R. v. Smithers (1977, SCC, p. 326)
- (2) The accused’s act need merely be a “contributing cause… outside the de minimus
range… The accused’s intention is irrelevant, as is the foreseeability of the harm. If there
is more than one contributing cause, it doesn’t matter which one contributed more.
- (1) The factual determination of causation is to be made by the trier of fact, based on all
the evidence, both expert and lay
- ∆ convicted of manslaughter; unsuccessful appeal to Ont. C.A.; ∆ appeals
• Feb. 18, 1973, Applewood Midget Team played hockey against Cooksville Midget
Team in Mississauga
• Leading player for Applewood was V, Barry Cobby, 16 yrs old
• Smithers was the leading player for Cooksville
• Aggressive game
• ∆ is black; was subjected to racial taunts by Cobby et al.
• Following a heated exchange of profanities, Cobby and ∆ were ejected
• ∆ was saying that he was going to get Cobby
• After game, Cobby left with about 10 other people; ∆ repeated his threats, but Cobby
didn’t take up the challenge
• ∆ caught up with Cobby outside and punched him twice in the head
• Others restrained ∆, while Cobby did nothing to defend himself
• Cobby doubled over in pain; ∆ broke free and delivered a hard, fast kick to Cobby’s
• Cobby groaned, staggered towards his car, fell on his back, and gasped for air
• Within 5 minutes he appeared to stop breathing; DOAat hospital • Cobby had choked to death on his own vomit; normally the epiglottis closes to
prevent inhaling vomit, but the protective mechanism failed here
• Medical evidence was to the effect that a sudden kick would very possibly or very
probably have caused regurgitation
• Defence theory: the victim was so emotional that he may have spontaneously
vomited, regardless of the kick
- Issue: Is the malfunctioning epiglottis (assuming the malfunction was not caused by the
kick) a break in the chain of causation?
- Held: No: conviction upheld
- Ratio: 3 important rulings re causation
1. The factual determination of causation is to be made by the trier of fact, based on all
the evidence, both expert and lay
2. The accused’s act (here a kick) need merely be a “contributing cause… outside the de
minimus range.” It was immaterial that the death had been partly caused by a
malfunctioning epiglottis to which ∆ may not have contributed. The accused’s
intention is irrelevant, as is the foreseeability of the harm. If there is more than one
contributing cause, it doesn’t matter which one contributed more.
3. The “thin-skull doctrine” applies in criminal law, i.e., the “well-recognized principle
that one who assaults another must take his victim as he finds him.” Once the Crown
had proven a causal link between the kick and the vomiting, there was no requirement
that the Crown prove that the kick caused the aspiration. The contributing condition
of a malfunctioning epiglottis is immaterial.
- The Smithers Test: The accused’s act need merely be a contributing cause outside the de
minimus range, The accused’s intentions are irrelevant as is the forseeability of the harm.
If there is more than one contributing cause, it doesn’t matter which one contributed
more. If the contribution was more than trivial, all causes which lead to death can be seen
as guilty of causation. The jury decides on causation because it is a question of fact.
R. v. Shanks (1996, Ont. C.A., problem p. 332)
- ∆ convicted of manslaughter, sentenced to 6 years; ∆ appeals to Ont. C.A.
- Facts: ∆, drunk at the time, provoked his neighbour into a fight by threatening him
• During the fight, ∆ threw V down to the ground and then backed off
• Alittle while later, V suffered an acute heart attack and died • V was very ill before the incident, but ∆ didn’t know the extent of the illness
- Held: Smithers applies: ∆’s unlawful act was a contributing cause outside the de minimus
• The continuum of events from the threats through to the assault was cause of death
• ∆’s drunkenness and lack of awareness of the consequences goes to sentence
• Sentence reduced to 2 years less a day
Cases challenging the Smithers Test
- Many people say that the Smither’s Test bar is too low
R. v. F. (D.L.) (1989, Alta. C.A., p. 348)
- ∆ acquitted in Youth Court of Impaired Causing Bodily Harm, Over 80, Dangerous
Driving Causing Bodily Harm; Crown appeals only the third acquittal
- Facts: ∆ hit a pedestrian who was jaywalking; he was speeding, his brakes were
defective; he wasn’t wearing glasses that he needed; he failed to accommodate a
narrowing of the road
1* Trial Judge felt that ∆ was driving dangerously
2* However, judge felt that no single component of the ∆’s bad driving was the cause
of bodily harm; for example, the speeding didn’t cause bodily harm
- Issue: Was trial judge wrong in breaking down the driving into its component parts, and
determining whether any component caused the accident?
