Criminal Law

Sept 2nd
• Punishment based
• Why?
o Retribution – Traditional reasoning (lex talionis)
o Deterrence – Jeremy Bentham (19th century) – Utilitarianism – Cost/benefit
analysis
o Incapacitation
o Sense of Justice
o Rehabilitation (Is it possible?)
o Consider also the moral dimension (“because it’s wrong”) – Anger – Moral
equilibrium
• Crime as deviance from habitual lawfulness
o Most people respect most of the law most of the time
• Utilitarianism was a contrast to the tradition of retribution
• Torture (retribution)
o Retaliation
o A way of acting out retribution on the body
o Eye for an eye
• Core principle: Notion of the deprivation of liberty
o High threshold for depriving someone of liberty
o Can include a broader sense of treatment
 Institutionalization
 Youth offenders
• Even today – strong importance placed on moral/religious ideals – the vindication of
norms
o Predicated on the assumption of free will
o Is this reasonable?
o What about the role of brain chemistry and brain function
o Nature vs. nurture debate
• Should we prevent crimes if we have the capacity to determine who is predisposed?
o Historically, trial was hidden and punishment was a spectacle
o Today, the opposite is the case
o Crimes begin with thoughts
o What differentiates accidents from intentional crimes – mens rea – Intention
• The core of modern criminal law is mens rea whereas traditionally, the issue was
simply that a harm had occurred – presumption of innocence
• Principle of moral blameworthiness
• Actus Reus – the wrongful act
• Why not punish mens rea alone?
o Harm principle?
o In modern Canadian law we consider the consequences as well
o Separate offences
• Inchoate Crimes
o Crimes that are incomplete
o Crimes of incitement
o Conspiracy
• True crimes vs. regulatory offences
• Society attaches different importance and severity to different acts
• The punishment must be proportionate
• This allows the burden of proof and mens rea requirement to be diluted
• We have a higher standard for crimes that result in the deprivation of liberty
• Hierarchy of culpable states of mind (Mens Rea scale)
o Intention
o Knowledge
o Wilful blindness

o Strict Liability
o Absolute Liability
• The more severe the crime, the higher the required standard
• Criminal negligence is the threshold between subjective and objective states of mind
(the threshold between true crimes and regulatory offences)
• What was in the individual’s mind vs. a reasonable person standard
• Absolute liability offences cannot give rise to prison sentences
• Particularization of the reasonable person test
• No longer any common law offences in Canada since 1957 – All offences must be
codified in “Criminal Code”
• Criminal code is a codification of common law
• Principle of creating certainty
• Murder vs. manslaughter –
o Manslaughter requires actus reus but not mens rea with respect to death
• Contrast Civil law systems where the exists much more doctrinal criminal law
o Defence of provocation – Allows for reduction from murder to manslaughter
o Because civil systems are categorical, do not have manslaughter, but rather
have murder by provocation with a lesser sentence requirement
o Traditional common law defence at the basis of manslaughter
• Charter era – More principled approach to criminal law – s.7 Fundamental Justice

Sept 7th
• This course: General principles of criminal law not a course on criminal evidence nor
sentencing
• Nonetheless, evidence and sentencing are important aspects of criminal law –
evidentiary issues often impact substantive issues
• In a jury system, it is a judge who must advise a jury on how to deal with evidence –
Therefore, CL has detailed rules of evidence while civil law systems do not
• Sentencing
o Mandatory minimums – Ex: Murder = life
 o Mandatory Maximums – Ex: Manslaughter = life
o Parole requirements
o Varying degrees of discretion
o Sentencing is meant to mirror the gravity of substantive crimes
• Substantive Criminal Law
o Concerned with the attribution of liability
• Today, the trial is the spectacle and the sentencing/punishment is largely hidden
• Huge burden that must be overcome in order to deprive someone of their liberty
o Proof requirements
o Definitional requirements
o Proportionality
• Principle of Legality (nulla poena sine lege)
o No punishment without law
o Rule of Law principle
o In order to be deprived of liberty, there must be a specific crime which was a
crime when you committed it and you can only be punished based upon its
terms
• Elements of criminal conduct
o Mens rea (mental element)
o Actus reus (physical element)
o The two elements must be co-incident
• Constitutional Principles
o The more serious the crime, the higher the mens rea standard
o No deprivation of liberty without wrongdoing (Absolute liability cannot result
in imprisonment)
• Every crime has its own relevant mens rea standard
• Because criminal law is a codification of common law, some terms are ambiguous –
ex: recklessness used for both subjective and objective states of mind; purpose
referring to both intention and knowledge
• Forms of participation in crime
o Accessory (with requisite mens rea)
o Physical perpetrator
o Conspiracy
o Instigation/Incitement
o Aiding and Abetting (Merely has to have knowledge without intention –
requires an act which constitutes encouragement)
• “Affirmative” Defences (Civilian approach: “Grounds for the exclusion of criminal
liability”) – In cases where a crime has actually been consummated
o While there are no longer any common law crimes, some common law
defences were codified
o In the case of sexual assault – strict rules on the inclusion of prior sexual
conduct for proof of consent – this evidentiary rule shapes substantive law –
“Air of reality test” – Can only introduce consent issues if there is an objective
air of reality
 o Examples
 Duress: Conduct is excused since it is done under imminent threat of
harm – s.17 has a list of 22 offences that are exempt from this defence
 Self-defence
• Why punish criminals?
o Deterrence
o Bentham – barbaric punishment is just as barbaric as the crime – move
towards the utilitarian view of punishment as a necessary means of preventing
crime
o Social control
o Utilitarian approach
o Moral blameworthiness
o Lex talionis (retaliation)
o Proportionality
 Constitutional principle
 Utilitarian: would encourage commission of more serious offences
• Is criminal law not ultimately not just another act of violence?
o Discussion

Sept 9th
• Civil law
o Tradition of legal science
o Vs. Common law adhoc approach
o Criminal code divided into general and special parts
o General – definitions
o Specific – Particular crimes
• Common law
o Greater transparency in understanding underlying subjectivity
o Accepts fact that law is a social construct
• Reason why people commit crimes underlies gradation of responsibility
• Soreff – Phrenology
o 19th Century racial theories
o Modern neuroscience similar in that it tries to link brain construction with
behavioural tendencies
• Crimes of passion treated with greater lenience
o Related to the assumptions about male rage
o Provocation – If murder is committed in the heat of moment – Reduces
liability for murder to manslaughter
o Adjusting the criminal law to certain social beliefs
o Privileging anger over say compassion (euthanasia)
o Less blameworthy in these circumstances?!
• Self-Defence
o Can fully justify murder
o Requirement of imminence (right now)
 o “Battered wife” syndrome
o How does imminence fit in?
• Automatism
o Involuntary commission of a crime (sleepwalking)
o What about rage induced automatism? – Do mens rea and actus reus truly
coincide? – More controversial
• Duress
o Common law – Murder exception (Unlike provocation or self-defence)
o Erdemovic case
o Message: Better for you to die than to kill another – Oddly high standard
o Are these sentencing issues? – We don’t deal with sentencing issues in this
course
• Intoxication
o Can it undermine mens rea
o Voluntary vs. involuntary distinction
o Only a defence for crimes that involve “special intention” not those that
involve “general intention”
• Issues of fair labelling
• The common law is not a system that emphasizes logical and systemic coherence
• Perhaps these are issues for legislative amendment
• McSherry
o Impossibility of getting into the human mind

Sept 14th
• Legality Principle
o Why is it so important in criminal law?
 Deprivation of liberty
 Stakes are higher for individuals
 However, civil cases could also be very important
 Stigma element
 Inequality of state vs. individual
 State’s power (potential or actual) over individuals
o Canada has a criminal code whereas England doesn’t – Abolition of common
law offences
o Disrespect of legality principle usually related to oppressive regimes
 Would include prioritization of penalty over crime
o Kafka – without legality principle, criminal system becomes brute and
arbitrary
o Criminal justice rights are generally procedural with the exception of the
legality principle
o Legality principle is a minimum of fairness (formal right)
o Canada requires a level of fault related to the stigma of the crime
o Discriminatory offences
o Ex: Nuremberg – Creation of the notion of crimes against humanity
 o Justifying the legality principle
 Fair notice
 Providing a defendant the chance for a proper defence
 Equal treatment
 Legitimacy of state
 Separation of powers (creation of offence should be left to
democratically elected legislature)
 Equality of arms
o Implications
 Principle of publicity (no secret laws)
 No retroactive laws (except in cases of decriminalization whereby you
will subject to the more liberal law – Always benefit from the more
generous regime) – Some grey areas
 Certainty (Certain enough) – No reasoning by analogy to extend the
scope of offences – Requirement of restrictive interpretation (always
chose the more generous of 2 interpretations)
 Specialty (Specificity) Principle – Sufficient precision (Need for
interpretation does not mean that law is imprecise – Need enough
material to create a non-arbitrary judicial debate – This defence has
almost never worked

