LS 102 01/08/2013
R. v. Dudley & Stephens
July 5, 1884 Thomas Dudley and Edward Stephens
Cabin boy 1718 years old
English yacht, 1600 miles from the Cape of Good Hope
2 1 lb tins of turnips which was gone after 3 days
th th th
4 day they caught a small turtle, and this was the last food that they had until the 20 day (nothing 12
to the 20 day)
No water except what rain they caught
18 day (7 days without food 5 without water)
Drank blood from turtle and their own urine
They discussed what they should do, Dudley & stephens suggested one person give up their life,
Brooks said if cabin boy can’t draw because he’s passed out, he won’t draw either.
Dudley & Stephens made argument that they had families
Dudley & stephens told brooks to sleep while they killed cabin boy
Didn’t resist or consent to being killed
Dudley put knife in throat of the cabin boy
They all ate him
They were rescued on day 24
Court found they wouldn’t have survived had they not eaten him Court found cabin boy would have most likely died anyway
Court “reasonable prospect of relief”
Court said – if the“law appears to be too severe on individuals, to leave it to the Sovereign to exercise
that prerogative of mercy which the Constitution has intrusted [sic] to the hands fittest to dispense it.”
Jury refused to make the decision
Judges said they had to charge them with murder because they didn’t want to give society a bad
Dudley & stephens tried to use defence of necessity
Judges said if government wanted to take away sentences they could
Dudley & stephens got death sentence – death by hanging
Released from prison within 6 months Supernatural Theories of Crime and Criminality 01/08/2013
WHO ARE YOU????
Criminal law v. Civil law
“casebased” philosophy of law
“Great course, but I don’t know what the answers were.”
Law is a “continuing process of attempting to solve the problems of a changing society, [rather] than as
a set of rules.” S.M. Waddams
Black and white answers
Not all abstract, not all practical
The “study of law, however, can never divorce itself from a living working system,” (S.M. Waddams) and
I add that the living system cannot be divorced from the theory
What is Law?
legislation (Federal and Provincial) including proclamations, regulations or orders, the Constitution,
judicial decisions, and legal principles that form the law.
Type of law
Imposed by an external
Has to be enforced
Civil Law v. Criminal Law
Private law – civil law Supernatural Theories of Crime and Criminality 01/08/2013
Public law – criminal law
Common law can mean the system of law based on judicial decisions.
All of Canada, other than Quebec, uses a common law system in addition to countries like the United
States (except Louisiana,) England, New Zealand and Australia.
Introduction to Criminal Law
One act civil and criminal
Criminal law is the most intrusive form of public law, and theorists have attempted to understand the
criminal law for centuries.
Winston Churchill said in 1910 that the "mood and temper of the public with regard to the treatment of
crime and criminals is one of the most unfailing tests of the civilization of any country."
Supernatural Theories of Crime
Prior to the 18th century (1700’s) supernatural causes = floods, drought, crop failure, child birth defects,
(1) exorcism, or
(2) or punishment and death used to destroy the devil
14001700 B.C. killed hundreds of thousands of innocent people
U.S. – Salem 1692
Witchcraft was one of the most common crimes in Europe in the 17 century
Moral Panic Supernatural Theories of Crime and Criminality 01/08/2013
• Happen today?
Supernatural Theories of Crime
Torture was often used to extract confessions from canon law used in most European courts required
two eyewitnesses or a confession.
Supernatural Theories of Crime
Device which crushed the tips of the fingers in vices
Rack that stretched the body
Pulley that jerked the body into midair
Leg screw that squeezed the calf and broke the shinbone into pieces
Witch chair which was a seat of spikes heated from below
Bed of nails
Have your fingernails pulled off with pincers, or needles under finger nails
Supernatural Theories of Crime
Trial by battle
Trial by ordeal (aka trial by water)
Pretending to practise witchcraft, etc.
