority conferred upon them. … If it were not so, many offenses might go unpunished and acts be committed in violation of law, where, as in the present case, the statute requires all persons, corporate or private, to refrain from certain practices forbidden in the interest of public policy. …




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

House of Lords

[1915] A.C. 705

 

VISCOUNT HALDANE L.C.:The Edward Dawson was a tank steamer designed for the carriage of oil in bulk. She was chartered by her owners, the appellants, on a time charter to a company known as the Anglo-Saxon Petroleum Company, and in the course of her employment she proceeded to Novorossisk in the Black Sea. There she loaded in bulk 2011 tons of benzine, and the bills of lading, six in number, were indorsed by the Anglo-Saxon Petroleum Company to the Asiatic Petroleum Company, who are the respondents in this case. My Lords, the benzine has been lost, and the respondents have brought an action against the appellants to recover damages for the loss of their cargo. …

 

My Lords, in that state of things the loss of the cargo took place, and the case came before Bray J., who tried it, and Bray J. found a number of facts. He found these facts after hearing the evidence on both sides, and I think that his findings of fact were justified. They were these: The first was that the ship when she left Novorossisk was unseaworthy by reason of defects in her boilers. The second finding of fact was that the stranding on the Botkill Bank, just off the mouth of the Scheldt, was caused by the want of steam, which in its turn was caused by the unseaworthy condition of the boilers; and he found the same causes as regards the subsequent stranding in the Scheldt itself. Then in the third place he found that the loss was not caused by any negligence or want of precautions on the part of the engineers, because he does not find it proved that anything they could have done could have altered the consequences. He found that the loss of the cargo was caused by the unseaworthiness of the ship due to the condition of the boilers. Then there are other findings which are findings of mixed fact and law. One of these is that the duty of supervision remained with the managing owners, and that the fault of the managing owners was a fault that affected the company itself.

 

My Lords, that last question gives rise to the real question of law which occurs in this case. Taking the facts to be as the learned judge has found them, what is the consequence as regards the liability of the appellants? The appellants are a limited company and the ship was managed by another limited company, Messrs. John M. Lennard & Sons, and Mr. J. M. Lennard, who seems to be the active director in J. M. Lennard & Sons, was also a director of the appellant company, Lennard’s Carrying Company, Limited. My Lords, in that state of things what is the question of law which arises? I think that it is impossible in the face of the findings of the learned judge, and of the evidence, to contend successfully that Mr. J. M. Lennard has shown that he did not know or can excuse himself for not having known of the defects which manifested themselves in the condition of the ship, amounting to unseaworthiness. Mr. Lennard is the person who is registered in the ship’s register and is designated as the person to whom the management of the vessel was entrusted. He appears to have been the active spirit in the joint stock company which managed this ship for the appellants; and under the circumstances the question is whether the company can invoke the protection of s. 502 of the Merchant Shipping Act to relieve it from the liability which the respondents seek to impose on it. That section is in these words: “The owner of a British sea-going ship, or any share therein, shall not be liable to make good to any extent whatever any loss or damage happening without his actual fault or privity in the following cases; namely, – (i.) Where any goods, merchandise, or other things whatsoever taken in or put on board his ship are lost or damaged by reason of fire on board the ship."

 

Now, my Lords, did what happened take place without the actual fault or privity of the owners of the ship who were the appellants? My Lords, a corporation is an abstraction. It has no mind of its own any more than it has a body of its own; its active and directing will must consequently be sought in the person of somebody who for some purposes may be called an agent, but who is really the directing mind and will of the corporation, the very ego and centre of the personality of the corporation. That person may be under the direction of the shareholders in general meeting; that person may be the board of directors itself, or it may be, and in some companies it is so, that that person has an authority co-ordinate with the board of directors given to him under the articles of association, and is appointed by the general meeting of the company, and can only be removed by the general meeting of the company. My Lords, whatever is not known about Mr. Lennard’s position, this is known for certain, Mr. Lennard took the active part in the management of this ship on behalf of the owners, and Mr. Lennard, as I have said, was registered as the person designated for this purpose in the ship’s register. Mr. Lennard therefore was the natural person to come on behalf of the owners and give full evidence not only about the events of which I have spoken, and which related to the seaworthiness of the ship, but about his own position and as to whether or not he was the life and soul of the company. For if Mr. Lennard was the directing mind of the company, then his action must, unless a corporation is not to be liable at all, have been an action which was the action of the company itself within the meaning of s. 502. It has not been contended at the Bar, and it could not have been successfully contended, that s. 502 is so worded as to exempt a corporation altogether which happens to be the owner of a ship, merely because it happens to be a corporation. …

 

Under the circumstances I think that the company and Mr. Lennard have not discharged the burden of proof which was upon them, and that it must be taken that the unseaworthiness, which I hold to have been established as existing at the commencement of the voyage from Novorossisk, was an unseaworthiness which did not exist without the actual fault or privity of the owning company. My Lords, if that is so, then the judgment of the majority of the Court of Appeal and of Bray J. was right.

 

Appeal dismissed.

 

* * *

 

 

Criminal Code of the Russian Federation
, No. 63-Fz Of June 13, 1996

Ch 4 – Persons Subject to Criminal Liability

Art. 19. General Conditions for Criminal Liability – Only a sane natural person who has reached the statutory age envisaged by this Code shall be subject to criminal liability.


* * *

 

 

Thomas Weigend, "Societas delinquere non potest? A German Perspective"
6 Journal of International Criminal Justice 927 (2008)


A. History, and a Compromise Solution


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

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

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


B. The Debate Continues


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


C. Two Models of Corporate Criminal Responsibility


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

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

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

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

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

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

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


D. ‘Fundamental’ Objections


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

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

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

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

1. Corporations Do Not Act

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

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

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

2. Corporations Cannot be Morally Guilty

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

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

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

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

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

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

3. Criminal Sanctions do not Apply to Corporations

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

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

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

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

 

* * *

 

Sara Sun Beale, "A Response to the Critics of Corporate Criminal Liability"

46 Am. Crim. L. Rev. 1481 (2009)

 

 

I. CORPORATIONS ARE REAL

 

A good deal of scholarship begins from the premise that corporations are fictional entities, which have no existence apart from the various individuals who act on behalf of the fictitious entity. This premise can lead quickly to the conclusion that corporate liability is unjust because it effectively punishes innocent third parties (shareholders, employees, and so forth) for the acts of individuals who commit offenses while in the employ of these fictional entities. What this account misses is the reality that corporations are not fictions. Rather, they are enormously powerful, and very real, actors whose conduct often causes very significant harm both to individuals and to society as a whole. In a variety of contexts, the law recognizes this reality by allowing corporations to own property, make contracts, commit torts, and to sue and be sued. Indeed, the Supreme Court has held that corporations have many constitutional rights under the U.S. constitution.

 

Moreover, the power now wielded by corporations is both enormous and unprecedented in human history. It misses a lot to compare corporations like Exxon Mobil, Microsoft, or AIG to a horse or a cart that was treated as a deodand under ancient English law. The wealth of the top Fortune 500 corporations is one measure of corporate power. In 2008, annual revenues from the top ten revenue- producing corporations in the U.S. were more than $2.1 trillion; the profits from the ten most profitable U.S. corporations were more than $176 billion. Exxon Mobil topped both lists, recording almost $445 billion in revenue and over $45 billion in profit. Corporations also wield power more directly via their lobbying efforts. Since 1998 Exxon Mobil has spent over $120 million on lobbying, including $29 million in 2009. The U.S. Chamber of Commerce has spent over $477 million since 1998, more than twice the amount of any other corporation or industry group. Other industry groups, like the Pharmaceutical Research and Manufacturers of America, spent hundreds of millions of dollars in the last ten years to lobby on behalf of multiple corporations.

 

Modern corporations not only wield virtually unprecedented power, but they do so in a fashion that often causes serious harm to both individuals and to society as a whole. In some recent cases, corporate misconduct and malfeasance destabilized the stock market and led to the loss of billions in shareholder equity and the loss of tens (or perhaps even hundreds) of thousands of jobs. Enron was the seventh-most valuable company in the U.S., until the revelation of its use of deceptive accounting devices to shift debt off its books and hide corporate losses led to losses of more than $100 billion in shareholder equity before it filed for bankruptcy. But Enron was not alone in the use of fraudulent accounting practices. The revelation of similar misconduct by other corporations (including Dynergy, Adelphia Communications, WorldCom, and Global Crossing) also led to massive losses. Federal prosecutors have also uncovered widespread wrongdoing in other industries, though the nature of the violations has varied over time. In the past decade, virtually every major pharmaceutical company has pled guilty to or settled charges arising out of serious misconduct. In the previous decade, the 1990s, the most prominent cases concerned antitrust violations. The largest single fine imposed was $500 million for a worldwide scheme to fix the price of vitamins, and fines from the nine most serious antitrust cases of the decade totaled $1.2 billion.

 

Because of their size, complexity, and control of vast resources, corporations have the ability to engage in misconduct that dwarfs that which could be accomplished by individuals. For example, Siemens, the German engineering giant, paid more than $1.4 billion in bribes to government officials in Asia, Africa, Europe, the Middle East, and Latin America, using its slush funds to secure public works contracts around the world. There is nothing wrong with recognizing that it was Siemens, not simply some of its officers or employees, who should be held legally accountable. U.S. investigators found that the use of bribes and kickbacks were not anomalies, but the corporation’s standard operating procedure and part of its business strategy. In my view, Siemens was properly prosecuted and convicted. …

 

II. DOES CORPORATE CRIMINAL LIABILITY RAISE UNIQUE PROBLEMS?

 

The short answer is no. The critics of corporate criminal liability argue that it is (1) unnecessary, because civil liability is sufficient and more efficient, (2) so broad that it encompasses conduct that is not blameworthy, and (3) punished excessively. By themselves, these critiques are powerful, but critics add that the current regime gives prosecutors far too much leverage: in essence, the stakes are so high under the current regime and the playing field so slanted in the government’s favor that corporations have no choice but to make whatever concessions the government demands whenever it raises the specter of criminal charges. There is some truth to these criticisms, but they are endemic to U.S. criminal law, rather than unique to corporate criminal liability.

 

A. Criminal Prosecutions as a Substitute for Civil Liability or Regulation

 

There is no question that American law imposes criminal sanctions on conduct that might more efficiently (and more humanely) be dealt with in a civil regulatory regime. Indeed, our reliance on harsh criminal sanctions is a central feature of U.S. law that divides us from many other developed western nations. That said, corporate criminal liability is not the most egregious example of our excessive reliance on criminal sanctions. If we are going to have a debate about cutting back on the use of criminal sanctions when we could use civil or regulatory mechanisms, we have to talk about our approach to drugs. By all critical measures, such as government expenditures for investigations and prosecutions, number of prosecutions, or overall societal impact, the need to rethink our approach to corporate crime pales in comparison to the need to rethink our reliance on a criminal justice approach to drug enforcement.

 

Federal prosecutors bring criminal charges against no more than a few hundred corporations each year, and a few dozen more avoid prosecution by entering into deferred-prosecution or no-prosecution agreements. In contrast, in the five-year period from 2004 to 2008, approximately 25,000 people were convicted and sentenced for federal drug offenses each year, and more than 95 percent of those defendants were sentenced to terms of imprisonment.

 

The cost of our current approach to drugs is truly staggering. While federal drug cases dwarf the number of federal corporate prosecutions, both are insignificant when compared with state and local law drug enforcement. In 2007, non-federal agencies made approximately 1.8 million arrests on charges of drug sales, manufacturing, and possession.

 

The cost of enforcing our country’s drug laws is an enormous drag on the economy. Incarceration of approximately half a million drug offenders alone costs taxpayers nearly $20 billion each year, in addition to billions of dollars in lost productivity. The federal government budgeted another $14.1 billion for fiscal year 2009 for use in drug crime prevention. Accounting for enormous financial burdens fails to capture the social costs of racial disparities in arrests and sentencing, the lost opportunity to spend funds on education or health and safety, and the disgrace of having the highest incarceration rate in the world.

 

The financial and social concerns raised by drug law enforcement illustrate that the criminal system’s flaws are larger and go far beyond those perceived by corporate interests. If we are to take seriously the idea of restricting the use of criminal sanctions to the kinds of cases when regulatory or civil sanctions cannot be effective, it would be inconceivable to limit the discussion to corporate criminal liability. There are many reasons to put this issue on the agenda for Congress and state legislatures, and the current economic crisis might even open a window of opportunity given the crushing costs of the current penal system. But we can’t, in good conscience, see this as an issue of corporate liability alone.

 

B. Liability Without True Fault

 

Many critics argue that corporate criminal liability, especially in the federal system, imposes liability when there has been no true fault on the part of the corporation. The paradigm case is the misconduct of a single rogue employee, which can be attributed to the corporation by the doctrine of respondeat superior . There is general agreement that the corporation should be held civilly liable for a tort under these circumstances, if the harm was caused by an employee acting within the scope of his employment. The question, then, is whether in sufficiently serious cases where the conduct also breaches a criminal law, the corporation should be held to answer for the criminal offense. Note that in either the civil or the criminal setting, the typical punishment is a judgment of corporate fault and an order to pay a fine. Thus the argument that a corporation has no soul to damn and no body to imprison cuts both ways. Critics use it to argue that there is no reason to prosecute a corporation. Supporters of corporate criminal liability might turn the argument around and ask what’s the big deal, since the corporation can’t go to jail (or hell)?

 

But both supporters and opponents of corporate criminal liability assume that there are differences between civil and criminal liability, and there are good arguments that the current federal approach can impose criminal liability when there is not, by some measures, corporate blameworthiness. This is an important issue, but the difficulty of confining criminal punishments to moral blameworthiness is endemic to the definition of crimes and defenses. I will give three examples. The first is the scope of the insanity defense. Even if both the government and defense experts agree that a defendant suffers from schizophrenia and that his condition made it impossible for him to control the conduct that constituted the offense, he has no defense under current federal law. The situation is as bad or worse in most states; indeed, five states have eliminated the defense completely, and most of the remainder also have a fairly narrow version of the M’Naghten test. It’s highly debatable, of course, whether a defendant with severe mental illness can be said to be blameworthy and held criminally responsible.

 

My second example concerns accomplice liability. In the federal courts and many states, a defendant may be convicted as an accomplice to conduct including homicide that he did not intend to aid, and did not actually aid, if he was an accomplice to other related conduct. This principal is part of the felony murder rule, and the extension of accomplice liability through the Pinkerton doctrine in conspiracy cases and the more general doctrine of natural and probable consequences.

 

And, finally, an individual’s moral culpability is irrelevant to many of the weapons and immigration offenses that make up the most rapidly growing part of the federal criminal docket. Jeffrey Meyer provides the following examples:

 

An immigrant alien may be criminally convicted for unlawfully reentering the United States even if she believed that she had proper government approval to return; A defendant charged with felon-in-possession-of-a-firearm may be convicted even if mistaken about his felony history (e.g., he had been previously assured by a court that he did not have a felony history or he believed that his prior conviction had never been formally entered or had been expunged); A defendant charged with criminal possession of an unregistered firearm may be convicted even if he mistakenly thought the firearm was registered as required; A defendant charged with illegal disposal of toxic waste may be convicted even if she is ignorant of the waste’s toxic qualities or even if she thought that her employer had a proper permit to allow disposal.

 

I do not mean to endorse the imposition of criminal sanctions in all of these settings. Rather, I want to make a more limited point: criminal liability in the federal system (and in the U.S. more generally) does not match up closely with many people’s definition of blameworthiness or moral guilt. These are critical issues, and they should be reexamined. But if we have to triage, and give priority to only a few of these issues, neither the number of cases nor the severity of the sanctions would place corporate criminal liability at the top of my list for reform.

 

C. Excessive Punishment

 

In the past three decades, the U.S. has set international (and historic) records for the use of imprisonment, whether measured by the percentage of the population that is incarcerated or the length of the terms of incarceration. The short answer to any complaints that corporate (or white-collar) punishments are excessive is that all of our punishment policies must be reevaluated, and that this should be a top priority.

 

For example, Senator Jim Webb has listed the following reasons why a comprehensive overhaul of the criminal justice system is urgently needed:

 

The United States has by far the world’s highest incarceration rate. With five percent of the world’s population, our country now houses twenty-five percent of the world’s reported prisoners. More than 2.38 million Americans are now in prison, and another 5 million remain on probation or parole. Our prison population has skyrocketed over the past two decades as we have incarcerated more people for non-violent crimes and acts driven by mental illness or drug dependence. The costs to our federal, state, and local governments of keeping repeat offenders in the criminal justice system continue to grow during a time of increasingly tight budgets. Existing practices too often incarcerate people who do not belong in prison and distract from locking up the more serious, violent offenders who are a threat to our communities. .... Mass incarceration of illegal drug users has not curtailed drug usage. The multi-billion dollar illegal drugs industry remains intact, with more dangerous drugs continuing to reach our streets. Incarceration for drug crimes has had a disproportionate impact on minority communities, despite virtually identical levels of drug use across racial and ethnic lines. Post-incarceration re-entry programs are haphazard and often nonexistent, undermining public safety and making it extremely difficult for ex-offenders to become full, contributing members of society.

 

Revising the approach to sentencing policy in corporate cases can appropriately be a part of this agenda, though not its centerpiece. In the case of corporate sentences, as well as sentences for other offenses and offenders, our sentencing law should be revised in light of the best empirical research. Examples of research topics which should be surveyed as part of that effort include: the tradeoff between the certainty of punishment (which increases as more resources are provided for investigation) and the severity of punishment, the consequences of allocating funds for prevention and treatment in lieu of investigation and punishment of offenses; and the effect that different sentencing policies will have on corporate behavior.

 

D. Excessive Prosecutorial Power

 

In the past few years, prosecutorial power has become one of the focal points for critics of corporate criminal liability. Critics express shock that corporations are unable to contest any charges prosecutors choose to bring against them, and must therefore not only concede liability but also become the prosecutor’s agents in the investigation and prosecution of corporate officers and employees. This imbalance is said to arise from the excessively broad definition of corporate liability under the federal doctrine of respondeat superior , the risk averse behavior of corporate boards of directors, and other doctrines that strip corporations of their rights and reward their heavily coerced cooperation. Indeed, Professor Alschuler has suggested that the real function of corporate liability is similar to the ancient system of frankpledge, which held a group of individuals responsible for the wrongdoing of their neighbor unless they helped the authorities to apprehend the wrongdoer.

 

There is, however, very little new or distinctive about this description of the tremendous leverage possessed by federal prosecutors and the coercive power they can exert to compel cooperation from those who may be charged with a crime. The necessity to cooperate in order to get concessions is a fact of life in the federal system (and in the states as well). There is a culture of waiver in the federal courts, but it extends to all defendants, not just corporate defendants. More than 95 percent of federal defendants plead guilty, conceding their guilt and waiving all of their procedural rights. If the defendant agrees to plead guilty, prosecutors have the authority to drop charges and to make plea recommendations or agreements under the Federal Rules of Criminal Procedure, and the federal sentencing guidelines create powerful incentives for guilty pleas through the provisions for downward departures for acceptance of responsibility. The prosecutor’s leverage is greatest in prosecutions for the many federal offenses that carry long mandatory minimum sentences. By statute, the sentencing judge is required to impose the mandatory minimum sentence unless the federal prosecutor moves for a sentence below the minimum on the ground that the defendant has provided a sufficient degree of assistance in the investigation and prosecution of another person. This system creates enormous pressures to cooperate in the case of defendants facing many decades of mandatory imprisonment for drugs or weapons offenses in a system that makes no provision for parole.

 

Do federal prosecutors have too much leverage in the current system? Perhaps so, but the issue is one that cannot, in good conscience, be limited to corporate defendants. …

 

* * *


                        3. Vicarious Liability Doctrine

LRCC § 2(5)

* * *

MPC § 2.07

* * *


People v. Congregational Khal Chaisidei Skwere, Inc.

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

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

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

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

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

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

Ordered that the judgment is affirmed.


                        4. Identification Doctrine

 

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

LEGG, D.C.J.:—Waterloo Mercury Sales Ltd. is charged with two counts of fraud under s. 338(1) {now s. 380(1)} of the Criminal Code.

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

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

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

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

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

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

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

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

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

Accused convicted.

 

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

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

(a) Absolute liability offences

Where the Legislature by the clearest intendment establishes an offence where liability arises instantly upon the breach of the statutory prohibition, no particular state of mind is a prerequisite to guilt. Corporations and individual persons stand on the same footing in the face of such a statutory offence. It is a case of automatic primary responsibility. Accordingly, there is no need to establish a rule for corporate liability nor a rationale therefor. The corporation is treated as a natural person.

(b) Offences of strict liability

Where the terminology employed by the Legislature is such as to reveal an intent that guilt shall not be predicated upon the automatic breach of the statute but rather upon the establishment of the actus reus, subject to the defence of due diligence, an offence of strict liability arises: see R. v. City of Sault Ste. Marie (1978), 40 C.C.C. (2d) 353, 85 D.L.R. (3d) 161, 1197812 S.C.R. 1299. As in the case of an absolute liability offence, it matters not whether the accused is corporate or unincorporate, because the liability is primary and arises in the accused according to the terms of the statute in the same way as in the case ofabsolute offences. It is not dependent upon the attribution to the accused of the misconduct of others. This is so when the statute, properly construed, shows a clear contemplation by the Legislature that a breach of the statute itself leads to guilt, subject to the limited defence above noted. In this category, the corporation and the natural defendant are in the same position. In both cases liability is not vicarious but primary.

(c) Offences requiring mens rea

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

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

The test of corporate responsibility for the acts of its officers and agents, whether such acts be criminal or tortious, is whether the agent or officer in doing the thing complained of was engaged in “employing the corporate powers actually authorized” for the benefit of the corporation “while acting within the scope of his employment in the business of the principal.” If the act was done it will be imputed to the corporation whether covered by the agent or officer’s instructions, whether contrary to his instructions, and whether lawful or unlawful. Such acts under such circumstances are not ultra vires even though unlawful. There is no longer any distinction in essence between the civil and criminal liability of corporations, based upon the element of intent or wrongful purpose. Malfeasance of their agents is not ultra vires.
These principles have been restated as recently as the judgment in U.S. v. Basic Construction et al. (1983), 711 F. 2d 570 (5th C.C.A.).

The state courts have not as consistently pursued the course of vicarious liability of corporations in the criminal law. In People v. Canadian Fur Trappers Corp. (1928), 248 N.Y. 159, the New York Court of Appeals, Crane J., speaking for a court that included Chief Justice Cardozo, rejected vicarious liability as a basis for corporate criminal responsibility and seemed to adopt, at pp. 163 and 169, something akin to the identification theory. To the same effect is State of Idaho v. Adjustment Department Credit Bureau Inc. (1971), 483 P. 2d 687 at p. 691, where corporate liability was found only if:
... the commission of the offense was authorised, requested, commanded or performed (i) by the board of directors, or (ii) by an agent having responsibility for formation of corporate policy or (iii) by a “high managerial agent” having supervisory responsibility over the subject matter of the offense and acting within the scope of his employment in behalf of the corporation.
State of Louisiana v. Chapman Dodge Center Inc. (1983), 428 S. 2d 413 at pp. 419-20, is to the same general effect. For a position midway between the Canadian Fur Trappers, supra, and these cases, see Commonwealth of Massachusetts v. Beneficial Finance Co. et al. (1917), 275 N.E. 2d 33.

At the present time, therefore, the common law in the United States seems to be based, in the federal courts on the doctrine of vicarious liability, and in many of the state courts on something akin to the identification doctrine. Court decisions are not a complete guide to the state law on this matter, however, as some states have adopted the American Institute Model Penal Code, which at para. 2.07 attributes criminal liability to the corporation on much the same basis as did the court in State of Idaho v. Adjusment Department Credit Bureau Inc., supra. On the other hand, at least one state has by statute applied the doctrine of vicarious liability without a limitation as to the level of responsibility of the employee or agent: see State of Maine, Rev. Stats. Anns. 17-A, s. 60....

In summary, therefore, the courts in this country can be said to this date to have declined generally to apply the principle of respondeat superior in the determination of corporate criminal responsibility. Criminal responsibility in our courts thus far has been achieved in the mens rea offences by the attribution to the corporation of the acts of its employees and agents on the more limited basis of the doctrine of the directing mind or identification. Corporate responsibility in both strict and absolute liability offences has been found to arise on the direct imposition of a primary duty in the corporation in the statute in question, as construed by the court. By what appears to be the same purely pragmatic reasoning, the courts of the United Kingdom find criminal liability in a corporation only by the attribution to it of the conduct of its employees and agents where those natural persons represent the core, mind and spirit of the corporation. The United States federal courts are inclined, as we have seen, to find criminal liability in the corporation by vicarious liability where any employee-agent commits, in the course of his employment, the criminal act.

The criticisms of the United States federal court doctrine are manifold. The net is flung too widely, it is said. Corporations are punished in instances where there is neither moral turpitude nor negligence. No public policy is served by punishing shareholders where the corporate governing body has been guilty of no unlawful act. The disparity between the treatment of the corporate employer and the natural employer is wide and wholly without a basis in justice or political science. The test as applied in the United States federal courts may be on the broad basis above indicated because so many of the federal statutory crimes are regulatory in nature: see Leigh, p. 267, footnote 134.

In the criminal law, a natural person is responsible only for those crimes in which he is the primary actor either actually or by express or implied authorization. There is no vicarious liability in the pure sense in the case of the natural person. That is to say that the doctrine of respondeat superior is unknown in the criminal law where the defendant is an individual. Lord Diplock, in Tesco Supermarkets Ltd. v. Nattras , [1972] A. C. 153 at p. 199, stated:
Save in cases of  strict liability where a criminal statute, exceptionally, makes the doing of an act a crime irrespective of the state of mind in which it is done, criminal law regards a person as responsible for his own crimes only. It does not recognise the liability of a principal for the criminal acts of his agent: because it does not ascribe to him his agent’s state of mind. Qui peccat per alium peccat per se is not a maxim of criminal law.
On the other hand, the corporate vehicle now occupies such a large portion of the industrial, commercial and sociological sectors that amenability of the corporation to our criminal law is as essential in the case of the corporation as in the case of the natural person.

Thus where the defendant is corporate the common law has become pragmatic, as we have seen, and a modified and limited “vicarious liability” through the identification doctrine has emerged....  The identity doctrine merges the board of directors, the managing director, the superintendent, the manager or anyone else delegated by the board of directors to whom is delegated the governing executive authority of the corporation, and the conduct of any of the merged entities is thereby attributed to the corporation. In R. v. St. Lawrence Corp. Ltd. and nineteen other corporations, [1969]3 C.C.C. 263, 5 D. L. R. (3d) 263, [1969] O. R. 305 (Ont. C.A.), and other authorities, a corporation may, by this means, have more than one directing mind. This must be particularly so in a country such as Canada where corporate operations are frequently geographically widespread. The transportation companies, for example, must of necessity operate by the delegation and subdelegation of authority from the corporate centre; by the division and subdivision of the corporate brain, and by decentralizing by delegation the guiding forces in the corporate undertaking. The application of the identification rule in Tesco, supra, may not accord with the realities of life in our country, however appropriate we may find to be the enunciation of the abstract principles of law there made...

The identification theory was inspired in the common law in order to find some pragmatic, acceptable middle ground which would see a corporation under the umbrella of the criminal law of the community but which would not saddle the corporation with the criminal wrongs of all of its employees and agents. If there were to be no outer limit on the reach of the doctrine, the common law would have established criminal corporate liability by the doctrine of respondeat superior. What then is the appropriate outer limit of the attribution of criminal conduct of a directing mind when he undertakes activities in fraud of the corporation or for his own benefit?...

Were the charge in question a charge of fraud, there would clearly be no benefit to the corporation and indeed the design of the dishonest employee was aimed squarely at reducing the financial stature of the employer. It can hardly be said with any reality that a person designing and executing such a scheme could be, while doing so, the directing mind and the ego of the company itself. That being so, no longer would we be faced with the logical conundrum that a person however dishonest cannot defraud himself. Once the ego is split into its original two parts that problem disappears. The employee would be guilty of fraud and the victim of that fraud would be the company. The victim would, in all logic, have a defence against a charge that it too had committed fraud in its own right. Were the criminal law otherwise, it would not provide protection of any interest in the community. Punishment of the corporation for such acts of its employee would not advantage society by advancing law and order. 1t is otherwise, however, where there is benefit to the corporation, in whole or in part, from the unlawful acts of its directing mind....

In my view, the outer limit of the delegation doctrine is reached and exceeded when the directing mind ceases completely to act, in fact or in substance, in the interests of the corporation. Where this entails fraudulent action, nothing is gained from speaking of fraud in whole or in part because fraud is fraud. What I take to be the distinction raised by the question is where all of the activities of the directing mind are directed against the interests of the corporation with a view to damaging that corporation, whether or not the result is beneficial economically to the directing mind, that may be said to be fraud on the corporation. Similarly, but not so importantly, a benefit to the directing mind in single transactions or in a minor part of the activities of the directing mind is in reality quite different from benefit in the sense that the directing mind intended that the corporation should not benefit from any of its activities in its undertaking. A benefit of course can, unlike fraud, be in whole or in part, but the better standard, in my view, is established when benefit is associated with fraud. The same test then applies. Where the directing mind conceives and designs a plan and then executes it whereby the corporation is intentionally defrauded, and when this is the substantial part of the regular activities of the directing mind in his office, then it is unrealistic in the extreme to consider that the manager is the directing mind of the corporation. His entire energies are, in such a case, directed to the destruction of the undertaking of the corporation. When he crosses that line he ceases to be the directing mind and the doctrine of identification ceases to operate. The same reasoning and terminology can be applied to the concept of benefits.

Where the criminal act is totally in fraud of the corporate employer and where the act is intended to and does result in benefit exclusively to the employee-manager, the employee-directing mind, from the outset of the design and execution of the criminal plan, ceases to be a directing mind of the corporation and consequently his acts could not be attributed to the corporation under the identification doctrine. This might be true as well on the American approach through respondeat superior. Whether this is so or not, in my view, the identification doctrine only operates where the Crown demonstrates that the action taken by the directing mind (a) was within the field of operation assigned to him; (b) was not totally in fraud of the corporation, and (c) was by design or result partly for the benefit of the company. ...

I therefore would answer both questions as they relate to the defences of “acting wholly or partly in fraud of the corporation”, and “in whole or in part for the benefit of the directing mind”, as follows:
1. On the evidence in these records, the respective directing minds of the appellants did not act wholly in fraud of their respective corporate employers.
2. Neither did the four directing minds act wholly for their own benefit in the sense that no benefit from their actions would accrue to the appellants, and in any event the record clearly reveals an intention on their part to benefit their respective corporations.
3. Express or implied instructions prohibiting the unlawful acts specifically, or unlawful conduct generally, are not a defence whether the corporate liability springs from authorization of the acts of an agent or the unlawful acts of a directing mind. In any case, only in the record relating to CD is there any evidence of any such prohibition....

I would therefore dismiss all four appeals.

Appeals dismissed.



Tesco Supermarkets v. Nattrass

House of Lords

[1972] A.C. 153

 

LORD REID: The Appellants own a large number of supermarkets in which they sell a wide variety of goods. The goods are put out for sale on shelves or stands each article being marked with the price at which it is offered for sale. The customer selects the articles he wants, takes them to the cashier, and pays the price. From time to time the Appellants, apparently by way of advertisement, sell "flash packs" at prices lower than the normal price. In September 1969 they were selling Radiant washing powder in this way. The normal price was 3s. 11d. but these packs were marked and sold at 2s. 11d. Posters were displayed in the shops drawing attention to this reduction in price.

 

These prices were displayed in the Appellants' shop at Northwich on 26th September. Mr Coane, an old age pensioner, saw this and went to buy a pack. He could only find packs marked 3s. 11d. He took one to the cashier who told him that there were none in stock for sale at 2s. 11d. He paid 3s. 11d. and complained to an Inspector of Weights and Measures. This resulted in a prosecution under the Trade Descriptions Act 1968 and the Appellants were fined £25 and costs. Section 11 (2) provides:

 

"If any person offering to supply any goods gives, by whatever means, any indication likely to be taken as an indication that the goods are being offered at a price less than that at which they are in fact being offered he shall, subject to the provisions of this Act, be guilty of an offence."

 

It is not disputed that that section applies to this case. The Appellants relied on section 24(1) which provides:

 

"In any proceedings for an offence under this Act it shall, subject to subsection (2) of this section, be a defence for the person charged to prove—(a) that the commission of the offence was due to a mistake or to reliance on information supplied to him or to the act or default of another person, an accident or some other cause beyond his control; and (b) that he took all reasonable precautions and exercised all due diligence to avoid the commission of such an offence by himself or any person under his control." …

 

Where a limited company is the employer difficult questions do arise in a wide variety of circumstances in deciding which of its officers or servants is to be identified with the company so that his guilt is the guilt of the company.

 

I must start by considering the nature of the personality which by a fiction the law attributes to a corporation. A living person has a mind which can have knowledge or intention or be negligent and he has hands to carry out his intentions. A corporation has none of these: it must act through living persons, though not always one or the same person. Then the person who acts is not speaking or acting for the company. He is acting as the company and his mind which directs his acts is the mind of the company. There is no question of the company being vicariously liable. He is not acting as a servant, representative, agent or delegate. He is an embodiment of the company or, one could say, he hears and speaks through the persona of the company, within his appropriate sphere, and his mind is the mind of the company. If it is a guilty mind then that guilt is the guilt of the company. It must be a question of law whether, once the facts have been ascertained, a person in doing particular things is to be regarded as the company or merely as the company's servant or agent. In that case any liability of the company can only be a statutory or vicarious liability.

 

In Lennard's Carrying Co. v. Asiatic Petroleum Co. [1915] A.C. 705 the question was whether damage had occurred without the " actual fault or "privity" of the owner of a ship. The owners were a company. The fault was that of the registered managing owner who managed the ship on behalf of the owners and it was held that the company could not dissociate itself from him so as to say that there was no actual fault or privity on the part of the company. Lord Haldane L.C. said at page 713: "For if Mr. Leonard was the directing mind of the company, then his action must, unless a corporation is not to be liable at all, have been an action which was the action of the company itself within the meaning of section 502... It must be upon the true construction of that section in such a case as the present one that the fault or privity is the fault or privity of somebody who is not merely a servant or agent for whom the company is liable upon the footing respondent superior, but somebody for whom the company is liable because his action is the very action of the company itself."

 

Reference is frequently made to the judgment of Lord Denning in Bolton (Engineering) Co. v. Graham [1957] 1 Q-B. 159. He said (at page 172): "A company may in many ways be likened to a human body. It has a brain and nerve centre which controls what it does. It also has hands which hold the tools and act in accordance with directions from the centre. Some of the people in the company are mere servants and agents who are nothing more than hands to do the work and cannot be said to represent the mind or will. Others are directors and managers who represent the directing mind and will of the company, and control what it does. The state of mind of these managers is the state of mind of the company and is treated by the law as such."

 

In that case the directors of the company only met once a year: they left the management of the business to others, and it was the intention of those managers which was imputed to the company. I think that was right. There have been attempts to apply Lord Denning's words to all servants of a company whose work is brain work, or who exercise some managerial discretion under the direction of superior officers of the company. I do not think that Lord Denning intended to refer to them. He only referred to those who "represent the directing mind and will of the company, and "control what it does."

 

I think that is right for this reason. Normally the Board of Directors, the Managing Director and perhaps other superior officers of a company carry out the functions of management and speak and act as the company. Their subordinates do not. They carry out orders from above and it can make no difference that they are given some measure of discretion. But the Board of Directors may delegate sonic part of their functions of management giving to their delegate full discretion to act independently of instructions from them. I see no difficulty in holding that they have thereby put such a delegate in their place so that within the scope of the delegation he can act as the company. It may not always be easy to draw the line but there are cases in which the line must be drawn. Lennard's case was one of them.

 

In some cases the phrase alter ego has been used. I think it is misleading. When dealing with a company the word alter is I think misleading. The person who speaks and acts as the company is not alter. He is identified with the company. And when dealing with an individual no other individual can be his alter ego. The other individual can be a servant, agent, delegate or representative but I know of neither principle nor authority which warrants the confusion tin the literal or original sense) of two separate individuals. …

 

What good purpose could be served by making an employer criminally responsible for the misdeeds of some of his servants but not for those of others? It is sometimes argued—it was argued in the present case—that making an employer criminally responsible, even when he has done all that he could to prevent an offence, affords some additional protection to the public because this will induce him to do more. But if he has done all he can how can he do more? I think that what lies behind this argument is a suspicion that magistrates too readily accept evidence that an employer has done all he can to prevent offences. But if magistrates were to accept as sufficient a paper scheme and perfunctory efforts to enforce it they would not be doing their duty—that would not be " due diligence " on the part of the employer.

 

Then it is said that this would involve discrimination in favour of a large employer like the Appellants against a small shopkeeper. But that is not so. Mr. Clement was the "opposite number" of the small shopkeeper and he was liable to prosecution in this case. The purpose of this Act must have been to penalise those at fault, not those who were in no way to blame.

 

The Divisional Court decided this case on a theory of delegation. In that they were following some earlier authorities. But they gave far too wide a meaning to delegation. I have said that a Board of Directors can delegate part of their functions of management so as to make their delegate an embodiment of the company within the sphere of the delegation. But here the Board never delegated any part of their functions. They set up a chain of command through regional and district supervisors, but they remained in control. The shop managers had to obey their general directions and also to take orders from their superiors. The acts or omissions of shop managers were not acts of the company itself.

 

In my judgment the Appellants established the statutory defence. I would therefore allow this appeal.

 

Appeal allowed.




R. v. Safety Kleen Inc. (1997)
Ontario Court of Appeal

32 O.R. (3d) 493


DOHERTY J.A.:—


I

 

The appellant and Paul Howard, one of its employees, were jointly charged with three offences under the Environmental Protection Act, R.S.O. 1980, c. 141, as amended (the "Act"). The first count alleged that they were in possession of waste for which the generator of the waste had not completed a manifest. Count 2 alleged that the appellant and Howard had knowingly given false information in a return made to a provincial officer. Count 3 alleged that they used a truck for transportation of the waste for which a provincial certificate of approval had not been issued. …

 

The appellant and Howard were convicted on counts 1 and 2 and acquitted on count 3 by a Justice of the Peace. Howard did not appeal. The appellant unsuccessfully appealed both convictions to the Ontario Court (Provincial Division). The appellant then obtained leave to appeal to this court pursuant to s. 131 of the Provincial Offences Act, R.S.O. 1990, c. P.33. Leave to appeal was granted at large, however, by statute, the appellant is limited to questions of law alone.

 

II

 

The appellant operates a fleet of waste oil collection trucks and several waste oil transfer stations in Ontario. The waste oil collected by the appellant is eventually taken to its facility in Breslau, Ontario for refining and resale.


The waste disposal industry is heavily regulated. Part of that regulatory scheme requires the preparation of a document, called a manifest, each time waste is moved from the generator of the waste to the ultimate recipient of it. By regulation (R.R.O. 1980, Reg. 309), the manifest must have three parts. Part A must be completed by the generator of the waste, Part B by the transporter of the waste, and Part C by the recipient of the waste. Copies of Parts A and C must be forwarded to the Ministry by the generator and recipient, respectively.


On November 12, 1991, Ken Corcoran, a principal of Ken's Vacuum Pumping, an independent contractor, picked up a load of oily waste water at a Petro-Canada station in Perth. …


Mr. Corcoran's truck developed mechanical problems and he could not make it to Trenton. He drove his truck to his garage and called Mr. Howard, who was the appellant's representative in the area. Mr. Corcoran had dealt with Mr. Howard on numerous previous occasions. Mr. Howard drove his truck to the appellant's garage. He and Mr. Corcoran decided to transfer the waste water from Mr. Corcoran's disabled truck to Mr. Howard's truck. Both men knew that they needed verbal authorization from the Ministry of the Environment to do so. They also knew that the transfer required a new manifest complete with a new generator number. After one attempt to contact the Ministry proved unsuccessful, Mr. Corcoran and Mr. Howard went ahead without authorization and transferred the waste water into Mr. Howard's truck. Mr. Howard immediately completed Part C of the original manifest showing that the waste water had been received at the appellant's transfer site in Trenton at 2:30 p.m. This was patently false. In fact the waste water was transferred at Mr. Corcoran's garage at about 9:30 a.m. …


III


This appeal concerns the liability of the appellant, a corporate employer, for the misconduct of Mr. Howard, its employee. The appeal from the conviction on count 2 involves a consideration of the scope of corporate responsibility for offences which require proof of a culpable state of mind. The appeal from the conviction on count 1 involves a consideration of the due diligence defence as applied to the employer where the employee's acts are admittedly negligent. I will address the appellant's liability on count 2 first.


IV


Count 2 alleged that the appellant knowingly gave false information in a return to a provincial officer. Section 145 of the Act provided:


145. No person shall knowingly give false information in any application, return or statement made to the Minister, a provincial officer or any employee of the Ministry in respect of any matter under this Act or the regulations.


Assuming that the manifest was a return, it is clear that the offence was made out against Mr. Howard. The manifest was false and Mr. Howard knew it was false. In determining the appellant's liability it is necessary to begin by placing the offence created by s. 145 into one of the three categories identified in R. v. Sault Ste. Marie (City), [1978] 2 S.C.R. 1299, 85 D.L.R. (3d) 161. The parties agree that this offence falls into the first category (mens rea offences) as it is an offence which requires proof of a culpable state of mind. Specifically, the prosecution had to prove that Mr. Howard knew the document was false.


Corporations can be convicted of crimes involving a culpable mental state. Absent a statutory basis for that liability, corporate liability for such crimes is determined by the application of the identification theory set down in Canadian Dredge & Dock Co. v. R., [1985] 1 S.C.R. 662, 19 D.L.R. (4th) 314, and developed in The "Rhône" v. The "Peter A.B. Widener", [1993] 1 S.C.R. 497, 101 D.L.R. (4th) 188. In Rhône, Iacobucci J. succinctly summarized the inquiry demanded by the identification theory at pp. 520-21:


...the focus of [the] inquiry must be whether the impugned individual has been delegated the "governing executive authority" of the company within the scope of his or her authority. I interpret this to mean that one must determine whether the discretion conferred on an employee amounts to an express or implied delegation of executive authority to design and supervise the implementation of corporate policy rather than simply to carry out such policy. In other words, the courts must consider who has been left with the decision-making power in a relevant sphere of corporate activity.


The inquiry described by Iacobucci J. is a fact-driven one which looks beyond titles and job descriptions to the reality of any given situation. Mr. Howard was a truck driver for the appellant. He was also the appellant's sole representative in a very large geographical area. He was responsible for collecting waste, completing necessary documentation, maintaining the appellant's property in the region, billing, and responding to calls from customers and regulators. When Mr. Howard was on holidays, the appellant did not do business in the region. Mr. Howard did not, however, have any managerial or supervisory function. He took no role in shaping any aspect of the appellant's corporate policies.


Unlike the judge at the first level of appeal, I do not read the trial judge's reasons as including a finding that Mr. Howard was a directing mind of the appellant for the relevant purpose. The trial judge clearly rejected the characterization of Mr. Howard as a "low level employee" and found that he had wide authority in his region. Beyond this, she made no finding. Rather, she based her conviction on this count on a finding that the company did not take all reasonable steps to avoid the event. In my view, since the offence alleged in count 2 requires proof of a culpable mental state, a finding of a lack of due diligence is irrelevant. The determinative question of whether Mr. Howard's actual authority was sufficient to justify attributing his culpable mind to the appellant was never addressed. Consequently, no finding on the crucial question of whether Mr. Howard was the directing mind of the appellant for the relevant purpose exists.


There is no doubt that Mr. Howard had many responsibilities and was given wide discretion in the exercise of those responsibilities. It is equally clear that those, like Mr. Corcoran, who dealt with the appellant in the area, equated Mr. Howard with the appellant corporation. Neither of these facts establish the kind of governing executive authority which must exist before the identification theory will impose liability on the corporation. Mr. Howard had authority over matters arising out of the performance of the task he was employed to do. It was his job to collect and transport waste to its eventual destination in Breslau. His authority extended over all matters, like the preparation of necessary documentation, arising out of the performance of those functions. I find no evidence, however, that he had authority to devise or develop corporate policy or make corporate decisions which went beyond those arising out of the transfer and transportation of waste. In my opinion, Mr. Howard's position is much like that of the tugboat captain in The Rhône, supra. Both had extensive responsibilities and discretion, but neither had the power to design and supervise the implementation of corporate policy. The majority of the Supreme Court of Canada concluded that the captain was not a directing mind of his corporate employer. I reach the same conclusion with respect to Mr. Howard. …


In my opinion, there was no basis on which the corporation could be held liable on count 2 of the information. I would quash that conviction and enter an acquittal. I need not address the appellant's argument that the giving of the manifest to the investigator did not constitute a "return" for the purposes of s. 145 of the Act.


V


Count 1 in the information is a strict liability offence. Mr. Howard pleaded guilty to that charge. The appellant could escape liability only if it could show on the balance of probabilities that it exercised due diligence. The words of Dickson J. in R. v. Sault Ste. Marie, supra, at p. 1331 aptly describe the meaning of due diligence in this context:


One comment on the defence of reasonable care in this context should be added. Since the issue is whether the defendant is guilty of an offence, the doctrine of respondeat superior has no application. The due diligence which must be established is that of the accused alone. Where an employer is charged in respect of an act committed by an employee acting in the course of employment, the question will be whether the act took place without the accused's direction or approval, thus negating wilful involvement of the accused, and whether the accused exercised all reasonable care by establishing a proper system to prevent commission of the offence and by taking reasonable steps to ensure the effective operation of the system. The availability of the defence to a corporation will depend on whether such due diligence was taken by those who are the directing mind and will of the corporation, whose acts are therefore in law the acts of the corporation itself.

(Emphasis added)


As the above passage makes clear, an employer must show that a system was in place to prevent the prohibited act from occurring and that reasonable steps had been taken to ensure the effective operation of that system. The trial judge addressed the question of due diligence in her reasons. She said in part:


I cannot accept the defence of due diligence on behalf of the company. Certainly the court does not look for perfection, but it is necessary that there appears to be a sense of compliance to the regulations by the company. The company had put their drivers in a position of a self-reporting situation. They had delegated to their drivers a degree of trust to comply with the regulations. Nevertheless, it is still their responsibility to ensure strict compliance. They cannot delegate and then close their eyes to non-compliance. There are not sufficient safety guards within their system to check for this type of irregularity in completion of such an important document.


The trial judge was also critical of the appellant's training program in so far as it failed to adequately deal with emergency situations like that encountered by Mr. Howard in this case.


The judge of the Provincial Division did not interfere with the trial judge's finding that the appellant failed to exercise due diligence. This court cannot interfere with that finding absent an error in law. I see no error in law either in the trial judge's treatment of the evidence or the ultimate conclusion arrived at by her. I would dismiss the appeal on count 1. …

 

VII

 

I would quash the conviction on count 2 and enter an acquittal. I would affirm the conviction on count 1 and the sentence imposed by the judge of the Ontario Court (Provincial Division). If the appellant has paid the fine imposed on count 2, it is entitled to the return of that fine.


Appeal allowed, in part.


                       
5. Corporations and the Charter


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


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

 

11. Any person charged with an offence has the right 

 

(b) to be tried within a reasonable time;

 

2.   There are two issues to be resolved: (1) whether the appellant has a right to be tried within a reasonable time pursuant to s. 11(b); and (2) if the appellant can rely upon s. 11(b), whether there has been unreasonable delay in the circumstances of this case. …

 

Analysis


29.   In Hunter v. Southam Inc., [1984] 2 S.C.R. 145, a corporation applied for an interim injunction to prevent a search of its premises made pursuant to the Combines Investigation Act, R.S.C. 1970, c. C-23. As one of the bases for its application, the plaintiff invoked the right to be secure against unreasonable search or seizure enshrined in s. 8 of the Charter. The trial judge held that the word "everyone" in the context of s. 8 includes "all human beings and all entities that are capable of enjoying the benefit of security against unreasonable search", but nonetheless dismissed the application (Southam Inc. v. Hunter (1982), 136 D.L.R. (3d) 133, at p. 141, emphasis added). The Alberta Court of Appeal allowed the corporation's appeal, holding that the statutory provisions authorizing the search were inconsistent with s. 8 of the Charter (Southam Inc. v. Hunter (1983), 147 D.L.R. (3d) 420, at p. 437). That decision was unanimously affirmed by this Court. Neither the Court of Appeal nor this Court took issue with the noted conclusion of the trial judge.


30.   It should be kept in mind that "person" includes a corporation under the general provisions of the Interpretation Act, R.S.C., 1985, c. I-21. We must also remember that corporate criminal liability is essentially vicarious liability based upon the acts and omissions of individuals: "a corporation may only act through agents " (Canadian Dredge & Dock Co. v. The Queen, [1985] 1 S.C.R. 662, at p. 675). Extending Charter guarantees to corporations will, in some circumstances, afford a measure of protection to those individuals. …

 

33.   The Occupational Health and Safety Act, under which the appellant is charged, provides pursuant to s. 37(2)(c) that it "shall be a defence for the accused to prove that every precaution reasonable in the circumstances was taken". The availability of witnesses and the reliability of their testimony could have a significant impact upon the appellant's ability to put forward that defence. I am of the view that the appellant has a legitimate interest in being tried within a reasonable time. The right to a fair trial is fundamental to our adversarial system. Parliament has seen fit to accord that right constitutional protection. I can find no principled reason for not extending that protection to all accused. To that end, I find apposite the comments of MacDonnell Prov. Div. J. in R. v. 741290 Ontario Inc. (1991), 2 O.R. (3d) 336, at pp. 351-52:


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


37.   In my view, the societal interest applies to corporate offenders as it does to individual accused. To hold otherwise would be to suggest that the community is somehow less interested in seeing the former brought to trial. It would also suggest that the status of an accused can determine whether that accused is to be accorded "fair" and "just" treatment. I am not prepared to accept either of those propositions. …


57.   We are reviewing the decision that was made on November 1, 1988. The delay after that motion was granted is appellate delay. The bulk of that delay is attributable to the appellant's decision to pursue appeals. The appellant invoked the processes of which it now complains and must accept the burdens inherent in full appellate review. There is no evidence or argument to support a finding that some extraordinary factor lengthened that review process. …


Appeal dismissed


                        6. Reforms

                                A. Canada


Criminal Code

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

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


Todd Archibald, Kenneth Jull & Kent Roach, "The Changed Face of Corporate Criminal Liability"

48 Crim. L.Q. 367 (2003-2004)

 

… Bill C-45 constitutes a fundamental change, if not a revolution, in corporate criminal liability. It creates a new regime of criminal liability that applies not only to corporations, but unions, municipalities, partnerships and other associations of persons. It replaces the traditional legal concept of corporate liability based on the fault of the corporation's "directing mind(s)", the board of directors and those with the power to set corporate policy, with liability tied to the fault of all of the corporation's "senior officers". That definition includes all those employees, agents or contractors who play "an important role in the establishment of an organization's policies" or who have responsibility "for managing an important aspect of the organization's activities". It will no longer be necessary for prosecutors to prove fault in the boardrooms or at the highest levels of a corporation: the fault even of middle managers may suffice. It also provides that the conduct of the organization's "representatives" will be attributed to the organization and defines a representative to include not only directors, employees and partners but also agents and contractors. In a word, Bill C-45 significantly expands the net of corporate and organizational liability.


In many ways, the expansion of corporate liability is overdue. The legal concept of the "directing mind" within the corporate boardroom has become outdated by new forms of organic management. In addition, organizations should not escape responsibility for work that they contract out to those who are not their employees. The new sentencing provisions of Bill C-45 also allow a judge to place a corporation on probation. The corporation can be required to take steps to repair harms that it has caused and to prevent similar harms in the future. It is also sensible that the new law sets a lower standard for corporate criminal liability based on crimes of negligence as opposed to crimes of subjective fault. To this extent, the law preserves important gradations of liability.

 

There are, however, some aspects of Bill C-45 that are more troubling. The new law blurs the traditional and important distinction between regulatory and criminal liability. A corporation can now be found guilty of a subjective intent offence because its senior officers (including some managers) knew that a representative of a corporation was or was about to become a party to the offence, but did not take all reasonable measures to stop that representative - an employee, agent or contractor - from being a party to the offence. The distinction between criminal and regulatory liability is also blurred with respect to criminal offences based on negligence. To be sure, prosecutors who bring criminal charges based on negligence will still bear the onus of proving both the actus reus and fault beyond a reasonable doubt. The new law also acknowledges that the standard of negligence in criminal law requires proof not of simple negligence but of a marked departure from the reasonable standard of care. In contrast, regulatory offences will only require the prosecutor to prove the commission of the prohibited act or actus reus beyond a reasonable doubt, while requiring the corporation to establish due diligence on a balance of probabilities to escape liability. Although these differences are important in a court of law, they may not seem so significant in the wake of a tragedy.

 

Lawyers will likely advise corporate officers, including middle managers, that their explanations for tragedies may be used against the corporation for both regulatory or criminal charges. A criminal charge - even one based on negligence - may expose corporations and their shareholders to significant publicity and stigma. A manslaughter or criminal negligence charge against a corporation, let alone a murder or a fraud charge, will often be front-page news. The expansion of corporate criminal liability in Bill C-45 is bound to make relations between corporations and regulatory investigators far more adversarial than at present.

 

Greater reliance on criminal liability might be worth it if the result was genuine deterrence and reparation for the harms caused. But there is some reason to doubt that this will be the case. Some corporations facing serious criminal charges may simply declare bankruptcy, ending the promise of Bill C-45 that the criminal law can be used to reform their practices and achieve reparation for the victims. Moreover, there is reason to be concerned that the threat of criminal liability will lead those in regulated industries to invoke more frequently their right to silence and other Charter protections that are routinely available for those facing criminal charges and less likely to apply to regulatory charges. Finally, the difficulties of securing criminal convictions even under the enhanced law should not be underestimated, and the advantages of a regulatory prosecution which requires the corporation to establish due diligence should not be forgotten. The exact consequences of expanded criminal liability can only be determined by empirical research, but the blurring of criminal and regulatory liability should be carefully monitored. …



R. v. Metron Construction Corp.
Ontario Court of Justice

2012 ONCJ 506

 

1.   R.G. BIGELOW J.:— Metron Construction Corporation (Metron) is a corporation registered in Ontario engaged primarily in the construction business. Joel Swartz is the president and sole director of the corporation. In September 2009 Metron entered into an agreement to restore the concrete balconies on 2 high rise buildings located on Keele Street in the City of Toronto. Metron contracted with a Vadim Kazenelson to act as project manager who in turn hired a Fayzullo Fazilov to work as site supervisor.

 

2.   On the 24th of December, 2009 at approximately 4:30 PM 5 workers and Mr. Fazilov all of whom had been working on the 14th floor climbed onto a swing stage at the project in order to travel back to the ground to get ready to close up and leave the project site for the day. Shortly thereafter the platform collapsed and 5 of the men on it fell some 14 floors to the ground. Four of the five who fell, Alesandrs Bondarevs, Aleksey Blumberg, Vladamir Korostin and the site supervisor Mr. Fazilov died as a result of injuries suffered in the fall. The fifth person to fall, Dilshod Marupov, survived but suffered serious injuries. The sixth person on the platform was properly attached to a safety line which prevented him from falling and he was uninjured.


3.   The swing stage which collapsed had been rented from an Ottawa based supplier of swing stages and when it arrived:

 

although appearing new, neither of the swing stages (or their components) had any markings, serial numbers, identifiers or labels with regard to the stage's maximum capacity (as required by health and safety legislation and industry practice). The new stages also arrived without any manual, instructions or other product information such as design drawings prepared by an engineer as required by s. 139(5) of the Occupational Health and Safety Act (OHSA).

 

4.   Subsequent testing of the swing stage which collapsed revealed that it had not been properly constructed and as a result would not have been safe for 2 workers let alone 6 with tools and other materials.

 

5.   At the time of the incident, there were only two lifelines available for the swing stage and it was "the normal and usual practice on the project for only two workers to be on the swing stage at any time."

 

6.   In addition toxicological analysis determined that at the time of the incident, 3 of the 4 deceased including Mr. Fazilov "had marijuana in their system at a level consistent with having recently ingested the drug."

 

7.   Metron has entered a plea of guilty to a count of Criminal Negligence Causing Death arising out of those events. The specific facts which the parties have agreed support a finding of Criminal Negligence are:

 

Mr. Fazilov, who it is agreed met the definition of a "senior officer" of Metron, and therefore Metron, failed to take such reasonable steps to prevent bodily harm and death by:

 

a) Directing and/or permitting six workers to work on the swing stage (plus various construction materials), when he knew or should have known that it was unsafe to do so;

b) Directing and/or permitting six workers to board the swing stage knowing that only two lifelines were available; and

c) Permitting persons under the influence of drugs to work on the project.

 

Metron, therefore, through the acts and omissions its senior officer, Fazilov, is therefore guilty of Criminal Negligence guilty of criminal negligence pursuant to sections 22.1(b), 217.1 and 219 of the Criminal Code of Canada. …

                                B. Australia

Criminal Code Act 1995 (Cth)

Division 12

12.1  General principles

             (1) This Code applies to bodies corporate in the same way as it applies to individuals. It so applies with such modifications as are set out in this Part, and with such other modifications as are made necessary by the fact that criminal liability is being imposed on bodies corporate rather than individuals.

             (2) A body corporate may be found guilty of any offence, including one punishable by imprisonment.

12.2  Physical elements

                 If a physical element of an offence is committed by an employee, agent or officer of a body corporate acting within the actual or apparent scope of his or her employment, or within his or her actual or apparent authority, the physical element must also be attributed to the body corporate.

12.3  Fault elements other than negligence

             (1) If intention, knowledge or recklessness is a fault element in relation to a physical element of an offence, that fault element must be attributed to a body corporate that expressly, tacitly or impliedly authorised or permitted the commission of the offence.

             (2) The means by which such an authorisation or permission may be established include:

(a)  proving that the body corporate's board of directors intentionally, knowingly or recklessly carried out the relevant conduct, or expressly, tacitly or impliedly authorised or permitted the commission of the offence; or

(b)  proving that a high managerial agent of the body corporate intentionally, knowingly or recklessly engaged in the relevant conduct, or expressly, tacitly or impliedly authorised or permitted the commission of the offence; or

(c)  proving that a corporate culture existed within the body corporate that directed, encouraged, tolerated or led to non-compliance with the relevant provision; or

(d)  proving that the body corporate failed to create and maintain a corporate culture that required compliance with the relevant provision.

             (3) Paragraph (2)(b) does not apply if the body corporate proves that it exercised due diligence to prevent the conduct, or the authorisation or permission.

             (4) Factors relevant to the application of paragraph (2)(c) or (d) include:

(a)  whether authority to commit an offence of the same or a similar character had been given by a high managerial agent of the body corporate; and

(b)  whether the employee, agent or officer of the body corporate who committed the offence believed on reasonable grounds, or entertained a reasonable expectation, that a high managerial agent of the body corporate would have authorised or permitted the commission of the offence.

             (5) If recklessness is not a fault element in relation to a physical element of an offence, subsection (2) does not enable the fault element to be proved by proving that the board of directors, or a high managerial agent, of the body corporate recklessly engaged in the conduct or recklessly authorised or permitted the commission of the offence.