- Held: Yes; conviction entered
- Ratio: Court accepts approach suggested by Rick Libman:
1. Was the driving dangerous?
2. Was there bodily harm within the defn in s.267(2)?
3. What was the relation between the dangerous driving and the bodily harm?
• The question then is, when does the dangerous driving “thereby cause” the injury or
• (p. 338) The unlawful driving must still demonstrably influence the actual accident
beyond serving as its backdrop.”
• Crown urged here that Smithers test apply, i.e., contribution beyond de minimus. The
test was invoked in a manslaughter case, and the question is whether it applies to a
charge under s. 249(3) and (4)
• Court: sees test as being unfair; there is a difference between “causing”, which
applies a substantial cause, and de minimus contribution. It is conceivable that the
accused’s conduct had very little to do with the accident (eg., a 3-car accident) but,
applying de minimus, it amounts to criminality • The de minimus test may very well be unconstitutional: the “sweeping
accountability” may conflict with principles of fundamental justice; however, in this
case the issue is moot because the ∆’s driving was very bad and obviously contributed
to the accident (p. 339)
- Court had to decide whether the driver was driving dangerously and f the victim suffered
bodily harm and if the driver caused it. The court decided that the Smither’s Test was
inadequate, they said it was unconstitutional, too many people may be sent to jail for no
R. v. Harbottle (1993, SCC, p. 336)
- ∆ convicted of 1st degree murder; upheld in Ont. C.A.; appeals to SCC
- Facts: ∆ and a companion forcibly confined a young woman.
• The companion brutally sexually assaulted her while ∆ watched
• ∆ held her legs to stop her from kicking and struggling while the companion strangled
• Ont. C.A.: ∆ was a party to the murder
- Issue: What is the test for causation in a constructive murder case, s.231(5)?
- Held: ∆’s appeal dismissed; test is higher than for manslaughter
- Ratio: There should be a restrictive test, given that this is a murder charge, not
• Crown must prove that ∆ committed an act or series of acts that are “of such a nature
that they must be regarded as a substantial and integral cause of the death;
• Therefore normally ∆ must play a very active role — usually a physical role — in the
• The test is much higher than manslaughter (Smithers — de minimus for manslaughter)
• P. 344: sets out 5-step test
• This test may apply only to 1st-degree murder; otherwise, Smithers applies
- First Degree Murder Case. The court said the test for causation had to be more than what
the Smither’s test proposed. The test should be the substantial and integral cause of death
R. v. Cribbin (1994, Ont. CA, , note p. 347)
- ∆ convicted by jury of manslaughter; appeal to CA allowed on unrelated grounds; CA
comments obiter on causation
- Facts: ∆ punched and kicked V first, then his companion beat V more viciously injuries
were not life-threatening, but V drowned in his own blood when left by ∆ and friend
- Issue: Constitutionality of the de minimus test
- Held: Constitutional - Ratio: Crown wanted Smithers test to apply (contributing beyond de minimus)
3* Defence wanted Harbottle test to apply (essential, substantial and integral part of
4* Charter rulings:
(1) It is a principle of fundamental justice (s.7) that moral innocence not be
punished; criminal causation is a legal rule based on concepts of moral
responsibility, not on mechanical or scientific formulas
(2) The Smithers test is not too vague; it’s no less vague than the “substantial
(3) The Smithers test is not too broad; it did not set the standard too low,
especially when it is remembered that the Crown must also prove objective
foresight of bodily harm
- Cribbin has been criticized as setting the threshold too low: the morally innocent could
still be found guilty of manslaughter
- Manslaughter case, the Smither’s case was attacked for setting threshold too low, but the
court said it was still good law for manslaughter cases.