Sept 21st
• Last class: constraints on the power of the state to deprive people of liberty
• Today: What are the limits of criminal law? What should and shouldn’t the state
punish?
• Legal Moralism vs. Utilitarianism
o Idea of punishing morally blameworthy conduct vs. idea that there must be an
underlying purpose to punishment
o This debate still persists in modern law
o Devlin vs. Hart
 Devlin – Conservative
• Crime and sin are interrelated
• Judeo-Christian basis
• Moral blameworthiness as an fundamental religious concept
• State should be able to regulate conduct deemed immoral
• Intolerance, indignation and disgust as the social “litmus test”
 Application
• Murder – Yes – Intolerance, indignation disgust
• Same-sex marriage, bigamy – more complicated (why do we
legalize one and not the other?)
 Hart – Legal Positivism
• Legal Moralism invariably encroaches on personal liberty
• We should only intervene where your conduct harms other
people
 • State as the safeguard for autonomy
• “Social Harm Principle”
 What is the difference?
• Both acknowledge the existence of morality, but Hart does not
see it as a sufficient basis for criminalization
• Threshold is different
• Hart advocating for greater scrutiny before we transform
morality in criminal law
• Positivism may be underestimating the inherent intertwining of
harm and morality
o Legal moralism does not look to “harm” as a universal basis – offending
moral principles is sufficient
• Issue: Same-Sex Marriage
o How easy is it to conclude that there is no social harm?
o Can moralists make a harm argument?
o Can utilitarians make a moral argument?
o Liberalism as a moral ideology
o Who determines what Canadian values are?
 May be an illusionary construction?
 Court seems to be using this guise in order to advocate its own
personal values
• Poligamy
• Marihuana – Malmo-Levine/Caine
o Challenge to the criminalization of marihuana on the basis of s.7 – Claim that
it does not cause any social harm
o What about alcohol, tobacco use and gambling?
o Chronic vs. recreational use
o Majority
 Social harm principle is not a constitutional principle
 Nonetheless, it acknowledges it as an appropriate principle and even
goes to great length to prove the existence of harm
 Leave it to Parliament to resolve this issue
o Dissent (Arbour)
 Up to courts to police boundaries between social harm and morality
 No harm here
• Principle of habitual lawfulness
o This allows criminal law to only focus on deviants
o If it wasn’t rare, the system would collapse
o In the case of cannabis – use is so widespread that it isn’t feasible to prosecute
everyone
• Prostitution issue
o Does criminalization of prostitution violate the charter?
o Prostitution itself is not criminalized, but rather a whole host of related issues
are limited on the basis of social nuisance
 o Court concludes that it is an infringement of rights but is justified under s.1
o Should not be a limit on ability of state to show its “disapprobation of street
nuisance”
o Don’t want to admit a legal moralist problem with prostitution itself
• R. v. Sharpe
o Challenge to child pornography provision
o Actual harm not required
o Need to balance freedom of expression and protection of children
o Criminalizing mere possession goes too far on a privacy level
o Is there not room for some legal Moralism in the law?
• Hate Speech – R v. Keefstruck
o Teacher who engages discriminatory curriculum
o Challenge on the basis of freedom of expression
o Justification under s.1
o Hatred as a prelude to violence
o Truthfulness is not crucial
• R v. Zundel
o Holocaust denial
o Prosecuted under false news provision (not hate speech)
o An ancient provision which happened to still be on the books
o Court refuses to allow the false news provision to be stretched
• Tension between what offends our morality and what we feel “should” be
criminalized

Sept 23rd
Actus Reus
• Traditional criminal law was much more concerned with actus reus than mens rea
• Today, mens rea is the more central issue
• Issues today
o The temporal connection between mens rea and actus reus
o Omissions
• Next class: the subset of crimes that require causation
• Acts that are a basis for criminal liability
o Require Voluntariness
 Minimal mental element
 Requires a degree of consciousness
• Attempted vs. murder
o Here the mens rea is the same but the actus reus differs
o This seems to run contrary to modernist notion that the actus reus is not
important
• Issue of omissions
o Very few positive obligations in Canadian criminal law
o Contrast Singapore where children have a criminal law obligation to care for
elderly parents
 o The line between the two is not always clear
o Fagen v. Police Commissioner
 Car on police officer’s foot
 Here the actus reus precedes the mens rea
 Fagen argues that there is no coincidence between the actus reus and
mens rea here – he argues that he is being accused of the omission of
not removing his car
 Court characterises it as commission (a continuous act)
o R v. Miller
 Continuous act theory
 Court does not exactly follow Fagen
 Refuse to offer a theoretical reasoning
 They “look at act as a whole” “be realistic” “common sense”
 Reasoning is problematic – risk of arbitrariness
 Similar situations aught to be dealt with similarly
o R v. Cooper
 Man begins strangling a woman but blacks out before finishing – She
ultimately dies
 Issue of voluntariness
 Not an evident conclusion because his automatism removes the
voluntariness from actus reus before death is reasonably foreseeable
• Key category of criminalized omission
o Criminal Negligence
o Omissions can only give rise to liability if there is a positive duty under the
law (statute or common law); or s. 217 in the nature of an undertaking
(Browne) – Need not be in the code
• Omissions and defences can still exist at common law
• Larsonneur
o Guilty through circumstances beyond one’s own control
o Voluntariness aspect of actus reus has definitely evolved
• Contrast Kilbright
o Here there was an acquittal on the basis of a lack of voluntariness
• R v. Browne
o Section 219, 217 offences under the law
 219 – No liability for omission without a duty
 217 – If you undertake to do something, must complete it
o Accused said “I’m going to take you to the hospital” => agreement to
undertake the act
o Yet there was a failure to fulfill obligation
o Abella
 Must be an undertaking in the nature of a commitment
 Question here is the scope of the duty
 Abella takes a liberal (narrow) view – liability for omissions to be
extremely limited
• R. v. Thornton
o Man who donates blood despite knowing he is HIV positive
o Prosecution desperate to find a basis for liability
o Common nuisance s.180 (2) (a)
o Court seeks to find a legal duty – look to common law – and import the
standard of reasonable care from tort law
o Tort law has a much more flexible notion of liability
o Significant stretch – An attempt to match law to our moral indignation