12.4  Negligence

             (1)  The test of negligence for a body corporate is that set out in section 5.5.

             (2)  If:

                     (a)  negligence is a fault element in relation to a physical element of an offence; and

                     (b)  no individual employee, agent or officer of the body corporate has that fault element;

that fault element may exist on the part of the body corporate if the body corporate's conduct is negligent when viewed as a whole (that is, by aggregating the conduct of any number of its employees, agents or officers).

             (3) Negligence may be evidenced by the fact that the prohibited conduct was substantially attributable to:

(a)  inadequate corporate management, control or supervision of the conduct of one or more of its employees, agents or officers; or

(b)  failure to provide adequate systems for conveying relevant information to relevant persons in the body corporate.

12.5  Mistake of fact (strict liability)

             (1) A body corporate can only rely on section 9.2 (mistake of fact (strict liability)) in respect of conduct that would, apart from this section, constitute an offence on its part if:

(a)  the employee, agent or officer of the body corporate who carried out the conduct was under a mistaken but reasonable belief about facts that, had they existed, would have meant that the conduct would not have constituted an offence; and

(b)  the body corporate proves that it exercised due diligence to prevent the conduct.

             (2) A failure to exercise due diligence may be evidenced by the fact that the prohibited conduct was substantially attributable to:

(a)  inadequate corporate management, control or supervision of the conduct of one or more of its employees, agents or officers; or

(b)  failure to provide adequate systems for conveying relevant information to relevant persons in the body corporate.

12.6  Intervening conduct or event

A body corporate cannot rely on section 10.1 (intervening conduct or event) in respect of a physical element of an offence brought about by another person if the other person is an employee, agent or officer of the body corporate.

                                C. UK

Corporate Manslaughter and Corporate Homicide Act 2007
2007 c. 19 (United Kingdom)
 

1.  The offence

 

(1) An organisation to which this section applies is guilty of an offence if the way in which its activities are managed or organised—

(a) causes a person's death, and

(b) amounts to a gross breach of a relevant duty of care owed by the organisation to the deceased.

 

(2) The organisations to which this section applies are—

(a) a corporation;

(b) a department or other body listed in Schedule 1;

(c) a police force;

(d) a partnership, or a trade union or employers' association, that is an employer.

 

(3) An organisation is guilty of an offence under this section only if the way in which its activities are managed or organised by its senior management is a substantial element in the breach referred to in subsection (1).

 

(4) For the purposes of this Act—

(a) “relevant duty of care” has the meaning given by section 2, read with sections 3 to 7;

(b) a breach of a duty of care by an organisation is a “gross” breach if the conduct alleged to amount to a breach of that duty falls far below what can reasonably be expected of the organisation in the circumstances;

(c) “senior management”, in relation to an organisation, means the persons who play significant roles in—

(i) the making of decisions about how the whole or a substantial part of its activities are to be managed or organised, or

(ii) the actual managing or organising of the whole or a substantial part of those activities. ..

 

(6) An organisation that is guilty of corporate manslaughter or corporate homicide is liable on conviction on indictment to a fine.


R. v. Lion Steel Equipment Ltd.
Manchester Crown Court

T 2011 7411


RULING:
GILBART Q.C.J.:

 

1.    This is a ruling following a preparatory hearing, held pursuant to section 31 of the Criminal Procedure and Investigations Act 1996, and Rule 15.1 of the Criminal Procedure Rules.. The trial of the Defendants on this indictment is listed to start on 12 June 2012. This preparatory hearing has been ordered by consent, because the issues raised by the First Defendant about the first count raise questions relating to the law relating to the case …

2.    In this case, the four Defendants face various charges arising out of the tragic death of Steven Berry on 29 May 2008 at the factory premises in Dukinfield of the First Defendant Lion Steel Equipment Limited (” LSEL”). Mr Berry, who was an employee of the company, fell some 40 feet to his death through a skylight in a roof, on to which roof he had gone to repair a leak.

3.    The indictment alleges the following

i) Count 1; corporate manslaughter against LSEL. It alleges that on 29th May 2008, the Defendant LSEL “ ……being an organisation, namely a corporation, and because of the way in which the organisations’ activities were managed or organised by its senior management, caused the death of…..Steven Berry by failing to ensure that a safe system of work was in place in respect of work undertaken at roof height, which failure amounted to a gross breach of a relevant duty of care owed by it, to the deceased.” …

6.     The starting point for consideration of the arguments about Count 1 is the effect of the Corporate Manslaughter and Corporate Homicide Act 2007 (CMCHA). It came into force on 6 April 2008, shortly before the tragic death of Mr Berry, and the Crown contend that there was a considerable history before the commencement date of the company and the three named directors

i) failing to implement a safe system of working in respect of working on the roof, both generally, and with specific regard to Mr Berry, who, it is alleged, was not trained in working on roofs;

ii) failed over a number of years to act on warnings given to them by others dealing with their insurance, or with health and safety advice, that their system of working was deficient.

7.     A matter vigorously debated before me was the degree to which the history of dealings by the company and its directors before the date of commencement could be relied on when considering events after that date. It is therefore necessary to start with the law as it stood before the commencement of the Act.

8.     A company could commit the offence of manslaughter by gross negligence. To be guilty of the common law offence of gross negligence manslaughter, there must have been a gross breach of a duty of care owed to the victim. Before a company could be convicted of manslaughter, a "directing mind" of the organisation (that is, a senior individual who can be said to embody the company in his actions and decisions) had to be shown to be guilty of the offence. It follows that for liability for manslaughter to be established, the Crown had to prove that

i) There was a death, and

ii) That death was caused by the gross negligence of a directing mind within the company.

9.     CMCHA was enacted because of the problems that could occur in identifying a person who was the directing mind, whose conduct or omissions could be treated as grossly negligent.

10.  Section 1(1) and (6) of CMCHA defines the offence of corporate manslaughter as follows “An organisation to which this section applies is guilty of an offence if the way in which its activities are managed or organised—

(a) causes a person's death, and

(b)amounts to a gross breach of a relevant duty of care owed by the organisation to the deceased.”

11. Section 1(3) and (4) state that

“(3) An organisation is guilty of an offence under this section only if the way in which its activities are managed or organised by its senior management is a substantial element in the breach referred to in subsection (1).”

(4)For the purposes of this Act—

(a) “relevant duty of care” has the meaning given by section 2, read with sections 3 to 7;

(b) a breach of a duty of care by an organisation is a “gross” breach if the conduct alleged to amount to a breach of that duty falls far below what can reasonably be expected of the organisation in the circumstances;

(c) “senior management”, in relation to an organisation, means the persons who play significant roles in—

(i) the making of decisions about how the whole or a substantial part of its activities are to be managed or organised, or

(ii) the actual managing or organising of the whole or a substantial part of those activities.

12. It is helpful also to refer to section 2 at this stage. For the purposes of this case, it defines the “relevant duty of care” as “ (1) in relation to an organisation, any of the following duties owed by it under the law of negligence—

(a) a duty owed to its employees or to other persons working for the organisation or performing services for it 

20.  In my judgement, the following issues arise

i) What are the ingredients of the offence of corporate manslaughter ?

ii) To what extent can the jury consider evidence of what occurred before the commencement date, when addressing the “management or organisation of its activities” by LSEL? ...


(1) What are the ingredients of the offence of corporate manslaughter?

21. In my judgement the Crown has to prove the following

i) That LSEL is an organisation

ii) That the way in which the activities of LSEL were managed or organised caused the death

iii) That LSEL owed a duty at common law to take reasonable care to provide a safe system of working to its employee Mr Berry.

iv) That Mr Berry’s death was caused by a failure within the scope of the management and organisation of the activities of LSEL to perform that duty

v) That the breach of duty amounted to a gross breach of that duty of care, because the conduct alleged to constitute a failure fell far below what could reasonably be expected of LSEL in the circumstances

vi) That the way in which its activities were managed or organised by its senior management is a substantial element in the gross breach alleged.

vii) It is to be noted that it would not have been possible to charge the Second, Third or Fourth Defendants with any offence related to Count 1. By section 18

 “an individual cannot be guilty of aiding, abetting, counselling or procuring the commission of an offence of corporate manslaughter.”

22. There can be no doubt that CMCHA created a new offence. The offence has three fundamental elements:

i) The death must have been caused by the way in which the its activities were managed or organised

ii) The death was caused by a gross breach of the common law duty of care imposed by the law of negligence on LSEL

iii) That gross breach was attributable wholly or substantially to the way in which its activities were managed or organised by its senior management.

23.  Can the prosecution rely on evidence of what occurred before the commencement date in support of its case? In other words, are conduct or omissions forming part of the relevant “way in activities were managed or organised” so as to give rise to the gross breach of common law duty, but which occurred before the commencement date, capable of forming the subject matter of prosecution ?

24.  One starts with general principle. A statute cannot render conduct unlawful retrospectively in the absence of clear words : Phillips v Eyre [1870] LR 6 QB 1 per Willes J and Yew Bon Tew v Kenderaan Bas Mara [1983] 1 AC 553 @ 558 per Lord Brightman.

25.  This statute is dealing, among other situations, with the kind of case where omissions or conduct in the activities of senior management within a company over a period of time can create a set of circumstances in which the risk of accidental injury is increased. If death is caused as a result, then a criminal offence is committed. It follows that the law has the effect of rendering liable to criminal penalty conduct or omissions which were not the subject of criminal penalty before it came into force.

26. The situation before 6 April 2008 was different. LSEL was subject to criminal penalty if it committed the common law offence of manslaughter by gross negligence. It is of course common knowledge that prosecutions of companies for that offence were rarely brought, and succeeded even more rarely, because of the requirement that it had to be shown that the controlling mind of the company had been grossly negligent. It is significant in my judgement that the effect of the CMCHA is not a procedural or evidential one of introducing different rules on what evidence may be admitted to show what formed the controlling mind, but one of actually introducing a new substantive offence.

27. It follows in my judgement that the Crown cannot look to evidence of “activities” or whether they involved a “breach” or a “ gross breach,” where such activities, breach or gross breach occurred before the date of commencement, save insofar as they are relevant to the existence of a duty on and after that date, or whether a breach after that date was a “gross breach.”

28. That interpretation, which I have arrived at after my own analysis, assisted by the submissions of counsel, is supported by academic opinion (see Ferguson at S.L.T [2007] 35 @ 251-260), and by the explanatory notes to the 2007 Act, and by the Health and Safety Executive.

29. Explanatory Note 66 to the statute refers to section 27(3) “Subsection (3) makes it clear that the legislation is not retrospective. Subsection (4) makes provision for the common law offence of manslaughter by gross negligence to remain in place in respect to corporations for conduct and events that occur prior to commencement. Proceedings in respect of the common law offence (whether started before or after the new offence is brought into force) and arising out of the conduct and events occurring prior to commencement will not be affected by the Act.” …

(2) To what extent can the jury consider evidence of what occurred before the commencement date, when addressing the “management or organisation of its activities” by LSEL ?

31. Given my conclusion that the CMCHA is not of retrospective effect, and that what occurred before commencement cannot form activities for the purposes of the offence created by section 1, one must then consider whether evidence of such pre-commencement activities is admissible in a trial of a Defendant for the offence created by section 1.

32  Mr Turner QC, in a very able argument, submits that the effect of sections 20, 27(3) (4) and (5) is to prevent consideration of pre commencement activities. He says that while knowledge held at the commencement date is relevant, the court is prevented , when assessing whether a breach has occurred or is gross, from considering what occurred before commencement . Thus for example, if a breach of the duty occurred after the date of commencement, and there was evidence that the managers were on notice that their system was inadequate, and one is considering whether it was a gross breach, he says that one is prevented from considering whether the inadequacy or knowledge of it was recent or long standing.

33. As a matter of first impression such an argument seems unpersuasive. Leaving the effect of sections 20 and 27 aside, one can test that by comparing two examples

i) Suppose Company A has been warned on 1 April 2004, and at six monthly intervals thereafter, that its system for maintaining its heavy lifting gear was inadequate. The last warning had been on 1 April 2008, 6 days before the Act came into force. On 1 July 2008 the lifting gear failed while lifting a load as a result of its being inadequately maintained, causing the death of an employee standing beneath it.

ii) By contrast Company B received a similar warning for the first time on 1 April 2008, before a similar accident on 1 July 2008.

34. In considering whether the breach by Company A to maintain its heavy lifting gear after 6 April 2008 was gross, it would in my judgement be wrong, and indeed entirely unrealistic, to exclude from consideration the fact that the failure was a long standing one and had been the subject of repeated warnings, one as recently as 3 months before the accident. 


                        7. Other Corporate Liability Provisions: Overview


Albania

Albanian Criminal Code, Law No. 7895 [translation]
Art. 45
The Application of the criminal law on legal persons/entities.

The legal persons, with the exception of the state, are criminally responsible for criminal acts performed by their bodies or representatives on their behalf or for their benefit.

The local government entities are criminally responsible only for the actions performed during the exercise of their activity that may be exercised by the delegating public services.

The criminal responsibility of the legal persons does not exclude that of the physical persons that have committed criminal acts or are collaborators for the committal of the same criminal acts.

The criminal acts and the sanctioning measures taken against the legal entities, as well as the procedures for the approval and application of these measures are regulated by a special law.


China

 

Criminal Law of the People`s Republic of China [translation]

S. 4 – Crimes Committed by a Unit

Art. 30. A company, enterprise, institution, organ, or public organization that conducts an act harmful to society, where such an act is stipulated as a crime, shall bear criminal responsibility.

Art. 31. A unit which commits a crime shall be punished with a fine, and the person(s) directly in charge and other person(s) directly involved in the crime shall be given a punishment. Where Specific Provisions of this Law or other laws stipulate otherwise, such stipulation shall be applied.

Finland

 

Criminal Code of the Republic of Finland [translation]

Ch. 9 – Corporate criminal liability (743/1995)

S. 1 - Scope of application (61/2003)

(1) A corporation, foundation or other legal entity in whose operations an offence has been committed may on the request of the public prosecutor be sentenced to a corporate fine if such a sanction has been provided in this Code for the offence.

(2) The provisions in this chapter do not apply to offences committed in the exercise of public authority.

S. 2 - Prerequisites for liability (61/2003)

(1) A corporation may be sentenced to a corporate fine if a person who is part of its statutory organ or other management or who exercises actual decision-making authority therein has been an accomplice in an offence or allowed the commission of the offence or if the care and diligence necessary for the prevention of the offence have not been observed in the operations of the corporation.

(2) A corporate fine may be imposed even if the offender cannot be identified or otherwise is not punished. However, no corporate fine shall be imposed for a complainant offence which is not reported by the injured party so as to have charges brought, unless there is a very important public interest for the bringing of charges.

S. 3 - Connection between offender and corporation (743/1995)

(1) The offence is deemed to have been committed in the operations of a corporation if the perpetrator has acted on the behalf or for the benefit of the corporation, and belongs to its management or is in a service or employment relationship with it or has acted on assignment by a representative of the corporation.

(2) The corporation does not have the right to compensation from the offender for a corporate fine that it has paid, unless such liability is based on statutes on corporations and foundations.


France

 

Code pénal, [Penal Code], 1994 [translation]

Art. 121-2 – De la responsabilité pénale: Dispositions generals [Of Criminal Liability: General Provisions]

Legal persons, with the exception of the State, are criminally liable for the offences committed on their account by their organs or representatives, according to the distinctions set out in articles 121-4 and 121-7. …

The criminal liability of legal persons does not exclude that of any natural persons who are perpetrators or accomplices to the same act, subject to the provisions of the fourth paragraph of article 121-3.

Art. 121-3

There is no felony or misdemeanour in the absence of an intent to commit it.

However, the deliberate endangering of others is a misdemeanour where the law so provides.

A misdemeanour also exists, where the law so provides, in cases of recklessness, negligence, or failure to observe an obligation of due care or precaution imposed by any statute or regulation, where it is established that the offender has failed to show normal diligence, taking into consideration where appropriate the nature of his role or functions, of his capacities and powers and of the means then available to him.

In the case as referred to in the above paragraph, natural persons who have not directly contributed to causing the damage, but who have created or contributed to create the situation which allowed the damage to happen who failed to take steps enabling it to be avoided, are criminally liable where it is shown that they have broken a duty of care or precaution laid down by statute or regulation in a manifestly deliberate manner, or have committed a specified piece of misconduct which exposed another person to a particularly serious risk of which they must have been aware.

There is no petty offence in the event of force majeure.

Art. 121-4

The perpetrator of an offence is the person who:

1° commits the criminally prohibited act;

2° attempts to commit a felony or, in the cases provided for by Statute, a misdemeanour. …

Art. 131-39

Where a statute so provides against a legal person, a felony or misdemeanour may be punished by one or more of the following penalties:

1° dissolution, where the legal person was created to commit a felony, or, where the felony or misdemeanour is one which carries a sentence of imprisonment of three years or more, where it was diverted from its objects in order to commit them;

2° prohibition to exercise, directly or indirectly one or more social or professional activity, either permanently or for a maximum period of five years;

3° placement under judicial supervision for a maximum period of five years;

4° permanent closure or closure for up to five years of the establishment, or one or more of the establishments, of the enterprise that was used to commit the offences in question;

5° disqualification from public tenders, either permanently or for a maximum period of five years;

6° prohibition, either permanently or for a maximum period of five years, to make a public appeal for funds;

7° prohibition to draw cheques, except those allowing the withdrawal of funds by the drawer from the drawee or certified cheques, and the prohibition to use payment cards, for a maximum period of five years;

8° confiscation of the thing which was used or intended for the commission of the offence, or of the thing which is the product of it;

9° posting a public notice of the decision or disseminating the decision in the written press or using any form of communication to the public by electronic means.

The penalties under 1° and 3° above do not apply to those public bodies which may incur criminal liability. Nor do they apply to political parties or associations, or to unions. The penalty under 1° does not apply to institutions representing workers.


Germany


Ordnungswidrigkeitengesetz [Regulatory Offences Act] [translation]

S. 30 – Regulatory Fine Imposed on Legal Persons and on Associations of Persons

(1) Where someone acting

1. as an entity authorised to represent a legal person or as a member of such an entity,

2. as chairman of the executive committee of an association without legal capacity or as a member of such committee,

3. as a partner authorised to represent a partnership with legal capacity, or

4. as the authorised representative with full power of attorney or in a managerial position as procura-holder or the authorised representative with a commercial power of attorney of a legal person or of an association of persons referred to in numbers 2 or 3,

5. as another person responsible on behalf of the management of the operation or enterprise forming part of a legal person, or of an association of persons referred to in numbers 2 or 3, also covering supervision of the conduct of business or other exercise of controlling powers in a managerial position,

has committed a criminal offence or a regulatory offence as a result of which duties incumbent on the legal person or on the association of persons have been violated, or where the legal person or the association of persons has been enriched or was intended to be enriched, a regulatory fine may be imposed on such person or association.

(2) The regulatory fine shall amount

1. in the case of a criminal offence committed with intent, to not more than one million Euros,

2. in the case of a criminal offence committed negligently, to not more than five hundred thousand Euros.

Where there has been commission of a regulatory offence, the maximum regulatory fine that can be imposed shall be determined by the maximum regulatory fine imposable for the regulatory offence concerned. The second sentence shall also apply where there has been commission of an act simultaneously constituting a criminal offence and a regulatory offence, provided that the maximum regulatory fine imposable for the regulatory offence exceeds the maximum pursuant to the first sentence.

(3) Section 17 subsection 4 and section 18 shall apply mutatis mutandis.

(4) If criminal proceedings or regulatory fining proceedings are not commenced on account of the criminal offence or of the regulatory offence, or if such proceedings are discontinued, or if imposition of a criminal penalty is dispensed with, the regulatory fine may be assessed independently. Statutory provision may be made to the effect that a regulatory fine may be imposed in its own right in further cases as well. Independent assessment of a regulatory fine against the legal person or association of persons shall however be precluded where the criminal offence or the regulatory offence cannot be prosecuted for legal reasons; section 33 subsection 1 second sentence shall remain unaffected.

(5) Assessment of a regulatory fine incurred by the legal person or association of persons shall, in respect of one and the same offence, preclude a forfeiture order, pursuant to sections 73 or 73a of the Penal Code or pursuant to section 29a, against such person or association of persons.


Iceland

 

General Penal Code of Iceland

Ch. II – A. Criminal Liability of Legal Persons

Art. 19 a. A legal person shall be ordered to pay a fine if this is provided for by Law.

b. Provisions of Law on the criminal liability of legal persons shall, subject to any limitations provided for therein, apply to any entity who while not being a natural person is capable of enjoying rights and bearing duties under Icelandic Law, including public limited liability Companies, private limited liability Companies, Companies with mixed liability of owners, European Interest Groupings, partnership Companies, cooperative societies, public associations, independent foundations, administrative authorities, institutes and Municipalities.

c. Subject to provisions in Law, a legal person can only be made criminally liable if its spokesman, employee or other person acting on its behalf has committed a criminal and unlawful act in the course of its business. Penalties shall be imposed even if the identity of this legal person has not been established. Administrative authorities can only be made criminally liable if a criminal and an unlawful act has been committed in the course of an operation deemed comparable to the operations of private entities.


Norway

 

Norway General Civil Penal Code [translation]

Ch. 3a – Criminal liability of enterprises

S. 48 a. When a penal provision is contravened by a person who has acted on behalf of an enterprise, the enterprise may be liable to a penalty. This applies even if no individual person may be punished for the contravention.

Enterprise here means a company, society or other association, one-man enterprise, foundation, estate or public activity

The penalty shall be a fine. The enterprise may also by a court judgment be deprived of the right to carry on business or may be prjibited from carrying it on in certain forms, cf. s. 29.

S. 48 b. In deciding whether a penalty shall be imposed on an enterprise pursuant to section 48 a, and in assessing the penalty vis-à-vis the enterprise, particular consideration shall be paid to

a) the preventative effect of the penalty,

b) the seriousness of the offence,

c) whether the enterprise could by guidelines, training, control or other measures have prevented the offence,

d) whether the offence has been committed in order to promote the interests of the enterprise,

e) whether the enterprise has had or could have obtained any advantage by the offence,

f) the enterprise`s economic capacity,

g) whether other sanctions have as a consequence of the offence been imposed on the enterprise or on any person who has acted on its behalf, including whether a penalty has been imposed on any individual person.


South Africa


Criminal Procedure Act

S. 332. Prosecution of corporations and members of associations

(1) For the purpose of imposing upon a corporate body criminal liability for any offence, whether under any law or at common law-

(a) any act performed, with or without a particular intent, by or on instructions or with permission, express or implied, given by a director or servant of that corporate body; and

(b) the omission, with or without a particular intent, of any act which ought to have been but was not performed by or on instructions given by a director or servant of that corporate body, in the exercise of his powers or in the performance of his duties as such director or servant or in furthering or endeavouring to further the interests of that corporate body, shall be deemed to have been performed (and with the same intent, if any) by that corporate body or, as the case may be, to have been an omission (and with the same intent, if any) on the part of that corporate body.

(2) In any prosecution against a corporate body, a director or servant of that corporate body shall be cited, as representative of that corporate body, as the offender, and thereupon the person so cited may, as such representative, be dealt with as if he were the person accused of having committed the offence in question: Provided that-

(a) if the said person pleads guilty, other than by way of admitting guilt under section 57, the plea shall not be valid unless the corporate body authorized him to plead guilty;

(b) if at any stage of the proceedings the said person ceases to be a director or servant of that corporate body or absconds or is unable to attend, the court in question may, at the request of the prosecutor, from time to time substitute for the said person any other person who is a director or servant of the said corporate body at the time of the said substitution, and thereupon the proceedings shall continue as if no substitution had taken place;

(c) if the said person, as representing the corporate body, is convicted, the court convicting him shall not impose upon him in his representative capacity any punishment, whether direct or as an alternative, other than a fine, even if the relevant law makes no provision for the imposition of a fine in respect of the offence in question, and such fine shall be payable by the corporate body and may be recovered by attachment and sale of property of the corporate body in terms of section 288;

(d) the citation of a director or servant of a corporate body as aforesaid, to represent that corporate body in any prosecution instituted against it, shall not exempt that director or servant from prosecution for that offence in terms of subsection (5).

(3) In criminal proceedings against a corporate body, any record which was made or kept by a director, servant or agent of the corporate body within the scope of his activities as such director, servant or agent, or any document which was at any time in the custody or under the control of any such director, servant or agent within the scope of his activities as such director, servant or agent, shall be admissible in evidence against the accused.

(4) For the purposes of subsection (3) any record made or kept by a director, servant or agent of a corporate body or any document which was at any time in his custody or under his control, shall be presumed to have been made or kept by him or to have been in his custody or under his control within the scope of his activities as such director, servant or agent, unless the contrary is proved.

(5) When an offence has been committed, whether by the performance of any act or by the failure to perform any act, for which any corporate body is or was liable to prosecution, any person who was, at the time of the commission of the offence, a director or servant of the corporate body shall be deemed to be guilty of the said offence, unless it is proved that he did not take part in the commission of the offence and that he could not have prevented it, and shall be liable to prosecution therefor, either jointly with the corporate body or apart therefrom, and shall on conviction be personally liable to punishment therefor.

(6) In criminal proceedings against a director or servant of a corporate body in respect of an offence-

(a) any evidence which would be or was admissible against that corporate body in a prosecution for that offence, shall be admissible against the accused;

(b) whether or not such corporate body is or was liable to prosecution for the said offence, any document, memorandum, book or record which was drawn up, entered up or kept in the ordinary course of business of that corporate body or which was at any time in the custody or under the control of any director, servant or agent of such corporate body, in his capacity as director, servant or agent, shall be prima facie proof of its contents and admissible in evidence against the accused, unless he is able to prove that at all material times he had no knowledge of the said document, memorandum, book or record, in so far as its contents are relevant to the offence charged, and was in no way partly to the drawing up of such document or memorandum or the making of any relevant entries in such book or record.

(7) When a member of an association of persons, other than a corporate body, has, in carrying on the business or affairs of that association or in furthering or in endeavouring to further its interests, committed an offence, whether by the performance of any act or by the failure to perform any act, any person who was, at the time of the commission of the offence, a member of that association, shall be deemed to be guilty of the said offence, unless it is proved that he did not take part in the commission of the offence and that he could not have prevented it: Provided that if the business or affairs of the association are governed or controlled by a committee or other similar governing body, the provisions of this subsection shall not apply to any person who was not at the time of the commission of the offence a member of that committee or other body.

(8) In any proceedings against a member of an association of persons in respect of an offence mentioned in subsection (7) any record which was made or kept by any member or servant or agent of the association within the scope of his activities as such member, servant or agent, or any document which was at any time in the custody or under the control of any such member, servant or agent within the scope of his activities as such member, servant or agent, shall be admissible in evidence against the accused.

(9) For the purposes of subsection (8) any record made or kept by a member or servant or agent of an association, or any document which was at any time in his custody or under his control, shall be presumed to have been made or kept by him or to have been in his custody or under his control within the scope of his activities as such member or servant or agent, unless the contrary is proved.

(10) In this section the word 'director' in relation to a corporate body means any person who controls or governs that corporate body or who is a member of a body or group of persons which controls or governs that corporate body or, where there is no such body or group, who is a member of that corporate body.

(11) The provisions of this section shall be additional to and not in substitution for any other law which provides for a prosecution against corporate bodies or their directors or servants or against associations of persons or their members.

(12) Where a summons under this Act is to be served on a corporate body, it shall be served on the director or servant referred to in subsection (2) and in the manner referred to in section 54 (2).

Switzerland

 

Swiss Criminal Procedure Code [translation]

Art. 112 Criminal proceedings against corporate undertakings

1. In criminal proceedings against a corporate undertaking, the undertaking shall be represented by a single person who has unlimited authority to represent the undertaking in private law matters.

2. If the undertaking fails to appoint such a representative within a reasonable time, the director of proceedings shall decide which of the persons authorised to represent the undertaking in private law matters will represent the undertaking in the criminal proceedings.

3. If a criminal investigation is opened against the person representing the undertaking in the criminal proceedings in respect of the same or related circumstances, the undertaking must appoint another representative. If necessary, the director of proceedings shall appoint another person to represent the undertaking in accordance with paragraph 2, or if no one is available, a suitable third party.

4. If proceedings are brought against a natural person and an undertaking in respect of the same or related circumstances, the two proceedings may be combined.

 

Chapter 12. Mistake & Intoxication

A.        Mistake

                        1. Mistake of Fact

R. v. Rees
Supreme Court of Canada
(1956) 115 C.C.C. 1; [1956] S.C.R. 640

CARTWRIGHT J. (with whom NOLAN J. concurred):—This is an appeal from a judgment of the Court of Appeal for British Columbia whereby the appeal of the respondent Rees from a judgment of Wood J. was allowed and it was ordered, in the words of the formal judgment of the Court of Appeal, “that the case be remitted to the Honourable Mr. Justice Wood in the Supreme Court of British Columbia.”

The respondent was convicted on November 23, 1953 before the Judge of the Juvenile Court on the charge that he “at the said City of Vancouver, between the 24th and 27th days of October, A.D. 1953, knowingly or wilfully, did unlawfully commit an act or acts producing, promoting or contributing to Lorraine Brander, a child, being or becoming a juvenile delinquent, or likely to make the said child a juvenile delinquent, to wit, by occupying the same bed and by having sexual intercourse with the said Lorraine Brander, contrary to the form of the Statute in such case made and provided.” [Section 33(1) makes it an offence to “knowingly or wilfully” do any act contributing to the delinquency of a child.]

The effect of the evidence at the trial may be briefly stated. The respondent had sexual intercourse with Lorraine Brander with her consent. The uncontradicted evidence of Lorraine Brander and of the respondent is that prior to the act of intercourse she had told him that she was 18 years of age; he deposed that he would have taken her to be 18 years or older. In fact her age was 16 years and 5 months. In the Province of British Columbia a boy or girl under the age of 18 years is a “child” within the terms of the Juvenile Delinquents Act {now the Youth Criminal Justice Act}.

The learned Juvenile Court Judge held that, as a matter of law, the fact that the respondent honestly believed that the girl was over the age of 18 could afford no defence to the charge and made no finding as to whether the respondent did in fact so believe. ...

In the case at bar we are concerned with the application of the rule of the common law summed up in the first sentence of the maxim ignorantia facti excusat, ignorantia juris non excusat. The rule has been stated and applied in countless cases. In The Queen v. Tolson (1889), 23 Q.B.D. 168 at p. 188, Stephen J. says:

“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.”
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. Inyang, [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 such essential question.

The question then is as to the true construction of the following words of s. 33(1) of the Juvenile Delinquents Act, read in the context of the whole Act:
“Any person ... who, knowingly or wilfully.... does any act producing, promoting, or contributing to a child’s being or becoming a juvenile delinquent . . . is liable on summary conviction . . . to a fine . . . or to imprisonment.”
In approaching this question the following rules of construction should be borne in mind. In Watts & Gaunt v. The Queen, [1953], 3 D.L.R. 152 at p. 157, 1 S.C.R. 505at p. 511, 105 Can. C.C. 193 at p. 199, 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.”

In his book on Criminal Law (1953) at pp. 131 and 133, Mr. Glanville Williams says:
“It is a general rule of construction of the word ‘knowingly’ in a statute that it applies to all the elements of the actus reus.”

“The sound principle of construction is to say that the requirement of knowledge, once introduced into the offence, governs the whole, unless Parliament has expressly provided to the contrary.”
In my opinion these passages are supported by the authorities collected by the learned author at the pages mentioned and correctly state the general rule.

In argument counsel for the appellant stressed the case of R. v. Prince, L.R. 2 C.C.R. 154; but I agree with Mr. Oliver’s submission that it is implicit in the reasons of both Blackburn J. and Bramwell B. that they would have decided that case differently if the section which they were called upon to construe had contained the word “knowingly.”

Were the matter doubtful, it would be of assistance to consider the provisions of the Criminal Code which is a statute of the same legislature in pari materia. Subsections (1) and (2) of s. 138 [now s. 146] {now repealed} of the Cr. Code and their predecessors s-ss. (1) and (2) of s. 301 of the former Code, illustrate the type of language employed by Parliament when it is intended to provide that the belief of an accused as to a matter of fact is irrelevant.
138.(1) Every male person who has sexual intercourse with a female person who ... is under the age of fourteen years, whether or not he believes that she is fourteen years of age or more, is guilty....
“(2) Every male person who has sexual intercourse with a female person who . . . is fourteen years of age or more and is under the age of sixteen years, whether or not he believes that she is sixteen years of age or more, is guilty.”
The contrast between the wording of these subsections, particularly those portions which I have italicized, and that of s. 33 of the Juvenile Delinquents Act is too sharp to be disregarded.

While I have already expressed my agreement with the reasons of the learned Chief Justice of British Columbia on this point, I wish to expressly adopt the following passage [109 Can. C.C. at p. 269]:
“In my view of the matter we must start out with the proposition that sexual intercourse with a woman, not under the age of 18 years and with her consent, is not a crime, except under exceptional and irrelevant circumstances. It follows that if the appellant had sexual intercourse with a girl not under 18 years of age he could not be convicted of contributing to her becoming a juvenile delinquent for the simple reason she is not a child within the meaning of the Act.

“It is the age factor alone that, in these circumstances, moves the act from a non-criminal to a criminal category.

“It follows, it seems to me, that when a man is charged with knowingly and wilfully doing an act that is unlawful only if some factor exists which makes it unlawful (in this instance the age of the girl) he cannot be convicted unless he knows of, or is wilfully blind to, the existence of that factor, and then with that knowledge commits the act intentionally and without any justifiable excuse.”
It would indeed be a startling result if it should be held that in a case in which Parliament has seen fit to use the word “knowingly” in describing an offence honest ignorance on the part of the accused of the one fact which alone renders the action criminal affords no answer to the charge. ...

It remains to consider what order we should make. In my view our duty is to give the judgment which the Court of Appeal ought to have given. I have examined all the evidence with care and have reached the conclusion that it is in the last degree improbable that the learned Juvenile Court Judge would have convicted the respondent if he had instructed himself correctly on the law. Indeed I do not think that any tribunal acting reasonably could have found it to be established beyond a reasonable doubt that the respondent knew, or was wilfully blind to, the fact that Lorraine Brander was under the age of 18 years at the relevant time.

It follows that, in my opinion, the Court of Appeal should have allowed the appeal, quashed the conviction and directed a judgment of acquittal to be entered and I would direct that the judgment of the Court of Appeal should be amended to so provide.

[For similar reasons KERWIN C.J.C., and RAND J. (with whom LOCKE J. concurred), directed that an acquittal be entered. FAUTEUX J. dissented, stating in part: “In my respectful view, Parliament did not intend that the operation of the section be dependant upon the views an accused might form from appearance. What Parliament clearly intended is the protection of children.”]

Appeal dismissed; verdict of acquittal entered.

 

R. v. Metro News Ltd.
Ontario Court of Appeal
[1986] 29 C.C.C. (3d) 35

... The appellant’s contention essentially is that: (1) Whether the “Sakura” photographs exceeded the community standard of tolerance is a question of fact; (2) the appellant’s honest belief, even if mistaken, that the photographs did not exceed community standards of tolerance was a mistake of fact or, at all events, was a mistake as to a state of affairs such as is encompassed by the doctrine of mistake of fact; (3) the appellant’s belief that the photographs did not exceed community standards of tolerance was based upon reasonable grounds, namely, the opinion of the advisory committee, a body possessing both integrity and expertise with respect to obscene matter.

The appellant also contended, as a related proposition, that it took all reasonable measures to comply with the law, and hence was entitled to invoke the defence of due diligence.

A crime may be so defined that an error of law may negative the special state of mind required by the definition of the crime, for example, theft. There are also other cases where an accused’s mistaken belief about his rights under the civil law may negative the necessary mens rea or afford a defence (Smith and Hogan, Criminal Law, 5th ed., p. 71). However, apart from the doctrine of officially induced error, a person’s mistaken belief pertaining to the relevant criminal law ordinarily does not afford a defence. An accused’s mistaken belief that his conduct did not contravene the criminal prohibition is not a defence.

As Glanville Williams points out, for the purpose of the doctrine of mistake of fact, the distinction between issues of law and issues of fact does not fully correspond with the distinction that is drawn between the functions of the judge and the jury; see Glanville Williams, Textbook of Criminal Law, 2nd ed. (1983), p. 451.

In Towne Cinema Theatres Ltd. v. The Queen, supra, at p. 218 C.C.C., p. 26 D.L.R., Madam Justice Wilson referred to Weidman v. Shragge (1912), 20 C.C.C. 117, 2 D.L.R. 734, 46 S.C.R. 1, addressing the problem of “undueness” in the context of agreements “to prevent or lessen unduly competition” in a product. It is well established that on charges of conspiracy to prevent or lessen unduly competition under s. 32(1)(c) of the Combines Investigation Act, R.S.C. 1970, c. C-23 (formerly s. 498(d) of the Code), it is a question of fact whether a particular agreement would, if carried into effect, lessen competition to an extent that is undue: see R. v. Container Materials Ltd. et al. (1941), 76 C.C.C. 18, [1941] 3 D.L.R. 145 (Ont. C.A.), affirmed 77 C.C.C. 129, [1942] 1 D.L.R. 529, [1942] S.C.R. 147 (S.C.C.). It is also clear that a mistaken belief by an accused that the agreement in question would not lessen competition “unduly” would not be a defence, even if the accused acted in good faith on the opinions of expert economists and/or lawyers. In R. v. Container Materials Ltd., supra, Robertson C.J.O. said at p. 40 C.C.C., pp. 164-5 D.L.R.:

It must always depend greatly upon the circumstances of each case whether or not what is complained of is done, or is agreed to be done, “unduly” and it becomes substantially a question of fact.
He further said at pp. 49-50 C.C.C., p. 173 D.L.R.:
Appellants contend that intent is an essential ingredient of the offence charged, and that even if it has been shown that they conspired to prevent or lessen the competition, it has not been shown that they had any intention to do so unduly. The case of A.-G. Australia v. Adelaide SS. Co., [1913] A.C. 781 is relied on. I do not think that case is relevant. The statute defining the offence in question there expressly included the intent in its definition. I do not think anything more than mens rea isrequired to be found in the present case. It cannot have been the intention of Parliament that unless it is shown that the object of the conspiracy was to do something in a manner or to a degree that the accused ought to be found to have himself considered “undue,” he could not be convicted. It is, I think, sufficiently established by cases already cited that it is for the Court or the jury to decide what is “undue,” in fact, and no more is necessary. (Emphasis added.)
On appeal to the Supreme Court of Canada, the decision of the Ontario Court of Appeal was affirmed. Duff C.J.C. said at p. 134 C.C.C., p. 533 D.L.R.:
The lessening or prevention agreed upon will, in my opinion, be undue. within the meaning of the statute, if, when carried into effect, it will prejudice the public interest in free competition to a degree that the tribunal of fact finds to be undue, and an agreement to prevent or lessen competition to such an extent is, accordingly, an offence against s. 498(d). (Emphasis added.)
In my view, what is an “undue” exploitation of sex under s. 159(8) or whether the allegedly obscene matter exceeded the community standard of tolerance constitutes what Glanville Williams terms a value-judgment to which the doctrine of mistake of fact is inapplicable. He states in Textbook of Criminal Law, 2nd ed. (1983), p. 141:
Where a rule of law involves the making of a value-judgment, the doctrine of mens rea does not generally apply in respect of the value-judgment.

On an issue of negligence, for example, the question whether what the defendant did was ‘negligent’ on the one hand or ‘reasonable’ on the other involves a judgment of value made by the jury (or, of course, by magistrates), and the question whether the defendant knew that he was being negligent is not controlling. Similarly a defence of self-defence is excluded if the jury think that the defendant reacted disproportionately, even though he considered that it was proportionate (s. 21.3);and a defence of necessity is excluded if the jury think that what the defendant had in mind to do was not socially justified, even though he thought it was (s. 24.12).However, where the judge is of opinion that no reasonable jury would convict he should direct an acquittal.”

The instances just given are all value-judgments, which are intermediate between questions of fact and questions of law. As with questions of law, the defendant’s failure to foresee the decision of the court does not excuse him. (Emphasis supplied.)
And further at pp. 142-3:
Similar problems beset the crime of obscenity (the publishing of an obscene article, or having an obscene article for publication for gain), under the Obscene Publications Act 1959, as amended by an Act of 1964. The test of whether an article is obscene under the Act, as at common law, is whether
“its effect . . . is, if taken as a whole, such as to tend to deprave and corrupt persons who are likely, having regard to all relevant circumstances, to read, see or hear the matter contained or embodied in it” (s.1(1)).
Here again the jury make the decision on the supposed question of fact without regard to what the defendant thought, and however reasonably he may have believed that the article would not deprave and corrupt.
I observe that under s. 2(5) of the Obscene Publications Act 1959 (U.K.), c. 66, and s. 1(3)(a)of the Obscene Publications Act 1964 (U.K.), c. 74, it is a defence for the accused to prove that he (i) had not examined the article and (ii) had no reasonable cause to suspect that it was such that his publication of it, or his having it as the case may be, would make him liable to be convicted of an offence against s. 2. The authors of Smith and Hogan, Criminal Law, 5th ed., point out at p. 676 that both conditions must be satisfied; so if the accused has examined the article his failure to appreciate its tending to deprave and corrupt (the test of obscenity in England) is no defence.

R. v. Prairie Schooner News Ltd. and Powers (1970), 1 C.C.C. (2d) 251, 12 Crim. L.Q. 462, 75 W.W.R. 585 (Man. C.A.), is a powerful authority against the proposition that the appellant’s belief, even if based on reasonable grounds, that the “Sakura” photographs did not exceed the community standards of tolerance, affords a defence. Mr. Justice Freedman said at pp. 260-1:
I must deal with another aspect of the defence. It is a kind of alternative plea. The accused say that even if the publications are obscene they should still be acquitted because they operated under a bona fide mistake of fact that the publications were not obscene. This defence is based on the circumstances that the magazines and books, all originating in the United States, had been allowed entry into Canada by the Canadian Customs Department.
. . .
Evidence was given that on some occasions a particular publication had been prohibited entry into Canada by the Customs Department under these provisions. The non-prohibition of the books and magazines in the present case accordingly led the accused to believe, they say, that these were not obscene; and that this belief entitled them to be acquitted.

What is the effect of this argument? We must remember that under the Criminal Code it is for the Court, and not the Customs Department, to determine whether or not a publication is obscene. A determination of obscenity is then followed by the imposition of a penalty or punishment under the terms of the law. To say that non-prohibition of these publications by the Customs Department has the effect here claimed would be to deprive the Court of its proper function. It would effectively transfer the adjudication of the issue to the Customs Department. Mr. Penner, however, disclaims any intention of seeking to prevent the Court from carrying out its normal task. Let it find, if it feels it must, that the publications are obscene, but let it at the same time declare that the accused are not guilty of any offence because of a mistake of fact consisting in their belief that the publications were not obscene. I would at once question whether we are dealing here with a mistake of fact. The simple truth is that the determination of obscenity is essentially a matter of opinion. Viewpoints may differ, and in the last analysis it is the opinion of the Court on whether the publication is tolerable according to Canadian community standards that must be decisive. If, somewhere along the way, someone (no matter how highly placed, and whether in the Customs Department or elsewhere) expressed an opinion that a publication was not obscene, it would remain just that, an opinion and no more. It would not confer on the distributor of the publication an immunity from the consequences of the obscenity provisions of the Criminal Code even if he believed the opinion and accepted it as sound. [Emphasis added.]
As Dickson J.A. said in that case at p. 271:
“One does not escape accountability for criminal acts by saying that someone led him to believe the acts were not criminal.”
In the Towne Cinema Theatres case, supra, both Chief Justice Dickson and Madam Justice Wilson in their judgments pointed out that evidence was led by the defence that the film in question had been approved by the Alberta Motion Picture Censor Board (at pp. 211-2 and 221-2 C.C.C., pp. 19-20 and 29-30 D.L.R.), and it was relevant evidence which the trial judge was required to consider and assess in relation to the issue of community standards of tolerance. Although both considered that the evidence of approval of the film by the censor board was relevant to the issue whether the film in question in fact exceeded the standard of community tolerance, I find no suggestion in their judgments that it might also afford a defence on the ground that the accused had a reasonable belief that the film did not exceed the community standard of tolerance even if the tribunal of tact properly found that the film in fact exceeded that standard.

I do not think that the fact that the appellant honestly and reasonably believed that the publication did not exceed the community standard of tolerance is a defence where the court or jury has found that the publication in fact breached that standard, any more than it would be a defence to an accused, on a charge of conspiracy to lessen unduly competition in a product, to show that he honestly and reasonably believed, on the basis of expert opinion, that the agreement that he entered into to lessen competition would not lessen it unduly, where the tribunal of fact has found that the agreement, if carried out, would in fact have that effect.

The defence of reasonable mistake of fact and the defence of due diligence are closely related and I do not think the defence of due diligence is available to the appellant. In Molis v. The Queen (1980), 66 C.C.C. (2d) 5a8 at p. 564, 116 D.L.R. (3d) 291 at pp. 297-8, [1980] 2 S.C.R. 356, Mr. Justice Lamer, delivering the judgment of the Supreme Court of Canada, said:
At the hearing before us, appellant further argued that this Court in the case of 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, recognized for certain offences the existence of a defence of due diligence.
. . .
It is clear to me that we are dealing here with an offence that is not to be considered as one of absolute liability and, hence, a defence of due diligence is available to an accused. But I hasten to add that the defence of due diligence that was referred to in Sault Ste. Marie isthat of due diligence in relation to the fulfilment of a duty imposed by law and not in relation to the ascertainment of the existence of a prohibition or its interpretation. (Emphasis added.)
The appellant’s belief essentially was that the exploitation of sex in the “Sakura” photographs was not “undue”, and did not exceed the community standard of tolerance. As I have endeavoured to show, the appellant’s mistaken belief that the exploitation of sex was not undue or did not exceed community standards of tolerance did not fall within the defence of mistake of fact, nor do I think it falls within the defence of due diligence. The appellant’s belief that the photographs were not legally obscene is not a defence.

Accordingly, I would reject this ground of appeal.

 

R. v. Pappajohn
Supreme Court of Canada
 [1980] 52 C.C.C. (2d) 481; [1980] 2 S.C.R. 120

[The accused, a businessman, met with the complainant, a real estate salesperson, to discuss the pending sale of his house. After a three-hour lunch during which much liquor was consumed, the accused took the complainant to his house. Some three hours later the complainant ran naked out of the house with a bow-tie round her neck and her hands tied tightly behind her back. At trial the complainant denied any form of consent, testifying that she had physically and mentally resisted throughout. Pappajohn’s testimony was the opposite: according to him, there had been preliminary love-play with her consent and acts of intercourse, again with her consent; the gagging and binding was done to stimulate sexual activity, and it was only then that she suddenly became hysterical and screamed.

The trial Judge refused to instruct the jury that if the accused honestly believed that the complainant consented, whether or not she did in fact consent, then he should be acquitted. The sole issue left with the jury was whether she did in fact consent. An appeal by the accused from his conviction to the British Columbia Court of Appeal was dismissed, Lambert J.A. dissenting (holding that the defence of honest and reasonable mistake of fact should have been left to the jury.]

DICKSON, J. (dissenting):— George Pappajohn, a Vancouver businessman, was found guilty before a Judge and jury on an indictment charging rape. From that conviction, an appeal was taken to the Court of Appeal of British Columbia. That Court, by a majority, dismissed the appeal [45 C.C.C. (2d) 67, 5 C.R. (3d) 193, [1979]1 W.W.R. 562].

The principal issue the jury had to determine was whether the complainant consented to those acts of intercourse which, it is not disputed, took place. At trial, however, counsel for the appellant advanced an alternative “defence” which, in his submission, ought also to have been left with the jury. It was argued that even were the jury to decide that the acts transpired in the absence of consent, the appellant could, none the less, be excused from criminal responsibility if he had honestly, albeit mistakenly, believed that the complainant was a willing partner. Though the trial Judge did not dismiss the defence as being unavailable at law, in the circumstances he disallowed the plea, ruling that there was insufficient evidential foundation to warrant an instruction on the issue. The point in this appeal is whether the trial Judge erred in failing to put before the jury a defence of mistaken belief in consent, such failure being a non-direction amounting to misdirection.

In the main, the Court is here concerned with issues of mens rea and mistake of fact. None the less, an appreciation of the evidence led at trial is fundamental to the appeal. Recognition of the defence, if unavailable on the facts of his case, is of no value to the appellant. Conversely, the appellant cannot succeed, regardless of the strength of those facts, unless and until mistake, or honest belief in consent, is accepted as a defence in law to a charge of rape.

It will be convenient to identify the pivotal issues on which the appellant’s case turns:

(1) What is the mens rea of rape?
(2) Is a mistaken belief in consent available in defence to the charge of rape?
(3) If so, does mistake afford a defence only where the mistake is one which is held both honestly and on reasonable grounds?
(4) Did the trial Judge err in the case at bar in ruling there was not sufficient basis of fact to justify leaving the defence of mistake of fact to the jury?

I  Mens rea

There rests now, at the foundation of our system of criminal justice, the precept that a man cannot be adjudged guilty and subjected to punishment, unless the commission ofthe crime was voluntarily directed by a willing mind. Blackstone spoke of a “vicious act” consequent upon a “vicious will” (Commentaries, 15th ed., vol. IV, (1809), p. 21). Proof of the mental element is an essential and constituent step in establishing criminal responsibility. Parliament can, of course, by express words, create criminal offences for which a guilty intention is not an essential ingredient. Equally, mens rea isnot requisite in a wide category of statutory offences which are concerned with public welfare, health and safety. Subject to these exceptions, mens rea, consisting of some positive state of mind, such as evil intention, or knowledge of the wrongfulness of the act, or reckless disregard of consequences, must be proved by the prosecution. The mental element may be established by inference from the nature of the act committed, or by additional evidence.

The mens rea which is required, and its nature and extent, will vary with the particular crime; it can only be determined by detailed examination of the actus reus of the offence. Speaking generally, at least where the circumstance is not “morally indifferent”, the mental element must be proved with respect to all circumstances and consequences that form part of the actus reus. It follows that, in a case of alleged rape, where a fact or circumstance is not known to, or is misapprehended by, the accused, leading to a mistaken but honest belief in the consent of the woman, his act is not culpable in relation to that element of the offence (Glanville Williams, Criminal Law, The General Part, 2nd ed. (1961), p. 141):

For if the actus reus includes surrounding circumstances, it cannot be said to be intentional unless all its elements, including those circumstances, are known (emphasis added).
Taking these principles, then, what is the mental element required under s. 143 of the Criminal Code on a charge of rape? This crime was historically regarded as an offence of physical violence. Blackstone defined rape as “the carnal knowledge of a woman forcibly and against her will” (Commentaries, p.210). A more comprehensive definition of rape at common law is found in Archbold’s Pleading, Evidence and Practice In Criminal Cases, 38th ed. (1973), p. 1121, para. 2871:
Rape consists in having unlawful sexual intercourse with a woman without her consent by force, fear or fraud: 1 East P.C. 434; and see 1 Hale 627 et seq.
Section 143 of our Code {since repealed, now contained in ss. 265 and 271}, in brief, defines rape as an act of sexual intercourse with a female person without her consent, or with consent if that consent is extorted by threats or fear of bodily harm. It will be seen that the statutory definition does not depart in any significant way from the common law definition. For all practical purposes, the Criminal Code merely codifies the common law. The essence of the crime consists in the commission of an act of sexual intercourse where a woman’s consent, or genuine consent, has been withheld.

The actus reus of rape is complete upon (a) an act of sexual intercourse; (b) without consent. An affirmative finding as to each of these elements does not finish the inquiry, however, for, as I have indicated, the requirement that there be a guilty intention must also be satisfied. The important question then arises as to whether at common law, and under s. 143 of the Code, the guilty intention for rape extends to the element of consent. In principle, it would seem that it should, as intention as to consent is central to responsibility; a man should only be punished where he proceeds with an act of violation in the knowledge that consent is withheld, or in a state of recklessness as to whether willingness is present. The intention to commit the act of intercourse, and to commit that act in the absence of consent, are two separate and distinct elements of the offence.

Is the accused’s perception of consent relevant to a charge under s. 143 of the Criminal Code? The argument against the application of Director of Public Prosecutions v. Morgan, [1976] A.C. 182, in Canada, is that the Code creates a statutory offence of rape which does not expressly advert to, or require, that there be a state of mind or intent to proceed in the absence of consent. The issue of consent as an aspect of mens rea for rape does not appear to have been raised directly in English authorities previous to the Morgan decision, although Lord Denman in R. v. Flattery (1877), 13 Cox C.C. 388, had occasion to say (p. 392):
There is one case where a woman does not consent to the act of connection and yet the man may not be guilty of rape, that is where the resistance is so slight and her behaviour such that the man relay bona fide believe that she is consenting....
In Morgan, each of the law Lords accepted the element of knowledge or recklessness as to consent, as a feature of the guilty intention in the crime of rape. In particular, Lord Hailsham endorsed the test formulated by the trial Judge, that the prosecution must prove that “ ... each defendant intended to have sexual intercourse without her consent, not merely that he intended to have sexual intercourse with her but that he intended to have intercourse without her consent” (p. 209). Lord Hailsham added the qualification, if an accused is reckless as to consent, that is equivalent, on ordinary principles, to an intent to do the prohibited act without consent. Lord Simon, though dissenting on the issue of whether a belief must be reasonably held, was succinct (p. 218):
The actus reus issexual intercourse with a woman who is not in fact consenting to such intercourse. The mens rea is knowledge that the woman is not consenting or recklessness as to whether she is consenting or not.
In the view of Lord Edmund-Davies, also in dissent, it is incorrect to regard rape as involving no mental element save the intention to have intercourse; knowledge by the accused of the woman’s unwillingness to have intercourse is essential to the crime (p. 225): see also Lord Fraser of Tullybelton, at p. 237.

Following the Morgan decision, the Home Secretary commissioned an inquiry and the Report of the Advisory Group on the Law of Rape (the Heilbron Report) was soon published (1975). The mandate of the Group was to consider whether the Morgan decision necessitated immediate statutory reform. In the course of its report, which approved the principles elucidated in Morgan, the following is stated, at p. 3 para. 23:
The mental element, which the prosecution must additionally establish [i.e.,to the actus reus] is an intention by the defendant to have sexual intercourse with a woman either knowing that she does not consent, or recklessly not caring whether she consents or not.
Moreover, the Group agreed that a mistaken though erroneous belief is inconsistent with, and negatives, the requisite mental element. Such a belief need not be reasonably held, although the reasonableness of it is a relevant consideration for the jury. It is no longer disputed that, in England, perception of the woman’s consent is an aspect of the mental element in crimes of rape.

Turning to Canada and the intention requisite for a s. 143 offence, the most recent decision is Mazza v. The Queen (1978), 40 C.C.C. (2d) 134, 84 D.L.R. (3d) 400, [1978] 2 S.C.R. 907, in which the appellant appealed his conviction in a joint trial with the co-accused Rizzuto. Mazza engaged in intercourse where no consent was given, though in circumstances somewhat different to those under which his co-accused earlier committed similar acts. Mazza arrived after the woman’s submission had been induced by the threats of his cohort, and claimed in defence that he was unaware that she was, in fact, withholding consent. Chief Justice Laskin, speaking for the Court, reviewed the facts and held Mazza had no valid complaint. The trial Judge had not failed to isolate the question of Mazza’s possible lack of awareness of nonconsent, or of honest belief there was consent. The case goes no further in its discussion of mens rea and mistake of fact.

The law of rape was considered by this Court in Leary v. The Queen (1977), 33 C.C.C. (2d) 473, 74 D.L.R. (3d) 103, [1978] 1 S.C.R. 29. The appeal turned on the availability of intoxication as a defence to the charge. Mr. Justice Pigeon, although disagreeing with the contention that specific intent was required, cited the following passage from the speech of Lord Simon, in the course of his review of what had been said in Morgan (p. 482 C.C.C., p. 112 D.L.R., p. 58 S.C.R.):
“This brings me to the fourth question, namely whether rape is a crime of basic or ulterior intent. Does it involve an intent going beyond the actus reus? Smith and Hogan (Criminal Law, 3rd ed. (1973), p. 47) say No. I respectfully agree. The actus reus issexual intercourse with a woman who is not in fact consenting to such intercourse. The mens rea is knowledge that the woman is not consenting or recklessness as to whether she is consenting or not.”  (Emphasis added.)
The dissenting judgment in Leary contained this definition of the mental element (p. 486 C.C.C., p. 116 D.L.R., p. 35 S.C.R.):
... the Crown must prove, beyond reasonable doubt, intercourse without consent, together with (a) an intention to force intercourse notwithstanding absence of consent, or (b) a realization that the conduct may lead to nonconsensual intercourse and a recklessness or indifference to that consequence ensuing. It will not do simply to say that because the accused committed the physical act and the woman did not consent, he must be taken to have intended to have intercourse without consent.
Two decisions rendered in provincial Courts of appeal bear comment. In R. v. Bresse, Vallieres and Theberge (1978), 48 C.C.C. (2d) 78, 7 C.R. (3d) 50, Mayrand, J.A., speaking for the majority of the Quebec Court of Appeal, accepted knowledge of lack of consent as a positive aspect of the crime of rape (pp. 81-2) (translation):
In any matter of rape, two mental elements must be considered; the one relates to the victim, the other to the aggressor. With regard to the victim, it is the absence of consent to the sexual relations; with regard to the aggressor, it is the desire to impose sexual relations upon the victim. The latter element assumes the knowledge by the accused of the lack of consent of the victim.
He concluded that where the attitude of the woman is equivocal as to consent, it cannot be said there is no evidence for a jury on the issue of sincere belief in consent.

In R. v. Plummer and Brown (1975), 24 C.C.C. (2d) 497, 31 C.R.N.S. 220, the appellant Brown arrived after earlier acts of intercourse had been induced by threats and was alerted to the possibility that consent was not forthcoming, as the girl was crying when he entered the room. On appeal from his conviction, the Ontario Court of Appeal, without reference to, or review of, any of the case authorities, held (p. 500):
There must be a direction to the jury, that if the Crown fails to establish beyond a reasonable doubt that the circumstances were such that Brown could not honestly believe her consent was voluntary, then he must be acquitted.
It will thus be seen that the great weight of authority is in support of the view that the accused’s perception of the woman’s consent is an important aspect of any prosecution for the crime of rape. Counsel for the Crown in the instant appeal reviewed and compared s. 143 of the Code with other Part IV Code offences, to make the point that the subjective belief of an accused is no part of the case to be proved by the Crown. It was contended that, since reference to intention to proceed in the absence of consent is lacking in s. 143, the statutory wording prevails over case authorities which consider the mental element in terms of the common law definition. Section 148 of the Code was cited in comparison. This section specifies as an ingredient of the offence, knowledge or reason for belief that the female person is, by reason of her mental condition, incapable of giving a reasonable consent. Knowledge of the existence of a blood-relationship is a constituent element of the crime of incest, spelled out in s. 150 {now s. 155} of the Code.