R. v. Nette (2001, SCC, p. 338)
- “Not insignificant” = “significant”
- “Not unattractive” = “attractive”
- “Not unintelligent” = “intelligent”
- Etc. etc….
- ∆ convicted of 2 -degree murder; appeal to B.C.C.A. dismissed; appeals to S.C.C.
- Facts:A95-year-old woman who lived alone was robbed and hog-tied on her bed; she
died of asphyxiation sometime during the following 48 hours.
• ∆ admitted the robbery to an undercover police officer whom he was trying to
• ∆ now says that the confession was false
• V also suffered from congestive heart failure and asthma, which may have speeded up
the process of asphyxiation
• Trial Judge told jury that the standard of causation for 2 degree murder was “the
slight or trivial cause necessary to find second degree murder” instead of “more than
a trivial cause” - Issue: What is the standard for 2 degree murder?
- Held (5:4): “significant contributing cause” is the test for manslaughter and 2 degree
• (1) Arbour J. & 4 others:
The causation standard in Smithers applies to all forms of homicide
According to Harbottle, a further instruction is needed re 1 degree murder; it is
the same test as in Smithers, but stated differently
The Smithers test should be articulated in a more direct and affirmative fashion:
Eliminate the Latin
Say “significant” instead of “not insignificant”, as they mean the same thing
No matter how we define it, ∆ caused the victim’s death in this case
• (2) L’Heureux-Dubé & 3 others:
“Sophism”: p. 345
- Second degree murder case. The Victim was a 95 year old woman who lived alone. Nette
broke into her home and tied her to the bed. He had placed her in an uncomfortable
position and she ended up dying from the position she was put in. The court said that the
trivial cause of tying the victim led Nette to be guilty. The Supreme Court of Canada
upheld the Smither’s test, but came up with another test to deal with murder cases. They
converted the test into a “not significant” to “significant” they set the bar higher.
R. v. Talbot (2007, OCA, p. 346)
- Confirms that the test for causation is “substantial cause”, not the Smithers “beyond the
- Held that the guilty shown by a significant contribution to the offence
The Fault Requirement (mens rea or negligence)
1) S. 334 and s.322: intent to deprive… 2) S. 140: intent to mislead…
3) S. 265:no intent required
4) S. 270(1)(a) - assault police officer: must know it’s a police officer in line of duty
5) S. 229 and 231 (murder)
The fault requirement (mens rea)
- The Crown must prove mens rea with respect to each of the elements of the actus reus.
1. Intended the activity (reports an offence)
2. Knew the circumstances (when the offence has not been committed)
3. Intended the consequences (specific intent) (sometimes) (“cause the officer to
4. Sometimes, some additional intent (“intent to mislead”)
• Ex: breach of probation
States of Mind
- Intent/knowledge (and willful blindness)
- Strict liability
- Intent/knowledge (and willful blindness) subjective
- Recklessness subjective
- Negligence objective
- Strict liability n/a (Crown only has to prove actus reus)
- Accident n/a
- Prank Crimes
• In order for the accused to be considered guilty they must have criminal intent.
Pranks usually do not result in a guilty verdict because the accused did not intend to
R. v. McCormick (1968, Qué. Q.B.)
- Facts: Student, 19 yrs old
• Employed at Expo 67 as pedicab driver
• June 8, 1967: went to brewery pavilion after work • Got drunk; took Iranian flag down in front of officer with intention of raising it in
front of Israel’s pavilion
- Issue: Was intention (“fraudulently”) made out: s.322
- Held: No-acquitted
- Ratio: “In my opinion this appeal falls into the category of case in which a normally law-
abiding person, who has no criminal record, commits, more or less on the spur of the
moment, a stupid and reprehensible act by taking something which does not belong to
him because at the time, and in the frame of mind he then was, it seemed like a good
“joke” or “prank”. What was done may, to some people, seem reprehensible and might
possibly subject the accused to some punitive measure, but not in my opinion subject
them to conviction as common thieves and to a criminal record for the future.”