Supernatural Theories of Crime and Criminality 01/08/2013
365. Every one who fraudulently
(a) pretends to exercise or to use any kind of witchcraft, sorcery, enchantment or conjuration,
(b) undertakes, for a consideration, to tell fortunes, or
(c) pretends from his skill in or knowledge of an occult or crafty science to discover where or in what
manner anything that is supposed to have been stolen or lost may be found,
is guilty of an offence punishable on summary conviction.
Facebook page Support The Repeal Of Canada's Last AntiWitchcraft Law
BIOLOGICAL AND PSYCHOLOGICAL THEORIES OF CRIME
The biological and psychological
Italian physician Giambattista della Porta (15351615) founded the school of physiognomy
Kaspar Spurzheim (17761832) and Franz Joseph Gall (17581828)
developed the science of
Lombroso’s Theory of Atavism
The Italian Anthropologist Cesare Lombroso (18351909)
Italian army as a physician.
Association between body type/appearance/behaviour
• Identified by sight –huge lower jaw, strong canine teeth, ears that were found in savages or
apes, an abnormal nose, insensibility to pain, extreme sight, prominent lips and “apelike”
arms, and were thus criminals who were a “throw back” to some primitive man.
Advanced science of phrenology which involves measuring the size and shape of the skull
Atavistic man Supernatural Theories of Crime and Criminality 01/08/2013
physical features of a human at an earlier stage of development that could identify an individual as a
Lombroso = “expert witness” in murder trials.
“enormous jaws, frontal sinuses, thin upper lip, huge incisors, unusually large head, and tactile
The Female Offender and Lombroso
Clear women were less prone to crime than men.
According to Lombroso’s theory = women were more evolutionary advanced than men. Can’t have that
. . .
Then he twisted the theory and said…
• Prostitutes – are typically more masculine, darker skin, harrier
Failed to replicate studies
Charles Goring (18701919), doctor and medical officer collected data on over 3000 English convicts.
• No correlation between body and head measurements and criminality.
Lombroso was Italian and he described criminal characteristics as Sicilian looking – racist?
Eugenics movement – controlling genes (ie Nazis)
Job of the law student nwhy they have committed a crime, but what to do with them when the enter
the legal system
Learning as we go?
Ex post facto “After the fact” – make something illegal after its happened
Law is full of uncertainty
Full of rapid change
“hard cases make bad law”
S.M. Waddams says, “it would be very hard upon the profession, if the law was so certain, that every
body knew it.”
Sources of the Criminal Law 01/08/2013
• Criminal activity is rampant?
• Immoral v. crime
• Power to prosecute criminal matters – “division of powers” in Constitution Act
• Federal Parliament of Canada – Constitution Act, 1867 s. 91 (27) Federal government is
given “criminal law and the procedures relating to criminal matters”
• Provincial offences – driving offences,
• No retroactive
• Rule of law
• Not vague
• Controlled Drugs and Substances Act, Crimes against Humanity and War Crimes
Act, Youth Criminal Justice Act
1. drug trafficking would come under s. 5 of the Controlled Drugs and Substances Act,
but the money made from those offences might be forfeited under s. 462.37 of the Criminal
• 2 Primary sources – talked a lot last semester
1. 1. Legislation
2. 2. Judicial decisions that interpret the legislation – “common law”
• “Bad laws are the worst sort of tyranny.”
• Edmund Burke, Speech at Bristol, 1780.
• Crime consists of conduct that is prohibited, because it has a negative impact on the public, and the
law dictates what penalty can be imposed when the law is violated.
• Criminal Code substantive criminal law because it talks about specific crimes and defences 01/08/2013
• Criminal procedure consists of other documents likeCanada Evidence Act, and the
Constitution Act and the Canadian Charter of Rights and Freedoms which tempers what
can be accomplished under criminal law.
• Areas that are not codified
• Necessity – common law defence
• Section 8 (3) of tCriminal Code provides that if the common law creates a justification or
• New defences
Common law offence?
Criminal law & Civil law
• Tort = private wrong
• Assault and Battery
• Filing of a Statement of Claim and Statement of Defence
• Victim in control
• Standard of proof?