One cannot assume, on the strength of these two sections, that there is no mens rea element relating to consent, for crimes of rape. Parliament does not consistently employ wording which indicates express levels of intention (such as knowingly, intentionally, wilfully) for all offences which undoubtedly import a mental element. Even within Part IV, there is no consistency in the wording of the offences. I do not think the determination of the mental element for rape turns, in any way, on a comparative analysis of the wording for Part IV offences...

I refer to the statement by Lord Reid in Sweet v. Parsley, [1969]1 All E.R. 347 (p. 350):
... for it is firstly established by a host of authorities that mens rea is an essential ingredient of every offence unless some reason can be found for holding that that is not necessary. It is also firmly established that the fact that other sections of the Act expressly require mens rea, for example because they contain the word ‘knowingly’, is not in itself sufficient to justify a decision that a section which is silent as to mens rea creates an absolute offence.
In summary, intention or recklessness must be proved in relation to all elements of the offence, including absence of consent. This simply extends to rape the same general order of intention as in other crimes.

II  Mistake of fact

Belief by an accused in a mistaken set of facts has not always afforded an answer to a criminal charge. By the early criminal law, the only real defence that could be raised was that an act had not been voluntary and, therefore, could not be imputed to the accused. Thus it was possible in some cases to excuse a man who had acted under a mistake, by the argument that his conduct was not truly voluntary (Russell on Crime, vol. 1, 12th ed. (1964), p. 71). In the seventeenth century, Hale wrote: “But in some cases ignorantia facti doth excuse, for such an ignorance many times makes the act itself morally involuntary.” (1 Pleas of the Crown 42).

The leading English cases on mistake of fact are, of course, R. v. Prince (1875), 13 Cox C.C. 138, and R. v. Tolson (1889), 23 Q.B. 168. In the Prince decision (p. 152), Brett, J., cited from Blackstone’s Commentaries by Stephen, 2nd ed., vol. 4, p. 105:

“Ignorance or mistake is another defect of will, when a man intending to do a lawful act does that which is unlawful. For here, the deed and the will, acting separately, there is not that conjunction between them which is necessary to form a criminal act . . .”
Brett, J., held that mistake, as a defence, applies whenever facts are present, in which an accused believes and has reasonable ground to believe, which if true, would render his act innocent and not a crime. The Tolson case, following Prince, considered the extent to which a mistaken, though honest and reasonable, belief that the first spouse was dead could afford a defence to a charge of bigamy. The classic statement is that of Cave, J. (p. 181):
At common law an honest and reasonable belief in the existence of circumstances, which, if true, would make the act for which the prisoner is indicted an innocent act has always been held to be a good defence.
An honest and reasonable mistake of fact is on the same footing as the absence of a reasoning faculty, as with infants, or impairment of the faculty, as in lunacy (Tolson, p. 181). Culpability rests upon commission of the offence with knowledge of the facts and circumstances comprising the crime. If, according to an accused’s belief concerning the facts, his act is criminal, then he intended the offence and can be punished. If, on the other hand, his act would be innocent, according to facts as he believed them to be, he does not have the criminal mind and ought not to be punished for his act: see E.R. Keedy, “Ignorance and Mistake in the Criminal Law”, 22 Harv. L. Rev. 75 at p. 82 (1908).

As stated by Mr. Justice Dixon, as he then was, in Thomas v. The King (1937), 59C.L.R. 279 at pp. 299-300:
States of volition are necessarily dependent upon states of fact, and a mistaken belief in the existence of circumstances cannot be separated from the manifestation of the will which it prompts. . . the nature of an act of volition may be of an entirely different description if it is based on mistake of fact. The state of facts assumed must often enter into the determination of the will. It would be strange if our criminal law did not contain this principle and treat it as fundamental.
Mistake is a defence, then, where it prevents an accused from having the mens rea which the law requires for the very crime with which he is charged. Mistake of fact is more accurately seen as a negation of guilty intention than as the affirmation of a positive defence. It avails an accused who acts innocently, pursuant to a flawed perception of the facts, and none the less commits the actus reus of an offence. Mistake is a defence though, in the sense that it is raised as an issue by an accused. The Crown is rarely possessed of knowledge of the subjective factors which may have caused an accused to entertain a belief in a fallacious set of facts.

If I am correct that: (i) s. 143 of the Criminal Code imports a mens rea requirement, and (ii) the mens rea of rape includes intention, or recklessness as to non-consent of the complainant, a mistake that negatives intention or recklessness entitles the accused to an acquittal. Glanville Williams notes (Criminal Law, The General Part, 2nd ed. (1961), p. 173, para. 65):
It is impossible to assert that a crime requiring intention or recklessness can be committed although the accused laboured under a mistake negativing the requisite intention or recklessness. Such an assertion carries its own refutation.
Howard (Australian Criminal Law, 3rd ed.), points out that rape is aimed at the protection of women from forcible subjection to non-marital sexual intercourse, but that the facts of life not infrequently impede the drawing of a clean line between consensual and non-consensual intercourse (p. 149):
... it is easy for a man intent upon his own desires to mistake the intentions of a woman or girl who may herself be in two minds about what to do. Even if he makes no mistake it is not unknown for a woman afterwards either to take fright or for some other reason to regret what has happened and seek to justify herself retrospectively by accusing the man of rape.
I do not think the defence of mistaken belief can be restricted to those situations in which the belief has been induced by information received from a third party. That was the situation in the Morgan case. In Morgan, the belief in consent was induced by information related by the complainant’s husband, who spoke of his wife’s sexual propensities. The foundation for the defence, incredible as it turned out to be, in view of the violence, was the misinformation of the husband. Had the defendants believed that information, and had the wife’s overt conduct been relatively consistent with it, the defendants would have had a defence. That is the effect of the dicta of the House of Lords in the Morgan case.

In principle, the defence should avail when there is an honest belief in consent, or an absence of knowledge that consent has been withheld. Whether the mistake is rooted in an accused’s mistaken perception, or is based upon objective, but incorrect, facts confided to him by another, should be of no consequence. The kind of mistaken fact pleaded by the Morgan defendants, however, is more likely to be believed than a bald assertion of mistaken belief during a face-to-face encounter. In any event, it is clear that the defence is available only where there is sufficient evidence presented by an accused, by his testimony or by the circumstances in which the act occurred, to found the plea.

III  Honest and reasonable mistake

The next question which must be broached is whether a defence of honest, though mistaken, belief in consent must be based on reasonable grounds. A majority of the House of Lords in Morgan answered the question in the negative, and that view was affirmed by the Heilbron Committee. There can be no doubt this answer is consonant with principle. As Professor Keedy has written (29 Harv. L. Rev. 75 at p. 88), an act is reasonable in law when it is such as a man of ordinary care would do under similar circumstances; to require that the mistake be reasonable means that, if the accused is to have a defence, he must have acted up to the standard of an average man, whether the accused is himself such man or not; this is the application of an outer standard to the individual; if the accused is to be punished because his mistake is one which an average man would not make, punishment will sometimes be inflicted when the criminal mind does not exist. ...

It is not clear how one can properly relate reasonableness (an element in offences of negligence) to rape (a “true crime” and not an offence of negligence). To do so, one must, I think, take the view that the mens rea goes only to the physical act of intercourse and not to non-consent, and acquittal comes only if the mistake is reasonable. This, upon the authorities, is not a correct view, the intent in rape being not merely to have intercourse, but to have it with a nonconsenting woman. If the jury finds that mistake, whether reasonable or unreasonable, there should be no conviction. If, upon the entire record, there is evidence of mistake to cast a reasonable doubt upon the existence of a criminal mind, then the prosecution has failed to make its case. In an article by Professor Colin Howard, “The Reasonableness of Mistake in the Criminal Law”, 4 U. Queensland L.J.45 (1961-64), the following is offered (p. 47):

To crimes of mens rea, or elements of a crime which requires mens rea, mistake of fact simpliciter isa defence; to crimes of negligence, or elements of an offence which requires only negligence, mistake of fact is a defence only if the mistake was in all the circumstances a reasonable one to make.

The same analysis is expressed by Glanville Williams, p. 202, para. 71.

In Director of Public Prosecutions v. Morgan, four Law Lords agreed that having accepted the mental element of knowledge as to consent, it is inconsistent to attach a standard of reasonableness to a defence of honest belief. As Lord Hailsham pointed out, the following two propositions are totally irreconcilable:

(i) each defendant must have intended to have sexual intercourse without her consent, not merely that he intended to have intercourse but that he intended to have intercourse without her consent;
(ii) it is necessary for any belief in the woman’s consent to be a “reasonable belief’ before the defendant is entitled to be acquitted.
[...] The difference between the majority and minority decisions in Morgan turned upon the way in which each Law Lord perceived the Tolson precedent, as being a wide-ranging and well established principle, or as expressing a narrow rule limited in effect to bigamy and the facts at hand.

Lambert, J.A., in his dissenting judgment in the instant case reasoned [affirmed (1978), 45 C.C.C. (2d) 67, 5 C.R. (3d) 193, [1979] 1 W.W.R. 562], on his reading of Leary and Morgan, that a defence of honest belief in consent must be based on reasonable grounds. In his view, two Law Lords in Morgan following Tolson, clearly required an honest belief to be held on reasonable grounds (Lord Simon and Lord Edmund-Davies). Two others, Lord Fraser and Lord Hailsham, invoked general principles to conclude that an honest belief in consent need not be reasonably held. The decision of the fifth Judge, Lord Cross, turned on a distinction drawn between statutory and common law offences.. Bigamy, the offence in question in Tolson, was a statutory offence. Rape is not. Therefore, the Tolson requirement that the mistake be reasonable does not apply to rape, a crime defined by common law. Were rape to be defined by statute, the defence would be available only if supported by reasonable grounds. Lambert, J.A., held that if one adapted the decision of Lord Cross to s. 143 of the Code, the tables would be turned, and a majority of the Lords would, for purposes of the Criminal Code, endorse the honest and reasonable test. If the distinction Lord Cross thought might be possible between statutory and common law offences would have the effect of giving a defence of unreasonable mistake to a person accused of a crime which, in express terms, imported mens rea, but would limit the defence to one of reasonable mistake to a person accused of a crime which imported mens rea only by implication, the justification for the distinction is not apparent. I am unable to see why the defence should be so limited. Rape is not a crime of strict or absolute liability. With respect, there is no compelling reason for extending to rape the misapprehension having its genesis in Tolson, and now endemic in English law, that makes bigamy a crime of negligence and would have a like effect if applied to statutory rape.

Mr. Justice Lambert recognized that while his conclusion was directed by precedent rather than logic, he also found it to be supported, in relation to rape, by policy and practical sense [at p. 85]:
Why should a woman who is sexually violated by such a man have to defend herself by screams or blows in order to indicate her lack of consent, or have to consent through fear, for a charge of rape to be sustained? Surely a firm oral protest, sufficient to deny any reasonable grounds for belief in consent, should be a sufficient foundation in these circumstances for a charge of rape.
I am not unaware of the policy considerations advanced in support of the view that if mistake is to afford a defence to a charge of rape, it should, at the very least, be one a reasonable man might make in the circumstances. There is justifiable concern over the position of the woman who alleges she has been subjected to a non-consensual sexual act; fear is expressed that subjective orthodoxy should not enable her alleged assailant to escape accountability by advancing some cock-and-bull story. The usual response of persons accused of rape is—”she consented”. Are such persons now to be acquitted, simply by saying: “even if she did not consent, I believed she consented”? The concern is legitimate and real. It must, however, be placed in the balance with other relevant considerations. First, cases in which mistake can be advanced in answer to a charge of rape must be few in number. People do not normally commit rape per incuriam. An evidential case must exist to support the plea. Secondly, if the woman in her own mind withholds consent, but her conduct and other circumstances lend credence to belief on the part of the accused that she was consenting, it may be that it is unjust to convict. I do not think it will do to say that in those circumstances she, in fact, consented. In fact, she did not, and it would be open to a jury to so find. Thirdly, it is unfair to the jury, and to the accused, to speak in terms of two beliefs, one entertained by the accused, the other by a reasonable man, and to ask the jury to ignore an actual belief in favour of an attributed belief. The mind with which the jury is concerned is that of the accused. By importing a standard external to the accused, there is created an incompatible mix of subjective and objective factors. If an honest lack of knowledge is shown, then the subjective element of the offence is not proved. The following passage from the Heilbron Report is, however, apposite [p. 11, para. 66]:
66. Morgan’s case did not decide, as some critics seem to have thought, that an accused person was entitled to be acquitted, however ridiculous his story might be, nor did it decide that the reasonableness or unreasonableness of his belief was irrelevant. Furthermore it is a mistaken assumption that a man is entitled to be acquitted simply because he asserts this belief, without more.
Perpetuation of fictions does little for the jury system or the integrity of criminal justice. The ongoing debate in the Courts and learned journals as to whether mistake must be reasonable is conceptually important in the orderly development of the criminal law, but in my view, practically unimportant because the accused’s statement that he was mistaken is not likely to be believed unless the mistake is, to the jury, reasonable. The jury will be concerned to consider the reasonableness of any grounds found, or asserted to be available, to support the defence of mistake. Although “reasonable grounds” is not a precondition to the availability of a plea of honest belief in consent, those grounds determine the weight to be given the defence. The reasonableness, or otherwise, of the accused’s belief is only evidence for, or against, the view that the belief was actually held and the intent was, therefore, lacking.

Canadian juries, in my experience, display a high degree of common sense, and an uncanny ability to distinguish between the genuine and the specious.

The words of Dixon, J., bear repeating (Thomas v. The King, supra, at p. 309):
... a lack of confidence in the ability of a tribunal correctly to estimate evidence of states of mind and the like can never be sufficient ground for excluding from inquiry the most fundamental element in a rational and humane criminal code.
In Textbook of Criminal Law, at p. 102, Professor Glanville Williams states the view, with which I am in agreement, that it is proper for the trial Judge to tell the jury “that if they think the alleged belief was unreasonable, that may be one factor leading them to conclude that it was not really held; but they must look at the facts as a whole.” It will be a rare day when a jury is satisfied as to the existence of an unreasonable belief. If the claim of mistake does not raise a reasonable doubt as to guilt, and all other elements of the crime have been proved, then the trier of fact will not give effect to the defence. But, if there is any evidence that there was such an honest belief, regardless of whether it is reasonable, the jury must be entrusted with the task of assessing the credibility of the plea.

To apply the reasonable standard in this appeal, the Court, in my view, would have to: (a) accept the minority decision in Morgan; (b) overrule Beaver or find a means of distinguishing the offence of rape; and (c) defy accepted and sound principles of criminal law.

IV. The Plea and the Evidence

I come now to what is perhaps the most difficult part of this case, namely, whether there was an evidential base sufficient to require the trial Judge to place before the jury the defence of mistaken belief in consent. The trial Judge and two Judges of the Court of Appeal concluded that no such base existed. Chief Justice Farris, in dismissing the appeal, was strongly influenced by the fact that:

“at no time did the appellant suggest in his evidence that while there was resistance on the part of the complainant none the less he honestly believed that she was in fact consenting. He did testify that there was resistance after acts of bondage but from then on there was no intercourse.”
With respect, it is not necessary that an accused specifically plead mistake. The issue to which an accused’s state of mind is relevant is mens rea and that issue is always before the jury, the onus being on the prosecution. Nor is defence of honest belief necessarily inconsistent with a defence of consent. In raising the latter, an accused is challenging the factual aspect of the offence. Did the complainant or did she not consent? If she did, the actus reus was not committed. The defence of honest belief is different in nature, for it rests upon an accused’s subjective perception of that factual situation. ...

If there was “some” evidence to “convey a sense of reality” to a defence of mistake as to consent, then the jury ought to have been instructed to consider that plea. ...

There is circumstantial evidence supportive of a plea of belief in consent: (1) Her necklace and car keys were found in the living room. (2) She confirmed in her testimony that her blouse was neatly hung in the clothes closet. (3) Other items of folded clothing were found at the foot of the bed. (4) None of her clothes were damaged in the slightest way. (5) She was in the house for a number of hours. (6) By her version, when she entered the house the appellant said he was going to break her. She made no attempt to leave. (7) She did not leave while he undressed. (8) There was no evidence of a struggle, and (9) she suffered no physical injuries, aside from three scratches. ...

The possibility of a mistaken belief in consent in the pre-bondage phase was an issue that should have been placed before the jury: the Judge’s failure to do so makes it imperative, in my opinion, in the interests of justice, that there be a new trial. It was open to the jury to find only token resistance prior to the “bondage” incident, which the appellant may not have perceived as a withholding of consent. The accused was convicted of that which, perhaps, he did not intend to do had he known of no consent. It does not follow that, by simply disbelieving the appellant on consent, in fact, the jury thereby found that there was no belief in consent, and that the appellant could not reasonably have believed in consent.

I would allow the appeal, set aside the judgment of the British Columbia Court of Appeal and direct a new trial.

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

MCINTYRE, J.:—The appellant appeals his rape conviction, which was affirmed in the Court of Appeal for British Columbia with one dissent [45 C.C.C. (2d) 67, 5 C.R. (3d) 193, [1979] 1 W.W.R. 562], upon the ground that the trial Judge failed to put to the jury the defence of mistake of fact. That ground is expressed in the appellant’s factum in these words:
Did the learned trial judge err in failing to instruct the jury on the question of honest belief by the accused that the Complainant consented to intercourse and thus on the facts of this case, failed to put properly before the jury a defence, such failure being a non-direction amounting to mis-direction?
A consideration of the facts of the case is vital to a resolution of the problem it poses. The complainant was a real estate saleswoman employed by a well-known and well-established real estate firm in Vancouver. She was successful in her work. The appellant is a businessman who was anxious to sell his home in Vancouver and he had listed it for sale with the real estate firm with which the complainant was associated. She was to be responsible for the matter on her firm’s behalf. On August 4, 1976, at about 1:00 p.m., she met the appellant by appointment at a downtown restaurant for lunch. The purpose of the meeting was to discuss the house sale. The lunch lasted until about 4:00 or 4:30 p.m. During this time, a good deal of liquor was consumed by both parties. The occasion became convivial, the proprietor of the restaurant and his wife joined the party, and estimates of the amount of alcohol consumed varied in retrospect, as one would expect. It does seem clear, however, that while each of the parties concerned had a substantial amount to drink, each seemed capable of functioning normally.

At about 4:00 p.m., or shortly thereafter, they left the restaurant. The appellant drove the complainant’s car while she sat in the front passenger seat. They went to the appellant’s house, the one which was listed for sale, to further consider questions arising in that connection. Up to the time of arrival at the home, at about 4:30 or 5:00 p.m., there is no significant variation in their accounts of events. From the moment of arrival, however, there is a complete divergence. She related a story of rape completely against her will and over her protests and struggles. He spoke of an amorous interlude involving no more than a bit of coy objection on her part and several acts of intercourse with her consent. Whatever occurred in the house, there is no doubt that at about 7:30 p.m. the complainant ran out of the house naked with a man’s bow tie around her neck and her hands tightly tied behind her back with a bathrobe sash. She arrived at the door of a house nearby and demanded entry and protection. The occupant of the house, a priest, admitted her. She was in an upset state and exhibited great fear and emotional stress. The police were called and these proceedings followed.

When the defence closed its case and before the trial Judge commenced his charge, the jury was excluded while counsel for the appellant argued that on the facts of the case as it appeared from the evidence, the trial Judge should put the defence of mistake of fact to the jury. He contended that the appellant was entitled to have the Judge tell the jury that if the appellant entertained an honest though mistaken belief that the complainant was consenting to the acts of intercourse as they occurred, the necessary mens rea would not be present, and the appellant would be entitled to an acquittal. Reliance for this proposition was placed upon Director of Public Prosecutions v. Morgan, [1975] 2 All E.R. 347 (H.L.), and R. v. Plummer and Brown, (1975) 24 C.C.C. (2d) 497, 31 C.R.N.S. 220 (Ont. C.A.). ...

It is well established that it is the duty of a trial Judge in giving directions to a jury to draw to their attention and to put before them fairly and completely the theory of the defence. In performing this task, it is also clear that the trial Judge must put before the jury any defences which may be open to the accused upon the evidence whether raised by the accused’s counsel or not. He must give all necessary instructions on the law relating to such defences, review the relevant evidence and relate it to the law applicable. This, however, does not mean that the trial Judge becomes bound to put every defence suggested to him by counsel. Before any obligation arises to put defences, there must be in the evidence some basis upon which the defence can rest and it is only where such an evidentiary basis is present that a trial Judge must put a defence. Indeed, where it is not present he should not put a defence for to do so would only be to confuse.

What is the standard which the Judge must apply in considering this question? Ordinarily, when there is any evidence of a matter of fact, the proof of which may be relevant to the guilt or innocence of an accused, the trial Judge must leave that evidence to the jury so that they may reach their own conclusion upon it. Where, however, the trial Judge is asked to put a specific defence to the jury, he is not concerned only with the existence or non-existence of evidence of fact. He must consider, assuming that the evidence relied upon by the accused to support a defence is true, whether that evidence is sufficient to justify the putting of the defence. This question has been considered frequently in the Courts: see Wu v. The King (1934), 62 C.C.C. 90, [1934] 4 D.L.R. 459, [1934] S.C.R. 609, and Kelsey v. The Queen (1953), 105 C.C.C. 97, [1953] 1 S.C.R. 220, 16 C.R. 119. The test to be applied has, in my opinion, been set down by Fauteux, J., as he then was, in Kelsey v. The Queen [at p. 102 C.C.C.]:
The allotment of any substance to an argument or of any value to a grievance resting on the omission of the trial Judge from mentioning such argument must be conditioned on the existence in the record of some evidence or matter apt to convey a sense of reality in the argument and in the grievance.
It seems to me that the trial Judge, in the passage above quoted from his ruling on this question, has applied that test. He has heard all the evidence. He heard the argument advanced by counsel. He considered the whole matter with counsel’s argument in mind and he concluded, “I do not recognize in the evidence any sufficient basis of fact to leave the defence of mistake of fact to the jury”. In my view, he directed himself correctly in law.

In reaching this conclusion, I am not unmindful of the evidence of surrounding circumstances which were said to support the appellant’s contention. I refer to the absence of serious injury suffered by the complainant and the absence of damage to clothing, as well as to the long period of time during which the parties remained in the bedroom. These matters may indeed be cogent on the issue of actual consent but, in my view, they cannot by themselves advance a suggestion of a mistaken belief. The finding of the clothes at the foot of the bed, the necklace and the keys in the living-room, are equally relevant on the issue of actual consent and, in my view, cannot affect the issue which was clearly framed by the opposing assertions of consent and non-consent.

It would seem to me that if it is considered necessary in this case to charge the jury on the defence of mistake of fact, it would be necessary to do so in all cases where the complainant denies consent and an accused asserts it. To require the putting of the alternative defence of mistaken belief in consent, there must be, in my opinion, some evidence beyond the mere assertion of belief in consent by counsel for the appellant. This evidence must appear from or be supported by sources other than the appellant in order to give it any air of reality. In R. v. Plummer and Brown, supra, Evans, J.A. (as he then was), speaking for the Ontario Court of Appeal, considered that there was such evidence as far as Brown was concerned and directed a new trial because the defence had not been put. In that case, the complainant had gone to Plummer’s “pad” where she had been raped by Plummer. Brown entered the room where the rape occurred after Plummer had gone. Apparently, he had arrived at the house separately from Plummer. It was open on the evidence to find that he was unaware then that Plummer had threatened the complainant and terrorized her into submission. He had intercourse with her and she said that because of continuing fear from Plummer’s threats, she submitted without protest. In these special circumstances, the defence was required. The facts clearly established at least an air of reality to Brown’s defence. In Morgan, there was evidence of an invitation by the complainant’s husband to have intercourse with his wife and his assurance that her show of resistance would be a sham. In other words, there was evidence explaining, however preposterous the explanation might be, a basis for the mistaken belief. In the case at bar, there is no such evidence.

Where the complainant says rape and the accused says consent, and where on the whole of the evidence, including that of the complainant, the accused, and the surrounding circumstances, there is a clear issue on this point, and where as here the accused makes no assertion of a belief in consent as opposed to an actual consent, it is unrealistic in the absence of some other circumstance or circumstances, such as are found in the Plummer and Brown and Morgan cases, to consider the Judge bound to put the mistake of fact defence. In my opinion, the trial Judge was correct in refusing to put the defence on the evidence before him.

I might add that I have had the advantage of reading the reasons of my brother Dickson, J., and, while it is apparent that I am unable to accept his view on the evidentiary question, I am in agreement with that part of his judgment dealing with the availability as a defence to a charge of rape in Canada of what is generally termed the defence of mistake of fact.

I would dismiss the appeal.

CHOUINARD, J., concurs with McINTYRE, J.

Appeal dismissed .

 

R. v. Sansregret
Supreme Court of Canada
[1985]18 C.C.C. (3d) 223; [1985] 1 S.C.R. 570

The judgment of the court was delivered by
McINTYRE J.:—This appeal raises once more the issue of the application of the defence of mistake of fact in a rape case. On this occasion its relevance on a charge laid under s. 143(b)(i) of the Criminal Code, now repealed {now contained in ss. 265 and 271} but in force when this case arose, is questioned. In view of the significant changes made in this branch of the law by the amendments in 1980-81-82-83 (Can.), c. 125, it may be thought that this question has become of minor importance, but it would appear that similar cases involving similar defence claims may well arise under the new Code provisions and the applicable principles will still require consideration.

The appellant, a man in his early 20’s, and the complainant, a woman of 31 years, had lived together in the complainant’s house for about a year before the events of October 15, 1982. Their relationship had been one of contention and discord with violence on the part of the appellant; “slappings” or “roughing up” in his description, “blows” in hers. The appellant had left the house for short periods and in September, 1982, the complainant decided to end the affair. She told the appellant to leave and he did.

On September 23, 1982, some days after his dismissal, the appellant broke into the house at about 4:30 a.m. He was “raging” at her and furious because of his expulsion. He terrorized her with a file-like instrument with which he was armed. She was fearful of what might occur, and in order to calm him down she held out some hope of a reconciliation and they had intercourse. A report was made to the police of this incident, the complainant asserting she had been raped, but no proceedings were taken. The appellant’s probation officer became involved and there was evidence that he had asked the complainant not to press the matter, presumably because it would interfere with the appellant’s probation.

On October 15, 1982, again at about 4:30 a.m., the appellant broke into the complainant’s house through a basement window. She was alone, and, awakened by the entry, she seized the bedroom telephone in an effort to call the police. The appellant picked up a butcher knife in the kitchen and came into the bedroom. He was furious and violent. He accused her of having another boy-friend; pulled the cord of the telephone out of the jack and threw it into the living-room; threatened her with the knife and ordered her to take off her night-dress and made her stand in the kitchen doorway, naked save for a jacket over her shoulders, so he could be sure where she was while he repaired the window to conceal his entry from the police, should they arrive. He struck her on the mouth with sufficient force to draw blood, and on three occasions rammed the knife-blade into the wall with great force, once very close to her. He told her that if the police came he would put the knife through her, and added that if he had found her with a boy-friend he would have killed them both. At one point he tied her hands behind her back with a scarf. The complainant said she was in fear for her life and sanity.

By about 5:30 a.m., after an hour of such behaviour by the appellant, she tried to calm him down. She pretended again that there was some hope of a reconciliation if the appellant would settle down and get a job. This had the desired effect. He calmed down and after some conversation he joined her on the bed and they had intercourse. The complainant swore that her consent to the intercourse was solely for the purpose of calming him down, to protect herself from further violence. This, she said, was something she had learned from earlier experience with him. In her evidence she said:

I didn’t consent at any time.

I was very afraid. My whole body was trembling. I was sure I would have a nervous breakdown. I came very, very close to losing my mind. All I knew was I had to keep this man calm or he would kill me.
At about 6:45 a.m., after further conversation with the appellant, she got dressed and prepared to leave for work. She had a business appointment at 8:00 a.m. She drove the appellant to a location which he chose, and in the course of the journey he returned her keys and some money that he had taken from her purse upon his arrival in the early morning. Upon dropping him off she drove immediately to her mother’s home where she made a complaint of rape. The police were called and the appellant was arrested that evening.

The appellant was charged with rape, unlawful confinement, robbery, breaking and entering with intent to commit an indictable offence and possession of a weapon. At trial, before Her Honour Judge Krindle in the County Court of Winnipeg without a jury, he was acquitted on the charge of rape but was convicted of breaking and entering and unlawful confinement [34 C.R. (3d) 162, 22 Man. R. (2d) 115]. The Court of Appeal (Matas, Huband and Philp JJ.A.—Philp J.A. dissenting) allowed the Crown’s appeal on the charge of rape and entered a conviction as well as imposing a sentence of five years’ imprisonment r10 C.C.C. (3d) 164, 37 C.R. (3d) 45, [1984] 1 W.W.R. 720]. The unlawful confinement count was held to be subsumed in the rape. The appellant appealed to this Court asserting that the defence of mistake of fact, in this case a belief by the appellant that the complainant consented to intercourse, is open to an accused under s.143(b)(i) of the Criminal Code as well as under para. (a), and that it is the honesty of such belief that is determinative in considering the defence, not its reasonableness. Reliance was placed on Pappajohn v. The Queen (1980), 52 C.C.C. (2d) 481, 111 D.L.R. (3d) 1, [1980] 2 S.C.R. 120.

The indictment set out the rape count in these terms:
THAT he, the said John Henry Sansregret, a male person, on or about the fifteenth day of October, in the year of our Lord one thousand nine hundred and eighty-two, at the City of Winnipeg in the Eastern Judicial District in the Province of Manitoba, did unlawfully have sexual intercourse with Terry Wood, a female person who was not his wife, with her consent, which consent was extorted by threats or fear of bodily harm.
It clearly falls within s. 143(b)(i) of the Criminal Code. On the facts of this case, briefly summarized above, at first glance it may appear strange indeed that a defence of mistake of fact could be suggested, let alone made out. To appreciate how the issue arises, reference must be made to the findings of fact made at trial and to the judgments given in the Court of Appeal.

The trial judge described the complainant as a bright, sophisticated woman, articulate, capable and well employed. She considered that the appellant was neither particularly intelligent nor “verbal” and expressed surprise that any intimate relationship had ever arisen between them. She described the events of September 23, 1982, a month before the events in question, and she considered there was no evidence that the appellant knew she had complained of rape as a result of that incident. Comment will be made on this question later. She then referred to the defence of mistake of fact, and said:
If there were any evidence before me that the accused was aware on October 15th that the complainant had considered the sexual relations of September 23rd, 1982 to have been non-consensual, I would have rejected this defence out of hand. There is no such evidence. I can speculate, but that is not proof.
She described in detail the events of October 15th and said that she accepted the complainant’s version in so far as it differed from the appellant’s, but she observed that in many respects his evidence confirmed hers. She continued:
I am satisfied beyond any doubt, that the accused broke and entered the complainant’s residence on October 15, motivated primarily by jealousy and I do not doubt for a moment that, had the complainant had a man there, the knife would have been used aggressively. Having not found another man, he was bound and determined to make the complainant hear what he had to say to her by confining her unlawfully. He certainly broke and entered the dwelling house with the intent to commit an indictable offence therein, and he certainly took possession of the butcher knife for purposes dangerous to the public peace.

Having entered the house and discovering that the complainant was on the phone, being unsure about whether or not she had called the police, two things became paramount. One was to cover up the evidence of his break in so that it would not be visible from the street and to cover up his presence in the house by reducing it to darkness. The second was to prevent the escape of the complainant, or her use of the telephone, particularly probable events while he was outside putting the basement window back on the house. What better way to confine her than to take her car keys, her house keys, her money, to strip her naked, to bind her hands and to force her to stand by the back door and whistle so he could hear where she was.

I find that the accused forced the complainant to strip and tied her hands, not by way of preliminaries to an intended rape, but by way of confining the complainant. I similarly find the forced taking of her keys and money, to be part of the unlawful confinement.
She said that once the appellant became satisfied that the police would not come he set out to convince the complainant to reconcile. She accepted the evidence of the complainant that she was absolutely terrified, and that her consent was given solely to protect herself from further violence or death. She told him the things he wanted to hear regarding reconciliation, and she assured him that no other man was of interest to her. Then the trial judge continued:
As I said, no rational person could have been under any honest mistake of fact. However, people have an uncanny ability to blind themselves to much that they don’t want to see, and to believe in the existence of facts as they would wish them to be. The accused says that, notwithstanding the reign of terror which preceded their chat, notwithstanding that he held a knife while they talked, notwithstanding that he did most of the talking and that the complainant’s answers were clearly equivocal, he presumed and believed that everything between them was peachy. This, notwithstanding that three weeks earlier, on a replay ofthe same sort ofevening, his probation officer became involved and the complainant moved out ofher house. Very honestly, despite my confidence in the ability ofpeople to blind themselves to reality, and even ifthe accused had not lied about other parts ofhis testimony, I would have been hard pressed to credit the honesty of his belief.

However, his honest belief finds support in the testimony of the complainant. She knows him and in her opinion, notwithstanding all the objective facts to the contrary, he did believe that everything was back to normal between them by the time of the sexual encounter. His subsequent behaviour as well, attests to that fact.

I do not like the conclusion which this leads me to. There was no real consent. There was submission as a result of a very real and justifiable fear. No one in his right mind could have believed that the complainant’s dramatic about-fact [sic] stemmed from anything other than fear. But the accused did. He saw what he wanted to see, heard what he wanted to hear, believed what he wanted to believe.

The facts in R. v. Pappajohn (1977) 38 C.C.C. (2d) 106, are quite dissimilar to those in this case. The dictum of the Supreme Court of Canada, however, is clear and broad and in no way seems to limit itself to the peculiar circumstances of that case. Perhaps the Crown will appeal this decision to obtain some direction from the Supreme Court on whether it was that court’s intention to cover situations where an accused, who demonstrates the clarity and shrewdness this accused showed in securing his own safety at the outset can turn around and because it does not suit his wishes, can go wilfully blind to the obvious, shortly thereafter. In any event, the ratio of Pappajohn is clear and it leaves me no alternative but to acquit.
To summarize, the trial judge found that the appellant did not enter the house with intent to make a sexual assault on the complainant; that the complainant consented to intercourse only because of the fear engendered by the threats of the appellant and to save herself, and that the appellant honestly believed that the complainant was giving a free and genuine consent to intercourse. She found as well that the complainant, who knew the appellant, also believed in the honesty of his belief. ...

Rape, as defined in s. 143(a) of the Criminal Code, is, of course, the act of having sexual intercourse without consent. The issue with which we are concerned arises directly in a charge under para. (a). The question will be: did the accused have an honest belief that the woman gave her consent? It is in this form that the issue arose in Pappajohn; Morgan, and in R. v. Plummer and Brown (1975), 24 C.C.C. (2d) 497, 31 C.R.N.S. 220 (Ont. C.A.). While those cases provide authority for the existence of the defence and for its application where the consent is in issue, in my view, they do not cover a charge under s. 143(b)(i) where consent is assumed from the outset. In other words, the existence of the consent is established and only its nature, that is, whether it was freely given or procured by threats, is in issue. Where the accused, in a case arising under s.143(b)(i), asserts an honest belief in consent, the honest belief must encompass more than the fact of consent. It must include a belief that it has been freely given and not procured by threats. I agree in this respect with Huband J.A. The defence would apply then, subject to what is said later about wilful blindness, in favour of an accused who had an honest belief that the consent was not the result of threats but one freely given.

The defence of mistake of fact has been said to rest on the proposition that the mistaken belief, honestly held, deprives the accused of the requisite mens rea for the offence. The question of the mens rea required for a conviction of rape was considered by Dickson J. in this Court in Pappajohn. He reviewed the authorities which have dealt with this question in the English, Australian and Canadian courts. It is not necessary here to refer again to the many authorities considered, but their effect and the conclusions drawn from them by Dickson J. may be summarized. He observed, at p. 488 C.C.C., p. 8 D.L.R., p. 140 S.C.R., that: ‘The actus reus of rape is complete upon (a) an act of sexual intercourse; (b) without consent.” Under s. 143(b)(i) I would substitute: “(b) with consent if it is extorted by threats or fear of bodily harm”. He then raised the consideration of whether at common law and under s. 143 of the Criminal Code the guilty intention for rape extends to the element of consent. He concluded that it did, and he said, at p. 492 C.C.C., p. 12 D.L.R., p. 145 S.C.R.:
It will thus be seen that the great weight of authority is in support of the view that the accused’s perception of the woman’s consent is an important aspect of any prosecution for the crime of rape.
And concluding upon this point, at p. 493 C.C.C., p. 13 D.L.R., p. 146 S.C.R., he said:
In summary, intention or recklessness must be proved in relation to all elements of the offence, including absence of consent. This simply extends to rape the same general order of intention as in other crimes.
I would conclude then that the mens rea for rape under s. 143(a) of the Code must involve knowledge that the woman is not consenting, or recklessness as to whether she is consenting or not, and for s. 143(b)(i), knowledge that the consent was given because of threats or fear of bodily harm, or recklessness as to its nature. It would follow, as has been held by the majority of this Court in Pappajohn, that an honest belief on the part of the accused, even though unreasonably held, that the woman was consenting to intercourse freely and voluntarily and not because of threats, would negate the mens rea under s. 143(b)(i) of the Code and entitle the accused to an acquittal.

The concept of recklessness as a basis for criminal liability has been the subject of much discussion. Negligence, the failure to take reasonable care, is a creature of the civil law and is not generally a concept having a place in determining criminal liability. Nevertheless, it is frequently confused with recklessness in the criminal sense and care should be taken to separate the two concepts. Negligence is tested by the objective standard of the reasonable man. A departure from his accustomed sober behaviour by an act or omission which reveals less than reasonable care will involve liability at civil law but forms no basis for the imposition of criminal penalties. In accordance with well established principles for the determination of criminal liability, recklessness, to form a part of the criminal mess rea, must have an element of the subjective. It is found in the attitude of one who, aware that there is danger that his conduct could bring about the result prohibited by the criminal law, nevertheless persists, despite the risk. It is, in other words, the conduct of one who sees the risk and who takes the chance. It 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.

On the face of it, one would have thought that a man who intimidates and threatens a woman and thereafter obtains her consent to intercourse would know that the consent was obtained as a result of the threats. If specific knowledge of the nature of the consent was not attributable to him in such circumstances, then one would think that at the very least recklessness would be. It might be said then that this case could have been disposed of on the basis of recklessness. The trial judge, however, did not do so because of her application of the “mistake of fact” defence.

There was indeed an abundance of evidence before the trial judge upon which a finding of recklessness could have been made. After a stormy period of cohabitation, the complainant dismissed the appellant from her house in September, 1982, thus demonstrating her rejection of him. He broke into the house on September 23rd and there went through a performance which led to an act of intercourse with a consent given by the complainant out of fear for her life. This incident led to a report to the police and the involvement of the appellant’s probation officer. In the early morning hours of October 15th he again broke into the house and repeated his earlier performance, which provided the basis for the present charges.

There was also evidence from which the clear inference can be drawn that the appellant knew a complaint of rape had been made in respect of the first incident. Though the complainant complained to the police about that incident, no charges were laid. She was persuaded not to pursue the matter by the appellant’s probation officer, who had approached her and told her that he would find a job for Sansregret if she did not press the charges. A police officer testified as to a conversation which occurred between himself and Sansregret after the latter’s arrest. In response to a question as to why he ran from the police when they approached him on the evening of October 16th, the appellant replied: “From before, that time she ‘phoned the police on me before.” This reply was confirmed by Sansregret on direct examination but then denied on cross-examination. Sansregret admitted that he knew his probation officer had called the complainant with respect to the September incident and that he knew that he was not welcome in her house. There was then evidence that the appellant knew of her attitude towards him; knew that she had complained to the police with respect to the September 23rd incident, and knew that it was only the intervention of his parole officer which prevented charges from being laid after that incident. I therefore disagree with the trial judge who, in my opinion, was in error in not drawing the inference that the appellant knew that the complainant had complained of rape as a result of the incident on September 23rd.

It is evident that the trial judge would have convicted the appellant of rape had it not been for the defence of mistake of fact. She considered that the belief in the consent expressed by the appellant was an honest one and therefore on the basis of Pappajohn v. The Queen (1980), 52 C.C.C. (2d) 481, 111 D.L.R. (3d) 1, [1980] 2 S.C.R. 120, even if it were unreasonably held, as it is clear she thought it was, he was entitled to his acquittal. This application of the defence of mistake of fact would be supportable were it not for the fact that the trial judge found in addition that the appellant had been wilfully blind to reality in his behaviour on October 15th. Such a finding would preclude the application of the defence and lead to a different result. It is my opinion then that the trial judge erred in this matter in that though she made the requisite findings of fact that the appellant was wilfully blind to the consequences of his acts she did not apply them according to law.

The idea of wilful blindness in circumstances such as this has been said to be an aspect of recklessness. While this may well be true, it is wise to keep the two concepts separate because they result from different mental attitudes and lead to different legal results. A finding of recklessness in this case could not override the defence of mistake of fact. The appellant asserts an honest belief that the consent of the complainant was not caused by fear and threats. The trial judge found that such an honest belief existed. In the facts of this case, because of the reckless conduct of the appellant, it could not be said that such a belief was reasonable but, as held in Pappajohn, the mere honesty of the belief will support the “mistake of fact” defence, even where it is unreasonable. On the other hand, a finding of wilful blindness as to the very facts about which the honest belief is now asserted would leave no room for the application of the defence because, where wilful blindness is shown, the law presumes knowledge on the part of the accused, in this case knowledge that the consent had been induced by threats.

Wilful blindness is distinct from recklessness because, while recklessness involves knowledge of a danger or risk and persistence in a course of conduct which creates a risk that the prohibited result will occur, wilful blindness arises where a person who has become aware of the need for some inquiry declines to make the inquiry because he does not wish to know the truth. He would prefer to remain ignorant. The culpability in recklessness is justified by consciousness of the risk and by proceeding in the face of it, while in wilful blindness it is justified by the accused’s fault in deliberately failing to inquire when he knows there is reason for inquiry. Cases such as R. v. Wretham (1971), 16 C.R.N.S. 124 (Ont. C.A.); R. v. Blondin (1970), 2 C.C.C. (2d) 118, [1971] 2 W.W.R. 1 (B.C.C.A.); appeal dismissed in this Court in 4 C.C.C. (2d) 566n, [1971] S.C.R. v, [1972] 1 W.W.R. 479, unreported [no reasons]; R. v. Currie (1975), 24 C.C.C. (2d) 292 (Ont. C.A.); Me. v. McFall et al. (1975), 26 C.C.C. (2d) 181 (B.C.C.A.); R. v. Aiello (1978), 38 C.C.C. (2d) 485, 30 N.R. 559 (Ont. C.A.); Roper v. Taylor’s Central Garages (Exeter), Ltd., [1951] 2 T.L.R. 284, among others illustrate these principles. The text-writers have also dealt with the subject, particularly Glanville Williams (Criminal Law: The General Part, 2nd ed. (1961), pp. 157-60). He says, at p. 157:
Knowledge, then, means either personal knowledge or (in the license cases) imputed knowledge. In either event there is someone with actual knowledge. To the requirement of actual knowledge there is one strictly limited exception. Men readily regard their suspicions as unworthy of them when it is to their advantage to do so. To meet this, the rule is that if a party has his suspicion aroused but then deliberately omits to make further enquiries because he wishes to remain in ignorance, he is deemed to have knowledge.
He then referred to the words of Lord Sumner in Zamora No. 2, [1921] 1 A.C. 801 at pp. 811-2, which was a case wherein a ship and cargo were condemned in the Prize Court as contraband. The managing director of the shipping company denied knowledge of the contraband carried by the ship, and on this subject Lord Sumner said, at pp. 811-2:
Lord Sterndale [the president of the Prize Court] thus expressed his final conclusion: “I think the true inference is that, if Mr. Banck did not know this was a transaction in contraband, it was because he did not want to know, and that he has not rebutted the presumption arising from the fact of the whole cargo being contraband.

Their Lordships have been invited to read this as saying that Mr. Banck is not proved to have known the contraband character of the adventure; that if he did not know, because he did not want to know, he was within his rights and owed no duty to the belligerents to inform himself; and that the Zamora is condemned contrary to the passage above cited from the The Hakim [[1918] A.C. 148] upon a legal presumption arising solely and arbitrarily from the fact that the whole cargo was contraband. It may be that in his anxiety not to state more than he found against Mr. Banck, the learned President appeared to state something less, but there are two senses in which a man is said not to know something because he does not want to know it. A thing may be troublesome to learn, and the knowledge of it, when acquired, may be uninteresting or distasteful. To refuse to know any more about the subject or anything at all is then a wilful but a real ignorance. On the other hand, a man is said not to know because he does not want to know, where the substance of the thing is borne in upon his mind with a conviction that full details or precise proofs may be dangerous, because they may embarrass his denials or compromise his protests. In such a case he flatters himself that where ignorance is safe, ‘tis folly to be wise, but there he is wrong, for he has been put upon notice and his further ignorance, even though actual and complete, is a mere affectation and disguise.
Glanville Williams, however, warns that the rule of deliberate blindness has its dangers and is of narrow application. He says, at p. 159:
The rule that wilful blindness is equivalent to knowledge is essential and is found throughout the criminal law. It is, at the same time, an unstable rule because judges are apt to forget its very limited scope. A court can properly find wilful blindness only where it can almost be said that the defendant actually knew. He suspected the fact; he realised its probability; but he refrained from obtaining the final confirmation because he wanted in the event to be able to deny knowledge. This, and this alone, is wilful blindness. It requires in effect a finding that the defendant intended to cheat the administration of justice. Any wider definition would make the doctrine of wilful blindness indistinguishable from the civil doctrine of negligence in not obtaining knowledge.
This subject is also dealt with by Professor Stuart in Canadian Criminal Law (1982), p.130 et seq., where its relationship to recklessness is discussed.

This case reveals, in my view, an appropriate set of circumstances for the application of the “wilful blindness” rule. I have outlined the circumstances which form the background. I have referred to the findings of the trial judge that the appellant blinded himself to the obvious and made no inquiry as to the nature of the consent which was given. If the evidence before the court was limited to the events of October 15th, it would be difficult indeed to infer wilful blindness. To attribute criminal liability on the basis of this one incident would come close to applying a constructive test to the effect that he should have known she was consenting out of fear. The position, however, is changed when the evidence reveals the earlier episode and the complaint of rape which it caused, knowledge of which, as I have said, had clearly reached the accused. Considering the whole of the evidence then, no constructive test of knowledge is required. The appellant was aware of the likelihood of the complainant’s reaction to his threats. To proceed with intercourse in such circumstances constitutes, in my view, self-deception to the point of wilful blindness.

In my view, it was error on the part of the trial judge to give effect to the “mistake of fact” defence in these circumstances where she had found that the complainant consented out of fear and the appellant was wilfully blind to the existing circumstances, seeing only what he wished to see. Where the accused is deliberately ignorant as a result of blinding himself to reality the law presumes knowledge, in this case knowledge of the nature of the consent. There was therefore no room for the operation of this defence.

This is not to be taken as a retreat from the position taken in Pappajohn that the honest belief need not be reasonable. It is not to be thought that any time an accused forms an honest though unreasonable belief he will be deprived of the defence of mistake of fact. This case rests on a different proposition. Having wilfully blinded himself to the facts before him, the fact that an accused may be enabled to preserve what could be called an honest belief, in the sense that he has no specific knowledge to the contrary, will not afford a defence because, where the accused becomes deliberately blind to the existing facts, he is fixed by law with actual knowledge and his belief in another state of facts is irrelevant.

I would dismiss the appeal.

 

R. v. Osolin
Supreme Court of Canada
 [1993] 109 D.L.R. (4th) 478; [1993] 4 S.C.R. 595

The accused was charged with sexual assault and kidnapping of a 17-year-old girl. The complainant and a friend had engaged in consensual sexual relations before and after they met up with the accused and his companion. The accused, after leaving the complainant, was told by another person that the complainant was “easy”. The accused and his companion returned to the place where the accused and her friend had been spending the afternoon. The accused drove the complainant’s friend away. The accused and his companion then took the complainant, who was naked, to another home where the complainant was tied to a bed and subjected to sexual intercourse by the accused. The complainant testified that she did not consent to any of the activities with the accused and that she resisted as best she could. When she was examined by a physician several hours later her condition was consistent with her having been sexually assaulted. The accused, on the other hand, testified that the complainant consented to all of the activity and was a willing participant. The complainant had a history of psychiatric treatment and during the trial the complainant’s mental health records were admitted to permit an expert to consider them on the issue of the complainant’s competency to testify under oath. Defence counsel sought permission, in addition, to cross-examine the complainant on the records and specifically a note in which the complainant was reported as saying that she was concerned that her attitude and behaviour may have influenced the accused to some extent and she was having second thoughts about the entire case. Defence counsel had sought to cross-examine on the note to show “what kind of person the complainant is”. The trial judge refused to permit cross-examination on the notes as they had been made available for the limited purpose of determining the competence of the complainant to testify under oath and any other use would violate her right to privacy. The trial judge refused, as well, to put the defence of honest but mistaken belief in consent to the jury. The accused was convicted of sexual assault and kidnapping. The accused’s appeal to the British Columbia Court of Appeal was dismissed.

On further appeal by the accused to the Supreme Court of Canada, held, La Forest, L’Heureux-Dubé, Gonthier and McLachlin JJ. dissenting, the appeal should be allowed and a new trial ordered.

LAMER C.J.C.:— I have read the reasons of Justice Cory and concur in his result....

With respect to the defence of mistaken belief, I am, in agreement with my colleague, Justice Sopinka.
Accordingly, I would allow the appeal and order a new trial on the ground that the trial judge erred in failing to allow the cross-examination of the complainant on her medical records.

LAFOREST J. concurs with MCLACHLIN J.

SOPINKA J. :— I have read the reasons of Justice Cory and agree with the result he has reached and with his reasons, subject to the following observation....

With respect to the defence of mistaken belief, I agree with Cory J. that s. 265(4) “simply sets out the basic requirements which are applicable to all defences” and that it requires no more of the accused than the discharge of an evidentiary burden to adduce or point to some evidence on the basis of which a reasonable jury properly instructed could acquit. I believe we are all in agreement in this respect. Indeed, this is the basis for our determination that it is constitutional. The term “evidentiary burden” and the definition I have set out are well known to trial judges and well accepted. I cannot understand how the addition of the term “air of reality” helps in understanding the duty of a trial judge with respect to this defence. I am concerned that when an attempt is made to add to the definition of a basic concept in the criminal law, it only creates confusion. Just as attempts to refine the meaning of “reasonable doubt” have frequently resulted in reversible error, so too the use of the “air of reality” test encourages trial judges to weigh the evidence rather than apply the legal definition to which I have referred.

I agree with the reservations expressed by McLachlin J. with respect to Cory J.’s approval of the principle that the defence of mistaken belief is not available if the complainant and the accused relate diametrically opposed versions of what occurred.

Excluding the defence of mistaken belief where the accused and complainant tell opposing versions rests on the assumption that either the accused’s or the complainant’s story is a complete account of what occurred. As J. M. Williams (“Mistake of Fact: The Legacy of Pappajohn v. The Queen” (1985), 63 Can. Bar Rev. at p. 596) points out, this is a questionable assumption. Referring to Pappajohn v. The Queen (1980), 52 C.C.C. (2d) 481, 111 D.L.R. (3d) 1, [1980] 2 S.C.R. 120, Williams, at pp. 611-12, states:

It is implicit in the majority decision that the jury would either totally accept one story or totally reject it. If this was a correct reading of what the jury would do then one can readily understand why the majority could not see any purpose in putting the alternative defence of mistake to the jury. Assuming, as was suggested, that the two stories were totally incompatible then, if the jury believed the accused’s story in toto, he would be acquitted on the basis that there was no actus reus (i.e., consent was present). If the jury totally believed the complainant, then not only would the actus reus have been proven but moreover the jury would have already branded the accused as a liar. Therefore, it becomes unrealistic to suggest that they would nonetheless hold that he had an honest belief in consent.

The above reasoning appears logical, given the premise. The question remains, however whether it is correct to assume that a jury will accept one story in its totality and reject the other completely? It would seem not. Where there are conflicting versions of facts, the trier of fact must “find” what happened. It is well accepted that in doing so, the trier of fact is not bound to deal with one party’s evidence as a whole but may accept some of it and reject that which is unacceptable. (Emphasis in original)
In Lee Chun-Chuen v. The Queen, [1963] 1 All E.R. 73 (P.C.), Lord Devlin, in discussing the manner in which an evidentiary burden in respect of provocation may be discharged, stated, at p. 80:
What is essential is that there should be produced, either from as much of the accused’s evidence as is acceptable or from the evidence of other witnesses or from a reasonable combination of both, a credible narrative of events disclosing material that suggests provocation in law. If no such narrative is obtainable from the evidence, the jury cannot be invited to construct one.
As a matter of standard practice, a jury in criminal cases is instructed that in assessing the evidence of a witness, it is not an all-or-nothing proposition. A typical jury instruction is as follows (G.A. Ferguson and J.C. Bouck, Canadian Criminal Jury Instructions, 2nd ed. (Vancouver: Continuing Legal Education, Society of British Columbia, 1989), p. 4.12-2):
When you consider the evidence of a witness, please understand that you do not have to accept or reject everything a particular witness said. You may, of course, decide to accept or reject everything a witness said in the witness box. But you may also decide to accept only some of what a witness said, and reject the rest.
I would dispose of the appeal as proposed by Cory J.

GONTHIER J. concurs with MCLACHLIN J.

CORY J.:—...

B. Section 265(4) of the Criminal Code: the mistake of fact and defence

Section 265(4) provides as follows:

265.(4) Where an accused alleges that he believed that the complainant consented to the conduct that is the subject-matter of the charge, a judge, if satisfied that there is sufficient evidence and that, if believed by the jury, the evidence would constitute a defence, shall instruct the jury, when reviewing all the evidence relating to the determination of the honesty of the accused’s belief, to consider the presence or absence of reasonable grounds for that belief.
The appellant’s first submission is that the courts below erred in their finding that the evidence was insufficient to justify putting the defence of mistaken belief in the complainant’s consent to the jury. In the absence of any evidence which might be held to be admissible arising from a cross-examination on the medical records at a new trial, and considering only the evidence presented at the trial, it would be difficult to find any error in that decision. Here, the evidence of the complainant was emphatically to the effect there was no consent and that nothing she said or did would give rise to a belief that she was consenting to the actions of the appellant. On the other hand, the appellant testified that the complainant was throughout an enthusiastic and willing, if not a particularly active, participant in all his actions. On that basis there would appear to be no basis for considering the defence of a mistaken belief in the consent of the complainant. However, as there must be a new trial to allow for a cross-examination upon the a medical records within the guidelines outlined, it would be inappropriate to discuss this issue in light of the fresh evidence that may be forthcoming.

The second position put forward by the appellant is that s. 265(4) violates the rights of an accused under s. 11(d) (the presumption of innocence) and (f) (the right to trial by jury).

(1) Interpretation of s. 265(4)

Section 265(4) of the Criminal Code is applicable to all assaults, not just sexual assaults. It appears to be no more than the codification of the common law defence of mistake of fact: see Robertson, supra, and R. v. Jobidon (1991), 66 C.C.C. (3d) 454 at pp. 468-9, [1991] 2 S.C.R. 714, 7 C.R. (4th) 233. In my view, the section simply sets out the basic requirements which are applicable to all defences. Namely, that a defence should not be put to the jury if a reasonable jury properly instructed would have been unable to acquit on the basis of the evidence tendered in support of that defence. On the other hand, if a reasonable jury properly instructed could acquit on the basis of the evidence tendered with regard to that defence, then it must be put to the jury. It is for the trial judge to decide whether the evidence is sufficient to warrant putting a defence to a jury as this is a question of law alone: see Parnerkar v. The Queen (1973), 10 C.C.C. (2d) 253, 33 D.L.R. (3d) 683, [1974] S.C.R. 449, and Pappajohn, supra. There is thus a two-step procedure which must be followed. First, the trial judge must review all the evidence and decide if it is sufficient to warrant putting the defence to the jury. Secondly, if the evidence meets that threshold, the trial judge must put the defence to the jury, which in turn will weigh it and decide whether it raises a reasonable doubt: see Wigmore on Evidence, supra, at pp. 968-9, and R. v. Faid (1983), 2 C.C.C. (3d) 513 at p. 522, 145 D.L.R. (3d) 67 at p. 76, [1983] 1 S.C.R. 265. I take this to be the meaning of the words “sufficient evidence” as they appear in s. 265(4).

It is trite law that a trial judge must instruct the jury only upon those defences for which there is a real factual basis. A defence for which there is no evidentiary foundation should not be put to the jury. This rule extends well beyond the defence of mistaken belief in consent and is of long standing. In Kelsey v. The Queen (1953), 105 C.C.C. 97 at p. 102, [1953] 1 S.C.R. 220, 16 C.R. 119, Fauteux J., writing for the majority, held:
The allotment of any substance to an argument or of any value to a grievance resting on the omission of the trial Judge from mentioning such argument must be conditioned on the existence in the record of some evidence or matter apt to convey a sense of reality in the argument and in the grievance.
...  In the realm of sexual assault cases the requirement of sufficient evidence has caused some confusion. Yet, in my view, these words require no more than the application of the principles that have been set out above. In Pappajohn, supra, it was held that the defence of mistaken belief in consent should only be put to the jury if there was an adequate and evidentiary foundation found for it. There McIntyre J. writing for the majority stated that in order for the defence to be put to the jury it must have “an air of reality”. He explained that term in these words (at p. 509 C.C.C., p. 30 D.L.R.):
“Before any obligation arises to put defences, there must be in the evidence some basis upon which the defence can rest and it is only where such an evidentiary basis is present that a trial Judge must put a defence.”
He then went on to state (at p. 514 C.C.C., p. 34 D.L.R.):
It would seem to me that if it is considered necessary in this case to charge the jury on the defence of mistake of fact, it would be necessary to do so in all cases where the complainant denies consent and an accused asserts it.
In Laybourn, supra, McIntyre J. had a further opportunity to explore the defence of mistake and the air of reality requirement. He restated his earlier position (at p. 390 C.C.C., p. 646 D.L.R.):
It is well-settled law that in his charge the trial judge must put to the jury all defences that may arise upon the evidence, whether they have been raised by counsel of or the defence or not. In doing so, he is obliged to explain the law respecting the defence and to refer the jury to the evidence which may be relevant on that issue. Before putting the defence, however, the trial judge must decide whether in the facts before him the defence arises on the evidence. It is only when he decides this question in favour of the defence that he must leave it to the jury, for a trial judge is not bound to put every defence suggested by counsel in the absence of some evidentiary base. Indeed, he should not do so, for to put a wholly unsupported defence would only cause confusion.
He then continued, at pp. 391-2 C.C.C., pp. 647-8 D.L.R.:
When the defence of mistake of fact—or for that matter any other defence—is raised, two distinct steps are involved. The first step for the trial judge is to decide if the defence should be put to the jury. It is on this question as I have said, that the “air of reality” test is applied.
... It can be seen that this court has consistently held that the defence of mistake of fact in a sexual assault trial will be put to the jury so long as it meets the same threshold requirement as that demanded of all defences. The term “air of reality” simply means that the trial judge must determine if the evidence put forward is such that, if believed, a reasonable jury properly charged could have acquitted. If the evidence meets that test, then the defence must be put to the jury. This is no more than an example of the basic division of tasks between judge and jury. It is the judge who must determine if evidence sought to be adduced is relevant and admissible. In the same way, it is the judge who determines if there is sufficient evidence adduced to give rise to the defence. If there has been sufficient evidence put forward, then the jury must be given the opportunity to consider that defence along with all the other evidence and other defences left with them in coming to their verdict: see Morgentaler, supra, at p. 482 C.C.C., p. 194 D.L.R., per Pigeon J., and Wigmore on Evidence, supra, p. 976.