Sept 28th
• Last class: Voluntariness requirement of actus reus
o Physical circumstances: Somnambulism, heart attack, etc.
o Not moral blameworthiness question
o Move from primarily actus reus to mens rea considerations
• Today: The issue of causation
o Not all crimes require an element of causation
o Only those that require a certain result as opposed to those that consider
conduct (murder vs. dangerous driving)
• Factual vs. Legal Causation
o Factual: Connecting the dots; a chain of events
o Legal: Moral blameworthiness
• Ex: Jane Creba case
o Factually one shot her; but legally, the other is also implicated in the crime
• R. v. Winning
o False credit information – Not the information actually used by credit
company – Charged with obtaining credit card by false information
o Requirement of causation
o Innocent on the basis that the credit card was not granted on the basis of her
false information – Missing element of causation
• Intervening cause
o Reed v. Stratton
 Botched CPR attempt sufficient to break the chain of causation
 CPR found by the medical evidence to have caused the death
o Smithers
 Hockey fight case – Epiglottis failure is the cause of death
 Was death foreseeable? Does it matter? NO – That is a consideration
of murder and not manslaughter
 Thin skull rule for causation
 All you require for manslaughter is that an assault caused death
(Causation only an element of the actus reus)
 Whereas in murder causation is an element of both the mens rea and
actus reus
 Factual and legal causation requirements
 • Standard for a sufficient cause: The act in question must be a
contributing cause beyond the de minimus range – Not
insignificant cause
o Cribbin
 Fight – victim left on side of road – drowned in own blood – charge of
manslaughter – Cribbin claims he didn’t land critical blow
 Is Cribbin as one of two assailants part of the cause of death?
 Different forms of participation complicate the issue
 Factual and legal causation are being distinguished here – Not
necessary to determine that you caused the death in medical terms – So
long as you are proximately connected in moral blameworthiness
terms – Harm can be neither trivial nor transitory
o Paggett v. Queen
 Use of victim as a human shield – Police shootout – Victim is killed
 Argues that the police action is an intervening cause – Rejected
 Overturn a prior rule requiring that homicide must be based on a
person (or someone working in concert) having fired the shot
 Continue to move away from factual and towards legal causation
 Act of self-preservation cause by accused’s own act not sufficient as
an intervening act – Police officer acted reasonably in self-defence
(common sense analysis)
 Question of proximity here
o R v. Menezes
 Dangerous driving – one loses control and kills several bystanders
 What about driver who didn’t factually cause to death
 Acquittal because he stopped racing when he realized driving was too
dangerous
o R v. SRJ
 Death of Jane Creba in Toronto – Gun fight on Yonge street
o R v. Harbottle
 Holding down legs of woman who is being murdered – Can he be
found guilty of first degree murder
 2 people involved – one factually causes death – the other aids
 Murder in the first degree – Added requirement of planning and
deliberation
 Certain types of second degree murder can be upgraded to first without
planning and deliberation (list of particularly heinous crimes)
 Court upholds a higher standard of causation for this specific
subsection of crimes – Based on specific language used – Substantial
and integral cause of death
 Standard is higher for first degree murder under 214(5)
o R. v. Nette
 Revisiting of the Smithers standard
 Addressed through the issue of instructions to the jury
  Causation in second degree murder – identical to Smithers standard
 Old woman who is hogtied and dies by asphyxiation after 48 hours
 Majority feels it is OK to translate not insignificant to significant (can
simplify language for the sake of then jury
 Harbottle confined to particular species of first degree murder cases
(where planning and deliberation are not required)
 Dissent feels there is a fundamental difference between these two
articulations
• Actus reus = Physical element
• Mens rea = Mental element (Most of the action happens here)

Sept 30th

Presumption of Innocence and Constitutional Fault Requirements

• Question regarding the burden of proof
• Recall: The spectrum: True crimes to regulatory offences; Intention (special/specific,
…), knowledge, recklessness, wilful blindness, criminal negligence, strict liability,
absolute liability
• The more severe the crime, the higher the mens rea requirement (constitutional
principle)
o Murder requires intention or knowledge
• Wolmington (1935)
o Classical articulation of presumption of innocence
o Common law overruling of a contrary principle
o Man confronts wife with a weapon and she dies
o Former principle that there was a presumption of malice in murder
 In other words, once the actus reus is proven beyond a reasonable
doubt, the mens rea is presumed
o Case overrules this and instead outlines a presumption of innocence for all
elements of the crime
• Fault Requirement in Criminal Law
o Does the actus reus ever suffice? – No (with the exception of absolute liability
where imprisonment is forbidden)
o Fault = Mens rea
o Cannot be deprived of liberty without an element of fault
o The required fault element depends on the particular nature of the crime
o Notion of moral blameworthiness allows for a gradation of the required
degree of fault
o Why have a gradation of crimes (proportionality of sentencing, stigma)
o Issue of fair labelling – correctly describing the crime and categorizing
o Example: Prosecuting rape as torture
 If the consequences are similar, is the name really relevant
 Deterrence requires fair labelling
 Principle of legality (precision requirement)
  Desire to recognize crimes (vindication of moral norms)
o Practical requirements and limits
o Proportionality is required between the degree of wrongdoing and the
punishment (s.7 Fundamental Justice Requirement)
 Objective foreseeability is insufficient for murder
• Finta
o War crimes prosecution in Canada – Resulted in an acquittal
o Accused of WW2 participation
o Issue: Legal requirements for new category of crimes against humanity
 Contains prohibition against acts also regulated in traditional domestic
laws, but in a separate context
 Further mens rea requirement: Wider persecution context
 Both crimes against humanity and murder carry same sentence – It’s
only really the stigma issue that seems to differ
o SCC seems to have gotten the law wrong here
o Additional element of moral opprobrium that requires an added mens rea
element (requires proof of his awareness of the wider context)
o SCC acquits on this basis (might have been victim of propaganda, etc.)
• Fault requirements are complicated and can vary
• Motive
o Does not matter except to the extent that it is a specific requirement of the
mens rea
o Only some crimes (such as hate crime) require specific motives
o Generally, motive does not matter, and motive is a separate concept from
mens rea (don’t call it motive in the mens rea analysis)

Oct. 5th
Intention and Knowledge
• Section 229 – Murder
o Means to cause his death (Intention)
o OR means to cause him bodily harm that is likely to cause death (Knowledge
– with intention related to harm)
• Recall the scale of culpable states of mind
o Intention
o Knowledge
o Recklessness
o Wilful Blindness
o Criminal Negligence
o Strict Liability
o Absolute Liability

o From true crimes to regulatory offences

 o Up to and including wilful blindness, we are looking subjectively not
objectively (different forms of subjective foresight but the element of
foresight is diluted)
o Strict and absolute liability are objective
o Criminal negligence is a hybrid
• Terms that represent intention
o Purpose
o Desire
o Special Intention
o Wilful
o Mean to
• Naccarato
o Did the instructions to jury confuse subjective foresight and objective
foreseeability?
o Jury told that they can draw an inference as to subjective foresight based upon
what a reasonable man would have anticipated given the totality of the
evidence
o This case is distinguishing an evidentiary inference from a standard of liability
• Stean
o He is accused of having helped the enemy with broadcasts
o He claims that he did not have a choice in the matter
o Here there was subjective foresight in terms of knowledge
o This is not changed by the duress
o This crime is defined as (“if with intent”) – which means defendant must have
desired the outcome
o Here duress, negates the mens rea which is separate from duress as an
affirmative defence
o This can only happen when there is an element of intention in the crime that
means desire of a particular outcome
o Otherwise, duress could only be used as a defence after the consummation of
the crime
o Always go back to the definition of the crime
• R v. Hibbert
o Man was forced by another to participate in a murder
o Charge under s. 21(1)(b) which contains the word purpose
o He tries to negate on the basis of duress (similar argument to Steane)
o SCC concludes that in this offence, unlike Steane, purpose DN= desire
o Purpose here means with knowledge that you are aiding and abetting
o Otherwise, there would be no guilt in cases of alternate purpose, opposition or
indifference – fear of creating absurd results
• R. v. Buzzanga and Durocher
o Prepare ironic, hateful leaflets to provoke their community
o Charge with 281.2(2) – “Wilfully promoting hatred”
 o In this specific provision, legislator meant intention (conscious purpose) by
using the word wilful
o If we allowed it to mean recklessly it would be too broad and an infringement
of freedom of speech
• Tadic (ICTY)
o Definition of crimes against humanity in s.5 ICTY Statute
 Context (Finta; element of scale or gravity)
 Specific acts (murder, torture, rape, deportation)
o Issue here: What is the additional mens rea required by these crimes?
 Knowledge that these acts fit into the broader context of an attack
against a civilian population
o Tadic was a small fish who was merely taking advantage of a situation
o Trial chamber said that crimes against humanity were simply crimes where
there was a personal motive
o Appeal by prosecution on this question of law: seeking a knowledge standard
• Jelisic
o Another small fish but with clear genocidal intentions
o Here he plead guilty to crimes against humanity but contested genocide
(“intent to destroy a group as such”) – Element of specific intent
o More stringent standard than the mere knowledge requirement of crimes
against humanity
o Dolus specialis question became essential here
• ICTY vs. Canadian Courts
o Much more civilian, strict, doctrinal approach
o Jurisdiction always an issue so less openness to discretion
o Charter seems to be having a similar effect on Canadian law because of
principles of fundamental justice