• Federally or Provincially Judge
• Name of the state
• Victim little control
• Standard of proof 01/08/2013
Criminal v. Civil
• Different terms
• Civil law
• Plaintiff and Defendant
• Criminal law
• Victim and Accused
• Civil law
• found liable and collects damages
• found guilty and will be convicted and punished.
Wrong judgment – only a few impacted
• Wrong judgment – fundamental basis system
o “Better to let nine guilty persons go free than convict one innocent person”
• Historically – treasons, felonies and misdemeanors
• Today: summary, indictable, and hybrid offences
• Crime in Canada:
• Summary conviction
• less serious Section 787 of tCriminal Code provides that: 01/08/2013
• 787. (1) Unless otherwise provided by law, everyone who is convicted of an offence punishable on
summary conviction is liable to a fine of not more than five thousand dollars or to a term of
imprisonment not exceeding six months or to both.
• Example s. 177 of theCriminal Code, “ Trespassing at Night,” which states:
• 177. Every one who, without lawful excuse, the proof of which lies on him, loiters or prowls at night on
the property of another person near a dwellinghouse situated on that property is guilty of an offence
punishable on summary conviction.
• Indictable – more serious
1. Punishable by sentences of two, five, ten, fourteen years or life in prison.
2. Section 745 of the Criminal Code provides that a person who is sentenced to life in prison
shall serve twentyfive years of the sentence without eligibility for parole for a period of ten to
twentyfive years depending on the crime.
• Example section 235 of theCriminal Code, states that:
• 235. (1) Every one who commits first degree murder or second degree murder is guilty of an
indictable offence and shall be sentenced to imprisonment for life.
• indictable offence may have a choice of court including a trial in the Court of Justice or the Superior
Court of Justice.
Hybrid Offence* EXAM
• Hybrid – at the discretion of the Crown
• Future plea negotiations
• Can they get a conviction?
• Until election by the Crown
• section 218 of theCriminal Code, “ Abandoning a Child,” which says that:
• Every one who unlawfully abandons or exposes a child who is under the age of ten years, so
that its life is or is likely to be endangered or its health is or is likely to be permanently injured,
• (a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding
five years; or
• (b) is guilty of an offence punishable on summary conviction and liable to imprisonment
for a term not exceeding eighteen months.
• Dualprocedure or Crownoption
• What institution? 01/08/2013
• System where disputes between parties are resolved by an impartial decision maker after hearing the
evidence of both sides
• Crown Attorney
• Defense Lawyer
• Beyond a Reasonable Doubt (BARD)
• Defined R. v. Lachance
• “burden cast upon the Crown is to prove all essential ingredients of the crime charged beyond
a reasonable doubt, viz. ‘outside the limit or sphere of’ or ‘past’ a reasonable doubt.”
REASONABLE* KEY WORD
• Certain? There may be 1% doubt
o court system must act “according to the legal processes recognized by Parliament and
the Courts in Canada.”
• Can they be impartial?
• Federal, provincial or territorial
• Must be a lawyer for 10 years before being judge
• Criminal – what evidence is going to be admissible?
• Judge & jury
• Justices of the Peace
o administering oaths, reviewing summons and warrants, administering oaths for affidavits
o First appearance
o Municipal and provincial – HTA
• Some provinces say you have to be a Lawyer before being a justice of the peace, some provinces
actually prefer nonlawyers
• understand and retain all of the evidence properly presented to them at trial – big job
• “trier of fact”
• Inadmissible evidence?
• “Obstructed justice”
• Section 139 of thCriminal Code provides that:
(1) Every one who wilfully attempts in any manner to obstruct, pervert or defeat the course of justice in
a judicial proceeding . . .
(b) influences or attempts to influence by threats, bribes or other corrupt means a person in his
conduct as a juror; or
(c) accepts or obtains, agrees to accept or attempts to obtain a bribe or other corrupt
consideration to abstain from giving evidence, or to do or to refrain from doing anything as a
• may be dismissed pursuant to s. 632(a) of Criminal Code if they have a personal interest in the
trial, if they have a relationship with the judge, lawyers, witnesses or accused, or if they would face
“personal hardship” if they completed their duty.