The jury system has in general functioned exceptionally well. Its importance has been recognized in s. 11(f) of the Charter. One of the reasons it has functioned so very well is that trial judges have been able to direct the minds of jurors to the essential elements of the offence and to those defences which are applicable. That process should be maintained. The charge to the jury must be directed to the essential elements of the crime with which the accused is charged and defences to it. Speculative defences that are unfounded should not be presented to the jury. To do so would be wrong, confusing, and unnecessarily lengthen jury trials.

In coming to a conclusion as to the sufficiency of the evidence pertaining to a defence, the trial judge must consider all the evidence and all the circumstances. It is only when the totality of the evidence tendered at the trial has been taken into account, and considered in the light of all the relevant circumstances, that the trial judge will be in a position to make a ruling: see Laybourn, supra, at pp. 390-1 C.C.C., pp. 646-7 D.L.R., and Squire, supra, at pp. 503-4 C.C.C., p. 319 D.L.R.

In what circumstances will it be appropriate to consider a defence of mistaken belief in consent? It is the position of the intervener, the Attorney-General for Ontario, that the defence cannot arise in situations where the evidence of the complainant and the accused are diametrically opposed. For example, if the accused states that there was willing consent, and the complainant denies any consent, then the defence simply cannot arise. In such circumstances, for a jury to accept the defence of mistaken belief in consent it would have to reject all the evidence given at the trial including that tendered by both the complainant (no consent) and that of the accused (willing consent). Indeed, in order to give effect to the defence, a jury would have to speculate upon and give effect to a third version of events which was not in evidence: see, for example, R. v. Guthrie (1985), 20 C.C.C. (3d) 73 at pp. 83-4, 14 W.C.B. 163 (Ont. C.A.).

McIntyre J. adverted to this issue when he stated in Pappajohn, supra, at p. 515 C.C.C., p. 35 D.L.R.:
Where the complainant says rape and the accused says consent, and where on the whole of the evidence, including that of the complainant, the accused, and the surrounding circumstances, there is a clear issue on this point, and where as here the accused makes no assertion of a belief in consent as opposed to an actual consent, it is unrealistic in the absence of some other circumstance or circumstances . . . to consider the Judge bound to put the mistake of fact defence.
... I agree with this position. The defence of mistake may arise when the accused and the complainant tell essentially the same story and then argue that they interpreted it differently. Realistically, it can only arise when the facts described by the complainant and the accused generally correspond but the interpretation of those facts leads to a different state of mind for each of the parties. In a situation where the evidence given is directly opposed as to whether there was consent, the defence of mistake as to consent simply cannot exist. However, even in the absence of that defence, the jury will none the less be bound to acquit if it has a reasonable doubt as to whether there was consent in light of the conflicting evidence on the issue. Lack of consent is an integral element of the offence. In cases where there is conflicting evidence on the issue the trial judge will always direct the jury that they must be satisfied beyond a reasonable doubt that consent was lacking.

It should be emphasized once again that the defence of mistaken belief in consent will be invoked rarely. In the vast majority of cases a sexual assault does not occur as a result of accident or mistake. It is simply not a crime that lends itself to commission by mistake or by accident. As Dickson J. dissenting in Pappajohn, supra, stated, at p. 499, it is not a crime that is committed per incuriam. Indeed, it may well be appropriate for a trial judge to charge a jury that in the usual course of events this is not a crime that can be committed accidentally.

(2) Evidentiary burden of s. 265(4)

The next question that must be addressed is what evidence must be adduced before the trial judge should put the defence of mistake to the jury. This issue has caused some confusion. In Pappajohn, supra, at p. 514 C.C.C., pp. 34-5 D.L.R., McIntyre J. stated:
to require the putting of the alternative defence of mistaken belief in consent, there must be, in my opinion, some evidence beyond the mere assertion of belief in consent by counsel for the appellant. This evidence must appear from or be supported by sources other than the appellant in order to give it any air of reality. (Emphasis added.)
McIntyre J. clarified his position in Laybourn, supra, at p. 391 C.C.C., p. 647 D.L.R.:
There will not be an air of reality about a mere statement that “I thought she was consenting” not supported to some degree by other evidence or circumstances arising in the case. If that mere assertion were sufficient to require a trial judge to put the “mistake of fact” defence, it would be a simple matter in any rape case to make such an assertion and, regardless of all other circumstances, require the defence to be put. (Emphasis added.)
The question that arises is whether this means that in order for the defence to be put to the jury there must be some evidence of mistaken belief in consent emanating from a source other than the accused. In my view, this proposition cannot be correct. There is no requirement that there be evidence independent of the accused in order to have the defence put to the jury. However, the mere assertion by the accused that “I believed she was consenting” will not be sufficient. What is required is that the defence of mistaken belief be supported by evidence beyond the mere assertion of a mistaken belief. In the words of the Lord Morris of Borth-y-Gest,  there must be more than a “facile mouthing of some easy phrase of excuse”: Bratty, supra, at p. 417.

In order to have the defence put to the jury, the same requirement must be satisfied as for all other defences. Just as a defence of provocation will not be put to the jury on the basis of the bare assertion of the accused that “I was provoked” (see Faid, supra, at pp. 523-4 C.C.C., p. 78 D.L.R.), so too the bare assertion of the accused that “I thought she was consenting” will not warrant putting the defence of mistaken belief in consent to the jury. The requisite evidence may come from the detailed testimony of the accused alone, on this issue or from the testimony of the accused coupled with evidence from other sources. For example, the complainant’s testimony may supply the requisite evidence.

In the case at bar, the Court of Appeal correctly held that the trial judge erred in finding that the defence of mistake was unavailable on the basis of the accused’s evidence alone. However, it erred in finding that there could be no air of reality to the defence on the basis that the complainant had been kidnapped by the appellant. The basic premise that Southin J.A. elaborated is correct. That is to say the belief by a convicted kidnapper that his victim consented to a sexual assault on the occasion of the kidnapping has no air of reality. However, in this case there had not been a previous or separate conviction on the kidnapping charge. Indeed, the mens rea for the kidnapping charge and that for the sexual assault were so closely connected as to be inseparable. The kidnapping could not, therefore, be used as the grounds for rejecting the defence of mistake.

(3) Constitutionality of s. 265(4)

(i) The presumption of innocence: s. 11 (d)
The fundamental principle protected by s. 11(d) is the guarantee of a right to be presumed innocent, that is, that an accused is not to be convicted when there exists a reasonable doubt as to his guilt. Any law which places a persuasive burden on the accused to prove either the existence or non-existence of a fact essential to guilt will infringe upon the right guaranteed by s. 11(d). As I have indicated, all criminal defences must meet a threshold requirement of sufficient evidence, or in other words, an air of reality, before the trial judge should leave them with a jury. In my view, this does not violate the presumption of innocence.

This court has earlier had occasion to consider whether such a requirement places an unacceptable reverse onus of proof on the accused. For example, in R. v. Perka (1984), 14 C.C.C. (3d) 385 at pp. 404-5, 13 D.L.R. (4th) 1 at p. 21, [1984] 2 S.C.R. 232, Dickson J. discussed this issue in relation to the defence of necessity:
Although necessity is spoken of as a defence, in the sense that it is raised by the accused, the Crown always bears the burden of proving a voluntary act. The prosecution must prove every element of the crime charged. One such element is the voluntariness of the act. Normally, voluntariness can be presumed, but if the accused places before the court, through his own witnesses or through cross-examination of Crown witnesses, evidence sufficient to raise an issue that the situation created by external forces was so emergent that failure to act could endanger life or health and upon any reasonable view of the facts, compliance with the law was impossible, then the Crown must be prepared to meet that issue. There is no onus of proof on the accused.
In conclusion he stated at p. 406 C.C.C., p. 22 D.L.R.:
“[W]here the accused places before the court sufficient evidence to raise the issue, the onus is on the Crown to meet it beyond a reasonable doubt.”
The distinction between a burden of proof with regard to an offence or an element of the offence, and an evidentiary burden is critical. It must be remembered that the accused only bears the evidentiary burden of raising the issue of mistake, and in fact, only bears that burden if sufficient evidence has not already been raised by the prosecution’s case. The reasons of Wilson J. in Robertson, supra, at p. 492 C.C.C., p. 332 D.L.R., deal with this issue:
In addition, I believe that previous case-law establishes the proposition that, where there is sufficient evidence for the issue to go to the jury, the Crown bears the burden of persuading the jury beyond a reasonable doubt that the accused knew the complainant was not consenting or was reckless as to whether she was consenting or not. Using the language of Glanville Williams in Criminal Law: The General Part, 2nd ed. (1961), pp. 871-910, there are two separate burdens in relation to the issue of honest but mistaken belief— the evidentiary burden and the burden of persuasion. Evidence must be introduced that satisfies the judge that the issue should be put to the jury. This evidence may be introduced by the Crown or by the defence. The accused bears the evidentiary burden only in the limited sense that, if there is nothing in the Crown’s case to indicate that the accused honestly believed in the complainant’s consent, then the accused will have to introduce evidence if he wishes the issue to reach the jury. Once the issue is put to the jury the Crown bears the risk of not being able to persuade the jury of the accused’s guilt.
... Section 265(4) does not create a statutory presumption. The accused seeking to raise the defence of mistaken belief only bears a tactical evidentiary burden. This point was made by Wilson J. in Robertson, supra, at p. 494 C.C.C., p. 334 D.L.R.:
There is an evidentiary burden on the accused but (and this, in my opinion, is the important point) if there is sufficient evidence to put the issue before the jury, then the Crown has the burden of proving beyond a reasonable doubt that the accused did not have an honest belief as to consent. The defence of mistake, as Dickson J. pointed out in Pappajohn, is simply a denial of mens rea which does not involve the accused in a burden of proof.
... Section 265(4) leaves the burden on the Crown in regard to all the essential elements of the offence. The prosecution must prove both the mens rea and the actus reus beyond a reasonable doubt: that the accused engaged in sexual intercourse with a woman who was not consenting, and that he intended to engage in sexual intercourse without the consent of the woman. It is always open to the jury even without the defence of mistake of fact as to consent to find that there was a reasonable doubt as to the accused’s mens rea and acquit. The mere fact of the air of reality requirement does not displace the presumption of innocence.

In conclusion, then, the air of reality threshold set forth in s. 265(4) does not violate s. 11(d). While it creates an evidentiary burden on the accused in the sense that he must raise sufficient evidence to give the defence an air of reality to justify its presentation to the jury, the burden of proving all of the elements of the offence beyond a reasonable doubt rests squarely with the Crown.

(ii) Right to a trial by jury: s. 11(f)
Section 11(f) confers on a person charged with an offence the right to be tried by a jury where the maximum punishment for the offence is imprisonment for five years or more.

It is a basic tenet of the jury system that the jury decides issues of fact while the judge determines questions of law. Whether there is sufficient evidence to determine if an issue has been properly raised is a question of law, and therefore is properly in the domain of the judge: Laybourn, supra, at pp. 39Q-1 C.C.C., pp. 646-7 D.L.R., and p. 395 C.C.C., p. 651 D.L.R.

The requirement that there be an air of reality to the defence of mistaken belief in consent set out in s. 265(4) is reasonable and entirely valid. It is no more than a reaffirmation of an integral part of the judge’s role in supervising a jury trial. The trial judge must determine questions of law such as the relevance and admissibility of evidence and the competence and compellability of witnesses. In doing so, the trial judge cannot be accused of usurping the role of the jury or violating the accused’s rights. Similarly it is appropriate that the judge determine if there is sufficient evidence to raise the defence of mistaken belief in consent. In considering the evidence giving rise to the air of reality, it must be remembered that the trial judge is not weighing the evidence, but is simply examining it to determine what defences are available: see Guthrie, supra, at p. 84.

The appellant was provided with a trial by jury. The only elements of the trial that were decided by the trial judge were those things properly within his realm, namely, those issues pertaining to trial process and questions of law. There is consequently no violation of the appellant’s right to a trial by jury....

MCLACHLIN J. (dissenting):—

Honest but mistaken belief in consent and the air of reality test

Different defences may be raised to a charge of sexual assault. One is that the physical acts complained of never occurred. That defence was not raised here. Another is that while the acts occurred, the complainant consented to them. This was the theory of the defence in the case at bar. A third is that while the acts occurred and the complainant did not consent to them, the accused entertained an honest but mistaken belief that she was consenting. As such, he did not possess the necessary subjective mens rea or guilty mind to support a conviction.

As my colleagues point out, before any defence can be put to the jury, the evidence must provide a basis for that defence. This requirement is sometimes described by saying that there must be an “air of reality” to the defence. To put a defence to the jury where this “air of reality” is lacking on the evidence would be to risk confusing the jury and to invite verdicts not supported by the evidence.

While the rule applies generally, it has attracted special attention in the context of trials for sexual assault. This is because one of the most common defences on such trials, the defence of honest but mistaken belief, is frequently asserted in cases where there is no evidentiary foundation for it, requiring the court to advise the jury that there is no air of reality to the defence.

In order to give an “air of reality” to the defence of honest but mistaken belief, there must be: (1) evidence of lack of consent to the sexual acts, and (2) evidence that notwithstanding the actual refusal, the accused honestly but mistakenly believed that the complainant was consenting.

The evidence of lack of consent in most cases is supplied by the complainant’s testimony. To prove honest but mistaken belief, on the other hand, the accused typically testifies that he honestly believed that the complainant consented. Theoretically, such a belief could be asserted in every case, even where it is totally at odds with the evidence as to what happened. So it has been held that the bare assertion of the accused that he believed in consent is not enough to raise the defence of honest but mistaken belief; the assertion must be “supported to some degree by other evidence or circumstances”: R. v. Laybourn (1987), 33 C.C.C. (3d) 385 at p. 391, 39 D.L.R. (4th) 641 at p. 647, [1987] 1 S.C.R. 782. The support may come from the accused or from other sources; on this point I agree with Cory J.’s resolution of the confusion which existed in the earlier cases. But the support must exist. As Lord Morris of Borth-y-Gest put it, a “facile mouthing of some easy phrase of excuse” will not suffice: Bratty v. Attorney-General for Northern Ireland, [1963] A.C. 386 at p. 417 (H.L.).

It is suggested that this requirement is at variance with the general rule in criminal law that wherever there is some evidence supporting a defence, however weak, it must be left to the jury to determine the sufficiency of that evidence. Provided there is any evidence, it is suggested, it is for the jury to decide upon its sufficiency, not the judge. To hold otherwise would deprive the accused of his fundamental right to be tried by a jury.

It seems to me that this argument is met by the fact that the accused’s mere assertion of his belief is not evidence of its honesty. The requirement that the belief be honestly held is not equivalent to an objective test of what the reasonable person would have believed. But nevertheless it does require some support arising from the circumstances. A belief which is totally unsupported is not an honestly held belief. A person who honestly believes something is a person who has looked at the circumstances and has drawn an honest inference from them. Therefore, for a belief to be honest, there must be some support for it in the circumstances. The level of support need not be so great as would permit the belief to be characterized as a reasonable belief. But some support there must be. A person who commits a sexual assault without some support in the circumstances for inferring the consent of the complainant has, at very least, been wilfully blind as to consent. The law draws a distinction between “honest belief” in consent, which arises from an inference, however mistaken, from the circumstances, and “wilful blindness” as to consent, which is belief not grounded on the circumstances, and which does not serve as a defence.

This brings me to the facts of this case. The theory of the defence, as noted, was that the complainant consented, but that she lied about her consent in order to avoid a confrontation with her parents. It was in this context that the accused testified that he believed that the complainant consented. However, when the time came to charge the jury, Osolin asked the trial-judge to charge the jury on the additional defence of honest but mistaken belief, which was founded on the theory that the complainant had not consented. The trial judge, after noting that the complainant and the accused told widely different stories, and after reviewing the law on honest but mistaken belief and the need for support in the evidence giving the defence an air of reality, concluded:

There must be evidence beyond the mere assertion of belief in consent by the accused. That evidence must appear from or be supported by sources other than the accused in order to give it an air of reality.

I find that is lacking here, that there is not that other evidence, and consequently I am not going to charge the jury, and I am not going to permit counsel to refer to the defence of mistake of fact.

The Court of Appeal agreed. Southin J.A. held that the trial judge had erred in suggesting that the evidence needed to give the defence an air of reality must come from persons other than the accused. Nevertheless, she concluded that on the evidence there was no air of reality to the arguments that the accused’s belief in consent deprived him of the necessary mens rea for the offences of kidnapping or sexual assault (at pp. 183-4):

The appellant never said that he honestly believed the taking of her to Parksville to be not against her will. He did not say he believed that this complainant who was naked was agreeing to go on a 40-mile ride on a cold March night with two comparative strangers both of whom were twice her size. He did not say that he had no intention to confine her against her will. If he had so testified, who would have believed him?...
There is no more imprisoning state short of actual physical restraint than being without one’s clothes. The best that the appellant said for himself was, “I wasn’t thinking”. That to me is, at the very least, recklessness or wilful blindness.
On the sexual assault charge, Southin J.A. held that had the abduction not occurred, it might have been that the issue of honest but mistaken belief should have been left to the jury. However, she concluded (at p. 184):
In my mind, an argument that a man who, knowingly or recklessly, forcibly confined a woman against her will can have an honest belief that, during her confinement, she was freely consenting to his sexual advances has no air of reality about it at all.
We are left with one question: whether there was evidence, from the accused or from some other source, supporting Osolin’s assertion of honest belief. I agree with the courts below that there was none. The undisputed facts reviewed at the outset of these reasons simply do not admit of an honest belief. At the very most they were consistent with wilful blindness. Any man who drags a woman from her home naked and protesting, transports her to a remote place, and there ties her to the bed and has sex with her is at very least put on notice that she may not be consenting. His failure to inquire is consistent only with two states of mind: an intention to have his way without her consent; or wilful blindness as to whether she consented or not. To put it another way, no person, reasonable or otherwise, could honestly infer consent in such circumstances from the mere fact that at certain stages, the complainant may have been passively acquiescent. The evidence which Osolin put before the jury may have been, as the trial judge concluded, consistent with wilful blindness. It offered no support for the defence of honest but mistaken belief. As Osolin himself told the jury, “I wasn’t thinking”.

Before leaving this question, I should comment on two points. The first is the argument that the divergent stories of the complainant and the accused on consent, as a matter of law, necessarily preclude a third alternative, the defence of honest but mistaken belief. I am not so convinced as my colleagues that where the evidence consists of two diametrically opposed stories, one alleging lack of consent and the other consent, it is logically impossible to conceive of the defence of honest but mistaken belief arising. While it may rarely occur, it seems to me possible for a jury to accept parts of the testimonies of both the complainant and the accused, concluding that notwithstanding lack of actual consent, the accused honestly believed in consent. As A.W. Bryant states (“The Issue of Consent in the Crime of Sexual Assault (1989), 68 Can. Bar Rev 94 at p. 149):
... the removal of this alternative plea on the basis that the testimony of the complainant and the accused are diametrically opposed, and that there is a lack of common ground for the defence is based, in part, on the premise that the complainant’s version is complete—a questionable assumption in some cases. Moreover, a requirement for corroboration may wrongly encourage an accused to dovetail partially his testimony with that of the complainant in order to supply the necessary common ground for the defence.
... I agree for the reasons given by Cory J. that the section of the Criminal Code which requires the accused who raises the defence of honest but mistaken belief in consent to show that the defence has an air of reality, s. 265(4), does not violate the Canadian Charter of Rights and Freedoms.

 

R. v. Ladue
Yukon Territory Court of Appeal
 [1965] 4 C.C.C. 264

The judgment of the Court was delivered by
DAVEY, J.A.:—Ladue either copulated or attempted to copulate with a dead woman and was convicted under s.167(b) {now s. 182(b)} Of the Criminal Code of indecently interfering with a dead human body. The material part of the section reads as follows:

167. Every one who
(b) improperly or indecently interferes with or offers any indignity to a dead human body or human remains, whether buried or not,
is guilty of an indictable offence and is liable to imprisonment for five years.”
The only point of substance in Ladue’s appeal against his conviction is whether the learned trial Judge was right in holding that it was not open to the appellant to contend that he was not guilty because he did not know the woman was dead. There was considerable evidence upon which the learned Judge might have held, if he had not considered the defence untenable in law, that while Ladue knew what he was doing physically, he was so intoxicated that he did not realize the woman was dead. Subject to what I have to say later that would have been a good defence.

In his oral reasons the learned trial Judge, in dealing with the effect of intoxication upon the appellant’s understanding, said this:
What does the argument amount to? The only way you can make it, the only way in which you could make this argument—certainly I don’t know. She was dead. He thought she was unconscious. Because she was dead? No. That is about it. At the time of the incident can a person be heard to say ‘that it didn’t occur to me she was dead, and I am therefore innocent.’ I will tell you, I will not listen to such an argument. That would be an admission he was having intercourse with a person...
It is a fundamental principle of criminal law that, unless excluded by statute, mens rea, that is guilty intention, is necessary to constitute a crime, and that a person doing an act is not guilty of a crime if his mind be innocent: R. v. Prince (1875), L.R. 2 C.C.R. 154: R. v. Tolson (1889), 23 Q.B.D. 168, per Willis, J., at pp. 171-2. I see nothing in s. 167(b) to exclude that principle. Accordingly it was open to the appellant to attempt to rebut the inference of mens rea flowing from what he deliberately did to the body by proving that he did not know the woman was dead.

But in attempting to defend himself in that way the appellant runs into the insuperable difficulty alluded to by the learned trial Judge. The appellant could not have failed, even in his drunken state, to perceive that the woman was unconscious, and incapable of giving her consent to copulation. Indeed the appellant does not suggest that he thought he had her consent to the act. So if the woman was alive he was raping her. Therefore it is impossible for him to argue that, not knowing her to be dead, he was acting innocently. An intention to commit a crime, although not the precise crime charged, will provide the necessary mens rea under a statute in the form of s.167(b): R. v. Tolson per Willis, J., at p. 172, Stephen, J., at pp.189-90; R. v. Prince, per Brett, J., at pp. 169-170, because in those circumstances an accused cannot contend he was acting lawfully or innocently.

It follows that in my respectful opinion the learned trial Judge was right in the particular circumstances of this case in saying that he would not entertain an argument that appellant was innocent because he did not know the woman was dead.

It becomes necessary at this point to notice our decision in R. v. McLeod (1954), 111 C.C.C. 106, 20 C.R. 281, 14 W.W.R. 97, in which we dismissed a Crown appeal against an accused’s acquittal on a charge of assaulting a peace officer engaged in the execution of his duty on the ground that knowledge that the victim was a peace officer and was engaged in the execution of his duty was an essential ingredient of the crime, and that the accused did not know those essential facts. Of the three Judges who sat on that appeal I alone held that the accused had committed a common assault; consequently it became essential for me to consider the submission of Crown counsel that on the authority of R. v. Prince, the fact that the accused had in any event committed a common assault supplied the necessary mens rea and made him guilty of the aggravated offence even though he did not know the victim was a Peace Officer. In the course of my reasons I considered R. v. Prince and R. v. Tolson. I adhere to the views expressed there, and it is unnecessary to repeat them. The neat distinction between R. v. McLeod, and the case at bar is that in the former we held as a matter of interpretation that knowledge that the victim was a peace officer and was engaged in the execution of his duty was a specific ingredient of the crime charged in that case, and that the charge had not been established in the absence of proof of that specific knowledge. But as a matter of interpretation I do not consider knowledge that the body is dead to be a specific ingredient of an offence against s. 167(b). All that is required is mens rea in the widest sense.

Mens rea is an uncertain term, and what it means varies with the different crimes and the statutes defining them; see Brett, J., in R. v. Prince, supra, at pp. 159, 162-3, where, although dissenting, he does not appear to be in disagreement with the majority on this point. See also Stephen, J., in R. v. Tolson, supra, at pp. 185-187. Without attempting an exhaustive definition of mens rea, it is sufficient to say that it may range from a general criminal intention to the possession of specific knowledge or a specific intention required as an essential ingredient of the crime, as in R. v. Rees (1954), 109 C.C.C. 266, 19 C.R. 123, 12 W.W.R. (N.S.) 403; affirmed (1956), 115.

The nature of the offence under s. 167(b) and the language of that section would not seem to require knowledge that the body is dead as a specific ingredient of an offence under that section, because in most cases that fact would be clear, and proof of a deliberate act improperly or indecently interfering with a body that was in fact dead would be sufficient proof of a criminal intention or mens rea. It would be only in the most exceptional case where the offender might have any doubt whether a body was quick or dead, and in such a case he might defend himself by showing that he did not know the body was dead and that according to his understanding he was acting lawfully and innocently. That is what the appellant cannot show in this case, because if the woman was alive he was raping her.
I would dismiss the appeal.

Appeal dismissed.

 

R. v. Burgess
Ontario Court of Appeal
[1970] 3 C.C.C. 268.

APPEAL by the accused from his conviction by Gardner, Prov. Ct J., on a charge of possession of opium contrary to s. 3 (1) of the Narcotic Control Act (Can.) {now the relevant statute is The Controlled Drugs and Substances Act} and his sentence of nine months definite and one year indeterminate.

The judgment of the Court was delivered orally by
BROOKE J.A.:— In this case, Burgess appeals from both his conviction and his sentence. He was convicted by W. S. Gardner, Q.C., Prov. Ct. J., on a charge of possession of a narcotic, to wit: opium, contrary to s. 3(1) of the Narcotic Control Act, 1960-61 (Can.), c. 35. Tothis charge he pleaded not guilty. Mr. Carter puts his case as to the conviction on the basis that the Crown having pleaded the particular that the narcotic in question was opium, the conviction ought to be set aside because the evidence is consistent only with the conclusion that the accused believed that the substance that he had in his possession was hashish which is another drug, the possession of which is prohibited under the Narcotic Control Act.

My brothers and I are all of the opinion that in these circumstances where the evidence is clear and consistent only with the conclusion that the accused knew the substance that he had in his possession was indeed a drug the possession of which was contrary to the statute, the fact that he mistakenly believed the drug to be hashish rather than opium is of no moment. It may be that the accused believed that the substance he had in his possession was hashish and even if that is so, it is not grounds for interfering with the conviction. In our opinion, we think that this case can be and ought to be distinguished from the judgments which have been referred to by Mr. Carter in his very able argument.

The appeal as against the conviction is dismissed...

 

R. v. Vlcko
Ontario Court of Appeal
[1972] 10 C.C.C. (2d) 139

APPEAL by the accused from his conviction for assaulting a peace officer engaged in the execution of his duty.
The judgment of the Court was delivered orally by
SCHROEDER J.A.:    The accused was charged that on or about February 9, 1972, at the Municipality of Metropolitan Toronto, he unlawfully did commit an assault on one Patrick Collins, a peace officer engaged in the execution of his duty.

The defence raised by the accused at the trial was twofold. One ground was that he was justified in taking measures to defend himself in the belief, induced by the drugs which he had ingested that he was being attacked by the police officer. The learned Provincial Judge rejected the defence of self-defence and, in our opinion, rightly so.

The other defence raised was that by reason of his mental condition resulting from the use of the drug LSD, the accused was not in a mental condition to know that the person whom he was alleged to have assaulted was in fact a peace officer. Reliance was placed upon the decision of the British Columbia Court of Appeal in R. v. McLeod (1954), 111 C.C.C. 106, 20 C.R. 281, 14 W.W.R (N.S.) 97, approved in R. v. Shand (1971), 3 C.C.C. (2d) 8, [1971] 3 W.W.R. 573, a judgment of the Manitoba Court of Appeal.

From a perusal of the very brief reasons delivered by the learned Provincial Judge it would appear that he did not address his mind to that issue. The plea really raised by the defendant was one of ignorantia facti with relation to a very essential feature of the case. For this reason the conviction cannot stand. The appeal is therefore allowed, the conviction quashed, and a new trial ordered.

Appeal allowed.

 

R. v. Kundeus
Supreme Court of Canada
[1975] 24 C.C.C. (2d) 276; [1976] 2 S.C.R. 272

LASKIN, C.J.C. (dissenting):—The issue in this appeal, brought by the Crown with leave of this Court, is whether the British Columbia Court of Appeal was right in concluding that the prosecution had failed to establish the necessary mens rea on a charge of trafficking in a restricted drug, namely, lysergic acid diethylamide (LSD), contrary to the Food and Drugs Act, R.S.C. 1970, c. F-27. I take the factual considerations to be those narrated and found by the trial Judge (who had convicted the accused) and which were accepted by the British Columbia Court of Appeal.

Briefly, they are as follows, based on the evidence of the undercover policeman who was involved in the transaction with the accused. The latter was at a table in a beer parlour calling out “speed, acid, MDA or hash” to passers-by. The policeman asked for hash or acid, to which the accused replied that he was all sold out. He then offered to sell mescaline at two dollars. The policeman accepted the offer and paid the accused four dollars for two “hits”. The accused left, returned in five minutes, and handed the policeman two capsules. In fact, these capsules contained LSD. The British Columbia Court of Appeal took the reasons of the trial Judge as involving a finding that although the accused in fact sold LSD, he intended to sell and thought he was selling mescaline and the policeman thought he was buying mescaline. The record in this Court does not admit of any other view.

It was not contended by the Crown, and, indeed, could not be under the applicable legislation, that proof of the actus reus involved in the charge was alone enough to support the conviction; proof of mens rea also rested upon the Crown: see Beaver v. The Queen (1957), 118 C.C.C. 129, [1957] S.C.R. 531, 26 C.R. 193. The conviction can, of course, be easily supported if it be enough to establish that the accused intended to traffic in drugs and that it is immaterial, save as a matter of description in the charge, what particular drug or class of drug was the subject of the trafficking. Such a view overlooks the legislative scheme governing various drugs and the applicable penal provisions. On that view, the accused would have to risk the range of penalties applicable to the trafficking in the drug which was in fact sold, albeit he thought that he was selling one with respect to which a much lighter scale of penalties was prescribed.

The scheme of the Food and Drugs Act isof considerable relevance in this case. Sections 40 and 42, on which the prosecution was based, are in Part IV of the Act dealing with “restricted drugs”, which are those included in sch. H. and LSD is one of those mentioned. Part III of the Act deals with “controlled drugs” which are those included in sch. G. and among them are amphetamine and methamphetamine. Sections 33 and 34 are provisions in Part III (relating to controlled drugs) which are to the same effect as ss. 40 and 42 relating to restricted drugs under Part IV. Sections 40 and 42 read as follows:

40. In this Part
“possession” means possession as defined in the Criminal Code;
“regulations” means regulations made as provided for by or under sections 45;
“restricted drug” means any drug or other substance included in Schedule H;
“traffic” means to manufacture, sell, export from or import into Canada, transport or deliver, otherwise than under the authority of this Part or the regulations.

42.(1) No person shall traffic in a restricted drug or any substance represented or held out by him to be a restricted drug.
(2) No person shall have in his possession any restricted drug for the purpose of trafficking.
(3) Every person who violates subsection (1) or (2) is guilty of an offence and is liable
(a) upon summary conviction, to imprisonment for eighteen months; or
(b) upon conviction on indictment, to imprisonment for ten years.
Mescaline is neither a controlled drug nor a restricted drug, but is a drug within sch. F. included thereunder by virtue of s. 15 of the Act (“no person shall sell any drug described in Schedule F”) and governed by Food and Drug Regulations, SOR Con. 1955, vol. 2, p. 1675, made pursuant to s. 25 of the Act. Section 15 of the Act is in Part I which deals with adulterated food, drugs and cosmetics, with deceptive advertising and labelling, with control of standards of manufacturing and with the sanitary condition of premises. Part II of the Act deals with administration and enforcement of the Act by inspectors and includes very wide Regulation-making powers set out in s. 25. Penalties for violation of the Act or of the Regulations are prescribed by s. 26 which reads as follows:
26. Every person who violates any of the provisions of this Act or the regulations is guilty of an offence and is liable
(a) on summary conviction for a first offence to a fine not exceeding five hundred dollars or to imprisonment for a term not exceeding three months, or to both, and for a subsequent offence to a fine not exceeding one thousand dollars or to imprisonment for a term not exceeding six months, or to both; and
(b) on conviction upon indictment to a fine not exceeding five thousand dollars or to imprisonment for a term not exceeding three years, or to both.
It is common ground that any offence under the Act or Regulations relating to the sale of mescaline would be punishable under s. 26. On the other hand, this provision would have no application to controlled or restricted drugs in the face of the penalty provisions of ss. 34 and 42 which alone govern illegal dealing in them. A comparison of the respective penalty provisions governing mescaline and LSD shows how much heavier the penalty is in respect of illegal dealing in the latter than in the former, both where the prosecution is on summary conviction and on indictment.

The Regulation respecting mescaline is s. C.01.041 which prohibits the sale of any substance containing a drug listed or described in sch. F unless on written or verbal prescription, and the Regulation goes on to elaborate on these types of prescriptions. I may observe here that it is not an offence to possess mescaline but it is an offence to possess a controlled or a restricted drug for the purpose of “trafficking”, defined (as already noted) to include, inter alia, selling, transporting and delivering.

Mescaline has been a sch. F drug since 1958: see P.C. 1958-450, SOR/58-115; P.C. 1959-956, SOR/59-274. The statutory history of its position in sch. F is somewhat involved, as witness the fact that by P.C. 1963-1119, SOR/.63-269 mescaline was included in a sch. F which was added to the Regulations under the Food and Drugs Act, operating apparently as supplementary to sch. F to the Act proper (SOR./63-269 was replaced by SOR/.65-548). In view of this history, I may note that there was error in the judgment of the Ontario Court of Appeal in R. v. Custeau (1971), 6 C.C.C. (2d)  179, [1979] 2 O.R. 250, 17 C.R.N.S. 127, in the statement therein that mescaline was a controlled drug. In that case, the accused was charged and convicted on appeal of trafficking in LSD although he thought he was selling mescaline. The Court of Appeal in entering the conviction gave as one of its reasons that it is an offence to traffic in either a controlled drug or a restricted drug and, although there were separate penalties prescribed, the maxim [sic] penalty was the same in either case. In fact, however, mescaline was not then nor ever was a controlled drug or a restricted drug.

It was the contention of the appellant Crown that the required proof of mens sea was furnished by evidence showing what Crown counsel called a general intention to traffic in drugs; and, this being shown, it was immaterial that the accused did not intend to traffic in the specific drug which was named in the charge but thought (as did his purchaser) that he was trafficking in another drug. Crown counsel thus takes the position to which I referred earlier in these reasons, and he stated in this connection that the accused could meet the case against him only by relying on mistake of fact which must be an honest mistake on reasonable grounds that the facts believed by him to be true would not attract culpability of any drug offence. That, according to Crown counsel, was not this case.

There are, in my opinion, three issues that stem from this submission. The first is whether mistake of fact arises at all as a separate defence for the accused in the face of the burden on the Crown to prove mens rea as an element of the offence charged. The offence charged was trafficking in a restricted drug, namely LSD; and although I would agree that proof of knowledge by the accused that he was trafficking in a drug of that class might be enough, even if it be not LSD, the question that must be faced is whether it is enough for the Crown to offer proof of trafficking in any drug or, as here, in a drug that is in a lower scale of prohibition and regulation.

Having regard to the evidence adduced at the trial, and to the findings of fact on that evidence, I do not think it necessary in the present case to consider the relationship between the Crown’s burden of proof, where mens rea is an element of the offence charged, and mistake of fact as an affirmative defence. Clearly enough, mistake of fact in that sense does not arise where proof of mens rea is an element of proof of the offence charged and the evidence adduced by the Crown does not establish it. If mistake is put forward in this context by evidence offered by or on behalf of the accused, it is only by way of meeting an evidentiary burden and raising a reasonable doubt that the Crown has met the persuasive burden of proof resting upon it. What we are concerned with here, on the record, is whether evidence by the Crown going to show that the accused intended to commit a lesser offence than that charged is enough to support the conviction entered after trial.

The second issue which arises on the Crown’s submissions is whether the mistake of fact must be objectively reasonable or whether it is enough that it be based upon an honest belief. Leaving to one side cases of strict criminal liability (on which the judgment of Dixon, J., in Proudman v. Dayman (1941), 67 C.L.R. 536, at pp. 539-41, is specially instructive), where serious criminal charges are involved this Court put the matter as follows in Beaver v. The Queen, supra, where Cartwright, J., said this [at p. 137 C.C.C., p. 538 S.C.R.]:
...the essential question is whether the belief entertained by the accused is an honest one and...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.
See also Director of Public Prosecutions v. Morgan, Law Report in The London Times, May 1, 1975.

The third issue, which is tied in with the first, is whether mistake of fact is shown on proof that, on the facts as the accused honestly believed them to be, he was innocent of the offence charged, albeit guilty of another offence, or whether he must show that he was innocent of any offence. This last matter invites consideration of a proposition advanced in R. v. Prince (1875), L.R. 2 C.C.R. 164 by the one dissenting Judge of the 16 who heard the case in the Court of Crown Cases Reserved. The majority of that Court held that mens rea was not an essential ingredient of the offence charged, which was unlawfully taking any unmarried girl under age 16, out of the possession and against the will of her father or mother. (The word “knowingly” was not in the charge). The accused reasonably believed that the girl he had abducted was over age 16. One of the points made by Brett, J., who dissented on the ground that mens rea was an ingredient of the offence as it related to age, was that where mens rea must be proved it would suffice to show, if the facts were as the accused believed them to be, that he would still be guilty of a crime albeit one of a lesser degree than that charged as a result of the actus reus.

I do not think that this view is any longer sustainable. The requirement that where the actus reus of an offence is proved there must also be proof of the mens rea of the same crime, is now basic in our criminal law. Williams, Criminal Law, 2nd ed. (1961), p. 129, makes the point when dealing with the question of “transferred malice” as follows:
The accused can be convicted where he both has the mens sea and commits the actus reus specified in the rule of law creating the crime, though they exist in respect of different objects. He cannot be convicted if his mens rea relates to one crime and his actus reus to a different crime, because that would be to disregard the requirement of an appropriate mens rea.
And again, at p. 131:
What are different crimes for the purpose of the rule depends primarily upon the arrangement of the statute; each section presumptively creates a different crime or group of crimes. It is possible for a single sentence of a section to create a number of different crimes, as is shown by the decisions on duplicity in pleading. If a section is thus held to create different crimes, it would not be possible to transfer the malice from one crime to another even within the same section.
See also, Smith and Hogan, Criminal Law, 3rd ed. (1973), pp. 49-51.

This is apt for the statutory situation which exists here and to which I have referred earlier in these reasons. Even if it be proper to describe trafficking in controlled drugs, whatever be the drug, or trafficking in restricted drugs, whatever be the drug, as being, in each case, a description of the same crime, I think it is impossible to bring mescaline within either category when it stands entirely outside the group of controlled or restricted drugs and is governed by other statutory provisions than those governing controlled or restricted drugs. I am unable to agree that where mens rea is an element of an offence, as it is here, it can be satisfied by proof of its existence in relation to another offence unless, of course, the situation involves an included offence of which the accused may be found guilty on his trial of the offence charged. A number of authors who have examined this problem in depth and, particularly in relation to the “lesser crime” doctrine, have come to this very conclusion: see Williams, op. cit., at pp. 185 ff., Howard, Australian Criminal Law, 2nd ed. (1970), pp. 375 ff., and Smith, “The Guilty Mind in the Criminal Law”, 76 L.Q.R. 78, at pp. 91 ff. (1960). If Judges are to be faced with a choice of policy in this area, it should be one consonant with fundamental principle, namely, that the actus reus and the mens rea must relate to the same crime: see Smith, “The Guilty Mind in the Criminal Law”, 76 L.Q.R. 78 (1960).

This view has been the subject of consideration and some application in a number of decisions of appellate Courts in Canada, some of which were considered and distinguished by the British Columbia Court of Appeal in the present case. I begin my reference to them by taking up first those cases that dealt with drug offences. The Custeau case, already mentioned, and R. v. Burgess, [1970] 3 C.C.C. 268, [1970] 2 O.R. 216, may be considered together as being cases where (on the assumption in Custeau that mescaline was a controlled drug) offences of the same quality were involved if the facts had been as the accused believed them to be. In Custeau, the offence charged was trafficking in a restricted drug; the accused would have it that there was trafficking in a controlled drug. Although it may well be proper to treat trafficking in a restricted drug as being essentially the same offence as trafficking in a controlled drug, the conviction is not sustainable on a wider principle of liability that the honest belief of the accused is of no avail unless it would result in his act being entirely innocent. In Burgess, the charge was unlawful possession of a narcotic, to wit opium and the defence was that the accused believed he had hashish which was a narcotic whose possession was similarly prohibited. This was simply a case of the actual and intended act constituting the same crime, both drugs being in the class of narcotics and caught by the same penal provision, namely s. 3 of the Narcotic Control Act, R.S.C. 1970, c. N-1.

R. v. Blondin (1970), 2 C.C.C. (2d) 118, [1971] 2 W.W.R. 1, a judgment of the British Columbia Court of Appeal (of which McFarlane, J.A., who delivered the reasons in the present case, was a member), also concerned an offence involving a narcotic which proved to be cannabis resin or hashish. The charge was unlawfully importing a narcotic, namely, cannabis resin. The trial judge had charged the jury that the Crown was obliged to prove that the accused knew that the narcotic was that alleged in the indictment. This was held to be misdirection, the appellate Court being of the opinion, in the light of Burgess and other cases cited, that it was a proper direction to the jury that it was enough if the accused knew that some kind of narcotic was involved. This view of the matter was affirmed by this Court on appeal: see Blondin v. The Queen (1971), 4 C.C.C. (2d) 566, [1971] S.C.R. v, [1972] 1 W.W.R. 479. I may note here that under the Narcotic Control Act the importation of all narcotics is caught by a single proscription, namely s. 4 of the Act, so that the same offence is involved regardless of the narcotic. The British Columbia Court of Appeal also held that it was not a proper instruction that the accused might be found guilty of unlawfully importing a narcotic if he knew that it was illegal to import the substance that was found although he did not know it was a narcotic. In short, there was a marked difference between the offence of importing a narcotic and that of smuggling goods in breach of the Customs Act, R.S.C. 1970, c. C-40; mens rea in the latter respect was not enough to support a conviction of the former. This point was not passed upon by this Court, but it was referred to by McFarlane J.A., in delivering the judgment of the British Columbia Court of Appeal in the present case, to distinguish Blondin.

A second group of cases which considered “the lesser crime” doctrine is illustrated by R. v. McLeod (1954), 111 C.C.C. 106, 20 C.R. 281, 14 W.W.R. (N.S.) 97, which involved a charge of assaulting a peace officer in the execution of his duty, contrary to what is now s. 246(2)(a) of the Criminal Code. The question at issue was whether proof must be made that the accused knew that the victim was a peace officer. The British Columbia Court of Appeal held that this was an essential element of the offence charged and, notwithstanding that there was an assault, the requirement of mens rea was not satisfied by proof of a lesser crime, that is, common assault. A different view in the same situation was taken by the High Court of Australia in a majority judgment in R. v. Reynhoudt (1962), 107 C.L.R. 381, which held that it was enough for the Crown to establish the intentional assault, without being required to prove that the accused knew that the person assaulted was a peace officer acting in the execution of his duty. The dissenting judgment of Dixon, C.J., was to the effect that intent must go to all the elements of the whole offence, an opinion shared by Kitto, J. The South African Supreme Court, Appellate Division, in R. v. Wallendorf, [1920] S.A.L.R. 383, took a similar majority view to that in the Reynhoudt case in holding that it was not essential to prove that the accused knew that the victim of the assault was a constable.

A different class of case, raising the question of mens rea referable to a more serious crime than that charged, is R. v. Ladue, [1965] 4 C.C.C. 264, 45 C.R. 287, 51 W.W.R. 175, a judgment of the Yukon Territory Court of Appeal which is staffed by members of the British Columbia Court of Appeal. The charge was indecently interfering with a dead human body, and the evidence showed copulation or attempted copulation with a woman who was then dead, albeit the accused testified that by reason of his intoxication he did not know that she was dead. The Court held that knowledge that the woman was dead was not an ingredient of the offence, and hence, I take it, not an element requiring proof by the Crown. The Court also appears to have held, somewhat inconsistently, that proof that he did not know the woman was dead could be offered in defence by the accused, but it added that here he would be in the dilemma of admitting to rape (there being no question of consent), a more serious offence than that charged. It does occur to me, however, that the facts being what they were, the proper charge ought to have been attempted rape.

Is any general principle deducible from the foregoing catalogue of instances? Certainly, it cannot be said that, in general, where mens rea is an ingredient of an offence and the actus reus is proved it is enough if an intent is shown that would support a conviction of another crime, whether more or less serious than the offence actually committed. Coming to the particular, to the case before this Court, where proof is made of an actus reus that, in a general sense, is common to a range or variety of offences which require mens rea but those offences differ as to gravity by reason of different classifications and different penalties, is a charge of a more serious offence established by proof only that the accused intended to commit and could have been found guilty of a less serious, a lesser offence? The matter, in terms of principle, depends on how strict an observance there should be of the requirement of mens rea. If there is to be a relaxation of the requirement, should it not come from Parliament, which could provide for the substitution of a conviction of the lesser offence, in the same way as provision now exists in our criminal law for entering a conviction on an included offence?

This position is the one taken by the Model Penal Code of the American Law Institute (1962) which provides as follows in s. 2.04 (2):
Although ignorance or mistake would otherwise afford a defence to the offense charged, the defense is not available if the defendant would be guilty of another offense had the situation been as he supposed. In such case, however, the ignorance or mistake of the defendant shall reduce the grade and degree of the offence of which he may be convicted to those of the offense of which he would be guilty had the situation been as he supposed.
In the present case, and under present Canadian law, this sensible solution to a different problem is not open to this Court.

There may be some regret on the part of a Court to free a person who appears to be guilty of an offence with which he has not been charged. That regret, if any there be, cannot be a vehicle for making a particular charge which cannot be proved serve as a foundation for imposing culpability of another, which is not an included offence. If there is to be a modification of principle in a situation like the present one, it must come from Parliament.

I return in this connection to the judgment of this Court in Beaver v. The Queen, which also involved a conviction of selling a narcotic drug as well as a conviction of possession. In respect of both charges the appellant’s position was that he believed that a harmless substance, sugar of milk, was contained in the package sold to an undercover policeman, and did not know that the package contained a narcotic. There was this difference in the formulation of the two offences: the possession offence was one simply of forbidden possession of a narcotic without lawful authority, while the selling offence related to sale of any substance represented or held out to be a drug. Because there was evidence of such a representation or holding out, the conviction of selling was affirmed. Parliament, in short, had made a distinction in the applicability of mens rea to each of the two offences.

There is another consideration which should be brought into account in this case. The Crown’s case was built on evidence of an undercover policeman which must have been as well known to the prosecuting authorities before the trial as it was as a result of the trial. I can appreciate that there could have been some difficulty in determining what charge should be laid on the facts disclosed by the chief Crown witness. Although the Crown may have felt that it could support the charge actually laid, it could also, as a matter of precaution, have laid a charge of attempting to traffic in mescaline. Such a charge is supportable under s. 24 of the Criminal Code which makes it immaterial whether it was possible or not to commit the intended offence: see 10 Hals., 3rd ed., p. 306; R. v. Scott, [1964] 2 C.C.C. 257, 45 W.W.R. 479. I have already indicated the view of the facts that the record compels. If there should be any doubt on the evidence whether the accused offered and intended to sell mescaline, that doubt cannot be translated into an affirmative finding, certainly not in this Court, that he offered and intended to sell LSD. At the worst,  it would require a new trial.

I see no such doubt and, on the considerations I have canvassed, I would dismiss the appeal.

MARTLAND, J., JUDSON, J., and RITCHIE, J., concur with DE GRANDPRÉ, J.
SPENCE, J., concurs with LASKIN, C.J.C.

PIGEON, J., DICKSON, J., and BEETZ, J., concur with DE GRANDPRÉ, J.
DE GRANDPRÉ, J.:—With leave of this Court, the Crown appeals the unanimous judgment of the British Columbia Court of Appeal (17 C.C.C. (2d) 345) setting aside the conviction of respondent. In the words of the indictment, Kundeus was charged that he did on the 24th day of August A.D. 1972, unlawfully traffic in a restricted drug, to wit: Lysergic Acid Diethylamide (LSD), contrary to the provisions of the Food and Drugs Act.

... After having stated that the sole issue was mens rea, the trial Judge examined the relevant parts of the Food and Drugs Act, R.S.C. 1970 c. F-27, and of the Food and Drug Regulations, SOR Con. 1955, vol. 2, p. 1675 [am. SOR/65-548, sch. 55, s. 2] thereunder, as well as the cases of R. v. Blondin (1970), 2 C.C.C. (2d) 118, [1971] 2 W.W.R. 1 (confirmed by this Court 4 C.C.C. (2d) 566, [1971] S.C.R. v, [1972] 1 W.W.R. 479); R. v. Burgess, [1970] 3 C.C.C. 268, [1970] 2 O.R. 216, and R. v. Custeau (1971), 6 C.C.C. (2d) 179, [1972] 2 O.R. 250, 17 C.R.N.S. 127, and concluded:

The Court has considered the evidence in this trial and the able submissions of respective Counsel.

The Court concludes that the prosecution has proved, beyond a reasonable doubt, the guilt of the Accused . . .
Respondent inscribed an appeal alleging an error involving a question of law upon the following ground:
The learned trial judge misdirected himself in law in holding that if he was satisfied beyond a reasonable doubt that the accused knew it was illegal to sell the drug mescaline, although said drug is not a restricted drug as defined in the Food and Drugs Act, and in fact intended to sell the drug mescaline, he should convict the accused of trafficking in L.S.D., a restricted drug under the Food and Drugs Act, when the substance sold as mescaline analyzed to be L.S.D., even if the accused did not know that the substance was in fact the restricted drug L.S.D.
The Court of Appeal disagreed with the conclusion reached by the trial Judge and specifically refused to follow R. v. Custeau. The conviction was consequently set aside.

Mens rea cannot, of course, be examined without reference to Beaver v. The Queen (1957), 118 C.C.C. 129, [1957] S.C.R. 531, 26 C.R. 193. In that case, there was evidence on which the jury might have found that Beaver had no knowledge that the substance was a drug but believed it to be sugar of milk. It is in that context that the following excerpt from the reasons of Cartwright, J., as he then was, must be read [at p. 137 C.C.C., p. 538 S.C.R.]:
... 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.
The question to which Cartwright, J., was directing his attention is made very clear in the illustration he uses at pp. 134-5 C.C.C., p. 536 S.C.R.:
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 contains 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 ofhaving 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 ofthe 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.
Our facts are different. They are very simple and not contradicted. One reading of them is that Kundeus was offering LSD for sale, actually sold LSD and received payment therefor. On that reading, it is obvious that the conviction should have been affirmed.

Another reading is that adopted by the Court of Appeal and expressed by McFarlane, J.A., speaking for the Court (at pp. 345-6):
The evidence disclosed, and the trial Judge found, that the appellant offered to sell mescaline at two dollars to a police constable acting undercover. The constable accepted the offer and paid the appellant four dollars for two “hits”. The appellant left, returned in about five minutes and handed the constable two capsules which were found, on analysis, to contain LSD.
I think I must interpret the reasons for judgment of the trial Judge as a finding that although the appellant did in fact sell LSD he thought he was selling, and intended to sell, mescaline and that the constable also thought he was purchasing Mescaline.

Assuming that this reading of the trial judgment is the proper one, was the Court of Appeal right in holding that the necessary mens rea had not been proved? I do not believe so.

In R. v. Blondin, supra, a case dealing with the importation of narcotics, the Crown succeeded on the following ground of its appeal [at p. 124 C.C.C., p. 6 W.W.R.]:
“(e) THAT the learned trial judge misdirected the jury in instructing it that the Crown was obliged to prove beyond a reasonable doubt that the accused knew that the contents of the scuba diving tank (Exhibit 1) was a narcotic drug as alleged in the Indictment herein, namely, Cannabis Resin.”
After a full review of the authorities, Robertson, J.A., concluded [at p. 131 C.C.C., pp. 13-14 W.W.R.]:
Basing my opinion upon what I understand to be the principle enunciated in the several passages I have quoted, I am of the respectful opinion that the learned trial Judge erred when he instructed the jury that, in order to find Blondin guilty, they must find that he knew that the substance in the tank was cannabis resin. It would be sufficient to find, in relation to a narcotic, mens rea in its widest sense.
An appeal to this Court by the accused was dismissed by the full Bench in the following terms:
We agree that the Court of Appeal rightly allowed the appeal and directed a new trial on ground (e) of the Notice of Appeal to that Court.
That judgment must be read with another decision of this Court, namely, R. v. King (1962), 133 C.C.C. 1, 35 D.L.R. (2d) 386, [1962] S.C.R. 746, where the facts, the question submitted to this Court and the holding are expressed in the headnote [at p. 747 S.C.R.]:
The accused went to his dentist by appointment to have two teeth extracted. He was injected with a drug known as sodium pentothal, a quick-acting anaesthetic. Earlier, he had been required to sign a printed form containing a warning not to drive after the anaesthetic until his head had cleared. After he regained consciousness, the nurse in attendance, to whom he appeared to be normal, warned him not to drive until his head was “perfectly clear”. He replied that he intended to walk. The accused said that he heard no such warning and did not remember signing any form containing a warning. He remembered getting into his car and that while driving he became unconscious. His car ran into the rear of a parked vehicle. Medical evidence was given that his mental and physical condition (he was staggering and his co-ordination was poor) was consistent with the after-effects of the drug in question which may induce a state of amnesia accompanied by a period during which the subject may feel competent to drive a car and in the next second be in a condition in which he would not know what was happening. The accused stated that he did not know anything about this drug.
He was charged and convicted of the offence of driving a motor vehicle while his ability to do so was impaired by a drug, contrary to s. 223 of the Criminal Code. After a trial de novo before a County Court judge under s. 720 of the Code, his conviction was affirmed. The Court of Appeal granted him leave to appeal and quashed the conviction. The Crown was granted leave to appeal to this Court on the question as to whether mens rea relating to both the act of driving and to the state of being impaired was an essential element of the offence.

I refer particularly to a paragraph of the reasons of Ritchie, J., speaking also for the Chief Justice and for Martland, J., at p. 18 C.C.C., p. 400 D.L.R., p. 763 S.C.R.:
The existence of mens rea as an essential ingredient of an offence and the method of proving the existence of that ingredient are two different things, and I am of the opinion that when it has been proved that a driver was driving a motor vehicle while his ability to do so was impaired by alcohol or a drug, then a rebuttable presumption arises that his condition was voluntarily induced and that he is guilty of the offence created by s. 223 and must be convicted unless other evidence is adduced which raises a reasonable doubt as to whether he was, through no fault of his own, disabled when he undertook to drive and drove, from being able to appreciate and know that he was or might become impaired.
In the case at bar, such a rebuttable presumption has arisen. No evidence having been tendered by the accused, it is not possible to find that he had an honest belief amounting to a non-existence of mens rea and the Court of Appeal was in error in its conclusion.

The quality of respondent’s conduct is not to be determined by the existence or non-existence of a binding civil agreement as to the purchase of LSD between him and the constable. That is not the test. In Poitras v. The Queen (1973), 12 C.C.C. (2d) 337, 37 D.L.R. (3d) 411, [1974] S.C.R. 649, where the question was to determine the exact meaning of “trafficking” under the Narcotic Control Act, R.S.C. 1970, c. N-1, Dickson, J., speaking for the majority, wrote at p.342 C.C.C., p. 416 D.L.R.:
It was argued on behalf of the appellant that the words “to buy” do not appear in the definition of “trafficking” under the Narcotic Control Act, therefore a mere purchaser does not traffic and an agent for the purchaser comes under the same protective umbrella. I do not agree. One cannot apply the civil law of “agency” in this context. “Agency” does not serve to make non-criminal an act which would otherwise be attended by criminal consequences. Even if the appellant could be said to be the “agent” of Constable Arsenault for the purposes of civil responsibility, his acts may, none the less, amount to trafficking in narcotics or aiding in such trafficking. If, as the trial Judge would seem to have found, the evidence was consistent with the accused delivering or selling or trading in drugs or offering to do so, the fact that he may have been acting as an agent for Arsenault would not exculpate him.
In my view, the result in R. v. Custeau was the proper one and this notwithstanding the error committed by the Court of Appeal of Ontario and underlined by the Court of Appeal of British Columbia in the case at bar, mescaline having been described as a controlled drug when it is a drug mentioned in the Regulations under the Act which cannot be sold without a prescription.

I would allow the appeal, set aside the order of the Court of Appeal of British Columbia and restore the judgment at trial together with the sentence imposed thereat.

Appeal allowed; conviction and sentence restored.

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LRCC § 3(2)

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MPC § 2.04(1)

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StGB § 16

 

2. Mistake of Law

R. v. Campbell and Mlynarchuk
District Court, Judicial District of Edmonton, Alberta
[1972] 10 C.C.C. (2d) 26

KERANS, D.C.J. (orally):—This is an appeal by Darlene Agatha Campbell from conviction and sentence on a charge before the summary conviction Court that she did, between February 9, 1972, and February 21, 1972, at the City of Edmonton, in the Province of Alberta, unlawfully take part as a performer in an immoral performance at Chez Pierre’s situated at 10615-Jasper Ave., Edmonton, contrary to s. 163(2) {now s. 167(2)} of the Criminal Code.

This matter, therefore, comes before me by way of a trial de novo. That section provides, in s-s. (2):

(2) Everyone commits an offence who takes part or appears as an actor, performer, or assistant in any capacity, in an immoral, indecent or obscene performance, entertainment or representation in a theatre.
The facts before me are relatively straightforward. On the dates in question, at the place in question, the appellant danced on stage, before an audience. At the start of her performance, she was wearing some clothes. By the end of her performance, she was not wearing any clothes. The dance was described to me as a “go-go dance” which, I understand, is a violent movement of almost all parts of the body, more or less in time to strongly rhythmic music.

I have no doubt in coming to the conclusion that this is a performance within the meaning of the section, and that, in doing what she did, the appellant took part as a performer in that performance. On the question of whether or not the performance was immoral, both counsel have agreed that I am bound to follow the recent decision of the Appellate Division of the Supreme Court of Alberta in R. v. Johnson (No. 1) (1972), 8 C.C.C. (2d) 1, [1972] 5 W.W.R. 638. This was a stated case before the learned Riley, J. [6 C.C.C. (2d) 462, [1972] 3 W.W.R. 226], and appealed from him to the Appellate Division.

