Absolute vs. Strict Liability The three categories of mens rea are established in Sault Ste Marie: absolute liability, strict liability, full mens rea. True crimes are prima facie full mens rea and public welfare offences are prima facie strict liability. Willfully, with intent, knowingly and intentionally all imply full mens rea. Cause or permit imply strict liability. Risk of imprisonment with absolute liability violates s7 of the Charter (Re Motor Vehicles). The defense of due diligence also must actually be available for an offence to be strict not absolute liability (Raham). The reverse onus of due diligence does not violate the Charter for regulatory offences so long as additional requirements are not added (Wholesale Travel). NegligenceMartineau factors for determining mens rea: stigma attached to the offence, punishment proportionate to moral blameworthiness, intentional harm should have more severe punishment. Unlawful act and neglect manslaughter are both upheld constitutionally under this (Creighton). Willful blindness has also been upheld under the Charter for mens rea offences (Briscoe). Intention Additional mens rea requirements are determined by interpreting the code using the Dreiger approach (ADH). There is a presumption of subjective fault for criminal code offences, which words such as willfully add to (ADH). Because of the stigma associated with it, murder always requires subjective mens rea including for parties (Vaillancourt).
S 24 provides the offence for attempting any other crime with sentencing found in s463. S. 239, attempted murder has its own offence. An attempt must go beyond mere preparation, which is a question of law. Knocking on a door with a gun is not attempted robbery, in the absence of evidence of intent (Sorrell).
S21 states that aiding or abetting makes someone a party to an offence. Parties are responsible for each other’s acts (Maybin). S 21(1)(b) requires the act or omission was for the purpose of aiding. S 21(1)(c) requires proof that the accused intended to encourage (Curran). In order to be a party to murder the accused must have subjective mens rea – foresee the risk of death (Vaillancourt), but only objective mens rea is required for manslaughter – only foresee risk of bodily harm (Jackson). Counseling S22 makes anyone who counsels a person to be a party to an offence also a party to that offence unless the offence was committed in a different way than counseled. S22(3) counseling includes to procure, solicit or incite. Conspiracy is an agreement by two of more people to commit a criminal offence s465. It is not necessary that there be any proof of an act to complete the crime. Used on G20 protest organizers.
Mistake of Law
S19 of the CCC states that ignorance of the law is not a defense. This does not affect mistake of fact. Officially induced error is a defense (MacLean – inquired to registrar of motor vehicles) Advise must be from an appropriate official (Jorgensen). Reliance on lower court decisions, later overturned, is not accepted as mistake of law (Campbell).
Colour of Right
S429(2) no person shall be convicted of 430-446 where they acted with legal justification or colour of right. Depends on accused subjective honest belief (Stevenson), and statements that the accused has a Western understanding of property. Has been accepted for a belief that Indigenous groups never surrendered their land rights (Ashini). To use the defense you must have a legal claim, making it unavailable to allies (Drainville). Believing Canadian law does not apply is a mistake of law not a proprietary right (Watson).
In Daviault, the defense of extreme intoxication is established for general intent offences, requiring the accused to prove on the balance of probabilities that there as intoxication akin to automatism. Expert evidence will be required. Under the previous rule from Leary, intoxication was only available for specific intent offences, which sexual assault is not. In response parliament enacted s33.1 stating that self-induced intoxication is not a defense to general intent offences where the bodily integrity of another person is threatened or interfered with. The ONSC has found s33.1 unconstitutional (Flemming), but it has been upheld in some jurisdictions (SN, NUCJ). Here it was upheld under s1 as allowing the defense would discourage victims of spousal abuse linked to alcohol from reporting and also decrease likelihood of police investigation.
Incapacity and Children
CCC only applies to 18+ and YCJA applies to 12+. Presumption that youth who commit certain offences are functioning as adults was found to be unconstitutional (DB).
S16 codifies the CL on mental disorder: requires that an accused who suffers from a disease of the mind be incapable of appreciating the nature and quality of the act or knowing that the act is wrong (McNaughton). There is a statutory presumption of sanity in s16(2). Now finding of NCR. Successful: Oommen – paranoid psychosis, believes victim conspired to kill him; Swain – schizophrenia, believes he is fighting with spirits but hits wife; Abby – believes he is a god and no laws apply. Cooper excludes self-induced states from s16 application. Winko looks at review board process. Must have an annual review, and the board must prove real risk with no burden on the accused.
There are two forms of the defense: sane automatism (acquittal), mental disorder automatism (s16 NCR). Sane automatism requires and external cause and was first used in Bleta for a stabbing directly following a concussion. An ordinary psychological blow cannot give rise sane automatism only MD (Rabey). Sane automatism requires the accused not be a continuing danger (Parks). Current default is that automatism is caused by MD, then look for internal cause and continuing danger, other policy (Stone). Evidence must be initially presented to a judge in a voir dire, who decides if a properly instructed jury could find the defense, and then it goes to the jury. Luedecke characterized sexsomnia from sleepwalking as NCR rather than sane automatism using internal cause.
Provocation is found in s232 of CCC and is a partial defense, which reduces murder to manslaughter. Provocation requires an objective wrongful act or insult, that the accused was subjectively provoked, and that the accused acted suddenly before passions could cool. In the objective analysis the jury should consider external events putting pressure on the accused by not particular idiosyncrasies (Hill – gay panic). However certain characteristics of an accused will be considered if they relate specifically to the provocation (Hill). In Thibert, he pulled a gun on ex-wife’s lover and comments made by the lover there after were found to be sufficient that provocation should be left to the jury. Anger alone is not sufficient to allow the defense (Parent). Provocation cannot be raised when the insult is discovered as a result of breaking into ex-wife’s home (Tran).
Self-defense requires that an accused believes on reasonable grounds violence is going to be used against them, the act was for the purpose of defending or protecting, and the act was reasonable in the circumstances. CCC s34 is new. Cases all use old law. Rather than strict requirements s34(2) lays out several factors for assessing reasonableness. Expert evidence can be relevant to the accused’s reasonable apprehension of violence, which has allowed abused women to use self-defense (Lavellee). Instructional violence in prison also allowed for relaxing of the previous immediacy requirements (McConnell).
Duress is codified in CCC s17, but must of the CL on duress is still used today. S17 has been only found to apply to committers, parties may use the CL defense, which removes the list of excluded offences (Pacquette). The immediacy and presence requirements in s17 have be struck down as unconstitutional (Ruzic). Threats to 3rd parties are also open to CL duress (Langois). CL duress requires implicit or explicit threat of serious injury, a close temporal connection giving no safe avenue of escape, and proportionality of offence committed compared to the threats made. The use of CL defense still requires that the offense is not one excluded by s17 and that the accused was not a part of a conspiracy (Ryan).
Necessity is a CL defense, which is permitted by s8(3). An accused must show a situation of imminent peril and that compliance with the law is demonstrably impossible (Morgantaler). The leading case on the defense is Perka, where it was allowed for a group of drug smugglers who stopped in Canada due to a serious storm at sea.