- It was an ill-considered prank, and there was no criminal intent.
- The accused was working as a petty cab driver at the Expo 67’.After working he decided
to go to the bar and have a few drinks. He ended up getting very drunk. He had an idea to
steal the Iranian flag and put it on top of Israeli Flag. He was caught in the act trying to
put it up on the Israeli Flag. The countries tried to sue him for stealing. The court
acquitted the accused saying it was a prank.
R. v. Handfield (1953, Que. Q.B.)
- Accused were three youths who stole a political banner from the lawn of the uncle of
Berthiaume, inviting the electorate to vote for Mr. Ladouceur (a Conservative), and put
the banner on the lawn of Handfield’s father (a Liberal); Trial judge found them guilty
and sentenced them to 8 days jail. Summary conviction appeal: it was just a joke, no
criminal intent, Not Guilty.
- Hansfield and his father had different political views (Quebec). Hansfield decided to steal
a banner from one of their neighbours’yards who had a picture of his father most hated
political candidate. He planted it in front of his father’s house. His father and the
neighbor did not find this funny. The court said it was a prank and the acquitted him.
R. v. Wilkins (1964, Ont. C.A.)
- Traffic cop was ticketing car of Wilkins’friend
- About mid-afternoon on Saturday, January 18, 1964, while performing those duties he
stopped beside a motor car which it turned out was owned by one Mike Borysuik and
which was unlawfully parked on Downie St. opposite a parking meter and was in the act
of writing out a parking ticket to place on it when the accused, who, together with
Borysuik, was in the beverage room of a hotel opposite it [∆ had about 12 beers], came
across, seated himself on the vehicle and spoke to Nichol. Nichol did not hear what he
said due to a helmet covering his ears and to the noise coming from the motor on the servicar which had been left running. So he just smiled in return. They both knew one
another reasonably well. Wilkins stated in evidence -- and there was no reason to
disbelieve him -- that what he said was this, "If you give Mike a ticket I am going to ride
your motorcycle around the parking lot", referring to the parking lot in front of a nearby
supermarket. When Nichol did not desist from what he was doing the accused, suiting his
actions to his words, drove the servicar down the street out of the view of Nichol.
- Wilkins told cop that if he ticketed car, Wilkins would take cop’s motorcycle, which he
- Court: “the intention to perpetrate this joke, stupid as it was, is incompatible with the evil
intent which is inherent in the crime of theft.”
- Wilkins saw the police trying to put a ticket on his friend’s car. He told the police if you
put that ticket on my friend’s car I will steal your motorcycle. The police put the ticket on
his friend’s car. So Hansfield stole the motorcycle. The court held that the action was
incompatible with the evil intent inherent in the crime of theft.
R. v. Kerr (1965, Man. C.A.)
- Accused was prominent businessman
- Was celebrating with “considerable conviviality” victory in a retriever dog championship
- Celebration started afternoon of September 30, 1964, and ended October 1
- 1:55 a.m.: accused and two friends were at InternationalAirport to ship a dog
- Took metal 40” high cylindrical ashtray from airport
- Walked past maintenance man
- Put ashtray on lawn
- Didn’t remember taking it when police came the next morning
- Kerr was at a dog show with his dog. They won first place. Him and a few of his buddies
stopped at the airport bar and had a few drinks. Kerr decided to take the ashtray home. He
was acquitted because he did not have the criminal intent.