In that case, McDermid, J.A., speaking for the Court, said, after drawing attention to the fact that s. 170 of the Criminal Code makes it a crime for anyone to appear nude in a public place, that he understood the enactment of that offence, by the Parliament of Canada, and, I quote, “declared that it is a breach of a moral standard in Canada”. And he goes on, “We know of no better way of establishing a moral standard than a declaration by the Parliament of Canada, and so the Provincial Judge was justified in accepting this as his standard in finding that the dance by the respondent in the nude was an immoral performance.” I understand, therefore, that since, to be nude in a public place is itself an offence to perform in the nude, therefore, is an immoral performance within the meaning of the charging section. Therefore, I must conclude that the performance here was immoral within the meaning of that section.

I have been told that the decision of the Appellate Division has been appealed to the Supreme Court of Canada [8 C.C.C. (2d) 279n]. In some cases it is considered appropriate to adjourn or reserve, pending the outcome of an appeal. In my view, this rule should not be followed in the case of appeals from the Appellate Division to the Supreme Court of Canada, for various reasons. One is the delay of time involved. Therefore, on this point, the position of the parties would have to be that, should the Appellate Division decision not be upheld, my decision must also be appealed.

[Kerans D.C.J. rejected the appellant’s argument that the performance did not take place in a theatre and continued:]

The next argument raised on behalf of the appellant is that the appellant lacked the necessary mens rea for this offence. The facts in this respect were these: she engaged to do this performance, where, earlier, she had refused to engage to do this performance, because she relied upon the statement made to her, by Pierre Couchard, that he, in turn, had been informed that a Supreme Court Judge had, to use his words because he also gave evidence, “Ruled that we could go ahead with bottomless dancing.” That decision arose out of a charge in the City of Calgary, of a business acquaintance of Couchard, who was the manager of the place where this performance took place. Ironically, the decision to which Couchard and the appellant referred is the decision at the Trial Division level in R. v. Johnson (No. 1), to which I earlier referred, and which, the witnesses tell me, obtained some newspaper publicity. It was a decision then, that subsequently was reversed on appeal.

Mistake of fact is a defence to a criminal charge, where it can be said that the facts believed by the accused, if true, would have afforded him a defence. It is also said that a mistake of mixed fact and law is a defence. I understand that proposition to be correct, simply because, if there is a mistake of mixed fact and law, then there is a mistake of fact. In my view, there was no mistake of fact by the appellant here. What she was told had happened, in fact, did happen.

Her mistake, if she made any mistake, was in concluding that a statement of law, expressed by the learned Riley, J., was the law. That is not a mistake of fact, that is a mistake of law. It is a mistake of law to misunderstand the significance of the decision of a Judge, or of his reasons. It is also a mistake of law to conclude that the decision of any particular Judge correctly states the law, unless that Judge speaks on behalf of the ultimate Court of Appeal.

This is not a situation like others, where a mistake of law can be a defence, not because a mistake of law is a defence but because a mistake of law can negative a malicious intent required for that crime. Thus, for example, where the law requires that a person wilfully, or maliciously, or knowingly, does something wrong, it could conceivably be a defence as negativing intention, to show that, because of the mistake in the understanding of the law, there was no wilful intent or malice. This is not one of those situations, as no such special intention is required for this offence. The only mens rea required here is that the appellant intended to do that which she did. And there is no suggestion, for a moment, that she lacked that mens rea.

This statement, that mistake of law is no defence, is contained in the Criminal Code, in s.19, under the old numbering, which says:
19. Ignorance of the law by a person who commits an offence is not an excuse for committing that offence.
Excuse, or legal justification, is a defence at law, and I understand that defence to mean that it is a defence to a criminal charge to show that the act complained of was authorized by some other law. Section 19 says that defence is not available in effect, when a person has made a mistake as to whether or not this act is excused by another law or authorized by another law.

Properly understood, in my view, the section removing ignorance of the law as a defence, in criminal matters, is not a matter of justice, but a matter of policy. There will always be cases, not so complicated as this, where honest and reasonable mistakes as to the state of the law will be the explanation of the conduct of an accused. In such a circumstance, one cannot help but have sympathy for the accused. But that situation, traditionally, is not a defence. It is not a defence, I think, because the first requirement of any system of justice, is that it work efficiently and effectively. If the state of understanding of the law of an accused person is ever to be relevant in criminal proceedings, we would have an absurd proceeding. The issue in a criminal trial would then not be what the accused did, but whether or not the accused had a sufficiently sophisticated understanding of the law to appreciate that what he did offended against the law. There would be a premium, therefore, placed upon ignorance of the law.

Our Courts, following the traditions of English jurisprudence, have closed that avenue from consideration in the criminal court-room. I respectfully disagree with the learned American Judges in those cases cited by the counsel for the appellant.

The defence should not be allowed as a matter of public policy, contrary to the statement of those learned Judges. Indeed, it cannot be allowed because of public policy. This is the case, notwithstanding the sympathy evoked by the situation of an accused person.

Kenny, in his book, Outlines of Criminal Law, and I am quoting from the first edition, said at p. 69:
...although mistakes of law, unreasonable or even reasonable, thus leave the offender punishable for the crime which he has blundered into, they may of course afford good grounds for inflicting on him a milder punishment.
That is the only relevance, in my view, of the situation in which the appellant finds herself.

I have given some consideration as to whether or not this position varies at all, because of the unique circumstances here, where the appellant relied upon a specific judgment of a Court very immediate in terms of time and place, as opposed to a solicitor’s opinion or some understanding as to the law. There is no question that there is something of an anomaly here. Reliance on a specific order, of a specific Judge, granted at a specific time and place, seems, at first sight, not to be ignorance of the law, but knowledge of the law. If it turns out that that Judge is mistaken, then, of course, the reliance on that Judge’s judgment is mistaken. The irony is this: people in society are expected to have a more profound knowledge of the law than are the Judges. I am not the first person to have made that comment about the law, and while it is all very amusing, it is really to no point.

The principle that ignorance of the law should not be a defence in criminal matters is not justified because it is fair, it is justified because it is necessary, even though it will sometimes produce an anomalous result.

When this appellant relied on the decision of the learned trial Judge, she relied on his authority for the law. As it turns out, that reliance was misplaced, as misplaced as reliance on any statement as to the law I might make. Less so, I am sure....

I have already indicated, in a quotation from Kenny, that, in this awkward situation, the matter does not afford a defence, but should certainly be considered in mitigation of sentence. Indeed, there are several cases, not as awkward as this, in the law reports, involving a person who had an honest and reasonable mistake in belief as to the law, and for whom the Courts expressed sympathy, and, in respect of whom, sentence was mitigated.

It is at this stage where the scales of justice are balanced. Clothed with very recent power to refuse to enter a conviction, I can now balance the scales of justice even more delicately. I have read a note in vol. 14 of the English and Empire Digest, at p. 51 of an old case, R. v. Bailey (1800), Russ & Ry. 1, 168 E.R. 651. It goes back to 1800. In that case, the Government of England had passed a statute, making something a crime which was not previously a crime. Subsequently, the accused did the forbidden act. The Courts found that, in fact, in the district in which this crime was committed no news had yet reached anyone of the passage of this Act. Nor could any news have reached this district of the passage of this Act. And that the accused, therefore, had to be convicted of an offence which he did not and could not have known was an offence. And they said there that the proper way of dealing with the matter was to give a pardon, which I understand to be a conviction followed immediately by the wiping out of a conviction.

I have no power to give a pardon, but I do have power to give an absolute discharge. In my view, this is the proper case.

I have considered the fact that this lady apparently also committed the crime of being nude in a public place. I say apparently, carefully, as I do not wish to accuse her of something wrongly. But it is difficult not to come to that conclusion.

However, it is not my function here to sentence her for crimes that she may have been guilty of, but which she is not charged with today, and, therefore, I do not take that into consideration. It perhaps can also be argued that no reasonable person could find, in the judgment of Riley, J., justification for some of the things that this lady is alleged to have done. But to argue that would be to argue that she would have to have a rather sophisticated knowledge of what he said, and the significance of what he said, and that is unreal. She understood, as she said, that some Judge had said dancing bottomless is now okay, and I cannot reasonably test her understanding on that too closely. Also, I have given consideration to whether or not there ought to be deterrent here.

I am not aware, perhaps I am naive, but I am not aware that these tawdry nude night-club acts, of this sort, have become a prevalent problem in our community. Therefore, I think, out of the sense of justice, and certainly not out of any sense of approval for what this lady did, it would be appropriate for me to grant her an absolute discharge, and that is what I do. ...

Accused discharged absolutely.

 

R. v. Ross
British Columbia County Court
[1944] 84 C.C.C. 107

HARRISON CO. CT. J.: An appeal, under the provisions of the Summary Convictions Act, R.S.B.C. 1936, c. 271, from the conviction of the appellant on September 22, 1944, by J. H. Boyd, Esq., a Stipendiary Magistrate, whereby the appellant was convicted, for that he on or about Sunday, September 10, 1944, at Cowichan Lake in the County of Nanaimo, unlawfully and in violation of the provisions of the Forest Act, R.S.B.C. 1936, c. 102, did, for the purpose of hunting, enter the Vancouver Forest District which was declared a closed district as from 12 o’clock noon of September 8, 1944, by order of the Minister of Lands pursuant to the power conferred upon the said Minister by s.s. (1) of s. 119 of the Forest Act, without first obtaining from the Forest Branch a written permit therefor, and was thereby fined the sum of $50 and costs.

It is common ground that the Vancouver Forest District mentioned in the conviction includes within its area Vancouver Island and certain parts of the mainland of British Columbia, and that Cowichan Lake and the territory adjacent thereto is on Vancouver Island and within the aforesaid forest district; and that by written order (which bears no date) of the Minister of Lands made pursuant to s.s. (1) of s. 119 of the Forest Act Vancouver Island was declared a closed district or area within which, as of 12 o’clock noon of September 8, 1944, no person could enter for the purpose of hunting without a written permit therefor from the Forest Branch; and that no such permit was granted to the appellant.

I find from the evidence adduced the following salient facts, namely: That the appellant on September 7, 1944, in company with three companions, named Tuson, Sword, and Burr, all of whom reside at Victoria City, B.C., left that city by motor car, with the intention of hunting and fishing at Cowichan Lake, and they arrived there in the evening of that day and rented a cabin, being one of several cabins known as the “Cedar Cabins,” situate at that lake; that the appellant, as he frankly admits, on or between September 8 and 10, 1944, indulged in some hunting activities in the timber slashing contiguous to the lake, and that he, accompanied by his companions in a launch, went on the lake on the 10th day, and on which occasion and before being accosted by some forest and game officials, hereinafter referred to, he, the appellant, did some hunting, presumably on the lake shore or beaches thereof, and that on that date, at or about 7:30 o’clock in the evening, while the appellant and his companions were in their launch, they were accosted by some forest and game officials who were in another launch and, upon being requested to produce their respective hunting licences, they did so, and that at that time one of the officials mentioned the aforesaid order of closure, whereupon the appellant and his companions drove their launch back to the cabin, and on the next day all of them returned to Victoria.

I have no hesitation in accepting the evidence of the appellant to the effect that, at no time previous to being accosted by the forest and game officials, as aforesaid, did he have any knowledge or notice of the order in question.

At this juncture, I might add that the appellant and his companions were, during this entire episode, members of the militia coast rangers and of some voluntary forest fire-fighting organization or body.

There was no evidence adduced of promulgation of the said order, or to indicate any circumstances from which it might be inferred that it was probable or likely that the appellant or any of his companions would or could have had notice of such order, prior to their said meeting with the forest and game officials.

Counsel for the appellant advances two grounds, either one of which he submits is fatal to the conviction, namely: (1) That there was no promulgation of the order and the appellant had no knowledge or notice of the order, at any material time; (2) That the facts show that the appellant did not “enter” the closed area, within the meaning of that word as contained in the order and in the Forest Act.

Counsel for the respondent, in addition to his argument respecting the question of “enter” as advanced by the appellant, submits, in effect, that by reason of the provisions of s. 135 of the Forest Act the order, when made, became invested with the same legal force as an actual part of the Forest Act, and that by reason of the relevant provisions of that Act the order is upon the same footing as regards “notice” as is any Act of the Legislature.

I am unable to agree with this point of view as it affects the question of “notice,” for the following reasons:

Briefly, amongst other things, before a public Act can receive the Royal assent and become law it must first, in the form of a bill, be presented to and deliberated upon and conveyed or passed, through its different stages at different times and on different days, by the action of the members of the Legislative Assembly in concourse duly assembled in the proper place designated for that purpose, at which the public, including representatives of the press, are generally permitted to be present. Therefore the proceedings necessary to enact and bring into force an Act or law binding upon the public give to it a certain measure of publicity, and it is not difficult to understand why it is a general rule of law that one cannot successfully plead ignorance of such an Act or law.

But, on the other hand, an order made by a Minister, such as the one under discussion, is on a different footing than is an Act of the Legislature. The making of such an order is at the discretion of the Minister himself, as appears by the provisions of s. 119 of the Forest Act, and is drawn up and signed in his private office or some other private place, as I assume was the case with the order in question.

There does not appear to be any provision in the Forest Act, or any other Act, that I can find, requiring promulgation of such an order, nor any provisions excluding such a requirement.

I think it hardly compatible with justice that a person may be convicted and penalized, and perhaps lose his personal liberty by being committed to jail in default of payment of any fine imposed, for the violation of an order of which he had no knowledge or notice at any material time.

I think this view of the matter, without the necessity of further enlargement, is fairly in accord with the decisions rendered, respectively, in Johnson v. Sargant & Sons, [1918] 1 K.B. 101, and Brightman & Co. v. Tate, [1919] 1 K.B. 463, 35 T.L.R. 209.

It therefore follows that the appeal herein is allowed and the conviction quashed and set aside. I do not find it necessary, under the circumstances, to deal with the argument respecting “entry” as advanced by appellant’s counsel.

Appeal allowed.

 

The STATUTORY INSTRUMENTS ACT
Stat. Can. 1970-71-72, c. 38

10.       (1) The Queen’s Printer shall continue to publish the Canada Gazette asthe official gazette of Canada.
11.       (1) Subject to any regulations made pursuant to paragraph 20(c), every regulation shall be published in the Canada Gazette within twenty-three days after copies thereof are registered pursuant to section 6.
(2) No regulation is invalid by reason only that it was not published in the Canada Gazette, but no person shall be convicted of an offence consisting of a contravention of any regulation that at the time of the alleged contravention was not published in the Canada Gazette in both official languages unless
(a) the regulation was exempted from the application of subsection (1) pursuant to paragraph 20(c), or the regulation expressly provides that it shall apply according to its terms before it is published in the Canada Gazette, and
(b) it is proved that at the date of the alleged contravention reasonable steps had been taken to bring the purport of the regulation to the notice of those persons likely to be affected by it.

20. The Governor in Council may make regulations,
(a) exempting any proposed regulation or class of regulation from the application of subsection 3(1) where that regulation or class of regulation would, if it were made, be exempted from the application of subsection 5(1) or 11(1) as a regulation or class of regulation described in subparagraph (c)(ii);
(b) exempting any class of regulation from the application of subsection 5(1) where, in the opinion of the Governor in Council, the registration thereof is not reasonably practicable due to the number of regulations of that class;
(c) subject to any other Act of Parliament, exempting from the application of subsection 11(1)
(i) any class of regulation that is exempted from the application of subsection 5(1),
(ii) any regulation or class of regulation where the Governor in Council is satisfied that the regulation or class of regulation affects or is likely to affect only a limited number of persons and that reasonable steps have been or will be taken for the purpose of bringing the purport thereof to the notice of those persons affected or likely to be affected by it, or
(iii) any regulation or class of regulation where the Governor in Council is satisfied that the regulation or class of regulation is such that publication could reasonably be expected to be injurious to
(A) the conduct by the Government of Canada of federal-provincial affairs, or
(B) the conduct of international affairs, the defence of Canada or any state allied or associated with Canada, as defined in subsection 15(2) of the Access to Information Act, or the detection, prevention or suppression of subversive or hostile activities, as defined in that subsection...

 

R. v. Molis
Supreme Court of Canada
[1980] 55 C.C.C. (2d) 558; [1980] 2 S.C.R. 356

LAMER J.:—This appeal is from the judgment of the Court of Appeal for Ontario dismissing one Albert Peter Molis’ appeal from conviction in the General Sessions of the Peace at Toronto, in the Judicial District of York, in Ontario, on an indictment that he and an alleged accomplice, one Brian Middleton Hawkins “unlawfully did, at the Municipality of Metropolitan Toronto, in the Judicial District of York and elsewhere in the Province of Ontario, between the 1st day of January in the year 1976 and the 26th day of August in the year 1976, both days inclusive, traffic in a Restricted Drug, to wit: 34-Methylenedioxy-N-methylamphetamine, contrary to Section 42(1) of the Food and Drugs Act.” (A.C. 1)....

Molis and Hawkins attracted the attention of the Toronto R.C.M.P. drug squad in January, 1976. Appellant Molis had been operating since August, 1975, a laboratory in partnership with Hawkins through a limited company under the name of “Organic/Inorganic Research and Development Limited”. This laboratory was, at least according to appellant and using his words, “basically to develop a line, test kits for determination of dangerous drugs, to manufacture a line of cosmetics, and to eventually get into the production of a limited quantity of research grade chemicals” (A.C. 2, p. 201). The police became concerned after “It had been ascertained that chemicals which in combination with others might produce drugs or substances on the controlled or restricted schedules of the Food and Drugs Act were being shipped to” appellant’s company (appellant’s factum, p. 2).

A police investigation revealed that appellant and his partner were manufacturing a chemical substance, 34-methylenedioxy-N-methylamphetamine, conveniently referred to as M.D.M.A. This substance is related chemically to another substance called MDA which is a restricted drug listed in Sch. H of the Food and Drugs Act, R.S.C. 1970, c. F-27, and modifications.

It is of importance to know that when appellant started manufacturing M.D.M.A. this substance (M.D.M.A.) was not on the list of restricted drugs, and hence the manufacturing of that substance was perfectly legal, subject to compliance with other laws or regulations with which we are not in any way concerned here. Furthermore, it is to be noted that M.D.M.A. was added to Sch. H and that the required amendment to that schedule was done by a Regulation that was published in the Canada Gazette, in June, 1976 [see SOR/76-368]. Notwithstanding said amendment appellant continued producing M.D.M.A. and was arrested on August 26th, near the premises of his company in possession in his brief-case of M.D.M.A. that was subsequently established as having been manufactured at his laboratory. The trial Judge directed the jury in such a way as to properly limit the period of time during which appellant might have illegally manufactured M.D.M.A., being from the time the amendment was published in June in the Canada Gazette to August 26th. Following a voir dire the trial Judge ruled as inadmissible under the circumstances of the case evidence that purported to establish that appellant and his partner had been as duly diligent as could be expected in their attempts to ascertain whether it was legal or not to manufacture M.D.M.A. and that they did not know until the time of their arrest that M.D.M.A. had become a restricted drug.

This ruling was the result of two findings on the part of the trial Judge. He first found that (A.C. 2, p. 227):

...ignorance of the accused as to the state of the statute and the regulations and the schedule throughout the period set forth in the indictment, provides no defence, and that evidence proposed to be introduced to prove such ignorance and any steps taken by the accused to obtain knowledge of the law, is inadmissible.
His attention was then drawn to a decision by a County Court Judge in Nova Scotia in the case of R. v. Maclean (1974), 17 C.C.C. (2d) 84, 46 D.L.R. (3d) 564, 27 C.R.N.S. 31, where it was held that when interpreting s. 19 of the Criminal Code a distinction is to be made between statutes and subordinate legislation due to the fact that the latter are not normally so discoverable or available as the former. Attorney for appellant drew the Judge’s attention to the Maclean case by asking him for some clarification:
“...I take it”, said he, “from my interpretation of what you have said, that firstly, even assuming the correctness of Maclean, you feel that the evidence falls short. However, you don’t feel that the decision of Maclean is correct in law. Have I correctly interpreted Your Honour’s reasons?”
The Judge then replied:
No. I think in some instances the decision and result reached by Judge O’Hearn may be correct, but I note the exceptions that he did make at the top of p. 101, which I read, that he places certain limitations upon his reasoning, and I do too.
The passage by O Hearn Co. Ct. J. to which the Judge was alluding is as follows [p. 100 C.C.C., p. 580 D.L.R.]:
The significance of this case as well as of the many exceptions noted in Williams’ work is that Criminal Code, s. 19, isnot absolute and cannot be applied without reserve to every situation where the essential mistake is one of law. Apart from the exceptions arising out of specific mental elements of culpability such as fraud, Williams suggests several other approaches to exceptions, of which two seem to be pertinent to this case. The first is the case where the conduct is not generally realized to be wrongdoing because people do not categorize it as immoral, or because knowledge of the applicable law is generally confined to a small and special circle to which the accused does not belong. To my mind, it might be objected to the latter category, that if an accused wishes to indulge in an activity that requires special knowledge including knowledge of the applicable law, he can fairly be held to be under an obligation to acquire that knowledge.
His reference to this excerpt makes it clear that the Judge then found, and this is the second of the two findings I referred to previously, that there are cases where s. 19 of the Criminal Code is not a bar to a defence of ignorance of the law, but that under the circumstances of the case at bar he felt that on account of the appellant having indulged in an activity requiring special knowledge this defence was not open to him.

The Court of Appeal for Ontario dismissed the appeal saying:
Assuming without deciding that ignorance of a Regulation which has been duly published in the Canada Gazette, pursuant to the Statutory Instruments Act, R.S.C. 1970, c. 38, might in some circumstances be a defence if all reasonable diligence had been exercised to ascertain its existence, we are all of the view that the inquiries made by the appellants in this case, did not meet the required standard of diligence [A.C. 2, p. 403]....
In all the circumstances, we are of the view that the trial Judge did not err in refusing to submit to the jury ignorance of law as a defence. Accordingly, the appeals from conviction are dismissed.

Let me say at once that if the defence exists then its success or failure is to be determined by the trier of fact, (in this case the jury), unless the evidence is to be excluded as a result of the application of some evidentiary exclusionary rule, which is not the case here.

Since I am, in any event, of the opinion that the defence does not exist, I find it unnecessary to determine whether the Court of Appeal was right in resorting as it did conditionally to s. 613(1)(b)(iii) {now s. 686(1)(b)(iii)} of the Criminal Code when it found that appellant had in any event not met “the recognized standard of diligence;” also, it is for that reason that I agree with the conclusion of the Court of Appeal that the trial Judge did not err in refusing to submit to the jury ignorance of the law as a defence.

In support of his contention before us that the defence is in this case available, appellant makes two sets of distinctions:
The difference between mistake of law and ignorance of law. The difference between ignorance of statute and that of subordinate legislation.

The latter distinction is said to be relevant in determining whether an accused has or has not been duly diligent in ascertaining the existence of legislation by considering the degree of discoverability and of availability of the law applicable to the case under consideration.

Section 19 of the Criminal Code reads as follows:
19. Ignorance of the law by a person who commits an offence is not an excuse for committing that offence.
Appellant argues that when Parliament says ignorance of law, it in effect means mistake of law, i.e., the wrong interpretation of the law, and that ignorance of the existence of a relevant penal provision is a defence if an accused has exercised due diligence in ascertaining the existence of that provision.

Appellant seeks support for the distinction in the fact that most reported cases, where s. 19 has operated as a bar to a defence coined as one of ignorance of law, were in effect situations that amounted to “mistake(s) of law”.

Whatever may be the merit of such a distinction, and this said without pronouncing on its acceptability, Parliament has by the clear and unequivocal language of s. 19 chosen not to make any distinction between ignorance of the existence of the law and that as to its meaning, scope or application. Parliament has also clearly expressed the will that s. 19 of the Criminal Code be a bar to any such defence, be the offence one created by an “enactment”, as is the case here: s. 27(2) of the Interpretation Act, R.S.C. 1970, c. I-23.

Indeed s. 27(2) of the Interpretation Act says:
27.(2) All the provisions of the Criminal Code relating to indictable offences apply to indictable offences created by an enactment, and all the provisions of the Criminal Code relating to summary conviction offences apply to all other offences created by an enactment, except to the extent that the enactment otherwise provides.
Parliament has however recognized that, when the commission of an offence is dependent upon a regulation, some consideration should be given to the fact that regulations are less “discoverable” or “available”. As a result Parliament has relaxed somewhat the rigours of s. 19 of the Criminal Code by enacting s. 11(2) of the Statutory Instruments Act, 1970-71-72 (Can.), c. 38, which states:
11.(2) No regulation is invalid by reason only that it was not published in the Canada Gazette, but no person shall be convicted of an offence consisting of a contravention of any regulation that at the time of the alleged contravention was not published in the Canada Gazette in both official languages unless
(a) the regulation was exempted from the application of subsection (I) pursuant to paragraph (c) of section 27, or the regulation expressly provides that it shag apply according to its terms before it is published in the Canada Gazette, and
(b) it is proved that at the date of the alleged contravention reasonable steps had been taken to bring the purport of the regulation to the notice of those persons likely to be affected by it.
However such an abatement of the rigours of s. 19 of the Criminal Code offers no solace to appellant as his conviction was for the manufacturing of M.D.M.A. during a period posterior to the publication in the Canada Gazette of the relevant amendment.

At the hearing before us, appellant further argued that this Court in the case of 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, recognized for certain offences the existence of a defence of due diligence. The offence in the present case is worded as follows in the Food and Drugs Act, R.S.C. 1970, c. F-27:
42.(1) No person shall traffic in a restricted drug or any substance represented or held out by him to be a restricted drug.
(2) No person shall have in his possession any restricted drug for the purpose of trafficking.
(3) Every person who violates subsection (1) or (2) is guilty of an offence and is liable.
(a) upon summary conviction, to imprisonment for eighteen months; or
(b) upon conviction on indictment, to imprisonment for ten years.
It is clear to me that we are dealing here with an offence that is not to be considered as one of absolute liability and, hence, a defence of due diligence is available to an accused. But I hasten to add that the defence of due diligence that was referred to in Sault Ste. Marie isthat of due diligence in relation to the fulfilment of a duty imposed by law and not in relation to the ascertainment of the existence of a prohibition or its interpretation.

For these reasons I would dismiss the appeal.

Appeal dismissed.

 

R. v. Pontes
Supreme Court of Canada
 [1995] 3 S.C.R. 44

The judgment of Lamer C.J. and Sopinka, Cory, Iacobucci and Major JJ. was delivered by
CORY J.:—The sole issue to be resolved on this appeal is whether the combined effect of ss. 94(1) and 92 of the Motor Vehicle Act, R.S.B.C. 1979, c. 288, creates an offence of absolute liability or strict liability.

Factual Background

The respondent was charged with driving a motor vehicle in the city of Vancouver on August 3, 1990, at a time when he was prohibited from driving pursuant to s. 92 of the Motor Vehicle Act.

Relevant Statutory Provisions

Section 92 of the Motor Vehicle Act provides in part:

92. (1) For the purpose of this section, “convicted” includes the granting of an absolute or conditional discharge.
(2) A person who is convicted of
(a) an offence under section 88, 94, 220.1(1) or 220.3(1), or
(b) a motor vehicle related Criminal Code offence
is automatically and without notice prohibited from driving a motor vehicle for 12 months from the date of sentencing, the date that the passing of sentence is suspended, the date of being granted an absolute or conditional discharge....
Prior to December 1985, s. 92 contained a third subsection which provided:
(3) Subsection (2) does not apply where neither the defendant nor his agent or counsel appear before the court at the time of conviction.
Section 94 of the Motor Vehicle Act provides in part:
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 of this Act...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...commits an offence and is liable,
(c) on a first conviction, to a fine of not less than $300 and not more than $2 000 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 $300 and not more than $2 000 and to imprisonment for not less than 14 days and not more than one year.
Prior to 1987, s. 94 contained the following subsection:
(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 4.1 of the Offence Act, R.S.B.C. 1979, c. 305 (amended in 1990) provides:
4.1 Notwithstanding section 4 or the provisions of any other Act, no person is liable to imprisonment with respect to an absolute liability offence.
Further, s. 72(1) of the Offence Act provides that the failure to pay a fine will not result in a jail term:
72. (1) Subject to subsection (6), but notwithstanding any other provision of this Act, any other Act, regulation, municipal bylaw or order made by a justice, no justice shall, except under the Small Claims Act, order that a person be imprisoned by reason only that he defaults in paying a fine.
It should be noted that neither the provisions of s. 4.1 of the Offence Act nor the absence of any jail term for the non-payment of fines was argued in the courts below. Obviously, if the offence is one of absolute liability, but there is no risk of imprisonment, then the provision will not offend s. 7 of the Canadian Charter of Rights and Freedoms. Similarly, if the statutory provisions are found to create a strict liability offence, then by definition a defence of due diligence must be available to the accused and there will be no infraction of s. 7 of the Charter. The sole difference will be that if the offence is found to be one of strict liability, the possible sanction of a term of imprisonment may be retained.

[Cory J. reviewed the holdings of the courts below and continued:]

Analysis

Categories of Offences

It may be helpful to undertake a very brief review of the reasons of Dickson J. (as he then was) in Sault Ste. Marie, supra. In that case, he noted that there were three categories of offences. First, he referred to the traditional criminal law offence, which required proof of either an intent to commit the prohibited act or a reckless disregard for the consequences of committing that act. Second, at the opposite end of the scale was the absolute liability offence which did not permit of any explanation by the accused; the performance of the act alone was sufficient to establish culpability. Third, between these two categories was the offence of strict liability. In that category of offence, the accused could escape liability by demonstrating that he had exercised due diligence by taking all reasonable steps to avoid the commission of the prohibited act, or that he reasonably believed in a mistaken set of facts which, if true, would render the act or omission innocent.

Dickson J. described the offences in this manner (at pp. 1325-26):

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....

3. Offences of absolute liability where it is not open to the accused to exculpate himself by showing that he was free of fault. [Emphasis added.]
He then went on to indicate how a distinction could be made between offences of strict liability and absolute liability and described the manner in which the various offences could be categorized (at p. 1326):
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 overall 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.
Subsequent to this decision, the question arose as to what minimal intent should be required in light of the passage of s. 7 of the Charter. That section provides:
7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.
In Re B.C. Motor Vehicle Act, supra, Lamer J. (as he then was) found that absolute liability offences which provided for a term of imprisonment as a sanction contravened s. 7 of the Charter. At page 515 of that decision he wrote:
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.
This principle that provincial regulatory offences which provide for a sanction of imprisonment require a minimum mental state was again confirmed in R. v. Vaillancourt, [1987] 2 S.C.R. 636. At page 652, Lamer J. wrote:
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 . . . 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. [Emphasis added.]
From the cases which followed the passage of the Charter, the following can be derived: first, generally speaking, an offence of absolute liability is not likely to offend s. 7 of the Charter unless a prison sanction is provided; secondly, an accused charged with an absolute liability offence cannot avoid liability by demonstrating that he exercised due diligence; thirdly, one of the prime bases for distinguishing a strict liability offence from an absolute liability offence is the availability of the defence of due diligence; fourthly, any provincial regulatory offence providing for a term of imprisonment must make a defence of due diligence available to the accused. I would leave open for future consideration the situation presented by an absolute liability offence punishable by fine with the possibility of imprisonment for its non-payment in those circumstances where the legislation provides that the imposition and collection of any fine is subject to a means test.

Does Section 94, in Combination with Section 92, Create an Absolute Liability Offence?

There are, I believe, two methods of determining whether an offence is one of absolute liability. First, as suggested in Sault Ste. Marie, supra, regard may be had to the overall regulatory pattern adopted by the legislature, the subject matter of the legislation, the importance of the penalty and the precision of the language used.

Second, the availability of a due diligence defence must be considered. An absolute liability offence denies an accused the opportunity to put forward a defence of due diligence. Conversely, in order for an offence to be one of strict liability, the defence of due diligence must be available.

Considering first, the wording of the Act, it will be remembered that it provides that a person convicted of an underlying offence is “automatically and without notice” prohibited from driving a motor vehicle for 12 months from the date of sentencing. Section 94 provides that

a person who drives a motor vehicle on the highway while he is prohibited from driving under s. 92 commits an offence and is liable:
(c) on a first conviction, to a fine of not less than $300 and not more than $2 000 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 $300 and not more than $2 000 and to imprisonment for not less than 14 days and not more than one year.
The fundamental aspect of the offence is that a person convicted of the underlying offence will be automatically and without notice prohibited from driving a motor vehicle. The words “automatically and without notice” go far towards establishing that this is indeed an absolute liability offence.

In Re B.C. Motor Vehicle Act, supra, it was found that s. 94, as it was then worded, created an absolute liability offence. At the time of that decision, s. 94 contained a subs. (2) which read:
(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.
That provision was found to contravene the Charter and was deleted from the Act in 1986. However, I am of the view that the removal of that subsection does not change the offence into one of strict liability. As all the judges in the courts below have found, the situation has not been changed in any significant manner by the deletion of that subsection. The deleted subsection did no more than emphasize and reiterate that this was an absolute liability offence. Yet, the same conclusion can be reached from a consideration of the remaining wording of s. 94. Section 94(1)(a) still refers to s. 92 which, in turn, provides that a driver will “automatically and without notice” be prohibited from driving for a period of 12 months. In effect, the combination of s. 92 and s. 94 provides for the conviction of the prohibited driver whether or not he knows that he is prohibited from driving.

Section 94 goes further. Because the prohibition to drive in s. 92 is automatic and without notice, s. 94 effectively prevents an accused who is unaware of the prohibition from raising a defence of due diligence. At this point, it may be helpful to explore the nature of the defence of due diligence and how and when it may be utilized

Defence of Due Diligence

The decision in Sault Ste. Marie, supra, established that a person accused of a strict liability offence may avoid conviction by proving, on the balance of probabilities, either that he had an honest but mistaken belief in facts which, if true, would render the act innocent, or that he exercised all reasonable care to avoid committing the offence. That is to say, he did what a reasonable person would have done in the circumstances to avoid the occurrence of the prohibited act. In my view, if neither of these two facets of the defence of due diligence is available to an accused, the offence cannot be said to be one of strict liability. By definition, a strict liability offence requires that the defence of due diligence be available. Put another way, if the offence does not permit a due diligence defence, then it cannot be a strict liability offence.

In determining whether either facet of the defence of due diligence is available in this case, it is important to remember the well-established principle, incorporated in s. 19 of the Criminal Code, R.S.C., 1985, c. C46, that a mistake of law is no excuse. In other words, a mistake as to what the law is does not operate as a defence.

The application of this principle leads to the conclusion that an accused cannot put forward as a defence that he made diligent inquiries as to the legality of his actions or status. The submission of such a defence was specifically rejected in Molis v. The Queen, [1980] 2 S.C.R. 356. [Cory J. reviewed Molis, MacDougall, and Prue and continued:]

It seems to be clear that the defence of due diligence is not available to an accused charged under ss. 92 and 94 of the B.C. Motor Vehicle Act. There are a number of examples which can illustrate this situation. First, take the situation of an accused charged with failure to give a sample of breath. After trial he is found guilty, fined and his licence suspended for 3 months. Apparently, in British Columbia, he would be given no notice of the automatic suspension of one year provided by the B.C. Motor Vehicle Act. Yet, he would be liable to conviction despite his honest and reasonable belief as a lay person that the total sentence imposed by the court was a fine and a suspension of his licence for a period of 3 months. Certainly, to most people “a court” is a court wherever it may be located and the sentence of that court is what is binding upon them. Even if an accused asked the court to confirm that this was the total extent of his sentence, this would not amount to a defence of due diligence since his error was as to the provisions of the B.C. Motor Vehicle Act, and this constitutes an error of law.

Similarly, if an accused is charged and convicted of impaired driving and sentenced to 6 months prohibition from driving, he would leave the court room believing that this sentence constituted the entire penalty. However, by virtue of s. 92 of the Act, he is also, without any notice to him, automatically prohibited from driving for a period of 12 months from the date of conviction. If he drives after 6 months have expired and is stopped by the police, he would be charged with “driving while prohibited,” despite the fact that he honestly and reasonably believed that he was no longer prohibited from driving. He would not be able to put this forward as a defence since ignorance of the law cannot be invoked as a defence, even if he took steps at his original trial to confirm before the convicting judge that this was the total extent of his penalty. Quite simply, the statute effectively deprives the accused of the defence of due diligence.

Significance of Notice

The legislature could readily convert this offence to one of strict liability by permitting the defence of due diligence to be raised. If there was any concern that those accused of the offence would defend on the basis that they had no knowledge of its effect, a provision requiring that notice be given of its consequences could be added. Notice could be given in many ways. The following are a few examples.

Upon the issuance or a renewal of a licence, notice could be given that upon conviction of the listed enumerated offences, there will be an automatic suspension of the licence for a 12-month period. Alternatively, notice of the consequences could be given with the serving of the summons or charge for the underlying offence. In still another manner, the notice could be given as a matter of course upon conviction for the underlying offence, and would thus form part of the record of the court proceedings. There is something so fundamentally fair about the giving of notice that I find it commendable. It must be remembered that regulatory offences number in the tens of thousands. There are federal regulations and provincial regulations that will vary in their terms and provisions from coast to coast. Surely it is not asking too much that the accused be given some form of notice.

Summary

In summary, it is my opinion that ss. 92 and 94 of the B.C. Motor Vehicle Act create an absolute liability offence since they effectively eliminate the defence of due diligence. Nevertheless, the absolute liability offence does not contravene the Charter. This conclusion follows from the application of s. 4.1 and of s. 72(1) of the Offence Act. These sections respectively indicate that, notwithstanding the provisions of any other Act, no person is liable to imprisonment for an absolute liability offence, and that the non-payment of a fine will not result in imprisonment. Thus, an accused convicted under ss. 92 and 94 of the B.C. Motor Vehicle Act faces no risk of imprisonment and there is, accordingly, no violation of the right to life, liberty and security of the person under s. 7 of the Charter.

Disposition

In my opinion, the offence created by ss. 92 and 94 of the B. C Motor Vehicle Act is one of absolute liability. However, it is not constitutionally invalid since, by the operation of s. 4.1 of the Offence Act, there is no sanction of imprisonment attached to absolute liability offences.

In light of these reasons, an order directing a new trial would ordinarily be the appropriate result. Yet, the respondent has been brought before every level of court at the instigation of the Crown. This appeal was really brought to determine whether the offence in question was one of absolute or strict liability. Throughout, the Crown directed its submissions solely to this issue. That question is now resolved. In these circumstances, to direct a new trial for Pontes would be unfair and unduly harsh. Consequently, the appeal is dismissed.

The constitutional question reads: “Does s. 94 of the Motor Vehicle Act, R.S.B.C. 1979, c. 288, when read in conjunction with s. 92 of that Act create an absolute liability offence which violates s. 7 of the Canadian Charter of Rights and Freedoms?” The answer to the question must be that the offence created by ss. 92 and 94 of B.C. Motor Vehicle Act is one of absolute liability. However, it is not constitutionally invalid since, by the operation of s. 4.1 of the Offence Act, there is no sanction of imprisonment attached to absolute liability offences.

The reasons of La Forest, L’Heureux-Dubé, Gonthier and McLachlin JJ. were delivered by
GONTHIER J. (dissenting):—The constitutional question raised by this appeal was stated by Lamer C.J. on September 8, 1994 as follows:

Does s. 94 of the Motor Vehicle Act, R.S.B.C. 1979, c. 288, when read in conjunction with s. 92 of that Act create an absolute liability offence which violates s. 7 of the Canadian Charter of Rights and Freedoms?

I have had the benefit of the reasons of my colleague Justice Cory. I respectfully disagree with his conclusion that the combined effect of ss. 92 and 94(1) of the Motor Vehicle Act, R.S.B.C. 1979, c. 288, is to create an offence of absolute liability. In my view, these provisions create an offence of strict liability where the fact of driving while prohibited by statute prima facie imports the offence, but where it is nevertheless possible for an accused to avoid conviction by demonstrating that he reasonably believed that he had not been convicted of one of the underlying offences to which the 12-month statutory prohibition attaches, or that he exercised due diligence in seeking to acquire knowledge of the underlying conviction. As a result, the impugned provisions adequately provide for the constitutionally minimum mens rea of negligence in order to ground a conviction and thus imprisonment for the regulatory or public welfare offence of driving while prohibited by statute. I would therefore answer the constitutional question posed by Lamer C.J. in the negative, allow the appeal and order a new trial.

I also respectfully disagree with Cory J.’s position that the alleged constitutional deficiency in the impugned provisions can be cured by expanding the defence of due diligence. Since in my view the provisions already allow for due diligence in relation to all the factual elements of the actus reus, the due diligence which is called for, presumably as a principle of fundamental justice under s. 7 of the Canadian Charter of Rights and Freedoms, is nothing less than due diligence in relation to the existence of a legislative prohibition pertaining to a regulated activity—that is, due diligence is being expanded to comprehend a defence of ignorance of the law. But our system of laws has long held as axiomatic that ignorance of the law is not an excuse for breaking the law. This cornerstone of our law remains secure even after the passage of the Charter, and I see no conflict between it and the principles of fundamental justice. As well, a regulated actor is deemed to have voluntarily accepted the terms and conditions of engaging in a regulated activity. Parliament or a legislature may choose, as a matter of policy, to provide a defence of ignorance of the law in relation to some, all or none of the statutory conditions of engaging in a regulated activity. Such a policy decision remains a matter over which the relevant representative body is entirely sovereign.

I. Facts and Relevant Legislation

Since my colleague Cory J. has helpfully summarized the relevant factual and legislative background and the decisions of the courts below, I need not repeat that discussion. I would only add that the record before this Court is silent as to the underlying offence of which the respondent was convicted and which then gave rise, by operation of law, to the 12-month driving prohibition. The record is also silent as to whether the respondent was aware that he was prohibited from driving by virtue of ss. 92 and 94(1). While these facts are not necessary to answer since this appeal involves a facial challenge to the constitutionality of the legislation, they are nevertheless relevant to the disposition of the respondent’s case because, as detailed below, I find that this legislation is constitutionally valid without recourse to s. 4.1 of the Offence Act, R.S.B.C. 1979, c. 305.

It is also important to explore briefly why the legislature of British Columbia may have decided that the enacted 12-month prohibition should be effective without formal notice and instead, simply by operation of law. The most obvious explanation is that the underlying offences which give rise to the 12-month statutory prohibition are some of the most serious driving offences. They include:

1. Driving while prohibited by the Superintendent of Motor Vehicles or a police officer (s. 88 of the Motor Vehicle Act);
2. Driving while prohibited by court order or by operation of a law (s. 94 of the Motor Vehicle Act);
3. Driving with more than 80 milligrams of alcohol in 100 millilitres of blood (s. 220.1(1) of the Motor Vehicle Act);
4. Refusal to give a blood sample (s. 220.3(1) of the Motor Vehicle Act);
5. Motor-vehicle related Criminal Code offences:
(a) causing death by criminal negligence (s. 220);
(b) causing bodily harm by criminal negligence (s. 221);
(c) manslaughter (s. 236);
(d) dangerous operation of motor vehicles (s. 249(1)(a));
(e) operating a motor vehicle while impaired (s. 253);
(f) failure to provide a breath sample (s. 254(5));
(g) impaired driving causing bodily harm or death (s. 255);
(h) operating a motor vehicle while disqualified from doing so (s. 259(4)).
It is thus readily apparent that the Province decided that in order to protect the welfare of the public and keep some of the most dangerous drivers off the roads, a prohibition would be effective automatically by operation of law on conviction of one of these underlying offences. That the statutory prohibition is effective immediately without being subject to the vagaries incidental to the giving of notice only underscores the Province’s seriousness of purpose. It is, after all, trying to protect the public from some criminally bad drivers, and it is indeed sobering to read the list of offences which they have targeted. And while it is perhaps true that the giving of formal notice of the law could have been consistent with this serious purpose, as I detail below the provision of such notice affects only the wisdom of the legislation, not its constitutionality.

II. Analysis

A. The Sault Ste. Marie Scheme of Offences and the Constitutional Requirement of Fault

Since Cory J. has also helpfully summarized the taxonomic scheme which this Court has developed to classify the various offences in Canadian law, I need not review that discussion in detail, save to offer a few observations to situate the analysis which follows.

In the seminal case of R. v. City of Sault Ste. Marie, [1978] 2 S.C.R. 1299, at pp. 1325-26, Dickson J. (as he then was) recognized that there are three categories of offences in Canadian law rather than the traditional two, thus allowing strict liability to occupy a half-way house between full mens rea offences and those of absolute liability. He suggested that only offences which were “criminal in the true sense” would be subject to the presumption of full mens rea; that “[p]ublic welfare offences would prima facie be in the second category” of strict liability offences; and finally, that “[o]ffences 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” (p. 1326 (emphasis added)). The policy basis for this common law interpretative presumption against conviction without fault was and still is the obvious concern that the morally innocent should not be punished (R. v. Vaillancourt, [1987] 2 S.C.R. 636, at p. 652, and R. v. Nova Scotia Pharmaceutical Society, [1992] 2 S.C.R. 606, at p. 659).

In order to determine whether a legislature has “made it clear” that the offence is of absolute liability, Dickson J. suggested that regard may be had to the following factors (at p. 1326):

The overall 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.
It is also important to remember that even assuming that the legislature has not clearly indicated that the offence is to be one of absolute liability, it is still necessary to determine the appropriate level of fault or mens rea for the offence in question. Where the legislature has not used language which clearly indicates the mental element of the offence, then the mental element must be judicially inferred from the actus reus, the prohibited act. For a regulatory or public welfare offence, the appropriate inference is that there should be no conviction without negligence. For an offence which is criminal in the true sense, the appropriate inference is that there should be no conviction without some form of mens rea. The Sault Ste. Marie scheme is thus of fundamental importance in helping to determine the most appropriate degree of fault given the nature of the offence.

With the entrenchment of the Charter, the element of fault was raised from a common law interpretative presumption to a constitutional guaranty (Vaillancourt, supra, at p. 652, and Nova Scotia Pharmaceutical Society, supra, at p. 659). Differently put, the Charter now requires that the inferred mens rea also be minimally constitutionally sufficient given the nature of the offence. This Court has ruled that negligence in relation to the elements of the actus reus is the constitutionally minimum degree of fault for a public welfare or regulatory offence and where conviction allows for the possibility of imprisonment (Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486, and Vaillancourt, at p. 652). We have also held that subjective mens rea reflecting the particular nature of the offence may be constitutionally necessary for a very few crimes to which a special social stigma attaches or for which severe punishments are available (Vaillancourt, at p. 653). Examples of such special stigma crimes are murder and theft (R. v. Martineau, [1990] 2 S.C.R. 633, at p. 645, and R. v. Logan, [1990] 2 S.C.R. 731, at p. 744). However, for the vast majority of criminal offences, the Charter only requires that there 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” (R. v. DeSousa, [1992] 2 S.C.R. 944, at p. 965 (Sopinka J. for the Court)).

B. The Place of the British Columbia Motor Vehicle Act in the Sault Ste. Marie Scheme of Offences

Where, then, do the impugned provisions of the British Columbia Motor Vehicle Act most appropriately fit in the Sault Ste. Marie tripartite scheme of offences? Here, the subject matter of the statute quite clearly suggests that this is public welfare or regulatory legislation. The impugned provisions are aimed at keeping bad drivers off the road; they are not prohibitions which are “criminal in the true sense”. As a result, this offence is prima facie one of strict liability. I note, nevertheless, that such a public welfare purpose is consistent with both strict and absolute liability. Furthermore, considerations such as the overall regulatory pattern adopted by the legislature and the importance of the penalty do not offer much guidance in assessing whether the offence is of strict as opposed to absolute liability. These factors are generally of greater assistance in determining, when the legislature has not specified a mental element, whether the offence ought to be subject to the presumption of full mens rea or whether the offence is simply one of absolute liability.

The appellant, however, suggests that since the impugned provisions provide for a mandatory minimum period of imprisonment, this militates against considering them as creating an absolute liability offence, because this Court has already ruled in Re B.C. Motor Vehicle Act, supra, that absolute liability and imprisonment cannot be combined without running afoul of s. 7 of the Charter. But plainly this is circular reasoning. The impugned provisions predate this Court’s ruling in Re B.C. Motor Vehicle Act, and the appellant’s argument cannot be accepted--unless the British Columbia legislature can be credited with prescience.

It is for these reasons that I believe that in this case the only factor listed by Dickson J. in Sault Ste. Marie which is of any assistance in determining whether the impugned provisions create an offence of absolute liability is the precision of the language used.

On this score, my colleague Cory J. suggests that the fact that the 12-month statutory prohibition attaches “automatically and without notice” goes “far towards establishing that this is indeed an absolute liability offence” (para. 29). He suggests that “[i]n effect, the combination of s. 92 and s. 94 provides for the conviction of the prohibited driver whether or not he knows that he is prohibited from driving” (para. 30). I agree that knowledge of the enacted prohibition is not an element of this offence. But as I elaborate below, this does not render the offence one of absolute liability.

In my view, the phrase “automatically and without notice” simply highlights that the 12-month statutory prohibition is to take effect immediately and by operation of law without any requirement that notice be given by the Superintendent of Motor Vehicles or received by a driver who is prohibited from driving under the statute. While the Act does contemplate notice from the Superintendent in certain circumstances, this is only if the prohibition is made by the Superintendent in the exercise of his or her discretionary authority. For example, s. 86(1) of the Act gives the Superintendent the authority to order a prohibition when he or she “considers it to be in the public interest”, and then lists a number of criteria to be considered in exercising this discretion, including whether the person has “failed to comply with this Act or the regulations”, because the person “has a driving record that in the opinion of the superintendent is unsatisfactory”, where the person’s license has been suspended in another Canadian or American jurisdiction, or for any other cause “that relates to the use or operation of motor vehicles”. Section 88(3) then lists the formal requirements for such notice. Finally, s. 88(1) states that it is an offence for a person to drive “knowing that he is prohibited” by the Superintendent, and specifies a mandatory prison term of not less than seven days and not more than six months on a first conviction.

If a person then drives while prohibited by the Superintendent under a discretionary order, it is open to the accused to argue that he did not receive notice of the prohibition, since that may be a reasonable mistake of fact. This point was made lucidly by Ritchie J. in dissent in R. v. Prue; R. v. Baril, [1979] 2 S.C.R. 547, at pp. 557-58:

It will be readily apparent that a wide difference exists between the case of a man who acts in ignorance of the provision for automatic suspension and is therefore acting under a mistake of law, and a man who resides in a province where the imposition of such a suspension can only be effected as the result of the intervention of some administrative act by the authorities. The latter situation is evidenced in jurisdictions where provision is made for the clerk of the court, the presiding magistrate or some other official giving notice to the accused of the suspension of his licence before that suspension can be effective. In the latter type of case when the requisite administrative step or steps have not been taken and the accused can show that he was therefore ignorant of the fact of his suspension, his ignorance is one of fact and not of law, and in this event it has been consistently held that he has a valid defence to the charge.
As I will explain more fully below, the respondent in this case cannot seek solace in the failure of the Superintendent or the court convicting him of the underlying offence to provide notice of the applicable statutory prohibition, since that prohibition was effected automatically and without notice, by operation of law. The ignorance which the respondent pleads that the legislature should have cured with some form of notice is his ignorance of the law prohibiting his conduct. In this he cannot succeed because ignorance of the law is never an excuse for breaking the law.

It is my view, then, that the British Columbia legislature has not used language of sufficient precision to make it clear that the offence created by the combined effect of ss. 92 and 94 is to be of absolute liability. In this respect, the language in the impugned provisions falls far short of the express language employed in the now repealed s. 94(2) of the Motor Vehicle Act, which read:
94.... (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. [Emphasis added.]
Speaking for a majority of the Court on the constitutionality of this provision in Re B.C. Motor Vehicle Act, supra, Lamer J. (as he then was) stated at pp. 518-19:
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.
Notwithstanding this ruling, my colleague Cory J. suggests that s. 94(2) “did no more than emphasize and reiterate that this was an absolute liability offence” (para. 30). In other words, s. 94(1) created an absolute liability offence regardless of s. 94(2). This conclusion effectively equates “automatically and without notice” in s. 94(1) with “absolute liability” in s. 94(2). I have some difficulty with this conclusion. If the legislature of British Columbia was simply emphasizing and reiterating in s. 94(2) the legal effect of s. 94(1), it is curious indeed that in obeying this Court’s decision in Re B.C. Motor Vehicle Act on the unconstitutionality of combining absolute liability with the possibility of imprisonment, that same legislature would choose to repeal only s. 94(2) and not also s. 94(1) (Motor Vehicle Amendments Act, 1986, S.B.C. 1986, c. 19, s. 5, assented to June 17, 1986). With respect, Cory J.’s interpretation impliedly imputes to that sovereign body ignorance, indifference, or worse, possibly even contempt for this Court’s ruling.

Of course, whether, as I believe, the legislature intended s. 94(1) to be a strict liability offence is not dispositive of this case. Whatever the legislative intention, the legal effect may nevertheless have been to create an offence of absolute liability. In the absence of clear words, such a possibility is entirely dependant upon whether an accused can escape liability by proving that he is not at fault, that is, whether he can still avail himself of the defences of due diligence or reasonable mistake of fact. I next consider whether the impugned provisions have eliminated these defences.

C. Strict Liability Defences and the Principle that Ignorance of the Law Does Not Excuse

This Court in Sault Ste. Marie stated that an offence could only be classified as being of strict liability if the defences of due diligence and reasonable mistake of fact are available to an accused. Dickson J. described (at p. 1326) these defences in defining strict liability offences as

[o]ffences 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.
Dickson J. also observed that the due diligence defence is often spoken of “as being that of reasonable mistake of fact”. He continued, at pp. 1314-15:
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. [Emphasis added.]
It is thus apparent that while the defences of reasonable mistake of fact and due diligence may operate differently in any given case, they are really just two aspects of the requirement that there be negligence as the constitutionally minimum fault before an accused can be imprisoned for a regulatory offence.

The content of the defences of due diligence and reasonable mistake of fact was further clarified by Lamer J. in Molis v. The Queen, [1980] 2 S.C.R. 356. That case concerned a charge of trafficking in a restricted drug contrary to s. 42(1) of the Food and Drugs Act, R.S.C. 1970, c. F-27. The accused had been manufacturing a chemical which, when he began his manufacturing operation, was not listed in Schedule H of the Act as a restricted drug. The drug was, however, subsequently added by regulation to the list of prohibited substances, and the accused then charged with trafficking. The accused adduced evidence on voir dire that he had in fact been duly diligent in attempting to ascertain whether the chemical was on the list of prohibited substances, and before this Court he argued that Sault Ste. Marie entitled him to avoid conviction by invoking this defence. The Court unanimously upheld the conviction imposed at trial. In so doing, Lamer J. had this to say, at p. 364, about the availability of the defence of due diligence:
It is clear to me that we are dealing here with an offence that is not to be considered as one of absolute liability and, hence, a defence of due diligence is available to an accused. But I hasten to add that the defence of due diligence that was referred to in Sault Ste. Marie is that of due diligence in relation to the fulfilment of a duty imposed by law and not in relation to the ascertainment o the existence of a prohibition or its interpretation. [Emphasis added.]
As Lamer J. rightly indicated, the defence of due diligence obviously does not extend to efforts to ascertain the existence of a statutory prohibition or its interpretation, since that would amount to a conflict with s. 19 of the Criminal Code, which codified the fundamental common law principle that ignorance of the law is no excuse for breaking the law. Section 19 reads:
19. Ignorance of the law by a person who commits an offence is not an excuse for committing that offence.
This Court has nevertheless recognized that ignorance of a law may excuse, but only if the knowledge that one’s actions are contrary to law is itself part of the mens rea of the offence [R. v. Docherty, [1989] 2 S.C.R. 941.]

The above discussion can be summarized as follows. An offence of strict liability requires the minimal mental element of negligence in order to ground a conviction. Negligence consists in an unreasonable failure to know the facts which constitute the offence, or the failure to be duly diligent to take steps which a reasonable person would take. Since ignorance of the law is not an excuse for breaking the law, due diligence consists in taking steps to fulfil a duty imposed by law and not in the ascertainment of the existence of a statutory prohibition or its interpretation. Exceptionally, where knowledge that conduct is prohibited is itself part of the mens rea, the absence of knowledge provides a good defence.

Given this understanding of the relationship between the defence of due diligence and the principle that ignorance of the law is not an excuse for breaking the law, I now consider whether the impugned provisions provide for the constitutionally minimum fault of negligence required for a strict liability offence.

D. Application to the British Columbia Motor Vehicle Act

In my view, the impugned provisions do allow for the defences of reasonable mistake of fact and due diligence, and accordingly, the prima facie characterization of this public welfare legislation as being of strict liability is confirmed.

Section 92 creates the 12-month driving prohibition which is effective automatically and without notice upon conviction of one of the underlying offences. The factual element comprising the actus reus consists in the driving of a motor vehicle having previously been convicted of one of the underlying offences. Since there is no mens rea specified, it must be inferred from the actus reus. And because this is a regulatory offence, under Sault Ste. Marie, the mens rea consists in negligence in relation to any of the elements of the actus reus, but not in relation to the existence of this statutory prohibition or its interpretation, since that would be ignorance or mistake of law. Consequently, a person charged with driving while under a statutory prohibition can avoid conviction if he demonstrates, on the preponderance of the evidence, that he made a reasonable mistake of fact as to the existence of his conviction, or that he exercised due diligence to ascertain whether he had been convicted of one of the underlying offences.

This is not, I grant, the most extensive range of available defences, but it nevertheless amply satisfies what is constitutionally required. Defences are available in relation to all the factual elements of the actus reus, and this adequately meets the minimal constitutional requirement of fault for a public welfare or regulatory offence such as driving while under a statutory prohibition. Accordingly, ss. 92 and 94(1) of the Motor Vehicle Act are entirely consistent with s. 7 of our Charter....

It is evident, then, that I disagree with Cory J.’s conclusion that a defence of due diligence is not available in relation to the impugned offence. Cory J. comes to this conclusion because he finds that the only defence effectively available to an accused who has been charged with driving while under a statutory prohibition is his ignorance of the fact that his license has been suspended by the provisions of a provincial statute; but since this is mistake or ignorance of the law, it is not an available excuse. Furthermore, Cory J. suggests two examples to illustrate his claim that a due diligence defence is unavailable. In both examples, he suggests that an accused who is prohibited under a court order from driving for any period less than 12 months for having committed one of the underlying offences may be misled into believing that he is entitled to drive after the expiry of that prohibition, since he has had no notice of the continuing automatic prohibition effective by virtue of ss. 92 and 94(1). He suggests that such a person would be liable to conviction “despite his honest and reasonable belief as a lay person that the total sentence imposed by the court was a fine and a suspension of his licence for a period of” less than 12 months.

I agree that Cory J.’s examples are within the realm of possibility, and also that there may be a sense in which they can be considered as giving rise to some unfairness. But if this is so, it is an unfairness which our legal system has long countenanced in refusing to allow ignorance of the law to serve as a valid excuse. As a matter of principle, it is no more unfair to convict the accused in this case than it was in Molis, supra, for the trafficking of a substance he honestly and reasonably believed was not prohibited, or to disallow the accused in Forster, supra, from relying on her letter of resignation to demonstrate that she lacked the intent for being absent without leave.

Of course, this is not to say that ignorance of the law cannot be successfully pleaded as a factor in mitigation of sentence (C. Ruby, Sentencing (4th ed. 1994), at p. 196). In such a case, it may well be appropriate to sentence an offender to the minimum fine of $300 and to seven days’ imprisonment under s. 92(1)(c) of the Motor Vehicle Act.