• Selected from pools of citizens summoned randomly from electoral rolls in a province or community
(and students may be called to serve in the community in which they are registered to vote).
o their name is not on the panel, a juror is not “indifferent between the Queen and the accused”
(they have some sort of bias), the juror has been convicted of an offence and sentenced to a
term of more than 1 year, a juror is an alien, or they are physically unable to perform their
o until twelve jurors have been selected, or until more cards must be drawn.
• The number of challenges are dependent on the crime that has been charged.
o In the 1990’s the Ontario Court of Appeal and Supreme Court ruled that there may be a
grounds on which to challenge a juror based on racial biases.
o The trial judge decides if such questions can be raised.
• Nishnawbe Aski Nation v. Eden ,  O.J. No. 988 (Ont. C.A.)
o Justice Laskin found that “to function properly, a jury must have two key characteristics:
representativeness and impartiality. A representative jury is one that corresponds,
as much as possible, to a crosssection of the larger community. And a representative jury
enhances the impartiality of a jury.”
o 2000 Department of Indian and Northern Affairs decided to stop providing band electoral lists
to the Provincial Jury Centre, and thus there was a lack of aboriginal representation on the jury
– new inquiry should be ordered 01/08/2013 01/08/2013
Provincial Inferior Courts
Provincial Court of British Columbia;
Provincial Court of Alberta;
Provincial Court of Saskatchewan;
Provincial Court of Manitoba;
Ontario Court of Justice;
Court of Quebec;
Newfoundland Provincial Court;
Provincial Court of Prince Edward Island;
Provincial Court of Nova Scotia;
Provincial Court of New Brunswick;
Territorial Court of the Northwest Territories, and the
Territorial Court of Yukon and the Nunavut Court of Justice (which is a Unified Court that hears matters at all levels.) 01/08/2013
• Justices of the Peace (Magistrates)
• Youth Court, Family Court, and Traffic Court
s. 553 of tCriminal Code, power is given to these provincial courts for very specific offences such
as keeping a gaming house or driving while disqualified (among others.)
• Preliminary hearings
Provincial Superior Courts
British Columbia Supreme Court;
Alberta Court of Queen’s Bench;
Saskatchewan Court of Queen’s Bench;
Court of Queen’s Bench of Manitoba (General Division);
Ontario Superior Court of Justice;
Superior Court of Quebec;
Supreme Court of Newfoundland & Labrador (Trial Division);
Supreme Court of Prince Edward Island (Trial Division);
Supreme Court of Nova Scotia;
New Brunswick Court of Queen’s Bench (Trial Division);
Nunavut Court of Justice;
Supreme Court of the Northwest Territories; and
Yukon Supreme Court. 01/08/2013
Trial Courts in Canada
• Section 469 Criminal Code vides that some offences must be tried by the Provincial
Superior Court of Justice.
• Treason, murder, and other very serious crimes
• Other indictable offences can be tried in this higher level of court at the choice or “election” of the
• Provincial Court Judge, a Superior Court Judge sitting alone, or a Superior Court Judge and Jury
• Appeals from the provincial court criminal division and family law courts if they were started at the lower
• Give choices – do you want a jury? etc
Courts of Appeal
British Columbia Court of Appeal;
Alberta court of Appeal;
Saskatchewan Court of Appeal;
Manitoba Court of Appeal;
Ontario Court of Appeal;
Court of Appeal of Quebec;
Supreme Court of Newfoundland (Appeal Division);
Supreme Court of Prince Edward Island (Appeal Division);
Nova Scotia Court of Appeal;
Court of Appeal of New Brunswick;
Court of Appeal for the Northwest Territories;
Court of Appeal of the Yukon Territory; and the
Nunavut Court of Justice (unified court).