R. v. Dewit and Sierens (1981, Man. Prov. Ct.)
- V, Rene Gariepy, was a good friend of both ∆’s who lived in a timber shack that was a
popular drop-in party center
- ∆ had both warned V continually that he needed to lock his doors and protect his property
- One Saturday night, while V was out of town at a hockey tournament, ∆ broke into the
shack and stole V’s stereo equipment, TV, radio and records worth about $6,000
- The plan was to set the equipment up at Dewit’s home, invite V there, and make their
point about his lax security
- V freaked out when he got home and found his stereo missing; he called police
- ∆ admitted what they did, and V sent the police to ∆ - At trial, V agreed that the whole thing was a prank
- Court: accepts this was a prank; not guilty
- The victim never locked his doors to his house. Dewit and Sierens, who were the victims
friends decided to teach him a lesson to lock his doors. The victim left for the evening
and the two accused decided to go in his house and steal all of his things. When he came
home all his stuff was gone. They were acquitted because they did not have the intent,
and their intentions were to teach him a lesson and they were going to return all of his
R. v. Dalzelle (1983, NSCA)
- COOPER, J.A.:-- The respondent (Miss Dalzell) was charged with unlawfully stealing
groceries of a total value not exceeding $ 200.00, the property of Sobey's Stores Limited,
contrary to s. 294(b) of the Criminal Code. The offence is alleged to have taken place at
Halifax on December 5, 1981. Miss Dalzell was acquitted by Judge Hughes Randall of
the Provincial Magistrate's Court and an appeal by the Crown against the acquittal was
dismissed by Judge P. J. T. O Hearn of the County Court Judge's Criminal Court of
District Number One. The Crown has now applied for leave to appeal and, if granted,
appeals against Judge O Hearn's decision on the ground that he erred in law in his
interpretation of the word "fraudulently" as it appears in s. 283 of the Code, the relevant
provisions of which read:
• "283. (1) Every one commits theft who fraudulently and without colour of right takes,
or fraudulently and without colour of right converts to his use or to the use of another
person, anything whether animate or inanimate, with intent,
• (a) to deprive, temporarily or absolutely, the owner of it or a person [*page150] who
has a special property or interest in it, of the thing or of his property or interest in it, . .
. . ."
- Judge O Hearn's decision is now reported in 54 N.S.R.(2d) 239; 112A.P.R. 239. He
reviewed the facts in considerable detail and I will, therefore, confine myself to a recital
of such of them as I consider necessary to an understanding of these reasons for
- MissAntoinette Rafuse was employed as a private investigator by a security company.
She described her duties as "anti-shoplifting". On Saturday, December 5, 1981, Miss
Rafuse was working in the Sobey's Stores Limited food store located in the Simpson's
Mall, Halifax. In the course of watching people she noticed Miss Dalzell standing in a
corner of Lawton's Pharmacy, which is "part of Sobey's". Miss Rafuse saw Miss Dalzell
take some articles in Lawton's and put them in the top of her shopping cart.
- The scene then changed to Sobey's store where Miss Dalzell took some steaks and put
them into her briefcase, which was in the cart. She then picked up cheese and a pound of
butter and also put them in the briefcase. - Miss Dalzell then went over to the front of the store, left the cart, took the bag and
briefcase, proceeded out of the store, the Lawton's entrance, where she was apprehended
by Miss Rafuse. The articles taken by Miss Dalzell were produced at the trial - steaks,
cheese and two pounds of bacon and as well the items taken from the Lawton's store. The
value of the grocery articles taken was given by Miss Rafuse as $ 79.59.
- After Miss Dalzell was apprehended she was brought into the store office where she was
asked if she had ever done this before and her reply was "no". Miss Rafuse further
testified that Miss Dalzell said that she was "working on a case" with children,". . . where
these children were stealing all the time and they had told her that they had got away with
it all the time and if they went into stores nobody did anything anyway. So she wanted to
test us, to find out the security in the store, to find out just how good we were.And she
said that she after she had took the products home, the items that she took, that she was
going to bring them back the next day. And she was also going to do other stores too." It
appears from the cross-examination of Miss Rafuse that Miss Dalzell was not upset at all
until the police were called and commented that she was "involved in a certain program".