Finally, I note that the appellant raised the possibility that a driver whose license is suspended and who is prohibited from driving by operation of law may also be able to avail himself of the defence of “officially induced error”. This defence was not raised here and has yet to be formally recognized by this Court, though it was referred to in obiter by Ritchie J. in R. v. MacDougall, [1982] 2 S.C.R. 605, at p. 613, by Lamer C.J. in Forster, supra, at p. 346, and by myself in dissent in R. v. Tremblay, [1993] 2 S.C.R. 932, at p. 947. (See also D. Stuart, Canadian Criminal Law: A Treatise (3rd ed. 1995), at pp. 312-21, and Mewett & Manning on Criminal Law (3rd ed. 1994), at pp. 382-84; and for a summary of the American position, see LaFave and Scott, supra, at pp. 591-95.) Assuming without deciding that such a defence would be available if an accused were misled by the Superintendent of Motor Vehicles or by some other official responsible for the administration of the Motor Vehicle Act, such a defence would not demonstrate absence of negligence in relation to the actus reus of driving while under a statutory prohibition, but rather would be an additional defence thereto, operating as an exception to the rule that ignorance of the law does not excuse. As a result, the potential availability of such a defence does not assist in the characterization of the impugned provisions as being of strict liability.

[Gonthier J. reviewed MacDougall and Prue and continued:]

F. Is the Defence of Ignorance of the Law a Constitutional Requirement?

Finally, my colleague Cory J. suggests that the alleged deficiency in the impugned provisions can be cured in two different ways. He first suggests that “[t]he legislature could readily convert this offence to one of strict liability by permitting the defence of due diligence to be raised” (para. 45). Second, he observes: “If there was any concern that those accused of the offence would defend on the basis that they had no knowledge of its effect, a provision requiring that notice be given of its consequences could be added” (para. 45). I take it that in this last passage Cory J. is referring to the legal effect and the legal consequences of being convicted of one of the underlying offences to which the 12-month prohibition attaches. With respect, I have number of difficulties with these suggestions.

First, and most obviously, as I have already indicated the offence is one of strict liability with allowance made for the defences of due diligence and reasonable mistake of fact. It is open to an accused to avoid conviction by demonstrating that he reasonably believed that he had not been convicted of one of the underlying offences to which the 12-month statutory prohibition attaches, or that he exercised due diligence in seeking to acquire knowledge of the underlying conviction. The impugned provisions are therefore constitutional without any further requirements.

That being the case, any further content of the due diligence defence that might be constitutionally compelled but is absent in this legislation remains unclear. But one is entitled to ask: what should the British Columbia legislature have provided in the impugned legislation in order to have avoided violating the Charter? Inasmuch as I have explained that defences are available with respect to all the factual elements of the actus reus, by a process of elimination one is led to conclude that any further requirement would encompass a defence in relation to the existence of the relevant statutory prohibition or its interpretation. In other words, there would be a constitutional requirement for the defence of due diligence to cover an accused’s ignorance or mistake of the law. If that were the case, the conclusion must be that the ignorance of the law rule no longer applies in light of s. 7 of the Charter.

It goes without saying that such a suggestion completely undercuts the principle that ignorance of the law is not an excuse for breaking the law. If a defence of due diligence in relation to a statutory prohibition or its interpretation is now a principle of fundamental justice, and therefore also a constitutional obligation which Parliament or a legislature must discharge when it attaches a sanction of imprisonment, I fear that as currently worded many of our criminal and regulatory statutes will be all but impossible to enforce. In short, if a defence of due diligence now comprehends a defence of ignorance of the law, I can see no reason in principle why such a constitutional requirement would be limited to the circumstances of this case.

The second difficulty which I have with Cory J.’s suggestions as to how the alleged constitutional defect in this legislation can be remedied is therefore as follows. I do not believe that the “principles of fundamental justice” under s. 7 of the Charter require that an accused who is charged with a regulatory offence be entitled to claim due diligence in relation to the existence of the relevant statutory prohibition or its interpretation—that is, to avail himself of the defence of ignorance of the law. The defence of due diligence does not need to be expanded to meet the exigencies of the Charter. Indeed, to do so would eviscerate the ignorance of the law rule and render many of our laws unenforceable. To date, our Court has refused to find that ignorance of the law is an excuse for breaking the law. Nor have we ever held that ignorance of the law should be viewed differently in the regulatory and criminal contexts. I respectfully suggest we refrain from doing so henceforth.

I would add that if the defence of due diligence has been expanded in light of s. 7 of the Charter to comprehend a defence of, then it also appears that this Court’s ruling in Molis, supra, has been overturned. As already indicated, in Molis, Lamer J. stated unambiguously that the defence of due diligence refers to “due diligence in relation to the fulfilment of a duty imposed by law and not in relation to the ascertainment of the existence of a prohibition or its interpretation” (p. 364). To my mind, Molis should remain good law and is indistinguishable from the case at bar. It is no more necessary, as a principle of “fundamental justice”, to allow the respondent to avail himself of his ignorance of a prohibition from driving by virtue of provincial legislation of general application, than it was to allow the accused drug traffickers in Molis to avail themselves of their ignorance that 3-4 methylenedioxy-N-methylamphetamine had been added as a prohibited substance to Schedule H of the Food and Drugs Act.

My third difficulty with Cory J.’s reasoning is that it appears to ignore the context of the present case. The impugned prohibition is a regulatory offence incident to a licensed activity. In such a context, unique considerations inform what is fair and when an accused can be considered as being at fault. Such considerations are commonly referred to as the “licensing argument” for the distinctive legal character of regulatory offences and for justifying their different treatment from “true crimes”. The licensing argument postulates that since a regulated actor voluntarily chooses to enter the regulated field, that actor can be taken to have known of and accepted certain terms and conditions of entry. Indeed, in R. v. Wholesale Travel Group Inc., [1991] 3 S.C.R. 154, at pp. 229-31, Cory J. offered a very helpful discussion of the licensing argument. He observed (at pp. 228-29):
[Gonthier J. quoted at length from Wholesale Travel and continued:]

Thus, as a necessary incident of being permitted by the state to engage in a regulated activity, the regulated actor voluntarily accepts the risks of regulatory infraction. In other words, such an actor is deemed to have accepted the terms and conditions attaching to the privilege of participating in the regulated activity. As a result, a regulatory actor cannot be described as morally innocent when he commits a regulatory offence. I think it is telling that Webb refers to the license to drive as a “good example” to illustrate the principles applicable to regulatory offences; I would go further, and say that it is the paradigmatic example of regulated activity.

It is trite to observe that a licensed driver is aware that the activity of driving is regulated, and also understands or ought to understand that there are regulations concerned with license revocation for driving offences. Indeed, this Court has expressly stated that “[m]erit point and driving license revocation schemes are prime examples” of laws that have generally been brought to the attention of the public; they have been “‘digested’ by society”: Nova Scotia Pharmaceutical Society, supra, at p. 635.

As a result, when a licensed driver violates one of the conditions attaching to his license he should not be considered as being without fault simply because he was unaware of that condition. There is no fundamental right to drive a motor vehicle, any more than there is a fundamental right to own a gun or any other instrument of potential destruction. It is a privilege, a privilege which, sadly, is often abused with tragic repercussions. A legislature can provide for consequences which are to attach when this privilege is abused and stipulate standards of behaviour for continued licensing. There is therefore no injustice, far less any fundamental injustice, if a court convicts an accused of a regulatory offence when the only defence offered is that he was unaware of a statutory condition attaching to the activity—that is, his ignorance of the law. This is, of course, all the more true when the condition is of a character which has been brought to the attention of the public and “digested” by society.

The licensing justification also underscores that Parliament or a legislature is faced with a policy choice in deciding whether to give notice to the regulated actor of a particular regulatory prohibition, or whether to allow such an actor to be considered “morally innocent” if he can demonstrate his ignorance of the relevant law. Our governing bodies may, in their wisdom, decide to provide such notice or such a defence; but they also may decide not to. But whatever they decide, a particular policy choice is not constitutionally compelled. To conclude otherwise would be to convert what is fundamentally a policy decision into a constitutionally mandated requirement.

To summarize, then, my concerns with respect to the first solution offered by Cory J.: first, the impugned provisions are constitutional without any further requirements; second, expanding the defence of due diligence to comprehend ignorance or mistake of law undercuts the mistake of law rule and will render many of our laws unenforceable; as a corollary, this Court’s decision in Molis appears to be impliedly overturned without any explanation; third, the proffered solution ignores the regulatory context of the present case, which context justifies the imputation that the respondent accepted the terms and conditions incident to the privilege accorded to him in his license to drive; and finally, such a solution usurps what is fundamentally a policy decision—whether to provide a defence of ignorance of the law—and converts it into a constitutionally mandated requirement.

The second suggestion which Cory J. makes is the provision of some form of notice of the law. He offers a number of examples to demonstrate how notice of the legal effect or legal consequences of being convicted of one of the underlying offences could readily be provided. Plainly, such notice would convert the offence into one of full mens rea, since the accused would then be driving with actual subjective knowledge that he was prohibited under provincial legislation. No doubt the province could have chosen this solution as a matter of policy. I readily acknowledge that in cases such as the one at bar notice is generally desirable. Indeed, several provinces already provide for notice where a license is revoked (see, for example, the Ontario Highway Traffic Act, R.S.O. 1990, c. H.8, ss. 52 and 53, and the Quebec Highway Safety Code, R.S.Q., c. C-24.2, ss. 105, 106.1 and 550.1). However, the fact remains that the British Columbia legislature has not chosen this solution. Rather than an offence of full mens rea, the province instead chose a solution appropriately tailored to the regulatory context: an offence of strict liability. That solution adequately meets the exigencies of our Charter, and is therefore a valid policy choice of full force and effect without any further requirement of notice.

G. Conclusion

I therefore conclude that the impugned provisions create an offence of strict liability where the fact of driving while prohibited by statute prima facie imports the offence, but where it is nevertheless possible for an accused to avoid conviction by demonstrating that he reasonably believed that he had not been convicted of one of the underlying offences to which the 12-month statutory prohibition attaches, or that he exercised due diligence in seeking to acquire knowledge of the underlying conviction.

III - Disposition

As a result, I would answer in the negative the following constitutional question posed by Lamer C.J....

I would allow the appeal and order a new trial, at which point the respondent can adduce evidence as to his exercise of due diligence or his reasonable mistake of fact with respect to any of the elements of the offence of driving while prohibited under this provincial statute.

Appeal dismissed.

 

R. v. Docherty
[1989] 2 S.C.R. 941
[1989] S.C.J. No. 105
Supreme Court of Canada

The judgment of the Court was delivered by
1     WILSON J.:—The sole issue to be resolved in this appeal is the requisite mens rea for the offence of wilfully failing or refusing to comply with a probation order contrary to s. 666(1) of the Criminal Code, R.S.C. 1970, c. C-34 (since renumbered s. 740(1), R.S.C., 1985, c. C-46). More specifically, this Court is asked to determine whether commission of a criminal offence by a person required by his probation order to "keep the peace and be of good behaviour" is sufficient to ground a breach of s. 666(1) regardless of the mental element required to sustain a conviction for the underlying offence.
2     On October 27, 1984 the respondent was found sitting in an automobile apparently in an intoxicated state. The respondent was charged with and pleaded guilty to an offence under s. 236 of the Criminal Code of having the care and control of a motor vehicle with a blood alcohol level of over 80 mg. of alcohol in 100 ml. of blood. On December 6, 1984 an information was sworn against the respondent alleging that he "did unlawfully and wilfully fail to comply" with a probation order issued against him on February 23, 1983 requiring him to "keep the peace and be of good behaviour". The commission of the offence under s. 236 of the Criminal Code was the basis relied on for the alleged breach of s. 666(1)....
5     Section 666(1) of the Criminal Code provides:

666. (1) An accused who is bound by a probation order and who wilfully fails or refuses to comply with that order is guilty of an offence punishable on summary conviction.
6     Section 663(2) of the Criminal Code (now s. 737(2)) sets out the mandatory terms of a probation order as well as those which may be imposed in the court's discretion:

663.    ...
(2) The following conditions shall be deemed to be prescribed in a probation order, namely, that the accused shall keep the peace and be of good behaviour and shall appear before the court when required to do so by the court, and, in addition, the court may prescribe as conditions in a probation order that the accused shall do any one or more of the following things as specified in the order, namely,
(a) report to and be under the supervision of a probation officer or other person designated by the court;
(b) provide for the support of his spouse or any other dependants whom he is liable to support;
(c) abstain from the consumption of alcohol either absolutely or on such terms as the court may specify;
(d) abstain from owning, possessing or carrying a weapon;
(e) make restitution or reparation to any person aggrieved or injured by the commission of the offence for the actual loss or damage sustained by that person as a result thereof;
(f) remain within the jurisdiction of the court and notify the court or the probation officer or other person designated under paragraph (a) of any change in his address or his employment or occupation;
(g) make reasonable efforts to find and maintain suitable employment; and
(h) comply with such other reasonable conditions as the court considers desirable for securing the good conduct of the accused and for preventing a repetition by him of the same offence or the commission of other offences.

It should be noted that subs. 663(2)(c) permits the court to order an accused to abstain from alcohol. No such condition was attached to the respondent's probation.

7     Section 663 contains no penalty provision so that the general penalty provision in the Criminal Code applies. At the time of the offence, that provision stated:
722. (1) Except where otherwise expressly provided by law, every one who is convicted of an offence punishable on summary conviction is liable to a fine of not more than five hundred dollars or to imprisonment for six months or to both.
8     The respondent pleaded guilty to and was convicted of having the care or control of a motor vehicle while his blood alcohol level exceeded .08 contrary to s. 236(1) (now s. 253) even although he testified that he did not think he was doing anything wrong at the time because he believed that the car was not in an operating condition. Section 236(1) provides as follows:

236. (1) Every one who drives a motor vehicle or has the care or control of a motor vehicle, whether it is in motion or not, having consumed alcohol in such a quantity that the proportion thereof in his blood exceeds 80 milligrams of alcohol in 100 millilitres of blood, is guilty of an indictable offence or an offence punishable on summary conviction and is liable
(a) for a first offence, to a fine of not more than two thousand dollars and not less than fifty dollars or to imprisonment for six months or to both;
(b) for a second offence, to imprisonment for not more than one year and not less than fourteen days; and
(c) for each subsequent offence, to imprisonment for not more than two years and not less than three months.

9     In Ford v. The Queen, [1982] 1 S.C.R. 231, the majority of this Court (Laskin C.J. and Dickson J. dissenting) held that an intention to drive was not a required element of the offence of having care or control....
10     ... Since the offence consists of having care or control and care or control is had by doing no more than performing certain acts by which a vehicle may unintentionally be set in motion, it is clear that the level of intent the Crown must prove to sustain a conviction for this offence is minimal indeed.
11     This case raises the important question whether an accused can be convicted of the summary conviction offence of wilfully breaching or refusing to comply with a probation order when, in the words of the trial judge, the accused "had an honest belief, although you may be wrong, that you are not doing anything wrong". ....
29     ... The mens rea of an underlying offence cannot, in my view, be treated as the intent required under s. 666(1). [T]he mens rea of s. 666(1) requires that an accused intend to breach his probation order. This requires at a minimum proof that the accused knew that he was bound by the probation order and that there was a term in it which would be breached by his proposed conduct. The accused must be found to have gone ahead and engaged in the conduct regardless. The onus, of course, is on the Crown to prove that the accused had the requisite mens rea. To the extent that direct evidence of intent is almost always difficult to obtain, the Crown may ask the court, absent any evidence to the contrary, to infer intent from the fact of the conduct. Any doubt, however, as to whether the accused intended to do what he did must be resolved in favour of the accused. The important point is that an intent to commit the underlying offence does not afford a basis for inferring the wholly distinct intent i.e. to breach one's probation order....
33     Does s. 19 of the Criminal Code prevent the respondent from relying on his honest belief to negate the mens rea requirement in s. 666(1)? The section provides:

19. Ignorance of the law by a person who commits an offence is not an excuse for committing that offence.

34     The respondent testified that he did not believe he was doing anything wrong when he got behind the wheel of the car while in an intoxicated condition. The trial judge accepted that the respondent's belief was honestly held and noted the existence of objective evidence in support of his contention.
35     It is beyond dispute that the respondent could not escape conviction for a violation of s. 236 of the Criminal Code on the ground that he did not know that having care and control of a motor vehicle with a blood alcohol level over .08 was against the law. That knowledge is not a component of the mens rea of s. 236. Neither could the respondent claim that he did not know that a wilful failure to be of good behaviour was a breach of probation, especially since s. 663(4) (now s. 737(3)) of the Criminal Code requires a court when it issues a probation order to ensure that the accused knows the terms and conditions of the order, the conduct that would constitute a breach and the consequences of such a breach and the respondent has not alleged that this was not done....
37     [W]here the commission of a criminal offence is relied on as the actus reus of the offence under s. 666(1) (as in this case), knowledge that one's act is contrary to law (in this case, the law contained in s. 236 of the Criminal Code) is an element of the requisite mens rea of wilfully failing to comply with a probation order. I believe, in other words, that s. 666(1) constitutes an exception to the general rule expressed in s. 19 in a case where the commission of a criminal offence is relied on as the actus reus under the section. An accused cannot have wilfully breached his probation order through the commission of a criminal offence unless he knew that what he did constituted a criminal offence. ... Such mens rea must be proved and s. 19 of the Criminal Code does not preclude the respondent from relying on his honest belief that he was not doing anything wrong to negate its presence. Where knowledge is itself a component of the requisite mens rea, the absence of knowledge provides a good defence.

 

People v. Coe
Court of Appeals of New York
71 N.Y.2d 852 (1988)

Defendant, a registered nurse employed at the Isabella Geriatric Center in Manhattan, was convicted under Public Health Law § 12-b(2), after a bench trial, of wilfully violating a provision of the Public Health Law and regulations adopted thereunder (see, Public Health Law § 12-b[2]) in connection with the alleged abuse or mistreatment of an elderly resident (see, Public Health Law § 2803-d [7]; 10 N.Y. Comp. Codes R. & Regs. § 81.1 [a], [b]). . . .          

Public Health Law § 2803-d (7) proscribes acts of physical abuse, neglect or mistreatment of residents or patients in facilities such as the Isabella Geriatric Center. Under 10 N.Y. Comp. Codes R. & Regs. § 81.1 (a) the term “abuse” is defined as “inappropriate physical contact with a patient or resident of a residential health care facility . . . Inappropriate physical contact includes, but is not limited to, striking . . . shoving”. Under 10 N.Y. Comp. Codes R. & Regs. § 81.1 (b) “mistreatment” is defined as, among other things, “inappropriate use of physical . . . restraints on . . . a patient or resident of a residential health care facility”.

According to the evidence adduced at trial defendant—attempting to locate two missing $5 bills—forcibly searched an 86-year-old resident who had a history of heart disease. Despite the resident’s repeated objections, defendant went through his pockets while an attendant pinned his arms behind him. Shortly after the incident, the resident died. . . . On appeal, after a unanimous affirmance by the Appellate Division, defendant contends that the People did not make the required showing that she wilfully violated a provision of the Public Health Law or a Public Health Law regulation.

We decline to adopt the People’s contention that for criminal liability under Public Health Law § 12-b(2) it need only be shown that the defendant acted deliberately and voluntarily, as opposed to accidentally. This construction requires reading the word “wilfully”—not as modifying “violates”, the word which immediately follows it in the statute—but rather as describing the manner in which the underlying act was committed. In short, the People would have us read the statute as stating that any person who consciously performs an act, when such act happens to contravene some provision or regulation of the public health laws, is guilty of a misdemeanor.
* * *
We also reject defendant’s contention, however, that for liability under Public Health Law § 12-b it must be shown that defendant acted with an “evil motive, bad purpose or corrupt design”. We hold that the Legislature, in using the term “wilfully” in Public Health Law § 12-b, intended a culpable mental state generally equivalent to that required by the term “knowingly” (see, Model Penal Code § 2.02[8]). To require proof of an evil motive or intent to injure—higher culpable mental states appropriate for intentional crimes classified as felonies—for conduct in violation of a statute or regulation which the Legislature has seen fit to classify under Public Health Law § 12-b(2) as a misdemeanor would be impermissible judicial legislation. It would also be inconsistent with the legislative purpose of protecting the public against Public Health Law violations by criminalizing a broad range of conduct under Public Health Law § 12-b but, at the same time, treating such regulatory or statutory violations as crimes of less serious degree.

Nor were the People required, as defendant impliedly argues, to demonstrate that she knew she was violating a specific statute or regulation. Rather, the People were required to show only that defendant was aware that her conduct was illegal. Here, defendant admitted receiving a copy of the patient’s bill of rights (codified in Public Health Law § 2803-c) and attending lectures regarding its contents. The bill of rights mandates, among other things, that residents must be free from having their personal privacy invaded; being physically or mentally abused; and being forced to do anything against their will. Moreover, defendant admitted that she knew that it would be inappropriate to search a patient who physically resisted. There is ample support in the record for the Trial Judge’s undisturbed finding that the People established “a knowing violation . . . of the statute.”

 

R. v. Dalley
Ontario Court of Appeal
[1957] 118 C.C.C. 116

LEBEL J.A. (for the Court): This is an appeal from a decision of His Honour Judge McMillan, County Court Judge of the County of Elgin, affirming the appellant’s conviction by Magistrate Donald Smith, at the City of St. Thomas, on March 31, 1956. The appellant was sentenced to pay a fine of $500 and costs for an offence described at length in the information and complaint, the gist of which is that he “traded” in a security, he not being then registered as a broker, etc., contrary to s. 6 of the Securities Act, R.S.O. 1950, c. 351. ...

These, briefly, are the facts:

In October and November 1952 the appellant was granted four permits by the Department of Lands and Forests of the Province of British Columbia. These permits gave him “the exclusive right and privilege to prospect, by surface geology only, for Crown petroleum and natural gas,” within the lands described in the permits and consisting in all of some 80,000 acres in the Peace River District. After certain surface work had been done the appellant planned to interest an oil company in drilling on the lands and if the results of the drilling proved commercially interesting, he would be entitled, under the terms of the permits, to obtain leases from the Department which he could assign to the oil company in return for a share of its profits. One Doan was interested in the venture with the appellant, and it was agreed between them that the appellant would conduct the negotiations with the Department and the oil companies and acquire the permits in his name, and that Doan would attempt to interest others in the purchase of up to 49% of their interest in the venture. It should be pointed out that the permits were expressed to be unassignable without the consent of an official ofthe Department.

One Leam purchased an interest, and he introduced the said Wilfred Johnson to the appellant as a prospective purchaser. Several others purchased interests, but it is the appellant’s sale to Johnson, evidenced by the agreement between them on November 3, 1952, with which this case is concerned.

To round out the story, I should add that on November 13, 1952, the appellant reached an agreement with an oil company for the drilling work, which was satisfactory to Doan and to the others who had bought interests, including Johnson. However, shortly afterwards disputes arose within the group and the Ontario Securities Commission learned about the appellant’s dealings. This prosecution followed and the oil company cancelled its agreement with the appellant.

It is not suggested that the appellant was guilty of fraud or sharp practice, but the Crown takes a serious view of the offence nevertheless. It maintains that the Securities Commission will be unable to properly protect the purchasers of securities in Ontario unless conduct such as that of the appellant in this case is held to be within the power of the Commission to control. The contention is that the Securities Act authorizes the Commission to control the sale of securities within Ontario, and that their control is not limited to what are generally known as corporate securities.

The appellant admits his failure to register as a “broker,” “broker-dealer” or an “investment dealer,” etc. as s. 6 of the Act requires. He does not contend that in his dealings with Johnson he did not “trade.” ...

[The Court then held that the agreement was a “security” within the meaning of the Act.]

I turn now to the consideration of the appellant’s contention that he was not “knowingly responsible” for the offence and hence not liable.

Section 63 of the Act reads in the parts that are material here, as follows:

63.(1) Every person, including any officer, director, official or employee of a company, who is knowingly responsible for, . . .
“(e) the commission of any act or failure to perform any act where such commission or failure constitutes a violation of any provision of this Act or the regulations.”
The appellant swore that he did not know that what he did amounted to an offence. His solicitor had advised him otherwise, he said, and he believed that in making his agreement with Johnson he did not know he was dealing or trading in a “security.”

The argument, as the appellant puts it in paras. 15 and 16 of his factum is “that in view of the particular wording of s. 63(1), a mistake in law is a valid defence to the Charges.” And since “the appellant on all the evidence did not believe that he was doing anything contrary to law,” he must be acquitted.

That contention strikes me as being more peculiar than the words in the section which are said to be peculiar. If it is sound, then the Legislature has decided that the age old principle: ignorantia juris neminem excusat should not apply in Ontario in a case such as this, and that a person may trade in a security as he likes so long as he mistakenly believes, or believes on the advice of his solicitor, that what he does is not a violation of the Act.

Subsection (1) (e) is the very opposite, for the knowing responsibility that constitutes an offence under these subsections is a responsibility “for the commission of any act or failure to perform any act.”

Here the appellant knew, as his counsel conceded, that he was not registered under the Act and that he “traded” in his dealing with Johnson. These, of course, were questions of fact. To say that he did not know that what he dealt with or traded in was a security within the meaning of the Act, amounts to an assertion that he was mistaken about a question of law. If true, and I do not doubt it, it affords the appellant no defence, in my opinion.

I am satisfied that s. 63(1) (e) makes no change in the settled law on the point of knowledge as an ingredient of an offence where such words as “knowingly” or “wilfully” are used to describe it, and I refer to two modern cases: Gaumont British Distributors Ltd. v. Henry, [1939] 2 All E.R. 808 and R. v. Rees (1956), 4 D.L.R. (2d) 406, 115 Can. C.C. 1. In the former the accused corporation was acquitted when it established that in making “a talking film record” of an orchestral performance, it did not know, as had been vouched for by a responsible party, that all the performers in the orchestra had not consented to this being done. At p. 814 Lord Hewart L.C.J. said: “I should be very sorry even to appear, directly or indirectly, to add any colour to the suggestion, if it were made, as I do not think it is, that, in circumstances of this kind, ignorance of the law might excuse. The way in which the topic of the appellants’ knowledge came in was solely with reference to these words ‘knowingly without the consent in writing of the performers,’ and the contention was a contention of fact. According to a true view of the evidence of fact in this case, it was incorrect to say that the appellants did knowingly without the consent in writing of the performers do that which was done.”

In the Rees case a man’s defence to a charge of contributing to juvenile delinquency was that he honestly believed that the girl involved was over 18 years of age. His ignorance, which was established, was unanimously held by the Supreme Court of Canada to be with respect to a question of fact only and his conviction was quashed. At p. 412 D.L.R., p. 8 Can. C.C. Rand J. adopted what was said by Professor Glanville Williams in his Criminal Law at p. 131: “‘It is a general rule of construction of the word “knowingly” in a statute that it applies to all the elements of the actus reus.’ “

And at p. 417 D.L.R., p. 13 Can. C.C. Cartwright J. said: “It would indeed be a startling result if it should be held that in a case in which Parliament has seen fit to use the word ‘knowingly’ in describing an offence honest ignorance on the part of the accused of the one fact which alone renders the action criminal affords no answer to the charge.”. . .

Appeal dismissed.

 

R. v. Forster
[1992] 1 S.C.R. 339; [1992] S.C.J. No. 9
Supreme Court of Canada

LAMER C.J.:--
1     The appellant, Ms. Forster, has been a commissioned officer in the Canadian Armed Forces since 1975. ...
2     On January 29, 1988, Colonel Buckham ... relieved the appellant of her duties as Base Comptroller, apparently due to his concerns regarding her management methods....
3     On February 15, 1988, the appellant was informed she had received an "attached posting" to the Directorate of Pay Services, Ottawa, her duties commencing February 19. This was subsequently changed to 8:00 a.m., March 15. The appellant did not report to her new posting on March 15, but remained at her home in Edmonton where she was arrested by military police on March 16. At the General Court Martial that followed, she gave the following explanation.
4     In early February 1988, the appellant had engaged civilian legal counsel, because after researching the Canadian Forces Administrative Orders, the Queen's Regulations and Orders for the Canadian Forces ("Q.R. & O.") and the National Defence Act, R.S.C., 1985, c. N-5 (formerly R.S.C. 1970, c. N-4), she could not find any regulation or authority for Colonel Buckham to do what he had done. On February 18, her counsel wrote a letter to Colonel Buckham, which stated:

Maj. Forster has no alternative but to treat these circumstances as a constructive dismissal of her employment from the Armed Forces.
5     On February 23, 1988, the appellant attended a meeting with Colonel Buckham, at which they discussed this letter....
6     According to the appellant, she was told that she could not simply resign from the Armed Forces and that if she did not report for duty in Ottawa she could face charges under the National Defence Act. She was also advised to bring certain sections of the Act to the attention of her lawyer. However, the appellant further testified that at this meeting "[t]he invitation was extended to me by the Base Commander [Colonel Buckham] that I could, if I so wished, tender my release voluntarily at that point .... Eventually I did tender my resignation, my lawyer sent a letter." ...
7     On March 10, 1988, the appellant's lawyer sent a second letter, this time to the Commander of Air Command, indicating that the appellant "hereby resigns her position from the Armed Forces effective Monday, March 14, 1988".
8     The appellant testified that she did not attend at her posting in Ottawa because she had resigned.... She testified that she did not intend to commit any offence, and that she believed that her resignation absolved her of the requirement of attending the posting in Ottawa.
9     On May 2, 1988, the appellant was convicted by a General Court Martial at Canadian Forces Base Edmonton on a charge of being absent without leave (s. 90 of the National Defence Act (formerly s. 80))....
12     National Defence Act, R.S.C., 1985, c. N-5
23. (1) The enrolment of a person binds the person to serve in the Canadian Forces until the person is, in accordance with regulations, lawfully released.
90. (1) Every person who absents himself without leave is guilty of an offence and on conviction is liable to imprisonment for less than two years or to less punishment.
(2) A person absents himself without leave who
(a) without authority leaves his place of duty;
(b) without authority is absent from his place of duty; or
(c) having been authorized to be absent from his place of duty, fails to return to his place of duty at the expiration of the period for which the absence of that person was authorized.

150. The fact that a person is ignorant of the provisions of this Act, or of any regulations or of any order or instruction duly notified under this Act, is no excuse for any offence committed by the person.

14     ... The appellant did not contend before us that her purported resignation from the Canadian Forces was legally effective. What she claims is that she honestly believed that she had resigned from the Forces, and that because of this she did not possess the requisite mens rea for the offence under s. 90 of the National Defence Act of being absent without leave. In my opinion, this submission can be dealt with very briefly. Even if we take the appellant's assertions about her beliefs at face value, she did not labour under any mistake about what she in fact did: she deliberately refrained from reporting to her new posting in Ottawa. Instead, she was mistaken about the legal consequences of her actions, because of her failure to understand that she was under a continuing legal obligation to report for duty notwithstanding her purported resignation by letter from the Forces. Thus, while she may not have intended to commit any offence under military law, this lack of intention flowed from her mistake as to the continuing legal obligation to report for duty which that regime imposed upon her until properly released from service in accordance with the Q.R. & O.
15     It is a principle of our criminal law that an honest but mistaken belief in respect of the legal consequences of one's deliberate actions does not furnish a defence to a criminal charge, even when the mistake cannot be attributed to the negligence of the accused: Molis v. The Queen, [1980] 2 S.C.R. 356....
18     In view of the above, it is not necessary to decide whether the offence of absence without leave is a mens rea offence or an offence of strict liability, for which the required mental state could simply be negligence. ...
19     [E]ven assuming that absence without leave is a mens rea offence, the appellant was shown to have the requisite mental state. She was mistaken not about the factual context or the quality of her actions, but rather about their legal consequences. Without considering the possibility of a defence based on officially induced error of law, this is not a circumstance amounting to a defence.

 

R. v. Jorgensen
Supreme Court of Canada
[1995] 4 S.C.R. 55

LAMER C.J.C.:

I. Introduction

This appeal from a conviction under s. 163(2) of the Criminal Code, R.S.C., 1985, c. C46, raises two issues for our consideration because of the wording of the section: (i) did the accused “knowingly” sell obscene material? and (ii) did he do so “without lawful justification or excuse”? Regarding the first issue, the question of the requisite mens rea for this offence, I agree with the reasons of my colleague Justice Sopinka. In particular, I concur in his conclusion that the law requires the Crown to prove that an accused retailer knew of the specific acts or set of facts which lead the court to the conclusion that the material in question is obscene. The Crown is not, of course, required to prove that the accused knew the material was obscene in law.... Accordingly, I concur in Sopinka J.’s disposition of the appeal; the accused are entitled to be acquitted.

On the second issue raised by this appeal, the question of whether the accused acted without lawful justification or excuse, I disagree with Sopinka J.’s conclusion. In my view, the circumstances of this case permit the accused to be excused from conviction on the basis of an officially induced error of law by virtue of the OFRB’s approval of the films in question. While I do not believe film board approval negatives mens rea or justifies the accused’s criminal actions, I believe that reasonable reliance on this type of official advice is sufficient basis for a judicial stay of proceedings to be entered. Requiring that a stay be entered only in the clearest of officially induced error of law cases does not offend the maxim that ignorance of the law does not excuse. Rather, it provides an exception from this provision, in line with the existing exceptions, which ensures that the morally blameless are not made criminally responsible for their actions.

To elaborate my conclusions, I will first examine the rationale of the ignorantia juris neminem excusat maxim which is one of the backbones of our criminal law. Next I will consider emerging trends in Canadian cases, and briefly examine the American position. I will then outline how I propose that the officially induced error of law excusing provision be limited. Finally, I will demonstrate why I believe the accused in this case would have been entitled to a judicial stay of proceedings had the mens rea requirement for culpability been met.

II. Analysis

A. Ignorance of the Law Does not Excuse

While mistakes of fact relevant to the commission of a criminal offence excuse an accused from criminal responsibility, mistakes regarding the law do not. There is no significant difference between a mistake of law and ignorance of the law (see Molis v. The Queen, [1980] 2 S.C.R. 356). The common law rule that ignorance of the law does not excuse the commission of a criminal offence is codified in s. 19 of the Criminal Code:

19. Ignorance of the law by a person who commits an offence is not an excuse for committing that offence.
This principle is a significant barrier to the appellants here because the question of whether or not a film is obscene is a question of law, specifically a question of the interpretation and application of the definition of obscenity contained in s. 163(8) of the Criminal Code.
Don Stuart identifies four aspects of the rationale for the rule against accepting ignorance of the law as an excuse:
1. Allowing a defence of ignorance of the law would involve the courts in insuperable evidential problems.
2. It would encourage ignorance where knowledge is socially desirable.
3. Otherwise every person would be a law unto himself, infringing the principle of legality and contradicting the moral principles underlying the law.
4. Ignorance of the law is blameworthy in itself.
(Canadian Criminal Law: A Treatise (3rd ed. 1995), at pp. 295-98.)
While Stuart finds the rule against ignorance of the law crude, and these principles unconvincing in the present era, this maxim is an orienting principle of our criminal law which should not be lightly disturbed. I have concluded that certain types of officially induced errors of law should be permitted to excuse an individual from criminal sanction for his actions, in part because I find that this does not infringe any of the four rationales for the ignorance of the law rule set out above.

Despite the importance of this rule, some exceptions to it are already well established in our law. An accused is excused when the law she was charged under was impossible to gain knowledge of because it had not been published. In addition, a certain number of our Criminal Code offences provide an excuse for an accused who acted with colour of right. The existence of these exceptions demonstrates that the ignorantia juris rule is not to be applied when it would render a conviction manifestly unjust.
...
Several themes run through the Canadian jurisprudence to date on this defence and raise issues which must be determined to outline the scope of the defence. Most of the cases to date have dealt with regulatory offences only, raising the question of when this defence is applicable. A second group of questions revolves around who is an official and what constitutes “official advice”. Finally, officially induced error has sometimes functioned as a full defence, a development which should be discouraged. I turn next to these issues.

C. Officially Induced Error of Law

Officially induced error of law exists as an exception to the rule that ignorance of the law does not excuse. As several of the cases where this rule has been discussed note, the complexity of contemporary regulation makes the assumption that a responsible citizen will have a comprehensive knowledge of the law unreasonable. This complexity, however, does not justify rejecting a rule which encourages a responsible citizenry, encourages government to publicize enactments, and is an essential foundation to the rule of law. Rather, extensive regulation is one motive for creating a limited exception to the rule that ignorantia juris neminem excusat.
...
The first step in raising an officially induced error of law argument will be to determine that the error was in fact one of law or of mixed law and fact. Of course, if the error is purely one of fact, this argument will be unnecessary. Unlike Professor Barton, I do not agree that officially induced error should be used to eradicate the distinction between mistakes of fact and mistakes of law. This distinction is important for all the reasons that I believe the principle that ignorance of the law does not excuse must stand firm. Distinguishing between mistakes of fact and those of law remains conceptually important. Mistakes of law will only be exculpatory in narrowly defined circumstances.

Once it is determined that the error was one of law, the next step is to demonstrate that the accused considered the legal consequences of her actions. By requiring that an accused must have considered whether her conduct might be illegal and sought advice as a consequence, we ensure that the incentive for a responsible and informed citizenry is not undermined. It is insufficient for an accused who wishes to benefit from this excuse to simply have assumed that her conduct was permissible.

The next step in arguing for this excuse will be to demonstrate that the advice obtained came from an appropriate official. One primary objective of this doctrine is to prevent the obvious injustice which O’Hearn Co. Ct. J. noted—the state approving conduct with one hand and seeking to bring criminal sanction for that conduct with the other. In general, therefore, government officials who are involved in the administration of the law in question will be considered appropriate officials. I do not wish to establish a closed list of officials whose erroneous advice may be considered exculpatory. The measure proposed by O Hearn Co. Ct. J. is persuasive. That is, the official must be one whom a reasonable individual in the position of the accused would normally consider responsible for advice about the particular law in question. Therefore, the Motor Vehicle Registrar will be an appropriate person to give advice about driving offences, both federal and provincial. The determination of whether the official was an appropriate one to seek advice from is to be determined in the circumstances of each case.

My colleague Sopinka J. argues that, in this case, allowing OFRB approval to constitute an excuse is an impermissible delegation of power from one level of government to another. In my view, this argument does not bar officially induced error from constituting an excuse which is considered after culpability has been proven. There is no issue of the action of a provincial board precluding criminal prosecutions.

Indeed, we must recall that it is the provincial Attorney General who makes the decision to prosecute offences, even when the offence charged is in the Criminal Code. The advice of officials of any level of government may induce an error of law and trigger this provision provided that a reasonable person would consider that particular government organ to be responsible for the law in question. The determination relies on common sense rather than constitutional permutations.

Several other types of advice have been considered in the cases dealing with this excuse, for example advice from private lawyers and reliance on judicial pronouncements. As these examples are beyond the scope of this case, I make no comment at this time on whether these types of advice may provide the basis for officially induced error of law.

Once an accused has established that he sought advice from an appropriate official, he must demonstrate that the advice was reasonable in the circumstances. In most instances, this criterion will not be difficult to meet. As an individual relying on advice has less knowledge of the law than the official in question, the individual must not be required to assess reasonableness at a high threshold. It is sufficient, therefore, to say that if an appropriate official is consulted, the advice obtained will be presumed to be reasonable unless it appears on its face to be utterly unreasonable.

The advice obtained must also have been erroneous. This fact, however, does not need to be demonstrated by the accused. In proving the elements of the offence, the Crown will have already established what the correct law is, from which the existence of error can be deduced. Nonetheless, it is important to note that when no erroneous advice has been given, as in MacDougall, supra, this excuse cannot operate.

Finally, to benefit from this excuse, the accused must demonstrate reliance on the official advice. This can be shown, for example, by proving that the advice was obtained before the actions in question were commenced and by showing that the questions posed to the official were specifically tailored to the accused’s situation.

In summary, officially induced error of law functions as an excuse rather than a full defence. It can only be raised after the Crown has proven all elements of the offence. In order for an accused to rely on this excuse, she must show, after establishing she made an error of law, that she considered her legal position, consulted an appropriate official, obtained reasonable advice and relied on that advice in her actions. Accordingly, none of the four justifications for the rule that ignorance of the law does not excuse which Stuart outlined is undermined by this defence. There is no evidentiary problem. The accused, who is the only one capable of bringing this evidence, is solely responsible for it. Ignorance of the law is not encouraged because informing oneself about the law is a necessary element of the excuse. Each person is not a law unto himself because this excuse does not affect culpability. Ignorance of the law remains blameworthy in and of itself. In these specific instances, however, the blame is, in a sense, shared with the state official who gave the erroneous advice.

D. Procedural Considerations

As this excuse does not affect a determination of culpability, it is procedurally similar to entrapment. Both function as excuses rather than justifications in that they concede the wrongfulness of the action but assert that under the circumstances it should not be attributed to the actor. (See R. v. Mack, [1988] 2 S.C.R. 903, at pp. 944-45.) As in the case of entrapment, the accused has done nothing to entitle him to an acquittal, but the state has done something which disentitles it to a conviction (Mack, at p. 975). Like entrapment, the successful application of an officially induced error of law argument will lead to a judicial stay of proceedings rather than an acquittal. Consequently, as a stay can only be entered in the clearest of cases, an officially induced error of law argument will only be successful in the clearest of cases.

The question of whether officially induced error constitutes an excuse in law is a question of law or of mixed law and fact. While a jury may determine whether the accused is culpable, and hence whether this argument is necessary, it is for a judge to determine whether the precise conditions for this legal excuse are made out. Only the trial judge is in a position to determine if a stay should be entered. The elements of the officially induced error excuse are to be proven on a balance of probabilities by the accused.

III. Application to This Case

I agree with Sopinka J. regarding the mens rea issue and, hence, the disposition of this appeal. Accordingly, nothing turns on the application of an officially induced error of law analysis in this case. Nonetheless, as I believe this excuse would be effective in this case had the Crown proven mens rea, considering this application is instructive.

If the appellants had been proven to have the requisite mens rea for an offence under s. 163(2) of the Criminal Code, the argument put forward here would have been an argument based on error of law. That is, the error would have been in concluding that the films they retailed were not legally obscene. The appellants were aware that they were involved in a business which risked infringing the Criminal Code, accordingly they were careful to retail only videos which had been approved by the OFRB. As the films in question were “close to the line”, that is, Newton Prov. Div. J. determined them to infringe the s. 163(8) definition of obscenity only after careful analysis and only on the basis of a few scenes, the opinion of the OFRB would seem reasonable even to a knowledgeable retailer who had watched every minute of the films. It is also significant that those seeking OFRB approval and classification for films must pay the OFRB per minute of film. As the appellants sought, and paid for, the OFRB opinion of these particular films before putting them on their shelves, the question of reliance on the advice is proven.

The difficult issue in this case is whether the OFRB is an appropriate official body to consult when seeking a determination about whether certain films are legally obscene, that is, whether they infringe community standards of tolerance. The Theatres Act, R.S.O. 1990, c. T.6,  states that:

3.—...
(7) The Board has power,
(a) subject to the regulations, to approve, prohibit and regulate the exhibition and distribution of film in Ontario;

33.—(1) Before the exhibition or distribution in Ontario of a film, an application for approval to exhibit or distribute and for classification of the film shall be made to the Board.
(2) After viewing a film, the Board, in accordance with the criteria prescribed by the regulations, may refuse to approve the film for exhibition or distribution in Ontario.
Thus the OFRB is charged with determining which films may be shown in Ontario and with classifying those films. The Act also provides for an appeal of the Board’s decision first to a differently constituted panel of the Board and then to the Divisional Court. Appeals may be on questions of law, of fact, or of both (s. 33(5), (6), (7), (8) and (9)). While clearly the OFRB is not legally responsible for deciding whether a film infringes the Criminal Code provisions, it could presumably itself attract criminal responsibility for approving for distribution a criminally obscene film.

Most importantly, in my view, the OFRB is understood by the general public as the body which approves films for play in Ontario. When a film is rejected as obscene by the OFRB, the headlines proclaim the film’s obscenity. When someone refers to the “censor board”, the OFRB is the board Ontarians think of. There is no other public body which would be the logical choice for someone to consult if seeking advice about whether a film can be legally retailed in Ontario. In these circumstances, therefore, I would conclude that had appellants had the requisite mens rea for this offence, they would be entitled to a judicial stay of proceedings as a result of officially induced error of law.

IV. Disposition

I would allow the appeal and enter an acquittal.

 

Lévis (City) v. Tétreault
Supreme Court of Canada
[2006] 1 S.C.R. 420, 2006 SCC 12

LeBel J.:— 
3          On April 25, 2002, a statement of offence was issued to 2629-4470 Québec inc. (the “company”) for putting a motor vehicle back into operation without having paid the Société de l’assurance automobile du Québec (“SAAQ”) the registration fees required to retain the right to drive it, contrary to s. 31.1 of the Safety Code. At trial, the respondent explained that it had purchased the vehicle on January 17, 2001. The former owner had paid the registration fees up to March 31, 2001. After the company purchased the vehicle, its representative registered the vehicle at an SAAQ office. The SAAQ reimbursed the former owner for the registration fees relating to the period from January 17 to March 31, 2001, and transferred these remaining fees for the year in progress to the company’s account. The company then paid the remaining fees and, as recommended by an SAAQ employee, also paid the registration fees for the following year, that is, for a total of approximately 15 months up to March 31, 2002. The company’s representative testified that the SAAQ employee had told him he would receive a renewal notice approximately 60 days before the expiry date, March 31, 2002. The registration certificate issued to the respondent indicated an expiry date of March 31, 2002. On or about January 18, 2002, the SAAQ sent a renewal notice to the company’s civic address, but it did not indicate the apartment number even though it had this information on file. As a result, the postal service did not deliver the notice, which it returned to the SAAQ on February 14, 2002. In April 2002, the police stopped the vehicle and observed that its registration had expired due to a failure to pay the fees for the year in progress and had not been renewed. A complaint was then brought against the company, and it is in issue here....

D.    Defence of Officially Induced Error

20        Because the respondent company argues that it was misled by erroneous information obtained from an SAAQ official regarding the procedure for paying the fees relating to the registration of its vehicle, we must now consider the nature and availability of the defence of officially induced error. This Court has never clearly accepted this defence, although several decisions by Canadian courts have recognized it to be relevant and legitimate....
22        This Court has firmly and consistently applied the principle that ignorance of the law is no defence. It has given effect to this principle not only in the context of the criminal law itself, but also in cases involving regulatory offences  (Molis v. The Queen, [1980] 2 S.C.R. 356; Pontes). However, the inflexibility of this rule is cause for concern where the error in law of the accused arises out of an error of an authorized representative of the state and the state then demands, through other officials, that the criminal law be applied strictly to punish the conduct of the accused. In such a case, regardless of whether it involves strict liability or absolute liability offences, the fundamental fairness of the criminal process would appear to be compromised. Although the Court has not ruled on this point, Lamer C.J. responded to these concerns, in concurring reasons in R. v. Jorgensen, [1995] 4 S.C.R. 55, by proposing to recognize the defence of officially induced error and attempting to define the conditions under which the defence would be allowed....
26        After his analysis of the case law, Lamer C.J. defined the constituent elements of the defence and the conditions under which it will be available. In his view, the accused must prove six elements:

(1)   that an error of law or of mixed law and fact was made;
(2)   that the person who committed the act considered the legal consequences of his or her actions;
(3)   that the advice obtained came from an appropriate official;
(4)   that the advice was reasonable
(5)   that the advice was erroneous; and
(6)   that the person relied on the advice in committing the act.
(Jorgensen, at paras. 28-35)
27        Although the Court did not rule on this issue in Jorgensen, I believe that this analytical framework has become established. Provincial appellate courts have followed this approach to consider and apply the defence of officially induced error (R. v. Larivière, (2000), 38 C.R. (5th) 130 (Que. C.A.); Maitland Valley Conservation Authority v. Cranbrook  Swine Inc., (2003), 64 O.R. (3d) 417 (C.A.)). I would also note that, in this appeal, neither the prosecution nor the intervener, the Attorney General of Canada, has questioned the existence of this defence in Canadian criminal law as it presently stands. At most, the Attorney General of Canada has suggested another condition in addition to those enumerated by Lamer C.J., namely that the act was committed contemporaneously with the reception of the information. I do not think this addition is necessary. The Attorney General of Canada’s concerns relate more to the need to demonstrate that the advice was reasonable and that the accused relied on it. It should be noted, as the Ontario Court of Appeal has done, that it is necessary to establish the objective reasonableness not only of the advice, but also of the reliance on the advice (R. v. Cancoil Thermal Corp., (1986), 27 C.C.C. (3d) 295; Cranbrook Swine). Various factors will be taken into consideration in the course of this assessment, including the efforts made by the accused to obtain information, the clarity or obscurity of the law, the position and role of the official who gave the information or opinion, and the clarity, definitiveness and reasonableness of the information or opinion (Cancoil Thermal, at p. 303). It is not sufficient in such cases to conduct a purely subjective analysis of the reasonableness of the information. This aspect of the question must be considered from the perspective of a reasonable person in a situation similar to that of the accused....
31     [T]he respondent raised the defences of due diligence and officially induced error in order to avoid conviction on a charge of operating a motor vehicle for which the fees relating to its registration had not been paid, contrary to s. 31.1 of the Safety Code. I note that, as it is worded, this provision does not create an absolute liability offence. Absent a clear indication of the legislature's intent, the offence must be categorized as one of strict liability. The same factors apply as in the case of the obligation to have a valid driver's licence when operating a motor vehicle, and they justify the availability of a due diligence defence. In this case, however, a due diligence defence has not been made out, and it has not been demonstrated that all the conditions under which the defence of officially induced error is available have been met.
32     The two defences are based on the same allegations of fact. Essentially, the respondent argues that it was misled. An SAAQ representative had the respondent pay registration fees corresponding to a 15-month period and told it that a renewal notice would be sent to it before the period expired. Because of an error in the SAAQ's record keeping, the notice was sent to the respondent with an incomplete address and the postal service returned it to the sender. The respondent believed the registration was still valid at the time the police stopped the car.
33     In my view, the respondent's allegations of fact do not show conduct that meets the standard of due diligence. The respondent was aware of the date when the fees relating to the registration of its vehicle would be due and, accordingly, the date when the registration would cease to be valid. It could and should have been concerned when it failed to receive a notice. Instead, it did nothing. It had a duty to do more. The acquittal was therefore unjustified.
34     Nor has the respondent established that the conditions under which the defence or excuse of officially induced error is available have been met in this case and justified a stay of proceedings. The issues raised related at most to administrative practices, not to the legal obligation to pay the fees by the prescribed date. Two fundamental conditions [page439] that must be met for this defence to be available were therefore missing. In the circumstances, the respondent could not have considered the legal consequences of its conduct on the basis of advice from the official in question, nor could it have acted in reliance on that opinion, since no information regarding the nature and effects of the relevant legal obligations had been requested or obtained.

 

R. v. Pena
[1997] B.C.J. No. 1405
British Columbia Supreme Court
New Westminster, British Columbia

1     JOSEPHSON J.:—The issue is whether the defence of "colour of right" should be left with the jury on the counts alleging mischief related offenses.
2     Section 429(2) of the Criminal Code provides a defence for the offence of mischief under s. 430, as follows:

(2)       No person shall be convicted of an offence under section 430 to 446 where he proves that he acted with legal justification or excuse and with colour of right.
3     The word "and" in this section has been judicially edited to an "or," so that there need be only "legal justification" or "colour of right." See R. v. Creaghan (1982), 1 C.C.C. (3d) 449 (Ont. C.A.).
4     In an earlier ruling, I found that s. 429(2) offends the Charter by requiring proof of the defence by an accused. The remedy granted was to "read down" that section to place an evidentiary burden only on the accused. If the defence is available on the evidence, the accused is entitled to the benefit of any reasonable doubt that may arise.
5     The colour of right defence involves a lack of mens rea. Generally, colour of right is "an honest belief in a state of facts (or law, as discussed below) which, if it existed, would be a legal justification or excuse": R. v. Penashue (1991), 90 Nfld. & P.E.I.R. 207 (Nfld. Prov. Ct.). ...

Mistake of Law

6     In R. v. Ninos and Walker, [1964] 1 C.C.C. 326 at 330 (N.S.C.A.), colour of right was defined as "an honest belief in a state of facts which, if it existed, would be a legal justification or excuse." In this respect, colour of right is an application of the mistake of fact defence.
7     Colour of right may also apply where there has been a mistake of law, although courts have disagreed on this point. This issue seems to turn on how the colour of right defence should be separated from s. 19 of the Crimimal Code, which reads as follows:
19.       Ignorance of the law by a person who commits an offence is not an excuse for committing that offence.
8     The strongest authority for the theory that mistake of law should not be included in the colour of right defence is R. v. Shymkowich, (1954), 110 C.C.C. 97 (S.C.C.), where Rand, J. rejected mistake of law as a defence to theft. The accused had collected and sold loose logs floating within a recognized booming area in the belief that he had the right to do so because the logs were drifting and the tide or wind had carried them into the enclosure. However, at p. 99 Rand stated:

What, then, he believed was that by the general law he had a right to collect [the logs] as he did, to dispose of them, and in effect to require the owners to pay him or the person to whom he transferred them remuneration for his salvage work. Is that admissible as a defence? I have no doubt that it is not. As Kenny in his Outlines of Criminal Law, 1952 ed. at pp. 48-9 says: "The final condition is, that the mistake, however reasonable, must not relate to matters of law but to matters of "fact". For a mistake of law, even though inevitable, is not allowed in England to afford any excuse for crime...."

A claim to ownership of a chattel, although it may depend on matter of law, is, in most cases, a question of fact, or its legal basis may, in the ordinary sense of the word, be subsumed in "fact." This enhances the difficulty of separating legal from factual elements in any relation to property and in any case it may resolve itself into a refined conceptual distinction. But a distinction between justifying an act as authorized by law and as a bona fide belief in a propriety interest does seem to correspond with an instinctive discrimination between the two concepts.

This idea is given its best expression by Lord Westbury in Cooper v. Phibbs (1867), L.R. 2 H.L. 149 at p. 170 in the following language: "It is said "ignorantia juris haud excusat;" but in that maxim the word "jus" is used in the sense of denoting general law, the ordinary law of the country. But when the word "jus" is used in the sense of denoting a private right, the maxim has no application. Private right of ownership is a matter of fact; it may be the result also of matter of law; but if parties contract under a mutual mistake and misapprehension as to their relative and respective rights, the result is that the agreement is liable to be set aside as having proceeded upon a common mistake.

9     Rand, J. seems to make a distinction between a pure mistake of law and a mistake of civil law/property rights, the latter being considered a mistake of fact. Thus, it would seem that where the mistake is based on a question of ownership (be it legal or factual), the colour of right defence may apply using Mr. Justice Rand's rationale.
10     However, as noted by D. Stuart in Canadian Criminal Law: A Treatise (Carswell: Scarborough, 1995), at 308, "it now seems clear that colour of right can also result from a pure mistake of law."
11     In R. v. Howson, [1966] 3 C.C.C. 348 (Ont. C.A.), a case where a car towing company had been charged with the theft of a car, Porter C.J.O. reviewed the law regarding colour of right and mistake of law, and held, at p. 356:
In my view the word "right" should be construed broadly. The use of the word cannot be said to exclude a legal right. The word is in its ordinary sense charged with legal implications. I do not think that s. 19 affects s. 269 [now s. 429]. Section 19 only applies where there is an offence. There is no offence if there is colour of right. If upon all the evidence it may fairly be inferred that the accused acted under a genuine misconception of fact or law, there would be no offence of theft committed. The trial tribunal must satisfy itself that the accused has acted upon an honest, but mistaken belief that the right is based upon either fact or law, or mixed fact and law.
12     Accordingly, in R. v. DeMarco (1974), 13 C.C.C. (2d) 369 at 372 (Ont. C.A.), where the accused had rented a car and not returned it on time because she did not think that she was obliged to, Martin J. held:

The term "colour of right" generally, although not exclusively, refers to a situation where there is an assertion of a proprietary or possessory right to the thing which is the subject-matter of the alleged theft. One who is honestly asserting what he believes to be an honest claim cannot be said to act "without colour of right", even though it may be unfounded in law or in fact...The term "colour of right" is also used to denote an honest belief in a state of facts which, if it actually existed would at law justify or excuse the act done...The term when used in the latter sense is merely a particular application of the doctrine of mistake of fact.

13     An honest belief concerning property rights, whether based on a mistake in fact or in law, may constitute a colour of right: Lilly v. The Queen (1983), 5 C.C.C. (3d) 1 (S.C.C.).
14     Recently, in R. v. Jorgensen (1995), 102 C.C.C. (3d) 97 (S.C.C.), Lamer C.J.C. noted at pp. 102-103 of his dissenting opinion that:
Despite the importance of [the rule against ignorance of the law] some exceptions to it are already established in our law...a certain number of our Criminal Code offenses provide an excuse for an accused who acted with colour of right. The existence of these exceptions demonstrates that the ignorantia juris rule is not to be applied when it would render a conviction manifestly unjust.
15     By implication, Lamer C.J.C. apppears to acknowledge that the colour of right defence includes mistake of law.
16     Finally, Penashue, supra, R. v. Drainville (1991), 5 C.R. (4th) 38 (Ont. Prov. Ct.) and R. v. Potts, [Q.L. [1990] O.J. No. 2567] (Ont. Prov. Ct.) all involve fact situations similar to present case. The accused were charged with mischief for occupying what they claimed were aboriginal lands. In all three cases, it was accepted that mistake of law was included in the colour of right defence, and the Court instead focused on the issues of a moral as opposed to legal right, and the accused's "honest belief."
17     When the accused acts on a mistake of law, the accused must believe that he has a legal as opposed to a moral right to act.
18     In R. v. Cinq-Mars (1989), 51 C.C.C. (3d) 248 (Que C.A.), Vallerand J.A. quoted the following passage from Jacques Fortin and Luise Viau, Traite de droit penal general (Les editions Themis Inc., 1982) at 128, which notes this distinction:
Colour of right consists of an erroneous belief on the part of the accused that he has a legal right to act as he did... Two fundamental conditions govern colour of right. First, the error must concern a conception of private law; the accused believes that the law recognizes his right to act as he did. Secondly, the right the accused believes he has must be a "legal right" and not simply a moral right. A legal right, that is a right recognized at private law -- for example, a right to possession...a right of retention. The accused acts under a colour of right if he erroneously thinks that he can rely on this right in the circumstances. The claim of a merely "moral" right does not constitute colour of right. Belief in a "moral" right is not based on a conception of law. It rather consists of the affirmation by the accused of his right to act as he does despite the law.
19     In R. v. Hemmerly (1976), 30 C.C.C. (2d) 141 (Ont. C.A.). Martin J.A. at p. 145 states:
"Even if the appellant believed that he had a moral claim to the money (which I am far from holding), a belief in a moral claim could not constitute a colour of right: see Glanville Williams' Criminal Law (the General Part, 2nd ed. (1961), p.322; Harris v. Harrison, [1963] Crim. L.R. 497, and commentary.)"