Oct 7th
Recklessness and Willful Blindness
• Recklessness as knowledge of a risk and pursuing the act anyways (Subjective
awareness of the risk rather than the outcome itself) – Recklessness as a species of
knowledge
• Wilful Blindness: Absence of knowledge is the result of a deliberate choice (Tricky
as a subjective concept)
• Sansregret
o Mistake of fact available as a defence to a charge of negligence
o However, not available as a defence of wilful blindness because this is the
want of knowledge
o In this case, had the theory of recklessness been proposed, there would have
been an acquittal
o Accused broke into victim’s home twice and sexually assaulted her – Used to
be in a relationship – He genuinely believed there to be consent – Is this
recklessness/wilful blindness
 o Question is whether the defendant knew there was a lack of consent
o This is not a negligence standard which is objective, but rather a subjective
standard – What did Sansregret himself know?
o Recklessness: Knowing a risk but choosing to persist in the conduct
o Here there is a defence of mistake of fact to recklessness
o However, here there is a wilful blindness standard which is not amenable to
wilful blindness
• Briscoe
o Assisted and participated in a crime without fully knowing what was going on
– Acquittal at trial – Appeal on the basis that wilful blindness should have
been considered
o These states of mind do not define the mens rea, it is the crime that does.
These are channelling categories of the mens rea
o Anytime there is a knowledge requirement, wilful blindness is a substitute
o It imputes knowledge to an accused whose suspicion is aroused to the point
where he or she sees the need for further inquiry but deliberately chooses not
to make that inquiry
o Did the accused shut his eyes because he knew or suspected that looking
would fix him with knowledge?
o “Deliberate ignorance” – More descriptive in that it highlights the process of
suppressing a suspicion – The deliberate process is necessary to avoid
allowing this category to descend into the objective (which would be
constitutionally impermissible)
• Command responsibility (Blaskic)
o Requires (Presuming the absence of participation, incitement or aiding and
abetting)
 Command and control (subordination)
 Standard: Command knew or had reason to know (subjective: as
opposed to should have known) – The deliberate question is key
(Knew, chose not to know, did not know)
 Failure to act – Failure to prevent or punish
o Wilful blindness is tricky in this context
• Compare Blaskic to Sansregret and Briscoe
o A crime of omission vs. a crime of commission
• Next class will be about the transitional category between subjective and objective
mens rea standards (Criminal Negligence)

Oct. 12th
Criminal Negligence
• As opposed to recklessness and wilful blindness
• Transitional state between subjective and objective fault
• Unclear concept
• Recall Recklessness:
o Awareness of risk (as opposed to foreseeability of crime)
 o See R v. Cooper: Only a slight relaxation of the mens rea requirement for
murder
o Ex: If you shoot randomly and a bullet happens to ricochet and kill someone
• An even lower state of mens rea
• Crimes that are based on a criminal negligence standard sit at the crossroads between
true crimes (serious crimes) and regulatory offences (less serious crimes) – This
explains the tension between objective and subjective standard given constitutional
principles of fundamental justice
• How does the tort standard of negligence factor in?
o Thornton case (tainted blood) – the court borrowed the private law
“reasonable care” standard – This is a stretch because criminal law is different
from tort law in that it involves punishment
o Criminal law is something more than mere negligence
o Not merely a departure from reasonable standard (private law standard) but
rather significant or marked departure (criminal law standard)
• Different approaches
o Hybrid standard
 Defendant must be aware of the risk (subjective step)
 Once this is established, we just behaviour based on reasonable
standard (objective step)
o Particularisation of the reasonable standard
 Expertise
 Age
 Gender
 See Creighton – Expert drug user standard
 How far does this go? – At some point you no longer have an objective
test
• Tutton
o Parents charged with manslaughter (s.222) by means of criminal negligence
(s.197) – Parents legitimately believed that they could heal child of diabetes
through traditional means – Refuse medical treatment – Child dies
o Issue here is the proper mens rea for criminal negligence
o Crime defined as “Wanton or reckless disregard”
o Court is split as to whether it is an objective or subjective action
o One side
 Negligence means absent of thought rather than though-directed action
 Criminal negligence requires an objective standard
 Despite use of “recklessness” in the definition, this is not the same as
the mens rea state of recklessness (awareness of the risk)
o Wilson
 Recklessness means recklessness which means a subjective standard
• R v. Gingrich
o Truck driver – Brakes fail – Owner of truck charged with a criminal
negligence offence – Whether court should find an objective or subjective test
 o Mens rea for criminal negligence in the operation of a motor vehicle is an
objective standard – Distinguishable from the circumstances of Hutton
o Court concludes that offences related to motor vehicles can be objectively
based (lesser degree of blameworthiness than the circumstances of Hutton)
o Yet, the final paragraph seems to indicate a hybrid standard (must have had
the same “knowledge” as Gingrich) – Still require an element of knowledge in
relation to the brakes (Cannot seek to escape the objective element)
• R v. Hundal
o Overloaded truck – Driver DN stop on an amber light – Plows into a car in the
intersection and kills the driver
o Once again, the SCC focuses on the activity that is being criminalized here
(motor vehicle offence) – which is a quasi-regulatory offence
o Court finds therefore that the standard is essentially objective
o This is reasonable given the licensing requirement which places all drivers on
a fairly level footing
o Objective standard “in the context of all of the elements surrounding the
event” (the subjective aspect)
o This is not the same criminal negligence standard as in Tutton
• Aside: The term “quasi-regulatory”
o Dangerous driving causing death is still serious so it is not completely
regulatory – However, does not rise to the level of true crimes
o Criminal negligence causing manslaughter is probably more serious along the
spectrum
o Criminal negligence covers a significant area on the spectrum of mens rea
o There are very basic assumptions about moral wrongdoing (what is more
serious than what) that underlies these considerations
• Creighton
o Particularising the standard to comply with constitutional requirements?
o Man is a habitual drug user – Injects victim with cocaine and she dies – They
try to cover up crime
o Charged with unlawful act manslaughter (an offence similar to criminal
negligence manslaughter in Tutton)
o Mens rea for this crime is objective foreseeability of harm and not death – No
constitutional requirement for subjective fault in the case of this particular
crime
o Yet, given the gravity of the crime, court not content with finding a purely
objective standard here – So, they use a hybrid test
 Subjectivity as to whether accused perceived the risk
 Objectivity as to his resulting conduct
o Lamer and McLachlin disagree as to the degree of particularisation for the
objective step
o Regardless, it is fairly indisputable that circumstances are important in
applying the objective standard
• R v. Beatty
 o Charron J
 Modified objective test for this quasi-regulatory offence
 [More on this next class]

Oct. 14th
Criminal Negligence Continued
• R v. Beatty
o Dangerous driving causing death
o Tutton – Court equally split regarding standard for criminal negligence
causing death
 Objective vs. subjective foresight
o This case deals with a different subsection of CNCD than Tutton
o There is still confusing about criminal negligence offences
o Distinction between penal and criminal negligence is constitutionalized when
imprisonment is considered
o Majority refers to the modified objective test (for criminal negligence)
 Marked departure from appropriate standard
 Cannot ignored the individual circumstances of the accused (minimal
element of subjective awareness of facts)
o Nonetheless, the accused cannot be acquitted by the simple fact that he was
not conscious of risk – Mistake of fact defence (which implies that there is a
subjective element here
o Dissent
 Once you have established a marked departure, mens rea can be
inferred (inference of knowledge based on the actus reus)
 Probably because this was a quasi-regulatory offence
 Seems to be a strict-liability standard
• In Hundal LaForest accepted an objective foreseeability standard (despite Tutton
where he found subjective) for he what saw as a quasi-regulatory offence
• This is justifiable because of the spectrum of true crimes – regulatory offences and
the constitutional requirement of fault
• Both dangerous driving and criminal negligence causing death have a criminal
negligence mens rea standard because they concern marked departures – Yet the
objective/subjective distinction exists because this is a cross-over category and not all
crimes are equally ‘serious’