Court of Appeal
• Reviewing decisions of lower courts
• Read arguments
• Apply law to facts AS PRESENTED AT TRIAL
• Trial = facts
Appeal = legal rules
• Appeal as a right
Supreme Court of Canada
• Highest court since 1949
• 8 Justices, 1 Chief Justice
o Panels 3, 5, 7, 9 judges
• Seek leave after court of appeal
o Particular significance
o 1. raises an issue of public importance, and
o 2. should be decided by the Supreme Court of Canada.
• Leave applications
o 600 – 80 heard •
• Hired by the state
• Attorney General
• Burden or proof on the Crown
• Present all evidence
• Protect the public interest
• Duties of all lawyers
• Rules of Professional Conduct – LS 101
• Duty to raise fearlessly every issue, advance every argument and ask every question however
• Benefit of every remedy and defense authorized by law
LSUC Rules of Professional Conduct – Rule 1
Relationship to the Administration of Justice Citation and interpretation – 1.03 interpretation
A lawyer has a duty to carry on the practice of law and discharge all responsibilities to clients, tribunals, the
public and other legal practitioners honorably and with integrity
In spirit – look at the intent of the rule not the word for word – what did the author mean?
The relationship to the administration of justice, other lawyers and the court
• Advocacy •
• 4.01 – when acting as an advocate, a lawyer shall represent the client resolutely and honourably within
the limits of the law while treating the tribunal and candour, fairness, courtesy and respect.
• A lawyer must not bring actions solely to delay or harass the other party, which would bring the
administration of justice into disrepute
Professional Responsibility to Clients – Rule 2 Competence
• 2.01 (1) In this rule
• “competent lawyer” means a lawyer who has and applies relevant skills, attributes, and values in a
manner appropriate to each matter undertaken on behalf of a client including
• (a) knowing general legal principles and procedures and the substantive law and procedure for the
areas of law in which the lawyer practices.
Dore v Barreau du Quebec
Judicial interim release (bail hearing) quebec Superior Court
Justice JeanGuy Boilard
Said of Mr Dore “an insolent lawyer is rarely of use to his client”
“Bombastic rhetoric and hyperbole”
must put aside
Stay was “totally ridiculous” and argument was “idle quibbling” reality, which is not consistent with the
facts. Mr Dore has done nothing to help the client discharge his burden”
My Dore wrote a letter to the judge
• “hid behind your status like a coward, you made comments bout me that were both unjust and
• “this letter, therefore, is from man to man and is outside the ambit of my profession and your
• continued to tell him off
• “you are fundamentally unjust I doubt that will ever change”
• My Dore filed a complaint against Justice Boilard to the CJC
• “CJC said Justice Joilard” – impatience you showed and the immoderate comments you made to an
officer of the court, Mr Dore, are unacceptable and merit an expression of the panel’s disapproval”
• My Dore’s letter was sent to the Syndic du Barreau (body that disciplines lawyers in QU) •
• Article 2.03 of the Code of Ethics of Advocates
• Suspended practice for 21 days
• Dore argued that this violated his freedom of expression in the Charter
• Disciplinary council said too bad they have to work together and its an appropriate punishment
• Appealed to the Tribunal des Professions – they said it was a harsh sentence but reasonable
• Dore went to Superior Court of Quebec – upheld tribunal
• Took it to Quebec court of appeal – they said he didn’t expect it to be private the way it was said and
not the expression itself that was prohibited, it was the manner of the criticism of a judge
• Supreme Court – “vituperation (violent or harsh critical language” in the content and tone is what got
him in trouble – appeal dismissed
• In Ontario, rule 6.03 (3) specifically addresses mistakes and says that a “lawyer shall avoid sharp
practice and shall not take advantage of or act without fair warning upon slips, irregularities, or
mistakes on the part of other legal practitioners not going to the merits or involving the sacrifice of a
Exceptions to Confidentiality Rule 2 – Permitted Disclosure
2.03 (2) When required by law or by order of a tribunal of competent jurisdiction, a lawyer shall
disclose confidential information, but the lawyer shall not disclose more information than is required.