Evidence related to colour of right:

20    

1.         The land was first used for sundance ceremonies in 1989 after the accused Percy Rosette approached the registered owner of the land seeking permission to use the land for that purpose. That permission was granted.
2.         Subsequently, the accused Percy Rosette and others entered into an agreement with the registered owner of the land, acknowledging his ownership and agreeing to conditions as to its use by them for sundance ceremonies.
3.         Subsequent to the ceremony, Percy Rosette and others wrote the registered owner of the land expressing appreciation for that use, and indicating that they were investigating the possibility of advancing a land claim in respect of that land.
4.         During the occupation of the land, there were numerous statements by members of the encampment, mostly by Doc Hill and Jones Ignace to the following effect:
a)         "Bruce Clark has challenged even the whole colony of B.C., and their presence in native lands."
b)         "Native nations have the right to sovereignty, free of any colonial regimes and restrictions."
c)         "All unceded territory shall be left unmolested and undisturbed."
d)         "B.C. [doesn't] have the right to set up government here in the province."
e)         "Domestic laws don't apply in this situation here...they cannot charge us in any way because we are a sovereign people."
f)          "We are standing on sovereign territory of the Shuswap nation."

21     Bruce Clark testified that he advised camp occupants to the above effect, and told them that no Court in this country (including the Supreme Court of Canada) had accepted his argument on the law because, in effect, the Judges of this country are blinded by self interest. His advise was that only a "third party tribunal," such as the Privy Council of Great Britain, would be sufficiently free of self interest to accede to what he believes to be his compelling and irrefutable argument on the law. It was that demand which was at the heart of the stand-off at Gustafsen Lake.
22     As set out in Howson, DeMarco, Cinq-Mars and Creaghan, supra, there are three conditions to the application of the defence of colour of right:
1.         The accused must be mistaken about the state of a private law, not a moral right.
2.         That law, if it existed, would provide a legal justification or excuse.
3.         The mistaken belief must be honestly held.
23     I conclude there is no "air of reality" to the defence in that there is no evidence upon which a properly instructed jury acting reasonably could find that any accused was mistaken about a fact or the state of a private law. All the evidence is to the effect that the accused were well aware that the registered owner of the land was Mr. James or his company. There is no evidence of anyone asserting a belief that anyone else was the owner of that land, as recognized by the laws of this Province.
24     All the evidence is to the effect that the belief held was that, if this were a just country, the Courts would have struck down the law recognizing registered owners of land such as this as the lawful owners, and restored lawful ownership to the natives. The belief is also that, if this were a just country, the Courts would have recognized that unceded and untreatied land is independent sovereign native land over which Canada, the provinces and its arms of government have no jurisdiction. There is no evidence that any accused harboured an honest mistake about the laws of this country as they exist, whether public or private, only a belief as to what the law should be if it were to reflect what they believed to be their just cause.
25     There is no evidence to the effect that during the period in the Indictment any accused held a belief as to a right of occupation of the land for certain purposes, such as spiritual purposes. Even assuming that there was evidence that an accused believed such as right of occupation existed for the recently imported sundance ceremony at that location, the ceremony had been completed for that year. The only evidence is that those remaining did so for the purpose of advancing their claim to native ownership of and sovereignty over that land.
26     There is no evidence to support any conclusion other than that the accused held a belief in a moral right to the land despite the law. Thus, there is no evidence from which the jury could find or infer facts giving rise to the defence of colour of right.

* * *

LRCC § 3(7)

* * *

MPC § 2.04

* * *

StGB § 17

B.        Intoxication

 

Director of Public Prosecutions v. Beard
House of Lords
[1920] A.C. 479

LORD BIRKENHEAD L.C. (for the Court): My Lords, Arthur Beard was convicted of murder at Chester Assizes and sentenced to death. The Court of Criminal Appeal quashed the conviction and substituted a verdict of manslaughter and a sentence of twenty years’ penal servitude. The case is brought to your Lordships’ House under s.1, sub-s. 6, of the Criminal Appeal Act, 1907, upon the certificate of the Attorney-General that the decision of the Court of Criminal Appeal involves a point of law of exceptional importance. The facts which are relevant may be shortly stated.

About 6 P.M. or a little later, on July 25, 1919, a girl of thirteen years of age was sent by her father to purchase some small articles at a shop. About half-past six she was seen entering the gate which leads into Carfield Mill. The only person then at the mill was the prisoner Beard, who was there in the discharge of his duty as night watchman. He proceeded to have carnal knowledge of the girl by force, and, when she struggled to escape from him, he placed his hand over her mouth, and his thumb on her throat, thereby causing her death by suffocation. There was some but not much evidence that the prisoner was under the influence of intoxicating liquor on the day and at the time in question. This evidence was of a character which is not unusual in crimes of violence, but, in view of the legal problems to which this case has given rise, it requires examination.

A witness met the prisoner on July 25 at 2 P.M. at a public house where they stayed together drinking for about twenty minutes. This witness states that the prisoner was then neither drunk nor sober. They proceeded together to a club where the prisoner purchased and brought away a bottle of whisky. Another witness, whose position was one of authority over the prisoner, saw him at 6.15 P.M. at the mill and found no indication that he was drunk. About twenty minutes to seven—that is, immediately after the offence had been committed—one Jones came to the mill to meet the prisoner. A few minutes before seven they went to another public-house and had some drink. The prisoner was then introduced for membership of a Trade Union; he answered not unintelligently certain questions which were put to him, and he was, upon the strength of such answers, accepted as a member. When the police came upon the scene in the early morning of July 26 they found him excited and under the influence of drink.

The prisoner was not called at the trial but statements made by him were put in evidence. His first statement to the police officers was admittedly untrue and was concocted by him to explain the finding of the body of the girl. In his later statements he said that he asked the girl to kiss him and that he had a struggle with her and then seemed “to lose his senses,” that he would not have injured the girl if he had not been “sodden and mad with drink” and that “it was the whisky that put the finishing touch to it.”

Counsel for the defence did not dispute the prisoner's criminal responsibility for the homicide of the girl. The only defence presented was that in the circumstances proved the verdict should be manslaughter and not murder, on the ground that there was no intention on the part of the prisoner to cause the girl's death, and that he was in such a drunken condition that he was incapable of knowing that what he was doing was likely to inflict serious injury within the rule laid down by the Court of Criminal Appeal in Rex v. Meade...

...[T]hese decisions [before Meade] establish that where a specific intent is an essential element in the offence, evidence of a state of drunkenness rendering the accused  incapable of forming such an intent should be taken into consideration in order to determine whether he had in fact formed the intent necessary to constitute the particular crime. If he was so drunk that he was incapable of forming the intent required he could not be convicted of a crime which was committed only if the intent was proved. This does not mean that the drunkenness in itself is an excuse for the crime but that the state of drunkenness may be incompatible with the actual crime charged and may therefore negative the commission of that crime. In a charge of murder based upon intention to kill or to do grievous bodily harm, if the jury are satisfied that the accused was, by reason of his drunken condition, incapable of forming the intent to kill or to do grievous bodily harm, unlawful homicide with malice aforethought is not established and he cannot be convicted of murder. But nevertheless unlawful homicide has been committed by the accused, and consequently he is guilty of unlawful homicide without malice aforethought, and that is manslaughter: per Stephen J. in Doherty's Case. This reasoning may be sound or unsound; but whether the principle be truly expressed in this view, or whether its origin is traceable to that older view of the law held by some civilians (as expressed by Hale) that, in truth, it may be that the cause of the punishment is the drunkenness which has led to the crime, rather than the crime itself; the law is plain beyond all question that in cases falling short of insanity a condition of drunkenness at the time of committing an offence causing death can only, when it is available at all, have the effect of reducing the crime from murder to manslaughter.

The conclusions to be drawn from these cases may be stated under three heads:—

1. That insanity, whether produced by drunkenness or otherwise, is a defence to the crime charged. The distinction between the defence of insanity in the true sense caused by excessive drinking, and the defence of drunkenness which produces a condition such that the drunken man's mind becomes incapable of forming a specific intention, has been preserved throughout the cases. The insane person cannot be convicted of a crime: Felstead v. The King; but, upon a verdict of insanity, is ordered to be detained during His Majesty's pleasure. The law takes no note of the cause of the insanity. If actual insanity in fact supervenes, as the result of alcoholic excess, it furnishes as complete an answer to a criminal charge as insanity induced by any other cause.
2. That evidence of drunkenness which renders the accused incapable of forming the specific intent essential to constitute the crime should be taken into consideration with the other facts proved in order to determine whether or not he had this intent.
3. That evidence of drunkenness falling short of a proved incapacity in the accused to form the intent necessary to constitute the crime, and merely establishing that his mind was affected by drink so that he more readily gave way to some violent passion, does not rebut the presumption that a man intends the natural consequences of his acts.

I now come to Rex v. Meade ([1909] 1 K.B. 895). The prisoner was charged with murder. He brutally ill-treated the deceased woman during the night of her death; broke a broomstick over her, and struck her a violent blow with his fist, rupturing an intestine and causing her death. The defence was that he was drunk and did not intend to cause death or grievous bodily harm, and consequently that the verdict should be manslaughter. Lord Coleridge J. directed the jury in the following terms: “In the first place, every one is presumed to know the consequences of his acts. If he is insane, that knowledge is not presumed. Insanity is not pleaded here, but where it is part of the essence of the crime that a motive, a particular motive” (meaning intent), “shall exist in the mind of the man who does the act, the law declares this—that if the mind at that time is so obscured by drink, if the reason is dethroned and the man is incapable therefore of forming that intent, it justifies the reduction of the charge from murder to manslaughter.” The objection raised in the Court of Criminal Appeal was that the summing up led the jury to believe that to justify a verdict of manslaughter they must find that the prisoner was insane or in a state resembling insanity, whereas the direction should have been that if there was absence of intention in fact it was manslaughter. The Court of Criminal Appeal upheld the conviction, but the language of the Court of Criminal Appeal contains a proposition of law which, regarded as a rule of general application, would mean that a person charged with a crime of violence may show, in order to rebut the presumption that he intended the natural consequences of his acts, that he was so drunk that he was incapable of knowing what he was doing was dangerous. The Court of Criminal Appeal in the present case, notwithstanding the opinion it had expressed that an act of violence done in furtherance of rape was murder, held that it was bound to follow this decision, and that the jury should have been directed to consider whether Beard, at the time of placing his hand on the child as described, was incapable of knowing that what he was doing was dangerous—that is, likely to cause serious injury.

Your Lordships have had the advantage of a much more elaborate examination of the authorities upon which the rule is founded than was placed before the Court of Criminal Appeal, and I apprehend can have no doubt that the proposition in Meade’s Case in its wider application is not, and cannot be, supported by authority. The difficulty has arisen largely because the Court of Criminal Appeal used language which has been construed as suggesting that the test of the condition of mind of the prisoner is not whether he was incapable of forming the intention but whether he was incapable of foreseeing or measuring the consequences of the act. In this respect the so-called rule differs from the direction of Lord Coleridge J., which is more strictly in accordance with the earlier authorities.

Consideration of the judgment, and particularly of Darling J.’s observations that the Court did not wish to extend the ambit of its decision beyond that laid down in the older cases, makes it clear that it was not intended to lay down a rule which should be applied to such a case as the present. In Meade’s Case the crime charged was that death arose from violence done with intent to cause grievous bodily harm. In this case the death arose from a violent act done in furtherance of what was in itself a felony of violence. In Meade’s Case, therefore, it was essential to prove the specific intent; in Beard’s case it was only necessary to prove that the violent act causing death was done in furtherance of the felony of rape. I do not think that the proposition of law deduced from these earlier cases is an exceptional rule applicable only to cases in which it is necessary to prove a specific intent in order to constitute the graver crime—e.g., wounding with intent to do grievous bodily harm or with intent to kill. It is true that in such cases the specific intent must be proved to constitute the particular crime, but this is, on ultimate analysis, only in accordance with the ordinary law applicable to crime, for, speaking generally (and apart from certain special offences), a person cannot be convicted of a crime unless the mens was rea. Drunkenness, rendering a person incapable of intent, would be an answer, as it is for example in a charge of attempted suicide. In Reg. v. Moore (3 C. & K. 319) drunkenness was held to negative the intent in such a case, and Jervis C.J. said: “If the prisoner was so drunk as not to know what she was about, how can you say that she intended to destroy herself?”

My Lords, drunkenness in this case could be no defence unless it could be established that Beard at the time of committing the rape was so drunk that he was incapable of forming the intent to commit it, which was not in fact, and manifestly, having regard to the evidence, could not be contended. For in the present case the death resulted from two acts or from a succession of acts, the rape and the act of violence causing suffocation. These acts cannot be regarded separately and independently of each other. The capacity of the mind of the prisoner to form the felonious intent which murder involves is in other words to be explored in relation to the ravishment; and not in relation merely to the violent acts which gave effect to the ravishment....

In the present case I doubt, without reaching a conclusion, whether there was any sufficient evidence to go to the jury that the prisoner was, in the only relevant sense, drunk at all. There was certainly no evidence that he was too drunk to form the intent of committing rape. Under these circumstances, it was proved that death was caused by an act of violence done in furtherance of the felony of rape. Such a killing is by the law of England murder.

I am, therefore, of opinion that the appeal should be allowed and the conviction of murder restored, and I move your Lordships accordingly.

 

Director of Public Prosecutions v. Majewski
House of Lords
[1976] 62 Cr.App.R. 262.

LORD ELWYN-JONES L.C.:— My Lords, Robert Stefan Majewski appeals against his conviction on November 7, 1973, at Chelmsford Crown Court on three counts of assault occasioning actual bodily harm and three counts of assault on a police constable in the execution of his duty. He was bound over to come up for judgment when called upon. On December 5, 1973, he was placed on probation for three years. Later he committed a further offense for which he was given an additional sentence of six months' imprisonment for the original offences.

The appellant's case was that when the assaults were committed he was acting under the influence of a combination of drugs (not medically prescribed) and alcohol, to such an extent that he did not know what he was doing and that he remembered nothing of the incidents that had occurred. After medical evidence had been called by the defence as to the effect of the drugs and drink the appellant had taken, the learned judge, in the absence of the jury ruled that he would direct the jury in due course that on the charges of assault or assault occasioning actual bodily harm, the question of whether he had taken drink or drugs was immaterial. The learned judge directed the jury that in relation to an offence not requiring a specific intent, the fact that a man has induced in himself a state in which he is under the influence of drink and drugs, is no defence. Since the counts for assault did not require proof. of any specific intent, the fact that the accused might have taken drink or drugs was irrelevant, provided the jury was satisfied that the state which he was in as a result of drink and drugs or a combination of both was self-induced. He concluded "upon my direction in law you can ignore the subject of drink and drugs as being in any way a defence to any one or more of the counts in this indictment."  In dealing with assault he directed that it meant some blow or kick, "not something which is purely accidental."

The Court of Appeal (1975) 62 Cr.App.R. 5; [1975] 3 W.L.R. 401 dismissed the appeal against conviction but granted leave to appeal to your Lordships' House certifying that the following point of law of general public importance was involved: "Whether a defendant may properly be convicted of assault notwithstanding that, by reason of his self-induced intoxication, he did not intend to do the act alleged to constitute the assault."...

Originally the common law would not and did not recognise self-induced intoxication as an excuse. Lawton L.J. spoke of the " merciful relaxation " to that rule which was introduced by the judges during the nineteenth century, and he added "Although there was much reforming zeal and activity in the nineteenth century, Parliament never once considered whether self-induced intoxication should be a defence generally to a criminal charge. It would have been a strange result if the merciful relaxation of a strict rule of law had ended, without any Parliamentary intervention, by whittling it away to such an extent that the more drunk a man became, provided he stopped short of making himself insane, the better chance he had of an acquittal.... The common law rule still applied but there were exceptions to it which Lord Birkenhead L.C. tried to define by reference to specific intent."

There are, however, decisions of eminent judges in a number of Commonwealth cases in Australia and New Zealand, (but generally not in Canada nor in the United States) as well as impressive academic comment in this country, to which we have been referred, supporting the view that it is illogical and inconsistent with legal principle to treat a person who of his own choice and volition has taken drugs and drink, even though he thereby creates a state in which he is not conscious of what he is doing, any differently from a person suffering from the various medical conditions like epilepsy or diabetic coma and who is regarded by the law as free from fault. However our courts have for a very long time regarded in quite another light the state of self-induced intoxication. The authority which for the last half century has been relied upon in this context has been the speech of Lord Birkenhead L.C. in Director of Public Prosecutions v. Beard 14 Cr.App.R. 159; [1920] A.C. 479....

I do not for my part regard that general principle as either unethical or contrary to the principles of natural justice. If a man of his own volition takes a substance which causes him to cast off the restraints of reason and conscience, no wrong is done to him by holding him answerable criminally for any injury he may do while in that condition. His course of conduct in reducing himself by drugs and drink to that condition in my view supplies the evidence of mens rea, of guilty mind certainly sufficient for crimes of basic intent. It is a reckless course of conduct and recklessness is enough to constitute the necessary mens rea in assault cases; see Venna (1975) 61 Cr.App.R. 310; [1975] 3 W.L.R. 737 per James L.J. at pp. 314 and 743.

The drunkenness is itself an intrinsic, an integral part of the crime, the other part being the evidence of the unlawful use of force against the victim. Together they add up to criminal recklessness. On this I adopt the conclusion of Stroud in (1920) 36 L.Q.R. at p. 273 that: "It would be contrary to all principle and authority to suppose that drunkenness" (and what is true of drunkenness is equally true of intoxication by drugs) "can be a defence for crime in general on the ground that 'a person cannot be convicted of a crime unless the mens was rea.' By allowing himself to get drunk and thereby putting himself in such a condition as to be no longer amenable to the law's commands, a man shows such regardlessness as amounts to mens rea for the purpose of all ordinary crimes."

This approach is in line with the American Model Penal Code (s. 2.08 (2)): "When recklessness establishes an element of the offence, if the actor, due to self-induced intoxication, is unaware of a risk of which he would have been aware had he been sober, such unawareness is immaterial.”

Acceptance generally of intoxication as a defence (as distinct from the exceptional cases where some additional mental element above that of ordinary mens rea has to be prove) would in my view undermine the criminal law and I do not think that it is enough to say, as did Mr. Tucker, that we can rely on the good sense of the jury or of magistrates to ensure that the guilty are convicted. It may well be that Parliament will at some future time consider, as I think it should, the recommendation in the Butler Committee Report on Mentally Abnormal Offenders (Cmnd. 6244, 1975) that a new offence of “dangerous intoxication” should be created. But in the meantime it would be irresponsible to abandon the common law rule, as “mercifully relaxed,” which the Courts have followed for a century and a half....

How the court of trial should deal with an offender in the circumstances we are considering is not a problem which arises on this appeal. It would no doubt take full account of the relevant medical evidence and of all mitigating factors and give careful consideration to the various alternatives, custodial and non-custodial, punitive and curative, now available to the courts. There is no minimum punishment for the class of assaults with which this appeal is concerned and the court's discretion as to how to deal with the offender is wide.

LORD EDMUND-DAVIES:— Your Lordships are presently concerned with a public-house brawl, which is said to have been due to the ingestion of drugs rather than drink. Such a plea is becoming much more common, and those acting judicially or who have otherwise acquired any knowledge of addiction are familiar with such parlance of the drug scene as “going on a trip” or “blowing the mind,” the avowed intention of the taker of the hallucinatory drugs being to lose contact with reality. Irrationality is in truth the very essence of drug-induced fantasies....

Illogical though the present law may be, it represents a compromise between the imposition of liability upon inebriates in complete disregard of their condition (on the alleged ground that it was brought on voluntarily), and the total exculpation required by the defendant's actual state of mind at the time he committed the harm in issue. It is at this point pertinent to pause to consider why legal systems exist. The universal object of a system of law is obvious—the establishment and maintenance of order. "The first aim of legal rules is to ensure that members of the community are safeguarded in their persons and property so that their energies are not exhausted by the business of self-protection." (Stein and Shand, Legal Values in Western Society, 1974, p. 31.) The relevant quotations on the purpose of law are endless and they serve to explain (if, indeed, any explanation be necessary) the sense of outrage which would naturally be felt not only by the victims of such attacks as are alleged against the appellant—and still more against Lipman—were he to go scot-free: And a law which permitted this would surely deserve and earn the contempt of most people. But not, it seems, of the joint authors of Smith & Hogan, who in the 3rd edition of their valuable book Criminal Law write (p. 37): "While a policy of not allowing a man to escape the consequence of his voluntary drunkenness is understandable, it is submitted that the principle that a man should not be held liable for an act over which he has no control is more important and should prevail." They add that this is not to say that such a man should in all cases escape criminal liability but that, if he is to be held liable, it should be for the voluntary act of taking the drink or drug.

Such a suggestion is far from new. Thus, it appears from Hale's Pleas of the Crown, Vol. 1, p. 32, that some lawyers of his day thought that the formal cause of punishment ought to be the drink and not the crime committed under its influence. Edwards (ante, pp. 266, 278) expressed concern in 1965 over the possible existence of this gateway to exemption from criminal responsibility and stressed the need for urgent attention to the provision of new statutory powers under which the courts may place such offenders on probation or committing them, as the case may require, to a hospital capable of treating them for the underlying cause of their propensity to automatism. Glanville Williams (ante, at p. 571) anticipated in 1961 the Butler Report on Mentally Abnormal Offenders (Cmnd. 6244 (1975)) by recommending the creation of an offence of being drunk and dangerous, and the Committee itself proposes that a new offence of "dangerous intoxication" be punishable on indictment for one year for a first offence or for three years on a second or subsequent offence.

Such recommendations for law reform may receive Parliamentary consideration hereafter but this House is presently concerned with the law as it is. The merciful relaxation of the old rule that drunkenness was no defence appears to have worked reasonably well for 150 years....

Appeal dismissed.

 

R. v. Bernard
Supreme Court of Canada
[1988] 67 C.R (3d) 113; [1988] 2 S.C.R. 833

DICKSON C.J.C. (dissenting) (LAMER J. concurring):—Counsel for the appellant submits that there are two issues raised in this appeal [from 44 C.R (3d) 398, 18 C.C.C. (3d) 574, 7 O.A.C. 305]: (i) whether sexual assault causing bodily harm contrary to s. 246.2(c) of the Criminal Code, R.S.C. 1970, c. C-34 [now s. 272(c) of the Criminal Code, R.S.C. 1985, c. C46], is an offence of “specific” intent; and (ii) whether drunkenness can ever be a “defence” to a charge of sexual assault causing bodily harm.

I. FACTS

The appellant, Nelson Pierre Bernard, was charged with sexual assault causing bodily harm to the complainant contrary to s. 246.2(c) of the Criminal Code. That subsection provides that everyone who, in committing a sexual assault, causes bodily harm to the complainant is guilty of an indictable offence and liable to imprisonment for 14 years.

The facts may be briefly stated.

The complainant, 18 years of age at the relevant time, visited the appellant, 24 years old. The appellant went out to dinner and to a bar with some friends, while the complainant stayed behind in his apartment. Later that night the group returned to the flat. The friends departed, leaving the appellant and the complainant alone together.

The complainant testified that she had complied with the appellant’s request to remain in the apartment after the friends’ departure both because she was not feeling well and because it was the first Christmas since the death of her father. She and the appellant, who had been a good friend of her late father, were going to talk about him.

The two lay down on the couch together and began talking. The complainant testified that she was then forced to have sexual intercourse without her consent and was subjected to serious bodily injury at the hands of the appellant. There was evidence that the appellant had punched the complainant twice with a closed fist, once above the eye, causing the eyelid to bleed profusely, and that he had threatened to kill her. There was evidence of a blood-stained towel and pillowcase concealed in the toilet tank of the appellant’s apartment. Counsel for the appellant admitted that intercourse had taken place.

The complainant testified that the appellant had been drinking but was able to walk, to see everything, to talk clearly, and to put albums on the record player. One of the friends of the appellant testified that the appellant had been drinking on the night in question and, though he became rowdy, he was walking straight and talking.

When the police arrived at the appellant’s apartment, he was awakened from a deep sleep and seemed to be suffering somewhat from his drinking. The appellant stated that his drunkenness caused the attack on the complainant.

The appellant was tried before a judge and jury. He did not testify at the trial, but the Crown led evidence of a statement he had made to the police. In the statement he admitted that he had forced the complainant to have sexual intercourse with him. He stated that he did not know why he had done it, because he was drunk, and that “When I realized what I was doing, I got off.” In charging the jury, the trial judge made no reference to the intent requirement, beyond reading the jury the definition of assault. The jury was told that the sole issue was whether the Crown had proved beyond a reasonable doubt that the complainant had not consented to the intercourse because of the assault and threats made by the accused. With respect to drunkenness, the trial judge said as follows:

“Only the accused in his statement says, “I was all drunked up too.” There was no evidence of drunkenness except that statement, and it is open to you to accept it and find that he was drunk, but even if he was drunk, drunkenness is no defence to the charge alleged against this accused.”
The appellant was convicted and sentenced to four years’ imprisonment. An appeal to the Court of Appeal of Ontario was dismissed. Dubin J.A., delivering the oral judgment of the court, said at p. 574:
“On the merits, the Crown’s case was overwhelming. The complainant’s testimony that she was forced to have sexual intercourse without her consent and the serious bodily injury which she suffered during the course of the assault was confirmed in every respect by other evidence.”
With respect, I agree.

Dubin J.A. concluded at p. 576:
“Mr. Ruby also took objection to passages in the judge’s charge. We are all satisfied that the charge, when read as a whole, is more favourable to the appellant than the evidence warranted. In any event we are satisfied that even if objection could be taken to some of the expressions used by the trial judge, there was no substantial wrong or miscarriage of justice in this case.”

II. DRUNKENNESS AND MENS REA

In my view, the only issue the court needs to address may be put as follows: Should evidence of self-induced intoxication be considered by the trier of fact, along with all other relevant evidence, in determining whether the prosecution has proved beyond a reasonable doubt the mens rea required to constitute the offence? I am of the opinion that the court should answer that question in the affirmative....

In my dissent in Leary [v. The Queen (1977), 33 C.C.C. (2d) 473, 74 D.L.R. (3d) 103, [1978] 1 S.C.R. 29], I sought to advance the view that respect for basic criminal law principles required that the legal fiction, the artificial “specific” intent threshold requirement, be abandoned. l do not intend in these reasons to repeat what I said in Leary. With due regard for stare decisis, as to which I will have more to say in a moment, and with the greatest of respect for those of a contrary view, I would add only that nothing I have heard or read since the judgment in Leary has caused me to abandon or modify in the slightest degree the views of dissent which I there expressed....

III. STARE DECISIS

The real issue in this appeal, it seems to me, is whether the court should now overrule Leary, supra. Let me say immediately that, even if a case were wrongly decided, certainty in the law remains an important consideration. There must be compelling circumstances to justify departure from a prior decision. On the other hand, it is clear that this court may overrule its own decisions, and indeed it has exercised that discretion on a number of occasions....

There are at least four separate factors which find support in the jurisprudence of the court which in my submission lead to the conclusion that Leary should be overruled.

A. Canadian Charter of  Rights and Freedoms

Since Leary was decided, the Canadian Charter of Rights and Freedoms has come into force. This court has held that legislation which imposes the sanction of imprisonment without proof of a blameworthy state of mind violates the guarantee of fundamental justice contained in s. 7 of the Charter and must be struck down unless it can meet the exacting test of s. 1. . . .

The appellant submits that Leary runs counter to s. 7 by providing that intoxication is no defence to a crime of general intent. In circumstances where the requisite mental intent is lacking due to an intoxicated condition, a general intent offence is converted into one of absolute liability, in which proof of the commission of the actus reus by itself mandates conviction. It is also submitted that Leary runs counter to the presumption of innocence and the right to a fair hearing as guaranteed by s. 11(d) of the Charter, insofar as wrongful intent is irrebuttably presumed upon the showing of intoxication....

In Leary, I expressed the opinion that the fundamental rationale for the mens rea presumption could be framed in the following terms, at p. 34:

“The notion that a court should not find a person guilty of an offence against the criminal law unless he has a blameworthy state of mind is common to all civilized penal systems. It is founded upon respect for the person and for the freedom of human will. A person is accountable for what he wills. When, in the exercise of the power of free choice, a member of society chooses to engage in harmful or otherwise undesirable conduct proscribed by the criminal law, he must accept the sanctions which that law has provided for the purpose of discouraging such conduct. Justice demands no less. But, to be criminal, the wrongdoing must have been consciously committed. To subject the offender to punishment, a mental element as well as a physical element is an essential concomitant of the crime. The mental state basic to criminal liability consists in most crimes in either (a) an intention to cause the actus reus of the crime, i.e., an intention to do the act which constitutes the crime in question, or (b) foresight or realization on the part of the person that his conduct will probably cause or may cause the actus reus, together with assumption of or indifference to a risk, which in all of the circumstances is substantial or unjustifiable. This latter mental element is sometimes characterized as recklessness .”
In my view, that same principle is now given constitutional force in Re B.C. Motor Vehicle Act, supra, and Vaillancourt, supra. In Re B.C. Motor Vehicle Act the court held, at p. 514 [S.C.R], that “absolute liability in penal law offends the principles of fundamental justice”. In Vaillancourt, Lamer J. stated that Ref. re B.C. Motor Vehicle Act “elevated mens rea from a presumed element in Sault Ste Marie, supra, to a constitutionally required element” (p. 652). While the court has not yet dealt directly with the extent to which objective foreseeability may suffice for the imposition of criminal liability (Vaillancourt at pp. 653-54), that issue is not raised in the present context.

The effect of the majority holding in Leary isto impose a form of absolute liability on intoxicated offenders, which is entirely inconsistent with the basic requirement for a blameworthy state of mind as a prerequisite to the imposition of the penalty of imprisonment mandated by the above-cited authorities. I agree with the observation of Professor Stuart in Canadian Criminal Law: A Treatise, 2nd ed. (1987), that s. 7 of the Charter mandates the reversal of Leary and the assertion of “the fundamental principles of voluntariness and fault” in relation to intoxication and the criminal law (at p. 378). If the constitutional guarantee empowers the court to strike down legislation, as in the two cases cited above, surely it provides a sufficient basis for overruling a prior decision of the court which fails to respect constitutionally-entrenched values.

The majority holding in Leary also runs counter to the s. 11(d) right to be presumed innocent until proven guilty. With respect to crimes of general intent, guilty intent is in effect presumed upon proof of the fact of intoxication. Moreover, the presumption of guilt created by the Leary rule is irrebuttable. In R. v. Oakes, [1986] 1 S.C.R 103,50 C.R (3d) 1,24 C.C.C. (3d) 321, 26 D.LR. (4th) 200, 19 C.RR. 308, 14 O.A.C. 335, 65 N.R. 87, the court stated, at p. 132:
“. . . 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).”
In Vaillancourt, Lamer J. stated the following, at pp. 654-55:
“. . . 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).”
The same argument made in the context of s. 7 can be made in relation to s. 11(d). By providing that intoxication is no defence to a crime of general intent, Leary renders the offence one of absolute liability and runs counter to the presumption of innocence by presuming an essential element required by s. 7 upon the proof of the fact of intoxication.

In my view, the Leary rule cannot be upheld by reference to s. 1, as it cannot survive the “proportionality” inquiry. While the protection of the public, said to underlie the Leary rule, could serve as an important objective, in my view the Leary rule does not achieve that objective in a manner consistent with the proportionality test of Oakes, supra. Oakes requires that “the measures adopted must be carefully designed to achieve the objective in question” [p. 139]. As I have noted, there is no agreement in the case law as to how to distinguish between crimes of “general intent” and crimes of “specific intent”. This distinction was plainly not in the minds of the Code drafters, and the mental elements of many crimes are not readily classified into one category or the other. There is no rational reason for protecting the public against some drunken offenders but not against others, particularly where the distinction is not based upon the gravity of the offence or the availability of included offences. If the public protection does require special measures, that should be accomplished through comprehensive legislation rather than ad hoc judicial recasting of some offences. For a recent review of possible legislative schemes, see Quigley, “Reform of the Intoxication Defence” (1987), 33 McGill L.J. 1.

The Leary rule in effect treats the deliberate act of becoming intoxicated as culpable in itself, but inflicts punishment measured by the unintended consequences of becoming intoxicated. Punishment acts as a deterrent where the conduct is intended or foreseen.

There is no evidence to support the assertion that the Leary rule deters the commission of unintended crimes. Hence there is no warrant for violating fundamental principles and convicting those who would otherwise escape criminal liability.

The Leary rule fails to satisfy the second branch of the proportionality test as well, namely, that the means chosen should impair as little as possible the right or freedom in question. In general intent offences, the jury is to be instructed to excise from their minds any evidence of drunkenness, with the result that the Crown, because the accused is intoxicated, is relieved of proving mens rea, thereby placing the intoxicated person in a worse position than a sober person. Alternatively, the jury is required to examine the mental state of the accused, without reference to the alcohol ingested, and consequently find a fictional intent. In my view, imposition of this form of absolute liability goes well beyond what is required to protect the public from drunken offenders. As I have already indicated, striking down the artificial rule which precludes the trier of fact from considering evidence of intoxication in relation to mens rea has not produced an increase in the threat to public safety from drunken offenders in Australia, and there is no evidence to suggest that it would do so in Canada.

Finally, it is my view that there is a disproportionality between the effects of Leary on rights protected by the Charter and the objective of public safety. To paraphrase Lamer J. in Re B.C. Motor Vehicle Act, supra, at p. 521, it has not been demonstrated that risk of imprisonment of a few innocent persons is required to attain the goal of protecting the public from drunken offenders.

As stated in R. v. Holmes, [1988] 1 S.C.R. 914 at 940,65 O.R (2d) 639, 64 C.R (3d) 97, 41 C.C.C. (3d) 497,50 D.L.R. (4th) 680,27 O.A.C. 321, 85 N.R. 21:
“This effect, given the range of alternative legislative devices available to Parliament, is too deleterious to be justified as a reasonable limit under s. 1 of the Charter. Simply put, the provision exacts too high a price to be justified in a free and democratic society.”

B. Leary Attenuated by Subsequent Cases

...
In my view, Leary has also been undermined quite independently of the Charter. The court has consistently held that an honest but unreasonable mistaken belief in consent will negate the mens rea required for rape, indecent assault or sexual assault: see Pappajohn v. R, [1980] 2 S.C.R 120, 14 C.R (3d) 243, 19 C.R (3d) 97, [1980] 4 W.W.R 387,52 C.C.C. (2d) 481, 111 D.L.R (3d) 1, 32 N.R. 104 [B.C.]; Sansregret v. R., [1985] 1 S.C.R. 570, 45 C.R (3d) 193, [1985] 3 W.W.R 673,23 C.C.C. (3d) 223, 17 D.L.R. (4th) 577, 35 Man. R (2d) 1,58 N.R. 123; R. v. Bulmer, supra; and R. v. Robertson, [19871 1 S.C.R 918 at 939-40, 58 C.R (3d) 18, 33 C.C.C. (3d) 481, 39 D.L.R. (4th) 321,20 OAC. 200, 75 N.R 6 (sub nom. R. v. R.). While the reasonableness of the accused’s belief is a factor for the jury to consider in determining whether or not the belief was honestly held, a mistaken belief in consent need not be reasonable.

The Leary rule fits most awkwardly with that enunciated in Pappajohn. Lower courts have held that in the light of Leary, where intoxication is a factor in inducing a mistaken belief in consent, the jury must be instructed that while an honest but unreasonable belief will negate mens rea (Pappajohn), they are to disregard the effect that intoxication might have had in inducing that mistake (Leary). In R. v. Moreau (1986),51 C.R. (3d) 209,26 C.C.C. (3d) 359, 15 O.A.C. 81 (C.A.), at pp. 386-87, Martin J.A. described the task of the jury as follows:

“It does not follow that the defence of honest belief in consent is unavailable on a charge of sexual assault to an accused who is voluntarily intoxicated. Where an issue arises on the evidence as to the accused’s honest belief in consent, the defence of honest belief in consent must be put to the jury, notwithstanding the accused’s self-induced intoxication. There may be a basis in the evidence for the accused’s honest belief in consent apart altogether from his intoxication; there may even be reasonable grounds for that belief even though he was intoxicated. The intoxication may not be the cause of the mistaken belief. However, the accused cannot rely on his self-induced intoxication as the basis for his belief that the complainant consented. As Mayrand J.A. said in R. v. Bresse, Vallieres and Theberge (1978 C.C.C. (2d) 78 at p. 87, 7 C.R (3d) 50 (Que. CA):
“One must distinguish the case in which, because of one’s voluntary inebriation, a man takes no account of the refusal manifested by a woman from the case in which a man, because of the ambiguous conduct of the woman, believes sincerely that she consented to sexual relations. This error of fact committed for reasons other than one’s voluntary inebriation is, in my opinion, a valid ground of defence.” (Emphasis added)
In those circumstances the jury is required to engage in the difficult, and perhaps somewhat artificial task, of putting out of their minds the evidence of intoxication on the issue whether the accused honestly believed that the complainant consented. The test is not whether a reasonable and sober person would have made the same mistake but whether the accused would have made the same mistake if he had been sober; see Glanville Williams, Textbook on [sic] Criminal Law, 2nd ed. (1983) at pp. 481-2. However, to hold that evidence of self-induced intoxication is relevant to the honesty of the accused’s belief in consent where his belief is founded on his mistaken appreciation, due to intoxication, of the facts relating to the complainant’s consent is, in my view, incompatible with the rule laid down in Leary, and would completely negate the policy rule that self-induced intoxication is not a defence in crimes of general intent.”
In my view, the Leary qualification on the criminal law principle of general application with respect to mistake of fact unnecessarily and unduly complicates the judge’s task. Indeed, I find it difficult to imagine how it is humanly possible to follow the jury instruction apparently mandated by the combination of Leary and Pappajohn. This confusing and anomalous result is entirely the product of the deviation from basic criminal law principles which occurred in Leary, and accordingly there is much to support the view that it should be overruled....

IV. DISPOSITION

The trial judge made no reference in his charge to the jury to the requirement that the Crown prove that the accused acted with the requisite intent. In my view, this is fatal to the conviction. Although the Crown presented a strong case against the accused at trial, no request was made by the respondent that this court apply the provision of s. 613(1)(b)(iii) {now s. 686(1)(b)(iii)} of the Criminal Code, and in any event, it is not for this court to speculate as to the likely result had the jury been properly instructed.

It follows that the appeal should be allowed, the conviction set aside, and a new trial ordered.

MCINTYRE J. (BEETZ J. concurring):—I have had the advantage of reading the reasons for judgment of the Chief Justice. With the greatest deference, I find that I am unable to agree with his reasons and his disposition of the appeal [from 44 C.R. (3d) 398, 18 C.C.C. (3d) 574,7 O.A.C. 305]. I would dismiss the appeal, for the reasons I will endeavour to set out....

A distinction has long been recognized in the criminal law between offences which require the proof of a specific intent and those which require only the proof of a general intent. This distinction forms the basis of the defence of drunkenness and it must be understood and kept in mind in approaching this case. In R. v. George, [1960] S.C.R 871,34 C.R 1, 128 C.C.C. 289 [B.C.], Fauteux J. said, at p. 877:

“In considering the question of mens rea, a distinction is to be made between (i) intention as applied to acts considered in relation to their purposes and (ii) intention as applied to acts considered apart from their purposes. A general intent attending the commission of an act is, in some cases, the only intent required to constitute the crime while, in others, there must be, in addition to that general intent, a specific intent attending the purpose for the commission of the act.”
This statement makes the distinction clear. The general intent offence is one in which the only intent involved relates solely to the performance of the act in question, with no further ulterior intent or purpose. The minimal intent to apply force in the offence of common assault affords an example. A specific intent offence is one which involves the performance of the actus reus, coupled with an intent or purpose going beyond the mere performance of the questioned act. Striking a blow or administering poison with the intent to kill, or assault with intent to maim or wound, are examples of such offences.

This distinction is not an artificial one, nor does it rest upon any legal fiction. There is a world of difference between the man who in frustration or anger strikes out at his neighbour in a public house with no particular purpose or intent in mind other than to perform the act of striking and the man who strikes a similar blow with intent to cause death or injury. This difference is best illustrated by a consideration of the relationship between murder and manslaughter. He who kills intending to kill or cause bodily harm is guilty of murder, whereas he who has killed by the same act without such intent is convicted of manslaughter. The proof of the specific intent, that is, to kill or to cause bodily harm, is necessary in murder because the crime of murder is incomplete without it. No such intent is required, however, for the offence of manslaughter, because it forms no part of the offence, manslaughter simply being an unlawful killing without the intent required for murder. The relevance of intoxication, which could deprive an accused of the capacity to form the necessary specific intent in murder, and its irrelevance in the crime of manslaughter can readily be seen....

The criticism of the law respect to the defence of drunkenness is based on two propositions. It is said, firstly, that the distinction between the general intent and specific intent offences is artificial and is little more than a legal fiction. Secondly, it is said that it is illogical, because it envisages a defence of drunkenness in certain situations and not in others; it is merely a policy decision made by judges and not based on principle or logic. It will be evident from what I have said that I reject the first ground of criticism. As to the second criticism, that it is based upon grounds of policy, I would say that there can be no doubt that considerations of policy are involved in this distinction. Indeed, in some cases, principally Majewski, supra, the distinction has been defended on the basis that it is sound social policy. The fact, however, that considerations of policy have influenced the development of the law in this field cannot, in my view, be condemned. In the final analysis all law should be based upon and consistent with sound social policy. No good law can be inconsistent with or depart from sound policy.

If the policy behind the present law is that society condemns those who, by the voluntary consumption of alcohol, render themselves incapable of self-control, so that they will commit acts of violence causing injury to their neighbours, then in my view no apology for such policy is needed, and the resulting law affords no affront to the well-established principles of the law or to the freedom of the individual. Furthermore, the existing law is not divorced from logical underpinnings as suggested in some academic writings. Not all the academic literature has been critical....

In my view, the common law rules on the defence of drunkenness, though frequently the subject of criticism, have a rationality which not only accords with criminal law theory but also has served society well. It is not questioned in this case that the defence of drunkenness, as it applies to specific intent offences, is supportable. It is submitted, however, that it should be extended to include all criminal charges. It is my view that this proposition is not sustainable....

The second issue, whether the defence of drunkenness applies to an offence of general intent, includes the question of whether the court should overrule its earlier decision in Leary, supra....

The appellant made two principal arguments in seeking the reversal of the Leary rule. He contended that it relieves the Crown of the burden of proving mens rea in cases of general intent and, in effect, imposes strict liability upon proof of the actus reus. He also contended that the Leary rule violates s. 7 and s. 11(d) of the Canadian Charter of Rights and Freedoms.

In my opinion, both of these submissions must be rejected. I would say at the outset that in crimes of general intent the Crown is not relieved of proving any element of the offence. The effect of excluding the drunkenness defence from such offences is merely to prevent the accused from relying on his self-imposed drunkenness as a factor showing an absence of any necessary intent. While this court has consistently recognized the basic proposition that an accused person should not be subject to criminal sanction unless the Crown shows the existence of a blameworthy or criminal mental state associated with the actus reus of the crime, it does not follow that a person who so deprives himself by the voluntary consumption of alcohol or a drug of the normal power of self-restraint that a crime results should be entitled to an acquittal. Compelling reasons grounded in logic, common sense and sound social policy dictate otherwise....

This court in Leary approved the Majewski approach, which has long been accepted in the law of Canada, and, for the reasons which I have set out, it is my opinion that this court’s judgment in Leary ought not to be overruled. I must re-emphasize that the Leary rule does not relieve the Crown of its obligation to prove the mens rea in a general intent offence. The fact that an accused may not rely on voluntary intoxication in such offences does not have that effect because of the nature of the offence and the mental elements which must be shown. The requisite state of mind may be proved in two ways. First, there is the general proposition that triers of fact may infer mens rea from the actus reus itself: a person is presumed to have intended the natural and probable consequences of his actions. For example, in an offence involving the mere application of force, the minimal intent to apply that force will suffice to constitute the necessary mens rea and can be reasonably inferred from the act itself and the other evidence. Secondly, in cases where the accused was so intoxicated as to raise doubt as to the voluntary nature of his conduct, the Crown may meet its evidentiary obligation respecting the necessary blameworthy mental state of the accused by proving the fact of voluntary self-induced intoxication by drugs or alcohol. This was the approach suggested in Majewski. In most cases involving intoxication in general intent offences, the trier of fact will be able to apply the first proposition, namely, that the intent is inferable from the actus reus itself. As Fauteux J. observed in George, supra, at p. 879, it is almost metaphysically inconceivable for a person to be so drunk as to be incapable of forming the minimal intent to apply force. Hence, only in cases of the most extreme self-intoxication does the trier of fact need to use the second proposition, that is, that evidence of self-induced intoxication is evidence of the guilty mind, the blameworthy mental state.

The result of this twofold approach is that for these crimes accused persons cannot hold up voluntary drunkenness as a defence. They cannot be heard to say: “I was so drunk that I did not know what I was doing.” If they managed to get themselves so drunk that they did not know what they were doing, the reckless behaviour in attaining that level of intoxication affords the necessary evidence of the culpable mental condition. Hence, it is logically impossible for an accused person to throw up his voluntary drunkenness as a defence to a charge of general intent. Proof of his voluntary drunkenness can be proof of his guilty mind.

As I have endeavoured to show, the exclusion of the drunkenness defence in general intent cases is not without logical underpinnings but, whatever the logical weaknesses may be, an overwhelming justification for the exclusion may rest on policy, policy so compelling that it possesses its own logic. Intoxication, whether by alcohol or drugs, lies at the root of many if not most violent assaults: intoxication is clearly a major cause of violent crime. What then is preferable, a recognition of this fact and the adoption of a policy aimed at curbing the problem, or the application of what is said to be logic by providing in law that he who voluntary partakes of that which is the cause of the crime should for that reason be excused from the consequences of his crime? If that is logic, I prefer policy.

It was argued by the appellant that the Leary rule converts the offence of sexual assault causing bodily harm into a crime of absolute liability, in that the Crown need not prove the requisite intention for the completion of the offence. Therefore, it is said that Learyviolates s. 7 and s. 11(d) of the Charter. In Re B.C. Motor Vehicle Act, [1985] 2 S.C.R 486,48 C.R (3d) 289 (sub nom. Ref. re s. 94(2) of Motor Vehicle Act), [1986] 1 W.W.R. 481,69 B.C.LR 145, 36 M.V.R 240, 23 C.C.C. (3d) 289, 24 D.L.R (4th) 536, 18 C.R.R.30, 63 N.R 266, and in R. v. Vaillancourt, [1987] 2 S.C.R 636,60 C.R (3d) 289,39 C.C.C. (3d) 118, 47 D.L.R. (4th) 399,32 C.R.R. 18,68 Nfld. & P.E.I.R 281,209 A P.R. 281, 10 Q.A.C. 161, 81 N.R 1 [Que.], it was held that the requirement for a minimum mental state before the attachment of criminal liability is a principle of fundamental justice. Criminal offences, as a general rule, must have as one of their elements the requirement of a blameworthy mental state. The morally innocent ought not to be convicted. It is said that the Leary rule violates this fundamental premise. In my opinion, the Leary rule clearly does not offend this essential principle of criminal law, but rather upholds it. The Leary rule recognizes that accused persons who have voluntarily consumed drugs or alcohol, thereby depriving themselves of self-control, leading to the commission of a crime, are not morally innocent, and are indeed criminally blameworthy. While the rule excludes consideration of voluntary intoxication in the approach to general intent offences, it nonetheless recognizes that it may be a relevant factor in those generally more serious offences where the mens rea must involve not only the intentional performance of the actus reus but, as well, the formation of further ulterior motives and purposes. It therefore intrudes upon the security of the person only in accordance with sound principle and within the established boundaries of the legal process. For these reasons, I would say that the Charter is not violated....

I would therefore conclude that the courts below made no error, and I would dismiss the appeal.

In any event, should it be considered that I am wrong in my approach to the Leary case, this is nonetheless a case in which the provisions of s. 613(1)(b)(iii) [now s. 686(1)(b)(iii)] of the Criminal Code should be applied. The Court of Appeal, reaching the conclusion that it did, did not find it necessary to consider this question. The issue, however, was raised by the respondent Crown in its factum. The trial judge found no evidence of drunkenness, except the statement of the appellant made to the police before trial. The appellant himself did not see fit to give evidence at the trial. The trial judge, in addressing the jury, made the following statement:
“You heard the evidence of the police officers and of the complainant of the condition of the accused with respect to drink. None of them say that he was drunk. Only the accused, in his statement, says “I was all drunked up too.” There was no evidence of drunkenness except that statement, and it is open to you to accept it and find that he was drunk but even if he was drunk, drunkenness is no defence to the charge alleged against this accused. It is no defence.”
It is my view that there is no sufficient evidence of drunkenness to form any basis whatever for the defence of drunkenness. I can only conclude, after reviewing the evidence, that, even if the exclusion of the evidence of drunkenness was an error on the part of the trial judge, no substantial wrong or miscarriage of justice has occurred in this case, and the verdict of the jury would necessarily have been the same even if the evidence of drunkenness had not been excluded from the jury’s consideration. Acting under the powers given in s. 623(1) [now s. 695(1)] of the Code, I would apply the proviso, dismiss the appeal, and confirm the conviction.

WILSON J. (L’HEUREUX-DUBÉ J. concurring):—I have had the benefit of the reasons of the Chief Justice and of my colleagues McIntyre and La Forest J. I agree with McIntyre J., for the reasons given by him, that sexual assault causing bodily harm is an offence of general intent requiring only the minimal intent to apply force. I agree with him also that in most cases involving general intent offences and intoxication the Crown will be able to establish the accused’s blameworthy mental state by inference from his or her acts. I think that is the case here. The evidence of intoxication withheld from the trier of fact in this case could not possibly have raised a reasonable doubt as to the existence of the minimal intent to apply force. It is accordingly not necessary in this case to resort to self-induced intoxication as a substituted form of mens rea. And, indeed, I have some real concerns as to whether the imposition of criminal liability on that basis would survive a challenge under the Canadian Charter of Rights and Freedoms. ...

Sexual assault is a crime of violence. There is no requirement of an intent or purpose beyond the intentional application of force. It is first and foremost an assault. It is sexual in nature only because, objectively viewed, it is related to sex, either on account of the area of the body to which the violence is applied or on account of words accompanying the violence. Indeed, the whole purpose, as I understand it, of the replacement of the offence of rape by the offence of sexual assault was to emphasize the aspect of violence and put an end to the benign concept that rape was simply the act of a man who was “carried away” by his emotions.

The appellant, in his statement to the police, admitted that he had forced the complainant to have sexual intercourse with him but claimed that because of his drunkenness he did not know why he had done this, and that when he realized what he was doing he “got off” the complainant. There was evidence that the appellant had punched the complainant twice with his closed fist and had threatened to kill her. The doctor who examined the complainant testified that the complainant’s right eye was swollen shut and that three stitches were required to close the wound. It is clear from this that there was intentional and voluntary, as opposed to accidental or involuntary, application of force.

The evidence of the appellant’s intoxication consisted of: his own statements to the police that he was drunk, the complainant’s testimony that while the appellant was acting out of character in making advances to her, he was able to walk, talk and put albums on the record player; and a friend’s testimony that prior to the incident the appellant had been drinking at a bar and had become “very rowdy”, although still capable of talking and walking straight. By his own admission the appellant had sufficient wits about him after the violent assault to hide a bloodied towel and pillowcase from the police. There is no evidence that we are dealing here with extreme intoxication verging on insanity or automatism, and as such capable of negating the inference that the minimal intent to apply force was present: see R. v. Swietlinski (1978),22 O.R (2d) 604,5 C.R (3d) 324, 44 C.C.C. (2d) 267 at 294,94 D.L.R (3d) 218, affirmed [1980] 2 S.C.R. 956, 18 C.R (3d) 231, 55 C.C.C. (2d) 481, 117 D.L.R (3ci) 285, 34 N.R. 569 [Ont.]. The evidence of intoxication in this case was simply not capable of raising a reasonable doubt as to the existence of the minimal intent required. In this I agree with McIntyre J.

I am less confident about the proposition accepted by my colleague that self-induced intoxication may substitute for the mental element required to be present at the time the offence was committed, although I realize that there are statements in judgments of this court to that effect. I do not believe, however, that the court has clearly adopted that proposition. The decision of the House of Lords in D.P.P. v. Majewski, [1977] A.C. 443, [1976] 2 W.L.R. 623, 62 Cr. App. R. 262, [1976l 2 All E.R 142, may stand for the rather harsh proposition that even self-induced intoxication producing a state of automatism cannot constitute a defence to an offence of general intent such as assault, but I doubt that our Canadian jurisprudence goes that far....

I believe that the Leary rule is perfectly consistent with an onus resting on the Crown to prove the minimal intent which should accompany the doing of the prohibited act in general intent offences. I view it as preferable to preserve the Leary rule in its more flexible form, as Pigeon J. applied it, i.e., so as to allow evidence of intoxication to go to the trier of fact in general intent offences only if it is evidence of extreme intoxication involving an absence of awareness akin to a state of insanity or automatism. Only in such a case is the evidence capable of raising a reasonable doubt as to the existence of the minimal intent required for the offence. I would not overrule Leary, as the Chief Justice would, and allow evidence of intoxication to go to the trier of fact in every case, regardless of its possible relevance to the issue of the existence of the minimal intent required for the offence.

It was argued by the appellant, and indeed accepted by the Chief Justice in his reasons, that the Leary rule converts the offence of sexual assault causing bodily harm into a crime of absolute liability, in that the Crown need not prove any mental element. This is said to offend s. 7 of the Charter as interpreted in Re B.C. Motor Vehicle Act, [1985] 2 S.C.R 486. With all due respect to those who think differently, I do not believe that the Crown is relieved from proving the existence of the required minimal intent by the operation of Leary. In R. v. Sault Ste. Marie (City), [1978] 2 S.C.R. 1299, Dickson J. (as he then was) stated at p. 1310:

“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.”
When the Leary rule is applied in this case, the Crown must still prove beyond a reasonable doubt the existence of the required mental element of the intentional application of force. The offence cannot be said to be one of absolute liability, in the sense that no mental element has to be proved in order to obtain a conviction. As Alan Mewett and Morris Manning write in Criminal Law, 2nd ed. (1985), at p. 210:
“The courts are not saying that crimes of general or basic intent do not require mens rea. Rather they are saying that those crimes have a mens rea of a type directed solely to the present and that drunkenness is not sufficient to negate that type of thought process.”
It was also argued by the appellant and accepted by the Chief Justice that the application of the Leary rule violates s. 11(d) of the Charter by allowing an accused to be convicted even though the trier of fact might well have a reasonable doubt as to the existence of the essential mental element of the offence or as to the availability of a defence which could raise a reasonable doubt as to the guilt of the accused: see Vaillancourt, supra; R. v. Whyte, [1988] 2 S.C.R. 3,64 C.R. (3d) 123, [1988] 5 W.W.R 26, 29 B.C.L.R. (2d) 273,6 M.V.R. (2d) 138,42 C.C.C. (3d) 97,51 D.L.R (4th) 481,86 N.R. 328. Again I find myself in respectful disagreement with the Chief Justice and the appellant on this issue. To my mind, the operation of the Leary rule in this case does not have that result, because the Crown still must prove that the accused applied force intentionally, and the evidence of intoxication is withheld from the jury only because it is incapable of raising a reasonable doubt as to the accused’s guilt. This is not a case in which self-induced intoxication is being resorted to as a substituted mens rea for the intentional application of force.

It is, in my view, not strictly necessary in this case to address the constitutionality of substituting self-induced intoxication as the mens rea for the minimal mens rea requirements of general intent offences. The issue would, in my view, arise only in those rare cases in which the intoxication is extreme enough to raise doubts as to the existence of the minimal intent which characterizes conscious and volitional conduct. However, as both the Chief Justice and McIntyre J. have addressed the issue, I will express my own somewhat tentative views upon it.

This court has affirmed as fundamental the proposition that a person should not be exposed to a deprivation of liberty unless the Crown proves the existence of a blameworthy or culpable state of mind: see Re B.C. Motor Vehicle Act, supra, at pp. 513-20. It does not follow from this, however, that those who, through the voluntary consumption of alcohol or drugs, incapacitate themselves from knowing what they are doing fall within the category of the “morally innocent” deserving of such protection. This is not to say that such persons do not have a right under s. 7 or s. 12 of the Charter to be protected against punishment that is disproportionate to their crime and degree of culpability: see Re B.C. Motor Vehicle Act, supra, at pp. 532-34; R. v. Smith, [1987] 1 S.C.R. 1045, 58 C.R. (3d) 193, [1987] 5 W.W.R 1, 15 B.C.L.R. (2d) 273, 34 C.C.C. (3d) 97, 40 D.L.R. (4th) 435, 31 C.R.R. 193, 75 N.R. 321. They do, especially if the consequences of their becoming intoxicated were not intended or foreseen.

The real concern over the substituted form of mens rea arises, it seems to me, under s. 11(d) of the Charter. While this court has recognized that in some cases proof of an essential element of a criminal offence can be replaced by proof of a different element, it has placed stringent limitations on when this can happen.

In my tentative view, it is unlikely that in those cases in which it is necessary to resort to self-induced intoxication as the substituted element for the minimal intent, proof of the substituted element will “inexorably” lead to the conclusion that the essential element of the minimal intent existed at the time the criminal act was committed. But I prefer to leave this question open, as it is unnecessary to decide it in order to dispose of this appeal.

I agree with my colleagues McIntyre and La Forest JJ. that, had there been error in the court below, no substantial wrong or miscarriage of justice resulted from it, and that it would accordingly be appropriate to apply s. 613(1)(b3(iii) [now s. 686(1)(b)(iii)] of the Criminal Code. I would dismiss the appeal.

Appeal dismissed.

[Estey and Le Dain JJ. took no part in the judgment.]

 

R. v. Daviault
Supreme Court of Canada
[1994] 33 C.R. (4th) 165; [1994] 3 S.C.R. 63

LAMER C.J.C.:—[5] I have read the reasons of my colleagues, Justice Sopinka and Justice Cory. My views of the matter were enunciated through my concurrence in the reasons of Dickson C.J.C. in R. v. Bernard, [1988] 2 S.C.R. 833. While I now prefer characterizing the mental element involved as relating more to the actus reus than the mens rea, so that the defence clearly be available in strict liability offences, my views have not changed. I agree with my colleague Cory J.’s position on the law and, given my position in Bernard, which goes much further, I would of course support carving out, as he does, an exception to the rule laid down in R. v. Leary, [1978] 1 S.C.R. 29. I would accordingly allow the appeal and direct a new trial.

LA FOREST J.:—In R. v. Bernard, [1988] 2 S.C.R. 833, as well as in R. v. Quin, [1988] 2 S.C.R. 825, I, along with the Chief Justice, shared the view of then Chief Justice Dickson which strongly challenged the rule in R. v. Leary, [1978] 1 S.C.R. 29. While the majority of the court differed as to the specific interpretation of Leary, what is clear is that they rejected the view espoused by Dickson C.J.C. I am, therefore, left to choose between the approach set forth in McIntyre J.’s reasons in that case, developed here by Justice Sopinka, and those of Wilson J., developed here by Justice Cory. Of the two, I prefer the latter and accordingly (though I would be inclined to attribute the mental element he describes as going to the actus reus) I concur in the reasons of Cory J. and would dispose of this appeal in the manner proposed by him.