Strict Liability and Absolute Liability Offences

• Regulatory offences that are arguably a branch of administrative law
• Beaver v. The Queen
o Accused is selling drugs that he thought were merely milk powder
o Charged under a provision of Opium and Narcotic Act
 Offence to have in one’s possession an illicit drug
 Also includes substances that are represented or held out to be a drug
 o Issue here is that we have a strict/absolute standard for a seemingly serious
crime
o Court argues that there is an implicit fault/mens rea requirement because of
apparent ambiguity
o Dissent disagrees – Not here to change parliamentary legislation – Should
apply law as is (without mens rea requirement)
• Pierce Fisheries
o Distinction between true crimes and regulatory offences
o Undersized lobster case
o This man probably did not know he had caught undersized lobsters but is
nonetheless fined
o This is not a new crime (not really a crime?) and there is a much lesser stigma
o Contrast Beaver where there was a serious crime at stake
• Sault Saint Marie
o Dumping case
o Articulates distinction between absolute and strict liability offences
o Also articulates concept of public welfare / statutory ‘crimes’ (offences)
which are not criminal in any real sense but are prohibited in the public
interest
o Mala in se vs. mala prohibita
o Must insure that the crime will be reasonably prosecutable and that the
punishment will be sufficient to deter the crime (crime that is largely in the
context of profit and which involves complex cost-benefit calculus)
• BC Motor Vehicle Ref
o Question whether s.94(2) of Motor Vehicle Act violates charter
o Absolute liability offence for driving with suspended license whether or not
the person knew which is liable to a fine and a prison sentence of 7 days to 6
months
o Clearly this is not a true crime – However, can mens rea be dispensed with all
together? In other words, is due diligence available as a defence?
o Provision is deemed unconstitutional if it is an absolute liability offence
o Therefore, where mens rea is ambiguous, and there is imprisonment, court
will presume it to be an absolute liability offence
o In other words, in order to have an absolute liability offence, must be explicit
wording by legislation (and no term of imprisonment is allowed)
o Where a term of imprisonment is a mere possibility, an absolute liability
offence will be deemed unconstitutional (cannot be left up to judicial
discretion)
• R v. Transport Robert
o Absolute liability offence for truck drivers whose wheel falls off – Hefty fine
with no possibility of imprisonment
o Because there is no imprisonment term, absolute liability justified
o However, fine still hefty – Parties argued that there is a violation of the right
to security (can potentially ruin someone’s livelihood)
 o Court rejects this argument on the basis that this a risk one must assume as a
member of this commercial industry
o So long as you don’t have a term of imprisonment, regardless of quantum of
fine – passes constitutional muster
• R v. Travel Route
o Is false advertisement a true crime merely on the basis of the resulting stigma
o Distinguished from crimes in Vaillancourt
o Upholds state’s right to impose serious penalties for regulatory offences in the
interest of protecting public interest from hazardous activities

Oct. 19th
Specific Crimes Section of the Course
Today: Homicide (Manslaughter and Second-Degree Murder)
• Not all homicide results in criminal liability: Culpable vs. non-culpable homicide
• Culpable Homicide
o Murder
 First Degree
 Second Degree
 Distinction largely related to sentencing: No different fault
requirements
o Manslaughter
o Infanticide
• Manslaughter
o Creighton
 Does constitution require foreseeability of death? NO
 Subjective foresight of bodily harm that is neither trivial nor transitory
 FILL IN
o No minimum sentence in the case of using a firearm
o Residual category for all culpable homicide that is not murder
• Murder
o S.229
 (a)
• (1) Means to cause death – Intention
• (2) Means to cause bodily harm that he knows is likely to cause
death, and is reckless whether death ensues or not –
Knowledge
 (b) Transferred intent – Killing the wrong person
 (c) Unlawful object murder (Language includes objective element, but
we ignore it) – When individual engages in unlawful conduct, must
assume the risk that death may result
o R v. Simpson
 Strangler – Strangled women until they were unconscious – Charged
with attempted murder – Judge inserted an objective standard in his
instructions to the jury – This is not acceptable
  Murder must have an entirely subjective standard
o R v. Cooper
 Case of the blackout where it is uncertain whether accused had mens
rea at moment of death
 Does not matter – As long as you had intent at the start, when you set
these events in motion, that’s sufficient
o R v. Fontaine – Transferred intent case
 Man in trying to kill himself kills others – Can intent be transferred?
NO
 On the language of the provision, “any human being” this should apply
 However, because we have opted not to criminalize suicide – we
cannot transfer intent from suicide
o R v. JSR
 Shootout in downtown Toronto – Gang member who participated but
did not kill the victim being charged with unlawful act murder
 Causation issue – previously discussed
• In murder – need causation for both AR and MR (in
manslaughter only for AR)
• Here there is no AR causation issue – legal causation
established
• Para (c) seeks to relax standard of causation
• Here the standard is his knowledge of the likelihood that
someone would die in the context of committing an unlawful
object
• No more concern about (c) since the ought to have known
prong has been removed
o Vaillancourt
 Challenge to the 229(c) objective prong on constitutional basis
 Shouldn’t the accused a
 Given the stigma of murder – requires subjective fault

Oct. 21st
Today: First Degree Murder
• Distinction between 1st and 2nd degree (parole period, 25 vs. 15 years)
• The same actus reus can result in several offences, each with a different mens rea
• First degree murder is planned and deliberate as opposed to the heat of passion
• In evidentiary terms, the mens rea is often inferred from physical circumstances
• 2nd Degree Murder
o S.229
 (a)(i)Means to cause death
 (a)(ii)Means to cause bodily harm that he knows is likely to cause
death
• Is 1st degree murder a crime of greater stigma or just a sentencing provision?
• This provision exists to remove the discretion from judges
• Murder in 1st degree is an upgrade upon murder in the second degree
• S.231(2) – Murder is 1st degree when it is planned and deliberate – additional
requirement
• There are a number of exceptions:
o Contract killing 231(3)
o Murder of a peace officer 231(4) – Requires subjective mens rea knowledge
of the fact that this is a peace officer; Mistake of fact as a valid defence
o Special Crimes (5&6) – Very serious crimes (see list)
o All murder not 1st degree is second degree
• Murder in 1st degree has no greater stigma, it’s just a sentencing provision; subset of
murder in the 2nd degree
• Mens rea with respect to all aspects of the crime
• R v. More
o Elaboration on the meaning of planning and deliberation
o Deliberate: considered not impulsive
o Planned: Preparation
o Require both
o Calculated scheme carefully thought out where you had a chance to reflect
and weigh the consequences of action
• R v. Nygaard
o Can murder be classified as first degree based on a recklessness standard?
YES
o As long as you satisfy the definition of 2nd degree murder, you do not
reconsider s.229 in light of an analysis of 1st degree upgrading
• R v. Collins
o Constitutional challenge to police officer provision on the basis that there is
no additional mens rea
o Require subjective awareness that this was in fact a police officer
o Beyond that, the distinction between two types of murder is not based on
intent or stigma – this is a sentencing provision – No s.7 issue
o You need mens rea in relation to all of the elements of the crime
• Special Crimes
o R v. Pare
 This provision is justified because of the position of
domination/control
o R v. Russell
 Forcible confinement in relation to one person and murder of another –
Must it be the same victim for both elements? NO
 The victims can be different – Requiring victims to be the same would
be an unduly narrow interpretation
 So long that there is temporal and causal connection, the victims need
not be the same.
o Arkell
  Nothing precludes parliament from imposing this particular
requirement

Oct. 26th
Sexual Assault
• Definition has been strongly influenced by procedural and evidentiary considerations
• Highly underreported – Huge burden trying to persuade complainants to come
forward
• Having sufficient evidence to get a conviction is also a huge concern as well
o Was a rape kit done?
• More likely to be committed in the private context – Many are not random but are
done by known persons – Issue of corroborating evidence
• Classic she said – he said
• Desire to protect complainants and ensure that convicted person is in fact guilty
• Since 1983 – Notion has undergone tremendous modification
• Tradition common law notion – Rape
o Forced penetration
o Exceptions for: marital rape
o DN cover other sex acts
• Common law developed much larger category of sexual assault
o Sexual assault
o Aggravated sexual assault
o Sexual assault with a weapon
• Why use word sexual assault
o Mainstreaming the crime conceptually – Just another form of assault
• R v. Chace
o No need to prove that accused was aware of sexual nature of crime
o So long as a reasonable person would have deemed this to be sexual in nature
• R v. V
o Father grabs 3 year-old’s genitals to discipline him since he had been doing
this to other
o Father convicted of sexual assault
o Is this outcome valid? Father had no sexual intention
o Is this just assault? Should we distinguish
o Motive is very difficult to extrapolate
• A reasonable person test makes it easier to prosecute – Is it problematic?
• How do we allow reasonable defences without allowing for a smear campaign that
discourages complainants from coming forward
• Issue of consent
o Consent is part of the mens rea
o It is also part of the actus reus
o Core issue of most prosecutions
o If the complainant claims not to be consenting but actually consents there is
no actus reus
 o So you need both lack of consent of the complainant and awareness of lack of
consent by the accused
o Sometimes the issue is what the consent is in relation to
• Core defence: Mistake of fact / Mistaken belief
• Complexity – Sexual assault is an otherwise lawful activity (unlike murder where
consent is irrelevant)
• Whose job is it to communicate/inquire
• Papajohn v. The Queen
o Man has sexual intercourse with his real estate agent – Some bondage role
play – Agent changes her mind – He does not cease
o Accused might have believed her no was part of the role play
o Honest and mistaken belief must be assessed subjectively
o What was in Mr. Papajohn`s mind
o Nevertheless, it is the judge who instructs the jury whether they can consider
the defence (s.265(4)) – Jury is lay and avoiding frivolous raising of the issue
– “Air of reality test” – Precedent: Statement of accused regarding belief is a
factor but is not decisive – Complex issue – According to Lamer (if accused is
genuine – must allow defence)
o So while there is a subjective foresight requirement; there is also an object
“air of reality” test for the defence of mistake of fact (judge makes an
inference)
• Ossolin
o Supreme court challenge of air of reality test
o Found not to violate right to fair trial
o No more than codification of common law mistake of fact
• Sansregret v. The Queen
o Typical circumstance in that the accused and complainant know one another
o Ambiguity relating to the awareness of the accused – He raises mistake of fact
o Mistake of fact DN apply to wilful blindness (deliberate ignorance)
o Contrast recklessness which is about persisting in conduct when you are
aware of risk
o Had he inquired…
o In certain contexts, there is an obligation to inquire further
• R v. Seaboyer
o Constitutional challenge to the “rape-shield” provisions on the basis of s.7 and
s.11(d)
o S. 276 – Limited inclusion of prior sexual conduct evidence – UNCON
o S. 277 – Limited inclusion of complainant’s sexual reputation – CON
o Wants to prevent a smear campaign that destroys credibility of the witness
o Will exclusion of this evidence result in a miscarriage of justice
o 276 – About relevance of sexual conduct with others – this is allowed –
“where it is relevant to determination of guilt or innocence in this particular
case”
 o This case is a delicate balancing acts between interest of protecting
complainant and allowing defendant to mount a proper defence