- Miss Dalzell gave evidence at the trial. She was employed at the time of the Sobey's store
incident by the Bank of Commerce as anAdministrativeAssistant, Officer in Training,
and had been so employed for about a year. She was also furthering her education leading
to a Masters Degree in Social Work. Miss Dalzell explained that since 1979 she had been
working in a juvenile crime deterrence program. It involved acquainting the young
people with whom she worked with the penitentiary system by means of a visit to
Dorchester Penitentiary, discussions with prison officials and prison guards, touring the
penitentiary and speaking with a group of inmates serving life sentences. The project was
similar to a program of juvenile crime deterrence sponsored by the Raleigh, North
Carolina, State Prison and known as "Scared Straight".
- Miss Dalzell received funding for the program through the Solicitor-General of Canada's
office under the Summer Youth Program, but the project suffered a setback when the
Halifax School Board decided they could not sanction the plan because it was unethical. I
[*page151] quote from Miss Dalzell's evidence on direct examination: "At this point my
program - I saw my work going down the drain, and I said well in order to keep the
program in operation I had to revise it. Most of the juveniles that I worked with had had -
they had all been in Court and sentenced at least once - that we had to pick those
juveniles for our evaluation - and these juveniles told me not once, but over a course of a
long period of time, that they were involved in stealing, not only petty theft but robbery, I
guess. They told me how easy it was, and they thought that the present Stop Lift program
- they called it - I've forgotten what they called it, they just called it the present - the cops
never caught them - and if they did, then they were always let go. Since they were
offences, and I said well it can't be that easy - and they said well yes it is, we do it all the
time, and every once in a while somebody gets caught. I talked to the juveniles at great
length about how they would do it, how they did it. I received various replies --- • Q. Now, the --- What was the nature of your program? How did you revamp it - what
were you going to do?
• A. I had decided to keep the part of the program that was based on the Scared
Straight, and also to add another facet to the program, which would be an alternative
to Stop Lift."
- The alternative involved Miss Dalzell presenting a program to merchants so that instead
of going to the police or the judicial system, as they would do under their Stop Lift
program, they would come to an organization which Miss Dalzell would have instituted
and at a time before the police were involved.Apparently by this scheme the juveniles
were more apt to "shape up than if they were "brought to the police", particularly because
their parents would be involved before court appearances.
- Miss Dalzell was unsuccessful, however, in getting any support for this program from
merchants to whom she spoke. She was told in every instance that until she could prove
that she had a program that would work they were not interested and "they felt that
because I was doing a thesis on it, that I was just being a do-gooder and an academic, and
they didn't want anything to do with it".
- Miss Dalzell then attempted to prove that the Stop Lift program doesn't work. Her
method of doing so, which she stated frankly in her evidence as sounding "crazy now",
was for her to go into a chain store, take items, leave the store, list the items, go back and
see the manager or whoever was in charge and then explain her alternative program. It
was in furtherance of this plan that Miss Dalzell went into Sobey's store and the premises
of Lawton's Pharmacy and took the articles to which I have referred.
- In the course of her direct examination Miss Dalzell's attention was drawn to the fact that
Miss Rafuse had testified that Miss Dalzell had told her that she was going "to take them
back the next day" and was asked, "What did you intend to do?" The answer was: "Like I
said - I don't know why she said that. I told her and the other security guard, and the
policeman who was present, that I had intended to take them out of the store, list them,
and bring them directly back. . . ."
- In cross-examination Miss Dalzell candidly admitted that she intended to leave the store
without paying for the goods and these questions and answers appear: [*page152]
• Q. Well, Miss Dalzell, you intended to leave the store then, without paying for the
goods -- that was your motive - isn't that correct?
• A. Yes.
• Q. And the very proof that the Stop Lift program works is that you're here today
facing theft under charge - isn't that correct also?
• A. I have at least forty juveniles that say it doesn't work.
• Q. Yes - but you're here today facing a theft under charge because you stole property
belonging to Sobey's - isn't that correct?