CORY J. (L’Heureux-Dubé, McLachlin and Iacobucci JJ. concurring):

ISSUE

Can a state of drunkenness which is so extreme that an accused is in a condition that closely resembles automatism or a disease of the mind as defined in s. 16 of the Criminal Code, R.S.C. 1985, c. C-46, constitute a basis for defending a crime which requires not a specific but only a general intent? That is the troubling question that is raised on this appeal.

The facts of this case and the judgments below are set out in the reasons of Justice Sopinka. Although I agree with my colleague on a number of issues, I cannot agree with his conclusion that it is consistent with the principles of fundamental justice and the presumption of innocence for the courts to eliminate the mental element in crimes of general intent. Nor do I agree that self-induced intoxication is a sufficiently blameworthy state of mind to justify culpability, and to substitute it for the mental element that is an essential requirement of those crimes. In my opinion, the principles embodied in our Canadian Charter of Rights and Freedoms, and more specifically in ss. 7 and 11(d), mandate a limited exception to, or some flexibility in, the application of the Leary rule. This would permit evidence of extreme intoxication akin to automatism or insanity to be considered in determining whether the accused possessed the minimal mental element required for crimes of general intent.

ANALYSIS

As this case involves the reconsideration of a common law principle in light of more recent developments in the principles of criminal law and particularly the enactment of the Charter, it maybe useful to begin with a brief review of the historical development of the relevant criminal law concepts. As well, it will be helpful to outline the various options adopted and suggested with respect to intoxication as a factor in determining whether an accused possessed the mental element required by the crime.

The Physical and Mental Aspect of Criminal Acts

Originally a crime was considered to be the commission of a physical act which was specifically prohibited by law. It was the act itself which was the sole element of the crime. If it was established that the act was committed by the accused then a finding of guilt would ensue. However, as early as the twelfth century, in large part through the influence of the canon law, it was established that there must also be a mental element combined with the prohibited act to constitute a crime. That is to say that the accused must have meant or intended to commit the prohibited act. The physical act and the mental element which together constitute a crime came to be known as the actus reus denoting the act, and the mens rea for the mental element. Like so many maxims they are imprecise and in many instances misleading.

For my purposes it is sufficient to say that for a great many years it has been understood that, unless the legislator provides otherwise, a crime must consist of the following elements. First, a physical element which consists of committing a prohibited act, creating a prohibited state of affairs, or omitting to do that which is required by the law. Second, the conduct in question must be willed; this is usually referred to as voluntariness. Some writers classify this element as part of the actus reus, others prefer to associate it with mens rea; however, all seem to agree that it is required. (See, generally, J.C. Smith and B. Hogan, Criminal Law (7th ed. 1992), at pp. 37 and ff.) If persons other than lawyers were asked what constituted willed or voluntary conduct they would respond that such an act or conduct must involve a mental element. It is the mental element, that is the act of will which makes the act or conduct willed or voluntary. In R. v. Théroux, [1993] 2 S.C.R. 5, at p. 17, McLachlin J. had this to say concerning the actus reus:

The term mens rea, properly understood, does not encompass all of the mental elements of a crime. The actus reus has its own mental element; the act must be the voluntary act of the accused for the actus reus to exist. Mens rea, on the other hand, refers to the guilty mind, the wrongful intention, of the accused. Its function in criminal law is to prevent the conviction of the morally innocent - those who do not understand or intend the consequences of their acts. Typically, mens rea is concerned with the consequences of the prohibited actus reus.
Similarly, in R. v. Parks, [1992] 2 S.C.R. 871, at p. 896, La Forest J. quoted the following passage from the dissenting reasons of Dickson J. (as he then was) in R. v. Rabey, [1980] 2 S.C.R. 513, at p. 522:
Although the word “automatism” made its way but lately to the legal stage, it is basic principle that absence of volition in respect of the act involved is always a defence to a crime. A defence that the act is involuntary entitles the accused to a complete and unqualified acquittal. That the defence of automatism exists as a middle ground between criminal responsibility and legal insanity is beyond question. Although spoken as a defence, in the sense that it is raised by the accused, the Crown always bears the burden of proving a voluntary act.
The definition of actus reus is thus established. Yet I should add that, as will be seen later, the mental aspect involved in willed or voluntary conduct may overlap to some extent in both the concept of mens rea and actus reus. Finally, then there must be a contemporaneous mental element comprising an intention to carry out the prohibited physical act or omission to act; that is to say a particular state of mind such as the intent to cause, or some foresight of, the results of the act or the state of affairs.

With this concept of a crime established it soon came to be accepted that in certain situations a person who committed a prohibited physical act still could not be found guilty. A number of examples come to mind. For instance, if a person in a state of automatism as a result of a blow on the head committed a prohibited act that he was not consciously aware of committing, he could not be found guilty since the mental element involved in committing a willed voluntary act and the mental element of intending to commit the act were absent. Thus neither the requisite actus reus or mens rea for the offence was present. The result would be the same in the case of a person who had an unexpected reaction to medication which rendered him totally unaware of his actions. Similarly, if an accused, during an epileptic seizure, with no knowledge of what he was doing, shot and killed a victim, he could not be found guilty of murder since both the ability to act voluntarily and the mental element of the intention to kill were absent. In all these instances the accused simply could not have formed the requisite intention to commit the prohibited act. Further, it was long ago recognized that a person suffering from a mental illness coming within the scope of what is now s. 16 of the Criminal Code could not be found guilty. That result may have arisen either from the recognition of the inability of a mentally ill accused to form the requisite intention, or from the realization that the nature and quality of the prohibited act was not appreciated by the accused.

A review of the history of the defence of intoxication shows that, originally, intoxication was never a defence to any crime. However, with the evolution of criminal law, this rule came to be progressively relaxed and the defence of intoxication was admitted for crimes of specific intent. Although one of the justifications for this was the courts’ preoccupation with the harshness of criminal liability and criminal sanctions, clearly this development was also influenced by the development of the requirements for mental elements in crimes. The defence of intoxication was based on the recognition and belief that alcohol affected mental processes and the formulation of intention (see, for example, D. McCord, “The English and American History of Voluntary Intoxication to Negate Mens rea” (1990), 11 J. Legal Hist. 372, at p. 378). I would agree with the authors who feel that the progressive expansion of the intoxication defence has paralleled the progressive expansion of theories of the mental elements of crimes. (See, for example, T. Quigley, “A Shorn Beard” (1987),10 Dalhousie L.J. 167.) In my view, the need for this historical expansion is justified and emphasized by the increased concern for the protection of fundamental rights enshrined in the Charter.

It can thus be seen that with the development of principles recognizing constituent elements of crimes, particularly the need for a mental element, there came the realization that persons who lack the requisite mental element for a crime should not be found guilty of committing that crime. For centuries it has been recognized that both the physical and the mental elements are an integral part of a criminal act. It has long been a fundamental concept of our criminal law.

This appeal is concerned with situations of intoxication that are so extreme that they are akin to automatism. Such a state would render an accused incapable of either performing a willed act or of forming the minimal intent required for a general intent offence. I will approach the issue primarily on the basis that the extreme intoxication renders an accused incapable of forming the requisite minimum intent. I have taken the reasons of Sopinka J. to have dealt with the issue on the basis of mens rea. ...

Drunkenness as a Factor in the Consideration of Criminal Liability

This issue has been the subject of many judicial decisions in Commonwealth countries. It is useful here to contrast the two opposite positions which have emerged in the absence of Charter considerations. The first position is illustrated by the decision of this court in Leary, supra, and also corresponds to the English position. The second position is that which prevails in Australia and New Zealand. It is best illustrated by the R. v. O’Connor decision, (1980), 4 A. Crim. R. 348....

The O’Connor Case—A Position Taken Contrary to Leary

O’Connor, supra, is a decision of the High Court of Australia. O’Connor was seen removing a map holder and a knife from a car. A police officer saw him, identified himself and asked O’Connor why he had taken the articles. O’Connor ran away with the officer in pursuit. When he was arrested, O’Connor stabbed the officer with the knife. He was charged with theft of the map holder and knife and wounding with intent to inflict grievous bodily harm. O’Connor testified that he had consumed alcohol and car sickness tablets before these events and stated that he had no memory either of taking anything from the car or of his subsequent arrest. Medical evidence was given that the combined effect of the tablets and alcohol could have produced such a state of intoxication that O’Connor would have been incapable of reasoning or forming an intent to steal or wound. The trial judge directed the jury, in accordance with Majewski, supra, that evidence of self-induced intoxication, although relevant in determining whether the accused had acted with intent to steal or to inflict grievous bodily harm, was not relevant with respect to the included alternative offence of unlawful and malicious wounding. O’Connor was acquitted on the charges of theft and wounding with intent and convicted of the included offence of unlawful wounding.

O’Connor appealed the conviction to a court of criminal appeal which declined to follow Majewski, supra, and quashed the conviction. The Attorney General for Victoria then appealed to the High Court.

There, the majority upheld the decision of the Court of Appeal. They concluded that for all offences requiring proof of a mental element, evidence of intoxication, whether self-induced or not, was relevant and admissible in determining whether the requisite mental element was present. The majority went on to observe that evidence of intoxication which merely tends to establish loss of inhibition or weakening of the capacity for self-control would not provide a basis for denying that the mental element of an offence was present. However, where there was evidence that the accused was unconscious or that his mind was a blank through drunkenness at the time of the offence, this should be left to the jury in resolving the question as to whether there had been a voluntary act on the part of the accused...

Following the decision of this court in Leary, important changes have occurred in the evolution of criminal law principles. Many of these changes were prompted by the enactment of the Canadian Charter of Human Rights and Freedoms. It must now be seen whether, as a result of the passage of the Charter or the reasoning in subsequent cases of this court, some modification of the rule established by Leary is required....

The Alternative Options

What options are available with regard to the admissibility and significance of evidence of drunkenness as it may pertain to the mental element in general intent offences? One choice would be to continue to apply the Leary rule. Yet, as I will attempt to demonstrate in the next section, the rule violates the Charter and cannot be justified. Thus this choice is unacceptable.

Another route would be to follow the O’Connor decision. Evidence relating to drunkenness would then go to the jury along with all other relevant evidence in determining whether the mental element requirement had been met. It is this path that is enthusiastically recommended by the majority of writers in the field. Yet it cannot be followed. It is now well established by this court that there are two categories of offences. Those requiring a specific intent and others which call for nothing more than a general intent. To follow O’Connor would mean that all evidence of intoxication of any degree would always go to the jury in general intent offences. This, in my view, is unnecessary. Further, in Bernard, supra, the majority of this court rejected this approach.

A third alternative, which I find compelling, is that proposed by Wilson J. in Bernard. I will examine the justifications for adopting this position in more detail shortly, but before doing that it maybe helpful to review the nature of the Charter violations occasioned by a rigid application of the Leary rule.

How the Leary Rule Violates Sections 7 and 11(d) of the Charter

What then is the rule of law established by the decision in Leary? The conclusion of the majority in that case establishes that, even in a situation where the level of intoxication reached by the accused is sufficient to raise a reasonable doubt as to his capacity to form the minimal mental element required for a general intent offence for which he is being tried, he still cannot be acquitted. In such a situation, self-induced intoxication is substituted for the mental element of the crime. The result of the decision in Leary, applied to this case, is that the intentional act of the accused to voluntarily become intoxicated is substituted for the intention to commit the sexual assault or for the recklessness of the accused with regard to the assault. This is a true substitution of mens rea. First, it would be rare that the events transpiring from the consumption of alcohol through to the commission of the crime could be seen as one continuous series of events or as a single transaction. Secondly, the requisite mental element or mens rea cannot necessarily be inferred from the physical act or actus reus when the very voluntariness or consciousness of that act may be put in question by the extreme intoxication of the accused.

It has not been established that there is such a connection between the consumption of alcohol and the crime of assault that it can be said that drinking leads inevitably to the assault. Experience may suggest that alcohol makes it easier for violence to occur by diminishing the sense of what is acceptable behaviour. However, studies indicate that it is not in itself a cause of violence. [...]

In my view, the strict application of the Leary rule offends both ss. 7 and 11(d) of the Charter for a number of reasons. The mental aspect of an offence, or mens rea, has long been recognized as an integral part of crime. The concept is fundamental to our criminal law. That element may be minimal in general intent offences; nonetheless, it exists. In this case, the requisite mental element is simply an intention to commit the sexual assault or recklessness as to whether the actions will constitute an assault. The necessary mental element can ordinarily be inferred from the proof that the assault was committed by the accused. However, the substituted mens rea of an intention to become drunk cannot establish the mens rea to commit the assault.

R. v. Whyte, [1988] 2 S.C.R. 3, dealt with the substitution of proof of one element for proof of an essential element of an offence and emphasized the strict limitations that must be imposed on such substitutions. The position is put in this way at pp. 18-19:

In the passage from Vaillancourt quoted earlier, Lamer J. recognized that in some cases substituting proof of one element for proof of an essential element will not infringe the presumption of innocence if, upon proof of the substituted element, it would be unreasonable for the trier of fact not to be satisfied beyond a reasonable doubt of the existence of the essential element. This is another way of saying that a statutory presumption infringes the presumption of innocence if it requires the trier of fact to convict in spite of a reasonable doubt. Only if the existence of the substituted fact leads inexorably to the conclusion that the essential element exists, with no other reasonable possibilities, will the statutory presumption be constitutionally valid. [Emphasis added.]
The substituted mens rea set out in Leary does not meet this test. The consumption of alcohol simply cannot lead inexorably to the conclusion that the accused possessed the requisite mental element to commit a sexual assault, or any other crime. Rather, the substituted mens rea rule has the effect of eliminating the minimal mental element required for sexual assault. Furthermore, mens rea for a crime is so well recognized that to eliminate that mental element, an integral part of the crime, would be to deprive an accused of fundamental justice. See R. v. Vaillancourt, [1987] 2 S.C.R. 636.

In that same case it was found that s. 11(d) would be infringed in those situations where an accused could be convicted despite the existence of reasonable doubt pertaining to one of the essential elements of the offence; see Vaillancourt, supra, at pp. 654-56. That would be the result if the Leary rule was to be strictly applied. For example, an accused in an extreme state of intoxication akin to automatism or mental illness would have to be found guilty although there was reasonable doubt as to the voluntary nature of the act committed by the accused. This would clearly infringe both ss. 7 and 11(d) of the Charter. In my view, the mental element of voluntariness is a fundamental aspect of the crime which cannot be taken away by a judicially developed policy. It simply cannot be automatically inferred that there would be an objective foresight that the consequences of voluntary intoxication would lead to the commission of the offence. It follows that it cannot be said that a reasonable person, let alone an accused who might be a young, person inexperienced with alcohol, would expect that such intoxication would lead to either a state akin to automatism, or to the commission of a sexual assault. Nor is it likely that someone can really intend to get so intoxicated that they would reach a state of insanity or automatism.

Sopinka J. refers to the common law rules of automatism in order to support his position that voluntariness is not a requirement of fundamental justice. With respect I cannot agree. The decision of this court in R. v. Revelle (1980), [1981] 1 S.C.R. 576, predates the Charter. The rule that self-induced automatism cannot be a defence has never been subjected to a Charter analysis. In my view, automatism raises the same concerns as those presented in this case. Thus, to state that the rule in Leary, which precludes the accused from negating the mental element of voluntariness on the basis of an extreme state of intoxication, does not violate the Charter because the same principle has been developed in the context of the defence of automatism begs the very question which is now before this court. The presumption of innocence requires that the Crown bear the burden of establishing all elements of a crime. These elements include the mental element of voluntariness. That element cannot be eliminated without violating s. 11(d) and s. 7 of the Charter.

It was argued by the respondent that the “blameworthy” nature of voluntary intoxication is such that it should be determined that there can be no violation of the Charter if the Leary approach is adopted. I cannot accept that contention. Voluntary intoxication is not yet a crime. Further, it is difficult to conclude that such behaviour should always constitute a fault to which criminal sanctions should apply. However, assuming that voluntary intoxication is reprehensible, it does not follow that its consequences in any given situation are either voluntary or predictable. Studies demonstrate that the consumption of alcohol is not the cause of the crime. A person intending to drink cannot be said to be intending to commit a sexual assault.

Further, self-induced intoxication cannot supply the necessary link between the minimal mental element or mens rea required for the offence and the actus reus. This must follow from reasoning in R. v. DeSousa, [1992] 2 S.C.R 944, and R. v. Théroux,  [1993] 2 S.C.R. 5. Here, the question is not whether there is some symmetry between the physical act and the mental element but whether the necessary link exists between the minimal mental element and the prohibited act; that is to say that the mental element is one of intention with respect to the actus reus of the crime charged. As well, as Sopinka J. observes, the minimum mens rea for an offence should reflect the particular nature of the crime. See R. v. Creighton, [1993] 3 S.C.R. 3. I doubt that self-induced intoxication can, in all circumstances, meet this requirement for all crimes of general intent.

In summary, I am of the view that to deny that even a very minimal mental element is required for sexual assault offends the Charter in a manner that is so drastic and so contrary to the principles of fundamental justice that it cannot be justified under s. 1 of the Charter. The experience of other jurisdictions which have completely abandoned the Leary rule, coupled with the fact that under the proposed approach, the defence would be available only in the rarest of cases, demonstrate that there is no urgent policy or pressing objective which needs to be addressed. Studies on the relationship between intoxication and crime do not establish any rational link. Finally, as the Leary rule applies to all crimes of general intent, it cannot be said to be well tailored to address a particular objective and it would not meet either the proportionality or the minimum impairment requirements.

What then should be the fate of the Leary rule?

Approach That Should Be Taken When a Common Law Principle Is Found To Infringe the Provisions of the Charter

In R. v. Swain, [1991] 1 S.C.R 933, Lamer C.J.C. (concurred in by Sopinka J. and myself,) wrote on this issue. At p. 978 he stated:

Before turning to s. 1, however, I wish to point out that because this appeal involves a Charter challenge to a common law, judge-made rule, the Charter analysis involves somewhat different considerations than would apply to a challenge to a legislative provision. For example, having found that the existing common law rule limits an accused’s rights under s. 7 of the Charter, it may not be strictly necessary to go on to consider the application of s. 1. Having come to the conclusion that the common law rule enunciated by the Ontario Court of Appeal limits an accused’s right to liberty in a manner which does not accord with the principles of fundamental justice, it could, in my view, be appropriate to consider at this stage whether an alternative common law rule could be fashioned which would not be contrary to the principles of fundamental justice.

If a new common law rule could be enunciated which would not interfere with an accused person’s right to have control over the conduct of his or her defence, I can see no conceptual problem with the Court’s simply enunciating such a rule to take the place of the old rule, without considering whether the old rule could nonetheless be upheld under s. 1 of the Charter. Given that the common law rule was fashioned by judges and not by Parliament or a legislature, judicial deference to elected bodies is not an issue. If it is possible to reformulate a common law rule so that it will not conflict with the principles of fundamental justice, such a reformulation should be undertaken.
This then is the approach that should be adopted when a common law principle is found to infringe the Charter. This, again, militates in favour of the adoption of a flexible application of he Leary rule, as was suggested by Wilson J.

Justifications for the Adoption of the Flexible Approach Suggested by Wilson J.

As I have said, the position adopted by Wilson J. in Bernard has much to commend it and should be adopted. Indeed, the original case which is the basis for much of our jurisprudence pertaining to intoxication seems to confirm this position. In Director of Public Prosecutions v. Beard, [1920] A C. 479, Lord Birkenhead set out the three propositions which have been so frequently referred to in cases involving intoxication and criminal behaviour, at pp. 500-502:

1. That insanity, whether produced by drunkenness or otherwise, is a defence to the crime charged. The distinction between the defence of insanity in the true sense caused by excessive drinking, and the defence of drunkenness which produces a condition such that the drunken man’s mind becomes incapable of forming a specific intention, has been presented throughout the cases. The insane person cannot be convicted of a crime: . . . but, upon a verdict of insanity, is ordered to be detained during His Majesty’s pleasure. The law takes no note of the cause of the insanity. If actual insanity in fact supervenes, as the result of alcoholic excess, it furnishes as complete an answer to a criminal charge as insanity induced by any other cause . . .

2. That evidence of drunkenness which renders the accused incapable of forming the specific intent essential to constitute the crime should be taken into consideration with the other facts proved in order to determine whether or not he had this intent.

3. That evidence of drunkenness falling short of a proved incapacity in the accused to form the intent necessary to constitute the crime, and merely establishing that his mind was affected by drink so that he more readily he way to some violent passion, does not rebut presumption a  man intends the natural consequences of his acts. [Emphasis added.]
It does not appear to me that the decision was meant to create a complete bar to the defence of intoxication in the context of crimes of general intent. This appears from the subsequent statements of Lord Birkenhead found at pp. 504-5, and 507:
I do not think that the proposition of law deduced from these earlier cases is an exceptional rule applicable only to cases in which it is necessary to prove a specific intent in order to constitute the graver crime - e.g., wounding with intent to do grievous bodily harm or with intent to kill. It is true that in such cases the specific intent must be proved to constitute the particular crime, but this is, on ultimate analysis only in accordance with the ordinary law applicable to crime, for, speaking generally (and apart from certain special offences), a person cannot be convicted of a crime unless the mens was rea. Drunkenness, rendering a person incapable of the intent, would be an answer, as it is for example in a charge of attempted suicide . . .

My Lords, drunkenness in this case could be no defence unless it could be established that Beard at the time of committing the rape was so drunk that he was incapable of forming the intent to commit it, which was not in fact, and manifestly, having regard to the evidence, could not be contended. For in the present case the death resulted from two acts or from a succession of acts, the rape and the act of violence causing suffocation. These acts cannot be regarded separately and independently of each other. The capacity of the mind of the prisoner to form the felonious intent which murder involves is in other words to be explored in relation to the ravishment; and not in relation merely to the violent acts which gave effect to the ravishment.

In the present case I doubt, without reaching a conclusion, whether there was any sufficient evidence to go to the jury that the prisoner was, in the only relevant sense, drunk at all. There was certainly no evidence that he was too drunk to form the intent of committing rape . . . [Emphasis added.]
Thus, from the outset it appears to have been contemplated that evidence that the accused was too drunk to form the mental element required for a general intent offence could be presented and considered. ...

In my view, the most vehement and cogent criticism of both Majewski and Leary is that they substitute proof of drunkenness for proof of the requisite mental element. The authors [of the Law Commission’s Intoxication and Criminal Liability] deplore the division of crimes into those requiring a specific intent and those which mandate no more than a general intent. They are also critical of the resulting presumption of recklessness, and of the loss of a requirement of a true mens rea for the offence. They would prefer an approach that would permit evidence of drunkenness to go to the jury together with all the other relevant evidence in determining whether the requisite mens rea had been established. ...

[Cory finds further support for Wilson J’s approach in studies pertaining to the effect of the O’Connor and Kamipeli decisions which have been undertaken in Australia and New Zealand.]

There are some who argue that Wilson J.’s suggestion favours the extremely drunk while ignoring those who are less inebriated. (See, for example, T. Quigley, in “Bernard on Intoxication: Principle, Policy and Points in Between—Two Comments”, supra, at pp. 171-73.) I cannot agree with that contention. It must be remembered that those who are a “little drunk” can readily form the requisite mental element to commit the offence. The alcohol-induced relaxation of both inhibitions and socially acceptable behaviour has never been accepted as a factor or excuse in determining whether the accused possessed the requisite mens rea. Given the minimal nature of the mental element required for crimes of general intent, even those who are significantly drunk will usually be able to form the requisite mens rea and will be found to have acted voluntarily. In reality it is only those who can demonstrate that they were in such an extreme degree of intoxication that they were in a state akin to automatism or insanity that might expect to raise a reasonable doubt as to their ability to form the minimal mental element required for a general intent offence. Neither an insane person nor one in a state of automatism is capable of forming the minimum intent required for a general intent offence. Similarly, as the words themselves imply, “drunkenness akin to insanity or automatism” describes a person so severely intoxicated that he is incapable of forming even the minimal intent required of a general intent offence. The phrase refers to a person so drunk that he is an automaton. As such he may be capable of voluntary acts such as moving his arms and legs but is quite incapable of forming the most basic or simple intent required to perform the act prohibited by a general intent offence. I believe that Wilson J.’s modification of  the Leary rule is a judge-fashioned remedy that can be adopted to remedy a judge-made law which, by eliminating the mental element of a crime, offends the Charter.

It is obvious that it will only be on rare occasions that evidence of such an extreme state of intoxication can be advanced and perhaps only on still rarer occasions is it likely to be successful. Nonetheless, the adoption of this alternative would avoid infringement of the Charter.

I would add that it is always open to Parliament to fashion a remedy which would make it a crime to commit a prohibited act while drunk.

The appellant in this case is an elderly alcoholic. It is difficult if not impossible to present him in a sympathetic light. Yet any rule on intoxication must apply to all accused, including the young and inexperienced drinker. The strict rule in Leary is not a minor or technical infringement but a substantial breach of the Charter eliminating the mental elements of crimes of general intent in situations where the accused is in an extreme state of intoxication. I would think that this judge-made rule should be applied sensibly, as suggested by Wilson J., so as to comply with the Charter. Such an approach would mean that except in those rare situations where the degree of intoxication is so severe it is akin to automatism that drunkenness will not be a defence to crimes of general intent.

It should not be forgotten that if the flexible “Wilson” approach is taken, the defence will only be put forward in those rare circumstances of extreme intoxication. Since that state must be shown to be akin to automatism or insanity, I would suggest that the accused should be called upon to establish it on the balance of probabilities. This court has recognized, in R. v. Chaulk, [1990] 3 S.C.R. 1303, that although it constituted a violation of the accused’s rights under s. 11(d) of the Charter, such a burden could be justified under s. 1. In this case, I feel that the burden can be justified. Drunkenness of the extreme degree required in order for it to become relevant will only occur on rare occasions. It is only the accused who can give evidence as to the amount of alcohol consumed and its effect upon him. Expert evidence would be required to confirm that the accused was probably in a state akin to automatism or insanity as a result of his drinking. Justice Grenier in his reasons properly emphasized the need for expert testimony. He stated [[1991] R.J.Q. 1794 (C.Q.), at p. 1797]:
[Translation] The deposition of the expert Louis Leonard is of particular importance in this matter. The testimony of an accused to the effect that he was not aware of what he was doing is unlikely, in most cases, to constitute on its own a sufficient basis to permit the court to conclude that he was unaware owing to an excessive consumption of alcohol. Scientific evidence is almost essential to support a defence of automatism attributable to an advanced degree of intoxication.
Extreme intoxication akin to automatism or insanity should, like insanity, be established by the accused on a balance of probabilities. This I take to be the position put forward by Lamer CJ.C. in R. v. Penno, supra.

Thus it is appropriate to place an evidentiary and legal burden on the accused to establish, on a balance of probabilities, that he was in a state of extreme intoxication that was akin to automatism or insanity at the time he committed the offence.

Result if the Mental Element Relates Solely to the Actus Reus Which Requires That the Prohibited Act be Performed Voluntarily

Should it be thought that the mental element involved relates to the actus reus rather than the mens rea then the result must be the same. The actus reus requires that the prohibited criminal act be performed voluntarily as a willed act. A person in a state of automatism cannot perform a voluntary willed act since the automatism has deprived the person of the ability to carry out such an act. It follows that someone in an extreme state of intoxication akin to automatism must also be deprived of that ability. Thus a fundamental aspect of the actus reus of the criminal act is absent. It would equally infringe s. 7 of the Charter if an accused who was not acting voluntarily could be convicted of a criminal of fence. Here again the voluntary act of becoming intoxicated cannot be substituted for the voluntary action involved in sexual assault. To do so would violate the principle set out in Vaillancourt, supra. Once again to convict in the face of such a fundamental denial of natural justice could not be justified under s. 1 of the Charter.

Summary of Proposed Remedy

In my view, the Charter could be complied with, in crimes requiring only a general intent, if the accused were permitted to establish that, at the time of the offence, he was in a state of extreme intoxication akin to automatism or insanity. Just as in a situation where it is sought to establish a state of insanity, the accused must bear the burden of establishing, on the balance of probabilities, that he was in that extreme state of intoxication. This will undoubtedly require the testimony of an expert. Obviously, it will be a rare situation where an accused is able to establish such an extreme degree of intoxication. Yet, permitting such a procedure would mean that a defence would remain open that, due to the extreme degree of intoxication, the minimal mental element required by a general intent offence had not been established. To permit this rare and limited defence in general intent offences is required so that the common law principles of intoxication can comply with the Charter.

In light of the experience in Australia or New Zealand, it cannot be said that to permit such a defence would open the floodgates to allow every accused who had a drink before committing the prohibited act to raise the defence of drunkenness. As observed earlier, studies made in Australia and New Zealand indicate that there has not been any significant increase in the number of acquittals following the O’Connor and Kamipelli decisions.

DISPOSITION

In the result, I would allow the appeal, set aside the order of the Court of Appeal [reported at (1993), 19 C.R. (4th) 291] and direct a new trial.

 

SOPINKA J. (dissenting) (Gonthier and Major JJ. concurring):—This appeal raises a single question of law: can evidence of extreme intoxication tantamount to a state of automatism negative the intent required for sexual assault, an offence which has been classified as an offence of general intent? The appellant challenges the correctness of this court’s decision in R. v. Leary, [1978] 1 S.C.R. 29, which held that voluntary intoxication can never negate the mens rea for an offence of general intent.

FACTS

The facts which give rise to this appeal are not in dispute. The complainant is a 65-year-old woman who is partially paralysed and thus confined to a wheelchair. She knew the appellant through his wife, who was the complainant’s dressmaker and ran errands for her. The complainant testified that at approximately 6:00 p.m. On May 30, 1989, at her request, the appellant arrived at her home carrying a 40-ounce bottle of brandy. The complainant drank part of a glass of brandy and then fell asleep in her wheelchair. When she awoke during the night to go to the bathroom, the appellant appeared, grabbed her chair, wheeled her into the bedroom, threw her on the bed and sexually assaulted her. The appellant left the apartment at about 4:00 a.m. The complainant subsequently discovered that the bottle of brandy was empty. The trial judge found as a fact that the appellant had drunk the rest of the bottle between 6:00 p.m. and 3:00 a.m.

The appellant was a chronic alcoholic. He testified that he had spent the day at a bar where he had consumed seven or eight bottles of beer. He recalled having a glass of brandy upon his arrival at the complainant’s residence but had no recollection of what occurred between then and when he awoke nude in the complainant’s bed. He denied sexually assaulting her.

The defence called a pharmacologist, Louis Leonard to testify as an expert witness. Mr. Leonard testified that the appellant’s alcoholic history made him less susceptible to the effects of alcohol. He hypothesized that, if the appellant had consumed 7 or 8 beers during the day and then 35 ounces of brandy on the evening in question, his blood-alcohol content would have been between 400 and 600 milligrams per 100 millilitres of blood. That blood-alcohol ratio would cause death or a coma in an ordinary person. Mr. Leonard testified that an individual with this level of alcohol in his blood might suffer an episode of  “l’amnésie-automatisme”, also known as a “blackout”. In such a state the individual loses contact with reality and the brain is temporarily dissociated from normal functioning. The individual has no awareness of his actions when he is in such a state and will likely have no memory of them the next day.

Mr. Leonard further testified that it is difficult to distinguish between a person in a blackout and someone who is simply acting under the influence of alcohol. He stated that if a person acting under the influence of alcohol behaves in a manner which requires higher cognitive functions or reflection, it is unlikely that the person is in a blackout. On the other hand, if the person departs from his normal behaviour to act in a gratuitous or violent manner, it is more likely that he is in a blackout.

The appellant was charged with one count of sexual assault. The trial judge found as a fact that the appellant had committed the offence as described by the complainant. However, he acquitted the appellant because he had a reasonable doubt about whether the appellant, by virtue of his extreme intoxication, had possessed the minimal intent necessary to commit the offence of sexual assault: [1991] R.J.Q. 1794. The Quebec Court of Appeal overturned this ruling: [1993] R.J.Q. 692, 80 C.C.C. (3d) 175, 19 C.R. (4th) 291, 54 Q.A.C. 27. The appellant now appeals to this court as of right, pursuant to s. 691(2)(a) of the Criminal Code, R.S.C. 1985, c. C46. ...

POINT IN ISSUE

The sole point in issue is:

Does evidence of extreme self-induced intoxication, tantamount to a state of automatism, constitute a defence to the offence of sexual assault?
This is the issue as formulated by the parties although I recognize that there is disagreement as to whether intoxication is properly characterized as a “defence”. Whether it is or not is not of any significance in this appeal. When referred to herein as a defence, it is subject to this comment.

ANALYSIS

Sexual assault is a crime of general intent. In Leary v. The Queen, supra, a majority of this court held that drunkenness is not a defence to a crime of general intent. While some of the judges of this court have sought to overrule Leary, it has not happened. Accordingly, I agree with the Court of Appeal’s decision that the trial judge was bound by the decision in Leary. Furthermore, I reject the appellant’s submission that Leary ought to be overruled. In the remainder of these reasons I propose to trace the development of the law governing the defence of intoxication and identify the policy considerations which support the rule espoused in Leary. Then I will respond to the various criticisms of the Leary rule and, in particular, whether it contravenes either ss. 7 or 11(d) of the Canadian Charter of Rights and Freedoms. Finally, I will explain why, in my view, the alternatives which have been put forward are unsatisfactory....

B. Criticisms of the Leary rule

The Leary rule has been roundly criticized in the academic literature as well as in the dissenting judgments of Dickson C.J.C. in Leary itself and in R. v. Bernard. The main grounds upon which the Leary rule has been attacked are as follows:

1. The Leary rule violates ss. 7 and 11(d) of the Charter since it permits an accused to be convicted despite the existence of a reasonable doubt as to whether he has the mens rea of the offence charged.
2. The distinction between offences of specific and general intent is illogical.
3. The Leary rule is inconsistent with the defence of honest but mistaken belief in consent.
I will respond to each of these criticisms in turn.

1. The Leary Rule Violates ss. 7 and 11(d) of the Charter

The appellant’s main objection to the Leary rule is that it allows an individual to be convicted even where the Crown has failed to prove beyond a reasonable doubt the requisite mens rea for the offence. This in the appellant’s submission constitutes a violation of ss. 7 and 11(d) of the Charter. This objection is based upon the assumption that a particular mens rea, namely the intent to perform the actus reus, is a constitutionally required element of the offence of sexual assault. This assumption is not warranted. In my view the Leary rule does not relieve the Crown of the responsibility of proving the existence of a mens rea or any of the other elements of the offence of sexual assault which are required by the principles of fundamental justice.

As McIntyre J. pointed out in R. v. Bernard, only in rare cases will accused persons be able to establish that they were so intoxicated that they were unable to form the minimal intent required to commit the offence of sexual assault. Thus, in the vast majority of cases there can be no question of the Leary rule violating ss. 7 and 11(d) of the Charter. However, according to the findings of the trial judge, the present case is one of the rare cases in which the accused was sufficiently intoxicated to raise a reasonable doubt as to whether he intended to commit the offence of sexual assault. Application of the Leary rule in circumstances such as those of the case at bar obviously permits the accused to be convicted despite the existence of a reasonable doubt as to whether he intended to perform the actus reus of the offence of sexual assault. In my view this does not violate either s. 7 or s. 11(d) of the Charter. None of the relevant principles of fundamental justice requires that the intent to perform the actus reus of an offence of general intent be an element of the offence. In my opinion the requirements of the principles of fundamental justice are satisfied by proof that the accused became voluntarily intoxicated.

The premise upon which the alleged breach of fundamental justice is based is that symmetry between the actus reus, or some aspect of it, and the mens rea is constitutionally required. This, it is said, is a principle of fundamental justice which is of universal application. This issue has been recently thrashed out in relation to whether consequences forming part of the actus reus must be foreseen on an objective or subjective basis or some variation thereof. In R. v. Creighton, [1993] 3 S.C.R. 3, this court divided on this issue with respect to the crime of unlawful act manslaughter. In the view of the Chief Justice, concurred in by three other members of the court, including myself, the mental element required was foreseeability of death on a modified objective standard. The majority opinion, however, adopted an objective standard of foreseeability but limited to bodily harm....

The majority of the court has, therefore, authoritatively determined that the general rule that the mental fault element of a crime must extend to the actus reus, including consequences forming part thereof, is subject to exceptions. It does not have universal application as a principle of fundamental justice. The principles of fundamental justice can exceptionally be satisfied provided definition of the offence requires that a blameworthy mental element be proved and that the level of blameworthiness not be disproportionate to the seriousness of the offence. In my opinion, for the reasons that follow, these requirements are satisfied in this case and, given the history of the Leary rule and its underlying social utility, an exception should be made to accommodate it.

The first requirement of the principles of fundamental justice is that a blameworthy or culpable state of mind be an essential element of every criminal offence that is punishable by imprisonment. This principle reflects the fact that our criminal justice system refuses to condone the punishment of the morally innocent. As both McIntyre and Wilson JJ. pointed out in R. v. Bernard, individuals who render themselves incapable of knowing what they are doing through the voluntary consumption of alcohol or drugs can hardly be said to fall within the category of the morally innocent. Such individuals possess a sufficiently blameworthy state of mind that their imprisonment does not offend the principle of fundamental justice which prohibits imprisonment of the innocent. As Lord Simon of Glaisdale put it in Majewski, supra, at p. 478:
Mens rea is therefore on ultimate analysis the state of mind stigmatised as wrongful by the criminal law which, when compounded with the relevant prohibited conduct, constitutes a particular offence. There is no juristic reason why mental incapacity (short of M’Naghten insanity), brought about by self-induced intoxication, to realise what one is doing or its probable consequences should not be such a state of mind stigmatised as wrongful by the criminal law; and there is every practical reason why it should be.
The Charter calls for a similar response. Central to its values are the integrity and dignity of the human person. These serve to define the principles of fundamental justice. They encompass as an essential attribute and are predicated upon the moral responsibility of every person of sound mind for his or her acts. The requirement of mens rea is an application of this principle. To allow generally an accused who is not afflicted by a disease of the mind to plead absence of mens rea where he has voluntarily caused himself to be incapable of mens rea would be to undermine, indeed negate, that very principle of moral responsibility which the requirement of mens rea is intended to give effect to.

The second requirement of the principles of fundamental justice is that punishment must be proportionate to the moral blameworthiness of the offender This was held to be a principle of fundamental justice in R. v. Martineau, [1990]2 S.C.R. 633, and R. v. Creighton, supra. There are a few crimes in respect of which a special level of mens rea is constitutionally required by reason of the stigma attaching to a conviction and by reason of the severity of the penalty imposed by law. Accordingly, murder and attempted murder require a mens ma based on a subjective standard. No exception from the principle of fundamental justice should be made with respect to these offences and, as specific intent offences, drunkenness is a defence.

By contrast, sexual assault does not fall into the category of offences for which either the stigma or the available penalties demand as a constitutional requirement subjective intent to commit the actus reus. Sexual assault is a heinous crime of violence. Those found guilty of committing the offence are rightfully submitted to a significant degree of moral opprobrium. That opprobrium is not misplaced in the case of the intoxicated offender. Such individuals deserve to be stigmatized. Their moral blameworthiness is similar to that of anyone else who commits the offence of sexual assault and the effects of their conduct upon both their victims and society as a whole are the same as in any other case of sexual assault. Furthermore, the sentence for sexual assault is not fixed. To the extent that it bears upon his or her level of moral blameworthiness, an offender’s degree of intoxication at the time of the offence maybe considered during sentencing. Taking all of these factors into account, I cannot see how the stigma and punishment associated with the offence of sexual assault are disproportionate to the moral blameworthiness of a person like the appellant who commits the offence after voluntarily becoming so intoxicated as to be incapable of knowing what he was doing. The fact that the Leary rule permits an individual to be convicted despite the absence of symmetry between the actus reus and the mental element of blameworthiness does not violate a principle of fundamental justice.

It is further contended that the Leary rule violates the presumption of innocence because it permits an individual to be convicted despite the existence of a reasonable doubt as to whether or not that individual performed the actus reus of his or her own volition. This argument is premised upon the assumption that voluntariness is a constitutionally required element of the actus reus of an offence of universal application. Again, I do not think that this assumption is warranted.

It is true that as a general rule, an act must be the voluntary act of an accused in order for the actus reus to exist. See R. v. Parks, [1992] 2 S.C.R. 871, at p. 896, per La Forest J., and R. v. Théroux, [1993] 2 S.C.R. 5, at p. 17, per McLachlin J. This, as in the case of mens rea, is a general rule of the criminal law, but when elevated to a principle of fundamental justice it too, exceptionally, is not absolute. One well-recognized exception is made relating to the defence of non-insane automatism. As I explain below, automatism does not apply to excuse an offence if the accused’s state is brought on by his or her own fault. The condition of automatism deprives the accused of volition to commit the offence but the general rule gives way to the policy that, in the circumstances, the perpetrator who by his or her own fault brings about the condition should not escape punishment. An accused person who voluntarily drinks alcohol or ingests a drug to the extent that he or she becomes an automaton is in the same position. The rules of fundamental justice are satisfied by a showing that the drunken state was attained through the accused’s own blameworthy conduct.

2. The Distinction Between Offences of Specific and General Intent is Irrational

Another criticism of the current rules governing the availability of the intoxication defence is that the distinction between offences of specific and general intent is illogical. Critics of the rule contend that there is no principled basis for distinguishing between offences of general and specific intent and thus there is no logical reason why intoxication should be a defence to offences of specific intent but not to offences of general intent.

The appellant does not, however, take issue with the proposition that in general the distinction between offences of specific and general intent is a valid one. His submission is that when drunkenness reaches the stage of automatism, the distinction should no longer apply. This essentially was the tentative view of Wilson J. as expressed in her obiter statement in R. v. Bernard to which I referred above.

Notwithstanding the position of the appellant, I propose to briefly address the criticism of the rule that it is illogical. In my view, the concept has strong policy underpinnings which, despite the fact that its definition and application may have produced some illogical results, have permitted it to survive for over 150 years in England and to be adopted in Canada and most states of the United States.

The original concept that in some cases intoxication can negate mens rea was developed by Stephen J. in the nineteenth century in R. v. Doherty (1887), 16 Cox C.C. 306. Subsequently, in R. v. Tolson (1889), 23 Q.B.D. 168 (C.C.R.), Stephen J. explained the notion of mens rea by stating that the full definition of every offence contains, expressly or by implication, the requisite mental element. The task initially of defining the mental element is for the legislature but since frequently the statutory definition contains no explanation of this element it falls to the courts to do so. This definition, once arrived at, will reveal the purpose of the offence, that is, what is the social policy sought to be attained by criminalizing the particular conduct. The nature of the mental element and its relative importance serve as strong indicators as to whether drunkenness should be allowed to negate the mental element. If the policy sought to be advanced by the definition of the crime is not furthered by punishing those that lack the required mental state by reason of drunkenness, then it should be allowed to be introduced as a defence.

Although Stephen J. did not specifically label the distinction between offences in which drunkenness was admitted as a defence and those in which it was not, in Director of Public Prosecutions v. Beard these terms were formalized and have been used ever since not only in England but in other jurisdictions.

By reason of the fact that the mental element for various crimes varies from crime to crime and must frequently be implied from the nature of the offence and the wording of the statute, classification of specific and general intent offences has occurred on a case-by-case basis. This approach is bound to result in some illogical results which are exacerbated by applying the terms “specific” and “general” without regard to their policy underpinnings. In my opinion the terms “specific” and “general” in themselves do not fully spell out the policy that lies behind their use and should not be applied as if they were rigid statutory standards. Regard must be had for the policy behind them as outlined above.

The principles that emerge from the cases which serve as guidelines in classifying offences as specific or general intent offences are as follows. General intent offences as a rule are those which require the minimal intent to do the act which constitutes the actus reus. Proof of intent is usually inferred from the commission of the act on the basis of the principle that a person intends the natural consequences of his or her act. Without attempting to exhaust the policy reasons for excluding the defence of drunkenness from this category of offences, I would observe that it is seldom, even in cases of extreme drunkenness, that a person will lack this minimal degree of consciousness. Moreover, these are generally offences that persons who are drunk are apt to commit and it would defeat the policy behind them to make drunkenness a defence.

Specific intent offences are as a rule those that require a mental element beyond that of general intent offences and include “those generally more serious offences where the mens rea must involve not only the intentional performance of the actus reus but, as well, the formation of further ulterior motives and purposes” (per McIntyre J. in R. v. Bernard, supra, at p.880). These are often referred to as “ulterior intent” offences. See Majewski, supra. Professor Colvin, in “A Theory of the Intoxication Defence” (1981), 59 Can. Bar Rev. 750, correctly points out that it is the further intent in addition to the basic intent that is the hallmark of ulterior intent offences. The policy behind this classification is in part the importance of the mental element over and above the minimal intent required for general intent offences. This distinction demands that the accused not be convicted if the added important mental state is negated by the drunken condition of the accused. Failure to prove the added element will often result in conviction of a lesser offence for which the added element is not required. One example is the offence of assault to resist or prevent arrest which is a specific intent offence. Absent the intent to resist arrest, the accused would be convicted of assault simpliciter, a general intent offence.

In addition to the ulterior intent offences there are certain offences which by reason of their serious nature and the importance of the mental element are classed as specific intent offences notwithstanding that they do not fit the criteria usually associated with ulterior intent offences. The outstanding example is murder. This is the most serious of criminal offences which carries a fixed penalty. By reason of the importance of the required mental element and the fixed penalty, this offence is classified as a specific intent offence. The defence of drunkenness is allowed so as to reduce the crime to manslaughter tempering the harshness of the law which precludes drunkenness as a consideration as to sentence. The classification of murder as a specific intent offence illustrates the proper application of policy in a case in which the application of the normal criteria might lead to a different result.

I accept that the application of the terms “specific” and “general” may lead to some illogical results. This is not surprising in light of the circumstances outlined above. Moreover, even the clearest unifying principle will in its application not produce perfect harmony. I am, however, convinced that the underlying policy of the Leary rule is sound. I am of the opinion that the criticism of the rule on the grounds of illogicality has been overdone. Applying criteria similar to the above, Professor Colvin has been able to explain “the broad pattern of the decisions emanating from the courts”. See Colvin, supra, at p. 768.

With respect to the fact that some illogicality exists, I would refer to the statement of Lord Salmon in Majewski, supra, at pp. 483-84:
...I accept that there is a degree of illogicality in the rule that intoxication may excuse or expunge one type of intention and not another. This illogicality is, however, acceptable to me because the benevolent part of the rule removes undue harshness without imperilling safety and the stricter part of the rule works without imperilling justice. It would be just as ridiculous to remove the benevolent part of the rule (which no one suggests) as it would be to adopt the alternative of removing the stricter part of the rule for the sake of preserving absolute logic. Absolute logic in human affairs is an uncertain guide and a very dangerous master.
McIntyre J. expressed a similar view in R. v. Bernard stating, at p. 878, that “any logical weakness in this position is justified on the basis of sound social policy”.

Rather than jettison a rule that has stood for over 150 years, I would prefer to clarify the distinction in terms of its underlying roots. This requires that the mental element of offences be clearly identified and defined. This will assist in establishing the importance of the mental element as well as the purpose to be served in criminalizing the conduct. In applying the criteria for the identification of offences of specific and general intent, it can then be determined whether their application in a particular case serves the public interest in punishing the offender notwithstanding the absence of the mens rea associated with the offence.

This approach is particularly apt when application of the normal criteria relating to general and specific intent offences does not lead to a clear conclusion. A case in the Supreme Court of California, People v. Hood, 462 P.2d 370 (1969), provides a good illustration. The defendant was convicted of the offences of assault with a deadly weapon upon a peace officer and assault with intent to murder a police officer. On appeal Traynor C.J. considered whether evidence of the appellant’s intoxication should be considered with respect to the offence of assault with a deadly weapon upon a peace officer or the included offences of simple assault or assault with a deadly weapon. Applying the criteria relating to specific and general intent he found that the offences could be placed in either class. It was therefore necessary to rely “on other considerations” (p. 378). After considering the nature of the offence, the mental requirement and the effect of alcohol on human behaviour he concluded as follows, at p. 379:
It would therefore be anomalous to allow evidence of intoxication to relieve a man of responsibility for the crimes of assault with a deadly weapon or simple assault, which are so frequently committed in just such a manner.
Applying the relevant criteria in this way, I see no reason to disagree with the traditional classification of sexual assault as an offence of general intent. Accordingly, the Court of Appeal was right in holding that the Leary rule applies and drunkenness cannot be relied on to negative the requisite intent.

3. Leary is Inconsistent with the Defence of Honest but Mistaken Belief in Consent

In R. v. Bernard, Dickson C.J.C. contended that the decision in Leary is inconsistent with the decisions in R. v. Pappajohn, [1980] 2 S.C.R. 120, R. v. Sansregret, [1985] 1 S.C.R. 570, R.. v. B. (E.H.), [1987] 1 S.C.R. 782, and R. v. R. (J.D.), [1987] 1 S.C.R. 918, which established that an honest but mistaken belief in consent will negate the mens rea required for rape, indecent assault or sexual assault (a proposition affirmed in this court’s recent decision in R. v. Osolin, [1993] 4 S.C.R. 595). Whether or not self-induced intoxication may be considered a factor capable of inducing an honest but mistaken belief in consent is not presently before the court and therefore I do not wish to express an opinion on this issue. However, I note that it is possible to reconcile the policy underlying the decision in Leary with the decisions in Pappajohn etc. This is illustrated by R. v. Moreau (1986), 26 C.C.C. (3d) 359 [51 C.R. (3d) 209] (Ont. C.A.), in which Martin J.A. held that as a result of Leary an accused cannot rely on self-induced intoxication as the basis for his belief that the complainant consented, but this does not preclude an accused from relying upon other grounds for such a belief. The test is whether the accused would have made the same mistake if he had been sober. See also R. v. M. (R.D.) (1986), 31 C.C.C. (3d) 323 (N.S.C.A.).

Whether the drunkenness can be relied on to advance a defence of honest belief may involve policy considerations other than those that I have canvassed in this case and I prefer to leave that matter for another day. A conclusion in the affirmative would not necessarily be inconsistent with the application of Leary tooffences of general intent.

C. Alternatives to the Leary Rule

A number of alternatives to the Leary rule were put forward. First, it was suggested that an extreme case of intoxication could be treated as akin to automatism. Second, it was suggested that it be treated as insanity. Finally, it was suggested that a third category be developed which would be a state equivalent to automatism but without the fault exception. This would be required to be proved on a balance of probabilities and perhaps would require the accused to continue in custody as in the case of insanity. In my view the alternatives are equally unsatisfactory.

In R. v. Revelle (1979), 48 C.C.C. (2d) 267 [21 C.R. (3d) 161 at 162] (Ont. C.A.), affirmed (1980), [1981] 1 S.C.R. 576, Martin J.A. stated at p. 272 [C.C.C., p. 166 C.R.]:

It is well established that if automatism is produced solely by drunkenness only the defence of drunkenness, which is limited to crimes of specific intent, need be left to the jury.
This proposition is only one manifestation of the more general rule that the defence of automatism is not available to a person whose automatous state is caused by his or her own fault or negligence. This rule recognizes that an individual who through his own fault or negligence renders himself intoxicated and subsequently commits a criminal offence is not entitled to the acquittal which would follow if the defence of automatism were made out. Such an individual is far from blameless. I see no reason to reject the authorities cited above and make the defence of automatism available to such an individual.

A second alternative to the Leary rule which has been suggested was that extreme cases of intoxication might be treated as insanity. I should note that both at trial and on appeal counsel for the appellant conceded that there was no evidence to suggest that the appellant was insane. In my view this point was properly conceded because as the law currently stands the evidence did not support the conclusion that the appellant was insane.

In order to support the defence of insanity an accused must show that he was suffering from a disease of the mind. Consumption of alcohol or drugs may give rise to conditions such as delerium tremens and certain other psychoses which qualify as diseases of the mind. This is made clear by Lord Birkenhead’s first proposition in Beard, supra, as well as by the decisions in cases such as R. v. Malcolm (1989), 50 C.C.C. (3d) 172 [71 C.R. (3d) 238] (Man. C.A.); R. v. Mailloux (1985), 25 C.C.C. (3d) 171 (Ont. C.A.), affirmed [1988] 2 S.C.R. 1029, and R. v. Hilton (1977), 34 C.C.C. (2d) 206 (Ont. C.A). However, as a general rule the term “disease of the mind” does not include self-induced states caused by alcohol or drugs: Cooper v. R. (1979), [1980] 1 S.C.R. 1149, at p. 1159, per Dickson J.

This aspect of Dickson J.’s reasons in Cooper was obiter dicta but I do not doubt its correctness. Since that decision was rendered this court has acknowledged that the question of whether a condition should be treated as a disease of the mind has a substantial policy component. In R. v. Rabey, [1980] 2 S.C.R. 513, the majority endorsed the reasons of Martin J.A. in the Court of Appeal, reported at (1977), 37 C.C.C. (2d) 461 [40 C.R.N.S. 46] (Ont.). At pp. 472-73 [C.C.C., p. 57 C.R.N.S.] of those reasons Martin J.A. stated:
Although the term “disease of the mind” is not capable of precise definition, certain propositions may, I think, be asserted with respect to it. “Disease of the mind” is a legal term, not a medical term of art; although a legal concept, it contains a substantial medical component as well as a legal or policy component.

The legal or policy component relates to (a) the scope of the exemption from criminal responsibility to be afforded by mental disorder or disturbance, and (b) the protection of the public by the control and treatment of persons who have caused serious harms while in a mentally disordered or disturbed state. The medical component of the term, generally, is medical opinion as to how the mental condition in question is viewed or characterized medically. Since the medical component of the term reflects or should reflect the state of medical knowledge at a given time, the concept of “disease of the mind” is capable of evolving with increased medical knowledge with respect to mental disorder or disturbance.
This passage was quoted with approval by La Forest J. in R. v. Parks, supra, at pp. 898-99. Also pertinent are Dickson J.’s comments from Cooper, supra, at p. 1159. There, in discussing the definition of disease of the mind, Dickson J. said:
Underlying all of this discussion is the concept of responsibility and the notion that an accused is not legally responsible for acts resulting from mental disease or mental defect.
Policy considerations support Dickson J.’s dictum that self-induced states caused by alcohol or drugs normally should not be considered diseases of the mind. Individuals who through their own fault or negligence place themselves in an automatous state by consuming alcohol or drugs deserve to be held legally responsible for their actions. Unlike those whose conditions are not self-induced, such individuals have the opportunity to avoid entering an automatous state. Such individuals deserve to be punished for their crimes rather than dealt with under the provisions of the Criminal Code designed for individuals who are found not to be criminally responsible on account of a mental disorder. Those latter provisions embody concerns about protection of the public and treatment of the offender but, unlike the offence-creating provisions of the Criminal Code, are not concerned with deterrence, punishment or retribution. For these reasons I do not consider that there is any reason to overrule Cooper and hold that extreme intoxication should be treated as a disease of the mind.

The final alternative to the Leary ruleis to create a new defence of automatism caused by voluntary intoxication which would have to be proved by the defence on the balance of probabilities. The argument in favour of this approach is presumably that individuals who can raise this defence are entitled to an acquittal because they will have shown that they lacked the requisite mens rea. Itshould be clear from the foregoing that I do not favour this course of action. Permitting an accused to raise such a defence would ignore the fact that those who commit criminal offences after voluntarily becoming intoxicated are not blameless. In my view such individuals possess a culpable state of mind which deserves to be considered a form of mens rea. It is not inconsistent with the principles of fundamental justice to punish such individuals for the crimes which they commit.

CONCLUSION

For all of these reasons, in my opinion the best course is for the court to reaffirm the traditional rule that voluntary intoxication does not constitute a defence to an offence of general intent, subject to the comments I have made with respect to improvements in the definition and application of the distinction between offences of specific and general intent. If a different approach is considered desirable because the Leary approach does not comport with social policy, Parliament is free to intervene. I note that this observation was made by McIntyre J. in R. v. Bernard but Parliament has not intervened. It has been suggested that Parliament should create a new offence of dangerous intoxication. Such a recommendation was made by the Butler Committee in England and by the Law Reform Commission in Canada. (See Butler Committee Report on Mentally Abnormal Offenders (1975) (Cmnd. 6244, paras. 18.51-18.59) and Law Reform Commission of Canada, Recodifying Criminal Law, Report 30, vol. 1 (1986), at pp. 27-28.) Such legislation could be coupled with amendments to the Criminal Code to extend the defence of drunkenness to some or all offences to which it does not apply. Such changes, however, are for Parliament and not for this court to make.

In Majewski, Lord Elwyn-Jones L.C. summed up the situation in words with which I fully agree. He stated, at p. 475:

It may well be that Parliament will at some future time consider, as I think it should, the recommendation in the Butler Committee Report on Mentally Abnormal Offenders (Cmnd. 6244, 1975) that a new offence of “dangerous intoxication” should be created. But in the meantime it would be irresponsible to abandon the common law rule, as “mercifully relaxed,” which the courts have followed for a century and a half.

DISPOSITION

The trial judge stated that but for his opinion that the appellant’s extreme state of drunkenness constituted a defence, he would have convicted the appellant. I agree with the Court of Appeal that the trial judge erred in law in this regard. The Court of Appeal was right, therefore, to substitute a conviction. I would dismiss the appeal.

Appeal allowed; new trial ordered.

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Canadian Criminal Code s. 33.1

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LRCC § 3(3)

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MPC § 2.08

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StGB § 323a

Committing offences in a senselessly drunken state

(1) Whosoever intentionally or negligently puts himself into a drunken state by consuming alcoholic beverages or other intoxicants shall be liable to imprisonment not exceeding five years or a fine if he commits an unlawful act while in this state and may not be punished because of it because he was insane due to the intoxication or if this cannot be excluded.





[1] N.Y. Penal Law § 125.25(2) (“A person is guilty of murder in the second degree when ... [u]nder circumstances evincing a depraved indifference to human life, he recklessly engages in conduct which creates a grave risk of death to another person, and thereby causes the death of another person.”) —Ed.

[2] Section 18-2-101(1), reads in part:
A person commits a criminal attempt, if, acting with the kind of culpability otherwise required for commission of an offense, he engages in conduct constituting a substantial step toward the commission of the offense. A substantial step is any conduct, whether act, omission, or possession, which is strongly corroborative of the firmness of the actor's purpose to complete the commission of the offense.

[3] Interestingly, although the term "overt act" appears in the statutory definition of "Conspiracy," see § 18-1-201, C.R.S. (2006), and conduct beyond "mere preparation" has at times been referred to as a requirement of attempt, see People v. Washington, 865 P.2d 145, 148 (Colo. 1994), neither has ever actually appeared in the criminal attempt statute of this jurisdiction.

[4] Unfortunately, Kolodny—who was 19 years old at the time—possessed very little automotive knowledge. He did not know the meaning of the term “tread” nor what a “bald tire” was; it is apparent that he did not comprehend the danger posed thereby. Indeed, when asked to “check out” the vehicle, he had reported only that one window was broken and that it did not have a radio.

[5] For facts, see Sopinka J.’s dissent. —Ed.