Oct. 28th
Today: Procedural aspect of raising a sexual assault claim
• Darrach: Sexual assault not sufficiently serious to necessitate subjective mens rea
• Sexual assault, unlike rape, is a broader category of wrongdoing
• Would be more difficult to justify the lower seriousness of rape – Makes it difficult to
categorically justify sexual assault as one of the most serious crimes requiring
subjective foresight (Bill C-49 debate)
• Seaboyer
o Struck down s.276 but upheld 277
• Consider s.273 – sexual assault
o Violation of physical integrity
o Consent is the core issue
• Striking a balance between fair consideration of evidence and not deterring
complainants from coming forth
• Common law is inadequate because of traditional sexists norm
• No minimum sentence for sexual assault; Maximum of 10 years – Relatively less
serious than, say, murder
• Because the category is so broad, there is a need to accommodate the differing
circumstances
o Ex: Aggravated sexual assault
• Consent s.273.1
o (1) – General definition
o (2) – Particular circumstances/explanations
• S.273.2 (Bill C-49 amendments)
o Recall Papajohn – Mistake of fact is based on subjective standard, so long as
it passes the air of reality test
o Cannot raise mistake of fact if…
 Arises from accused’s self-induced intoxication
 Recklessness and wilful blindness
o Did not take reasonable steps to be certain of consent
 Modified objective test
 Constitutional questions arise because of this criminal negligence-like
standard
 Shifting the burden onto the accused when it comes to establishing
genuine consent
 Ultimately makes it easier to convict
 Implying a duty at law allowing for conviction on the basis of an
omission
 It appears that Bill C-49 overturns Papajohn
• Bill C-49 Continued
o R v. Corneijo
  2 coworkers – Inappropriate advances on several occasions – Accused
let himself into complainant’s home – Undesired advances – Accused
claims no was unclear – Complainant was intoxicated
 Consent whether by words or conduct?
 Defendant did not testify, so admissions about assisting in acts by
lifting pelvis came about from the complainant’s testimony
 Incapacity of the complainant s.273.1(b) – actus reus
 Defence of complainant – Didn’t know – mens rea
 Using 273.2(b) – you could shift the burden onto the accused
 Prior rejection, her request to have him hang up, boyfriend, his
breaking into the apartment, etc. – Crying out for reasonable steps
• Ewanchuk
o Case with a certain ambiguity – Young girl seeking job – Meet gentleman in
the trailor
o CA acquitted on the basis of several stereotypes: evidence of prior sexual,
dress style, etc.
o SCC slams these conclusions – Refuses the doctrine of “implied consent”
relied upon by the CA
o P.677 – McLachlin’s firm pronouncement against stereotyping
• Reasonable person test is a way of moving away from stereotyped and implied
consent principles
• Prosecutor v. … (ICTY)
o Court borrowed definition of rape from domestic law systems
o Choice of rape rather than sexual assault (narrower category)
o Issue: Is proof of resistance necessary to vitiate consent? NO
o This is a prison/concentration camp (power) situation where consent is simply
not possible
• What if a “genuine” relationship develops in this context?
• Under Canadian law – It is categorically unlawful in the prison context

Nov. 2nd
• Flag issues
• Criminal negligence: Modified objective test (219)
• Appreciation of facts only goes to his awareness then reasonable person test is
triggered (Relevance of his subjective knowledge and degree of particularisation)
• Causation issue: intervening cause (dropping Cheryl) and s.224 (lack of access to
medical care not sufficient to undercut causation)
• James – Undertaking s.217 (Browne)

Forms of Participation

• Linking someone to the commission of the crime

• What is the proximity of an accused in relation to the crime?
o Primary participant – Failure obvious
 o What about schemers, weapons providers, etc.
• S.21(1) (Today – Aiding and Abetting)
o Differentiating 21(1) from (2) – Common intention; Question of particular
nature of the intention (are you part of the larger project or just providing
assistance peripherally)
• S.22(1) – Counselling another: Different provisions apply whether crime is
consummated or not
o Requires overt persuasion
• Defence of withdrawal
o Available before the crime is committed under s.21(2)
o Not available in cases of counselling since crime is committed once
counselling is done
• R v. Thatcher
o Woman is killed – Husband is charged
o Appeal on the basis that jury was not unanimous in the theory (some thought
he did it and others thought that he aided or abetted)
o DN matter because s.21 is designed to eliminate the conceptual distinction
between the two crimes
o Is this problematic?
o Criminal code structure: Any participation is sufficient
o May be an issue at sentencing
• R v. Greyeyes
o Aiding vs. abetting
 Aiding as material assistance
 Abetting as verbal encouragement or incitement (similar to
counselling) – Problematic conceptually
o Drug purchase assistance – Aider charged with aiding trafficking while
purchaser only charged with possession
o Is this aiding in the trafficking or the purchasing?
o Trial judge acquitted
o Majority distinguishes trafficking and possession – intention of parliament to
distinguish – applies also to aiders
o Purpose for s.21 does not relate to desire in this case
• Aside: Fletcher textbook
o Difference between wrongdoing and culpability
 Wrongdoing – Refers to gravity of crime (murder, sexual assault,
undersized lobsters)
 Culpability – Individual circumstances (Poverty, addiction, mental
illness)
• Dunlop and Sylvester
o How substantial does the contribution have to be?
o Dunlop and Sylvester bring the beer – Does this constitute aiding and
abetting?
 o Evidence does not indicate that they knew in advance about the gang rape
when they left to get the beer
o There was indifference to what was going on and not proof of knowledge that
a rape was going on
o Mere presence is insufficient
o Did not touch victim, encourage other…
o Recall: In order for omission to found the basis of liability require a legal duty
• What about the case where a man had his pants down and was clapping?
• What is the minimal threshold of aid or encouragement?
o Gravity of the crime as proportional to degree of encouragement
• R v. Jackson
o Man arrested on a marijuana plantation in the forest – Only evidence is that he
showed up – He claims he just stumbled upon it
o Is mere presence sufficient? NO
o Distinguish facts of Jackson (evidence, nature of the offence, etc.)
• R v. Palombi
o Abuse of infant – Injuries either caused by mother or partner
o Were instructions properly conveyed to the jury?
o Requisite mens rea requires intention to aid or abet crime
o Failure to intervene must be for the purpose of aiding
o This, notwithstanding the fact that she was under a legal duty