• A. Yes."
- (The appeal court found that there was no animus furendi.) - Dazelle went to the grocery store, and she walked out with some items. In court she said
that she was trying to test out the security system to make sure it was working. She was
acquitted because she had no criminal intent.
R. v. Smith (1989, Nfld. S.C.)
- BARRY J.:— This appeal arises out of the acquittal of the respondent by His Honour
Judge Owen Kennedy in Provincial Court of Newfoundland at Crow Head onApril 27,
1988 where the respondent had been charged with stealing a clock belonging to the Royal
Canadian Legion, Twillingate Men's Dart League of a value not exceeding $1,000.00
contrary to s. 294(b) of the Criminal Code of Canada (the Code).
- Briefly stated, the evidence disclosed that on December 1, 1987 the respondent, upon
observing a clock on display at the Royal Canadian Legion club at Twillingate, declared
openly that it was a nice clock and that he would like to have it. Later that evening, in full
view of other persons in the club, he walked behind the bar, picked up the clock and
walked out of the building with it. He deposited the clock at the house of his mother and
left it there while he went about his own affairs. The clock remained at his mother's
residence for nine days before it was retrieved by the police. He was asked by the
bartender at the club, one Vera Young, why he was taking the clock and he replied that he
was just going to take it and then proceeded to do so.
- Joan Jenkins, manager of the club, was present in the building that evening. She stated
that the respondent told her he was going to take the clock, but she did not see him
remove it. It was a clock proposed as a lottery prize which a dart league sponsored by the
Legion Club had put up on display in the lobby of the club premises.
- On December 9, Clarence Burgess of the Royal Canadian Mounted Police (R.C.M.P.), in
response to a complaint from the Legion club respecting the missing clock, called upon
the respondent who, upon being questioned, admitted taking it and advised the constable
that it was located at his mother's house. In a voluntary statement the respondent declared
that he took the clock as a joke, not intending to keep it. The trial judge held that there
was no fraudulent intent on the part of the respondent to deprive the owner of its clock.
He stated that the respondent had taken it as a prank and that he was satisfied that what
was intended by the respondent was not a dishonest act, but a good natured joke. He
referred to the cases of R. v. Kerr, (Man. C.A. 1969) 3 C.C.C. 201 and R. v. Hemminger
and Honeygold, (Que. C.A. 1963) 17 C.R. 343, which recognized the prank attempt, and
he acquitted the respondent of the charge.
- The trial judge found as a question of fact that the respondent's conduct in taking the
clock from the Legion was a prank intended only to be a joke, without any intention of
keeping the article for his own use or benefit, either temporarily or permanently. The
evidence before him supports such a finding and I see no reason to disturb it.
- Smith was at a restaurant, and he was getting a little drunk. He decided that he was taking the clock off the wall. He took the clock in front of the entire restaurant and the owner
and managers. He brought it to his mother’s house for 9 days. He was then charged with
theft. He was acquitted because he had no intent of stealing, since he took it off in front
R. v. Ramsden (1980, Ont. Prov. Ct.)
- Students were celebrating end of term at Trent U.
- Ramsden was an actor who was celebrating with some friends
- Formed CART, CommitteeAgainst Racism and Tackiness
- First order of business was to “free the slaves of Peterborough”
- 9 members of CART by end of evening, one of whom had a van
- Drove around Peterborough, picking up black lawn jockeys (& white), pink flamingoes,
plaster garden rabbit, a fake deer, squirrels, 200 pound Snow White, and all 7 dwarves
- Original plan was to line them all up outside unemployment office
- Snow White was damaged, and some owners were infuriated; one woman was afraid to
put her rabbit out again, and it had been out for 30 years
- Convicted-possessed intent to steal
- Received $200 fine plus 2 years probation
- General Rule for theft: need animus furandi, or intent to steal
- At the University of Trent a bunch of students developed a club called the CART club.
Which stood for the Committee against racism and tackiness. The students decided that
one day they were going to go in the ne