Imminent risk to identifiable person or group
Exceptions to Confidentiality
• 2.03 (3) provides that:
• 3) Where a lawyer believes upon reasonable grounds that there is an imminent risk to an identifiable
person or group of death or serious bodily harm, including serious psychological harm that substantially
interferes with health or wellbeing, the lawyer may disclose, pursuant to judicial order where
practicable, confidential information where it is necessary to do so in order to prevent the death or
harm, but shall not disclose more information than is required.
• Future harm
• Different than solicitorclient privilege
Does a Lawyer have to Represent Every Client?
1. Conflict of Interest 2.04 (1) states that: •
• A “conflict of interest” or a “conflicting interest” means an interest
• (a) that would be likely to affect adversely a lawyer's judgment on behalf of, or loyalty to, a client or
prospective client, or
• (b) that a lawyer might be prompted to prefer to the interests of a client or prospective client.
2. Potential to be a Witness
find a piece of evidence on the scene, now you’re a witness
3. Client Already has a Lawyer
Ethics in Criminal Law
• defence lawyer’s duty to protect the client from conviction, except where a properly formed court, with
jurisdiction, by legal and properly collected evidence is convicted by a judge and/or jury.
Rules of Professional Conduct
(a) abuse the process of the tribunal by instituting or prosecuting proceedings which, although legal in
themselves, are clearly motivated by malice on the part of the client and are brought solely for the purpose
of injuring the other party,
(b) knowingly assist or permit the client to do anything that the lawyer considers to be dishonest or
(d) endeavor or allow anyone else to endeavour, directly or indirectly, to influence the decision or action of a
tribunal or any of its officials in any case or matter by any means other than open persuasion as an
(e) knowingly attempt to deceive a tribunal or influence the course of justice by offering false evidence,
misstating facts or law, presenting or relying upon a false or deceptive affidavit, suppressing what ought to
be disclosed, or otherwise assisting in any fraud, crime, or illegal conduct
(f) knowingly misstate the contents of a document, the testimony of a witness, the substance of an
argument, or the provisions of a statute or like authority,
(g) knowingly assert as true a fact when its truth cannot reasonably be supported by the evidence or as a
matter of which notice may be taken by the tribunal, •
(h) deliberately refrain from informing the tribunal of any binding authority that the lawyer considers to be
directly on point and that has not been mentioned by an opponent,
(i) dissuade a witness from giving evidence or advise a witness to be absent,
(j) knowingly permit a witness or party to be presented in a false or misleading way or to impersonate
(k) needlessly abuse, hector, or harass a witness,
(l) when representing a complainant or potential complainant, attempt to gain a benefit for the complainant
by threatening the laying of a criminal charge or by offering to seek or to procure the withdrawal of a
criminal charge, and
(m) needlessly inconvenience a witness.
How Can you Defend That Guilty Person?
• A lawyer has no business with the justice or injustice of the cause which he undertakes, unless his
client asks his opinion, and then he is bound to give it honestly. The justice or injustice of the cause is
to be decided by the judge.
• Samuel Johnson (17091784), Tour to the Hebrides, 15 August 1773.
• Personal opinion of the lawyer?
• Tuckiar v. R. (1934), 52 C.L.R. 335 (H.C. Australia)
• May be true!
• R. v. Delisle (1999), 133 C.C.C. (3d) 541 (Que. C.A.)
• I didn’t do it, carl did it, lawyer ignored him and the guy got convicted. Then carl came a couple
weeks later and said hey I commited the offence. •
Limitations if a Client Confesses
• a lawyer who knows that the accused has confessed cannot call a false alibi to the stand to lie to the
1. object to the jurisdiction of the court;
2. object to the form of the charges;
3. object to the sufficiency or admissibility of the evidence;
4. test the evidence of each witness to make sure that the evidence is proof that the accused is guilty
of the charge; BUT
5. mustnot suggest that another person committed the offence;
6. mustnot call evidence that the lawyer believes to be false.