Nov. 4th
Accessory-ship After the Fact, Common Intention and Counselling
• S. 21(2) – Common intention
o As distinct from conspiracy which has virtually no actus reus
o Common intention applies to consummated crimes
o Can arise spontaneously, implicitly, without formal agreement
o Agreement must be in relation to an unlawful purpose: Common intention in
relation to a lawful act is insufficient
o Residual category, since if we have an agreement to rob a bank (even if we
carry out different roles), we all fall under 21(1)(a)
o The types of cases that 21(2) applies to are those where we agree to commit
crime X and it gets exacerbated to crime Y
• Kirkness
o 2 drunken friends break into elderly lady’s home – Snowbird escalates the
crime and kills woman – Is Kirkness equally liable by common intention
o Threshold is that of a probable consequence
o Abandonment as a defence
 Mens rea – Change of mental intention
 Actus reus – Communication of this change prior to consummation
(before mens rea and actus reus become contemporaneous)
 Evidentiary complexity
 o In a common intention scenario, once you form the mens rea, you are locked
in and can only abandon up and until the actus reus is committed
• Logan
o Convenience store robbery – Serious injuries to the cashier
o “Ought to have known” prong of 21(2) does not apply in cases of murder
(constitutional fault requirement)
o No subsequent amendment of criminal code
• Joint Criminal Enterprise in International Law
o Art. 7 – Seen as included
o How far can you stretch the notion of common intention?
o What about in situations where the perpetrator and others are far removed
(Hells Angels enterprise)? – At what point do we reach a point where we are
endorsing guilt by association
o More than a mere sentiment – Requires criminal intention and material
contribution
o Tadic
 3 categories of Joint Criminal Liability
• Category 1: Shared intention
• Category 2: Awareness of a system of criminality and making a
contribution thereto
• Category 3: Where C1 results in crimes other than C1 crime to
be committed, provided they are foreseeable (identical to 21(2)
less the ought to have known standard) – No objective standard
here because these are “true (serious) crimes”
• Counselling
o S.22(1)
 Have to counsel a person
 That person must carry out the offence
 Need not be carried out in the exact way, so long as it happens
o S.22(2)
 Guilty for all consequential acts that are objectively/subjectively
foreseeable
o S.22(3)
 Procure, illicit or incite
• R v. O’Brien
o Drug dealer encourages drug user to commit theft in order to have access to
resources to pay off tab
o Must reach the level of encouragement (requires a persuasive element)
o Here
 She had not yet made up her mind
 His comments were supportive
 Motive
• Accessory After the Fact
 o Accessoryship after the fact must be articulated in the code for the particular
crime – Cannot assume that it applies to every crime
o Unlike all other forms of participation, this is a separate offence
o Mens rea must be in relation to particular crime of principal
o R v. Duong
 Charge of accessory after the fact to murder (s.23(1))
 Here, the accused claims he didn’t know what the crime was
 He is nonetheless convicted on the basis of wilful blindness since he
didn’t inquire further
 In theory, knowledge in relation to manslaughter and not murder
would be insufficient to consummate the crime of accessory after the
fact to murder
• There is overlap between counselling and abetting (see definition of abetting in para
26 of Greyeyes p.534)
• Akhavan: Abetting may be broader than counselling

Nov. 9th
Inchoate Offences
• Should we criminalize thought?
• How far are we from the particular harm? Not a constitutional principle but informs
the analysis
• Discomfort with criminalizing mens rea alone
• Inchoate crimes
o Generally the actus reus is not a crime in of itself
o However, it is the combination of their mens rea with an actus reus that is not
inherently wrongful that consummates the crime
• Attempt
o The difference between an attempt and a consummate crime is the actus reus
o S.24
 An attempt requires intention plus an act for the purpose of carrying
out offence
 Whether something constitutes mere preparation is a question of law –
Mere preparation insufficient
o Cline
 Preparation is insufficient – Need that “next step” (substantial positive
act)
 Threshold is specific to the facts
 Need both mens rea and actus reus
 When preparation is fully complete, next step constitutes actus reus
sufficient to constitute crime
 Issue of proximity [language of 24(2) – remoteness]
o Duetsch
 Difference between preparation and attempt
 Man who advertised seeking female sexual services
  Interviews sufficient to constitute an attempt?
 Qualitative distinction test:
• Is there proximity between the acts and what would have been
the completed offence?
• What would be left to do?
 In this case, offering money would have been the decisive step
o R v. Ancio
 Man who broke into wife’s house with gun and discharged it – Is this
attempted murder?
 Is the mens rea for murder and attempted murder the same
 In the case of attempted murder, need specific intention to kill
[Akhavan said mens rea is the same?]?!
 Is this problematic?
 **Can assume that mens rea for all attempted crimes the same as for
the consummate crimes themselves
o Dynar
 Extradition rule requiring a comparable element in Canadian criminal
law to allow for extradition
 Money laundering sting operation – there was no actual money – Can
he nonetheless be charged with attempt
 Impossibility – Not a valid defence
 S.24 dismisses factual impossibility as a defence – he tries to argue
legal impossibility – Court finds this to be a distinction without a
difference
• Incitement
o We looked at the similar crime of counselling under s.22
o The difference here is that the crime is not committed
o Because we believe counselling to be wrongdoing, we even want to
criminalize when the crime is not committed under 464
o R v. Hamilton
 Must once again pass a certain threshold beyond mere furnishing of
information
 H circulated packages allowing for credit card fraud – No one actually
used his kits so he argued that this is not counselling
 What is the mens rea under 464? – Subjective – Requires counsellor’s
intent and not recklessness or wilful blindness (appreciation of risk
insufficient) – Since the actus reus is very thin, need to reinforce it
with a string mens rea
 Instinctively make the mens rea stronger to counteract a faint mens rea
 Require deliberate encouragement
 Akhavan correction: Supreme court 2005 – recklessness can apply as
mens rea for counselling (see case) – or knowingly counselled
commission while being aware of the risk
 o If a different crime than the one that was counselled is committed, incitement
is inchoate in relation to the crime that was counselled (464 and not 22)
• Conspiracy
o The crime that requires the least in terms of actus reus
o Criminalizes agreement (more exacting requirement of agreement than
common intention because of the vanishing actus reus)
o In most cases, conspiracy will be inferred from some positive act unless you
can be sure that there was an agreement (evidentiary point)
o Impossibility is not a defence to conspiracy

Nov. 11th
• R v. Ancio
o In relation to attempted murder, only specific intention prong applies
• R v. Logan
o From the point of view of section 7, subjective foresight is sufficient
o However, implication that parliament has not extended the definition to
knowledge
o This does not make sense from a mens rea perspective, but reflects a common
law sensibility for actual harm done (higher mens rea but lower minimum
sentence)
• Does this make sense?
o Attempt does not only apply to special intent crimes
o So why the arbitrary difference here?
o Discomfort with holding someone culpable of murder when the actus reus
does not exist
o Maybe a sentencing basis for this distinction
• What about attempted criminal negligence causing death?
o Mens rea is to cause harm that is neither trivial nor transitory
o Probably would be charged as a mere assault
o Criminal negligence causing death has the mens rea of assault and the actus
reus of murder (defined by its actus reus)
o Manslaughter is a residual category that is only relevant when there is no
subjective foresight of death
• Conspiracy
o Virtually no actus reus
o Agreement to commit crime is both the mens rea and actus reus
o In some US states, there is a minimum requirement of a positive act following
the conspiracy (could be preparation)
o Attempt includes something more than preparation
• Dery
o Telephone discussion regarding stealing liquor – No evidence of any steps –
Acquitted of charges
o Trial Judge convicted them of attempt to conspire
o Can you combine these two inchoate crimes? NO
 o Trial judge conflated counselling with attempt to conspire
o However, not all efforts to conspire amount to counselling
o The decision of whether or not to criminalize this must be left to Parliament
o Criminal law does not apply to fruitless discussion (mere thoughts should not
be criminalized)
o Evidentiary considerations shape substantive law
• R v. Legare
o Charged with using a computer to lure a child for sexual acts
o Court tries to interpret actus reus and mens rea here
 Difference here is that legislation has made what would ordinarily be
an inchoate crime as a distinct crime
 We are not criminalizing attempted luring here, but rather 172.1
 Must look at intent at the time of communication
 Intention must be interpreted subjectively
 Absolute liability in terms of age? – No subjective foresight is required

Corporate liability
• How does the notion of punishment and criminal law apply to a business entity
• Cannot arrest a corporation, but can stigmatize the corporate name
• Efficient breach? Critical legal studies vs. Economic legal theory
• Business is about profit
• The fine has to be sufficiently steep to incentivize “good conduct”
• The problem with the structure of corporate crimes where no one risks incarceration
is that violates fit into the cost-benefit analysis
• Are corporate crimes truly effective?
• Concept of corporate liability
o Common law notion
 Directing minds – Basis of attribution of a crime to the corporation
o 2003 Canadian Reforms
 Closer to vicarious liability
 The notion of directing minds is no longer relative in today’s
decentralized corporate structure
 Constitutional consequences? No – corporations do not have
constitutional rights
 [Recall: Can have absolute liability so long as there is no term of
imprisonment – What about people’s livelihood
o Waterloo
 Case of automobile fraud – Odometers rolled back – Is the manager a
directing mind?
 Yes, the directing mind can be delegate
 These determinations are contextual – based on particular corporate
structure
o Safety-Kleen
  Waste manager gave false information – Drove truck and managed
sales in a region – Is he directing mind? NO
 Problematic – Small corporation and he controlled an area
 Borderline case
o Issues of applying an overly rigid concept of directing mind
o New legislation uses a broader scope
 Broad definition of “organization”
 Representative – Even includes employees and contractors
 Senior officer
 Different set of liability standards for representatives and senior
officers (ss. 22.1, 22.2)
o When can someone who is responsible for fault-based crimes (something
more than negligence) be held liable
o Canadian Dredge
 Requirement that the directing mind must be acting in the interest of
the corporation
• Critical perspective
o Corporate bankruptcy can be fatal for the economy
o Need to strike a balance between regulation and dependence
o At the end of the day, worst thing is a penalty – quasi-regulatory offence?
o How do we compare this kind of wrongdoing with far more quantifiable
individual crimes?

Nov. 16th
Grounds for Exclusion of Criminal Liability (Defences)
• Common law defences are still allowed
• Some defences have been codified while others have not
• There are 2 types of defences
o Negating the mens rea or actus reus of the crime (dealt with before)
o Affirmative defences (exclude criminal liability despite the fact that mens rea
and actus reus have been consummated)
• Affirmative defences fall under the categories of (could negate mens rea only for
special intent crimes)
o Justification (ex: self-defence) – Philosophically: No morally blameworthy act
to begin with
o Excuse (ex: duress, necessity) – Philosophically: Act is morally blameworthy
but we choose to excuse it on the basis of a human frailty
• Today: Intoxication
o A separate concept – Goes to the existence of mens rea
o Intoxication spectrum
 Sobriety
 Cannot form special intent
 Cannot form general intent
 Incapacity – cannot form specific (extreme intoxication)
 o Desire to balance the policy interest of not opening a Pandora’s for excusing
all crimes with a desire not to convict someone who doesn’t have mens rea
(Ie. DN want to substitute intoxication for any and all mens rea crimes)
o Solution: Only allow intoxication as a defence for crimes of specific but not
general intent (Patchwork solution lacks logic and theoretical consistency)
o One of the few instances where a distinction is clearly drawn between specific
and general intent crimes
o `Temporary insanity”
• Provocation is also distinct from this classification – where accused commits murder,
it is reduced to manslaughter
o Not justified (still blameworthy)
o Not excused (because we still find one guilty of manslaughter)
o It is a mitigating factor in sentencing
o Recall: distinction between wrongdoing (category of crime) and culpability
(individual circumstances of the accused – provocation fits in here)
o Law also renames offence because of stigma/sentencing issues
o Privileges anger over compassion!
• Only 3 of these defences are actually affirmative defences
• Beard
o Defence of intoxication only applies to special intent crimes
o Voluntary destruction of willpower – Therefore, general intent crimes are
exempt
• Daley?
o Murder of common law wife – Should charge to jury have distinguished
between absence of intention and capacity to form intention
o The difference is that capacity is a threshold issue
o Court splits – Bare majority finds jury instruction correct (DN see the need for
this distinction to be made because result would be the same)
o Minority – Felt that this distinction is sufficient (defence’s evidence addressed
the issue of capacity – Capacity acts as a threshold issue
• Availability of intoxication defence based on a air of reality test (objective test)
o Even for subjective crimes this is acceptable because this is an evidentiary
issue
• George (1960)
o Is drunkenness a defence to the charge of assault?
o No, general intent crime
• Bernard (1988)
o Court defends the distinction
o Those who voluntarily intoxicate themselves are morally blameworthy so
there is no s.7 issue here
o Yet, they maintain the old common law rule
• Issue here
o Intuitively, intoxication is a morally blameworthy activity
o However, require moral blameworthiness with respect to specific crimes
• Parliament’s proposed amendment to antiquated common law rule (Bill C-72; s.33.1)
o In relation to all general intention crimes which relate to interference with
bodily harm – introducing a criminal negligence standard with respect to the
defence of intoxication
o Cannot maintain pure distinction between general and specific intent
o Cannot allow anyone of the hook for intoxication
o Now, defence of intoxication also allows those who commit general intent
crimes to use defence provided they don’t markedly depart from standard of
care
• McDougall
o Break and enter and damage to property
o Did not drink excessively(?) but was offered a “wake-up” pill
o Was the intoxication self-induced? (He thought he was merely taking a
caffeine pill and not a narcotic) – Was he aware of what he was taking? Did
the wake-up pill contribute to the actions?
o Requirement of voluntary consumption of a substance; knowledge that this is
an intoxicating substance; risk of becoming intoxicated within accused’s
contemplation
o King – allowed for an objective basis for knowledge

Nov. 17th
• Distinguishing duress and necessity
o Duress refers to threats from another human being whereas necessity comes
from circumstances (gun to the head vs. lost in the desert and resort to
cannibalism)
• Duress is riddled with complexity and irrationality
• Notion: No liability where there is no moral choice – Conduct is morally
blameworthy but because of the circumstances you lacked proper choice
• Basic elements (s.17)
o Compulsion/coercion
o Threats of IMMEDIATE death or bodily harm
o Person who is present at the time of the offensive
o Excused if person BELIEVES that threats will be carried out (subjective
requirement)
o Cannot be party to a conspiracy or association
o Hibbert – No avenue of escape – Someone not placing themselves in the
compromising situation
o Nevertheless, there are 22 crimes that are exempt from the defence of duress
when one is the principal (Ie. only accessories can invoke duress for these 22
crimes)
• Common law rule of duress
o Courts gradually increased the ambit of duress from 19th century onwards
o Never applicable to either treason or murder
o English criminal law – accessories to murder can invoke duress
 o The position in s.17 is roughly comparable to the situation fo other CL
jurisdiction approx. 100 years ago
o No CL jurisdiction has as broad a range of exceptions as s.17
• Issues
o Ruzic
 Heroine trafficker – Importing heroin into Canada – She claims duress
on the basis of a threat two months earlier against her mother in
Belgrade
 Trafficking narcotics not covered in s.17
 At issue here is the requirement of proximity
 Excuse allowed here on the basis of s.7 – Moral involuntariness
 Very often, codification of judicial precedent fails to account for
situation which had yet to be contemplated
 Rather than overturning precedents judges have recourse to s.7 which
helps move the common law towards principles rather than fact-
specific ideas
o Principle of proportionality – Evil that is avoided must be greater than the evil
that is committed
o Conceptually
 Does it make sense not to apply defence of duress to murder just on
the basis of its seriousness (is that relevant at all) – arguably because
of high mens rea requirement ad seriousness, should be even more
available
o Are we expecting heroism
o Erdemovic
 Young gentleman – wrong place at wrong time – forced to participate
in mass execution
 No international statutory norm – Should duress be available as a
defence to murder
 Judges hold that duress is not available by a slim majority
 Justifications
• Majority – Sanctity of human life – for a soldier, dying is an
occupational hazard
• Dissent – Totally arbitrary policy exception – If anything,
should apply more forcibly to serious crimes
 In 1998, Statute of ICC was adopted – duress as a defence to all crimes
 Canada implements international criminal law as part of domestic
system (Crimes Against Humanity Act) – Individual charged with
international law offence has access to defence of duress
 Consequence is that you can have the defence for war crimes but not
domestic ones
• Recall Steane where duress operated to negate the mens rea
o Duress can either operate to negate the mens rea or it can simply be used as an
affirmative defence – Negates mens rea where it is intent based
• Attempted murder excluded even though it’s not consummated (we’ve decided to
limit it to mens rea of intent) – perhaps it could still negate the mens rea? Probably
would not be accepted
• Back to Erdemovic
o What can be used to mitigate the rigours of this common law rule?
 Prosecutorial discretion
 Sentencing
 Royal pardon
o Does this miss the point – dissent – not a principled solution
• Civilian traditions apply duress to all crimes – very stringently to murder