R. v. Li,  B.C.J. No. 2312 (B.C. C.A.) (leave to the SCC refused)
• may have raised a reasonable doubt about the identification of the accused.
• did not breach any ethical rule as he did not put the accused on the stand to lie, and he did not advance
any defence inconsistent with the facts as he knew them.
• A lawyer may point out witness vulnerabilities even if they know that their evidence is accurate.
• a false statement under oath with the intention of misleading the court.
• “knowingly assist or permit the client to do anything that the lawyer considers to be dishonest or
dishonourable” or “knowingly attempt to deceive or participate in the deception of a tribunal or influence
the course of justice by offering false evidence.”
• withdraw from the case, refuse to call the client to the stand, disclose the perjury to the court or another
third party, refuse to use this testimony in a summary of the case, or question the accused in a very
passive way not to elicit this incorrect statement.
• perjury has happened suddenly on the stand
• will not be dissuaded from continuing to commit perjury, then the lawyer can withdraw, disclose the
matter to the court or Crown, or continue with the questioning as if nothing is wrong and not refer to that
testimony in the closing argument.
The Client Who Maintains Innocence
• Plead guilty?
• Many reasons to do: •
• protect another party, the publicity, stress, or the cost of a trial might be more than the client is willing to
• A plea may be a quick resolution to a very embarrassing situation, or they may lack the confidence to
fight a criminal charge.
• But if client insists innocence you can’t force them to plead guilty
• Judge accept?
• If a judge thinks a client is being forced into it they can step in
Incriminating Physical Evidence
Administration of justice
How to dispose?
R v. Murray (2000), 144 C.C.C. (3d) 289 (Ont. S.C.J.).
Lawyer must not knowingly conceal evidence
Criminal Law – Actus Reus
Legal Studies 102
Elements of a Criminal Offence
1. Act or omission actus reus );
2. Act or omission in violation of a law;
3. Criminal intentmens rea );
4. Union actus reus and mens rea;
5. Punishment provided in law
• The Crown must prove an offence through proving both the us reus , he voluntary act or
omission that is the basis of the criminal offence, and the .
Elements of a Crime – Actus Reus
• Physical action that constitutes a crime with evidence of that unlawful conduct
• Theft under s. 322 (1) is that someone without the right “takes . . . to his use or to the use of
another person . . . anything, whether animate or inanimate.”
• Crown must show that theactus reus occurred b.a.r.d. (beyond a reasonable doubt)
• Mala in se = “evil in itself”
• Mala prohibita = “prohibited evil”
• Willing mind
• Onus of proving voluntary
• Mental element of actus reus
• act or omission must be one which a person is physically capable of doing and a product of conscious
• R. v. Ryan (1967), 40 A.L.J.R. 488 (Aus. H.C.).
• Crown has to show that the event was “caused” by the accused’s conduct
S. 222 ofthe Criminal Code – Homicide
(1) A person commits homicide when, directly or indirectly, by any means, he causes the death of a
• What does this section tell us?
• Substantial and integral cause of the death
Example of Analysis of Actus Reus
• S. 88 oCriminal Code Possession of Weapon for Dangerous Purposes
• 88. (1) Every person commits an offence who carries or possesses a weapon, an imitation of a
weapon, a prohibited device or any ammunition or prohibited ammunition for a purpose dangerous to
the public peace or for the purpose of committing an offence.
• Actus reus ?
• Turn to legislation and case law to answer questions such as what is a weapon, how many questions
have dealt with immitations?
Actus Reus with No Act? (omission)
• Omission or failure to act
• law imposes a duty to act, and therefore failure to act can be an offence.
• 129 (b) of tCode it provides that there are “Offences relating to public or peace offer”
where the individual:
• b ) omits, without reasonable excuse, to assist a public officer or peace officer in the execution of his
duty in arresting a person or in preserving the peace, after having reasonable notice that he is required
to do so . . . is guilty of
• d ) an indictable offence and is liable to imprisonment for a term not exceeding two years, or 01/08/2013
• e ) an offence punishable on summary conviction.
• Ie quebec you have a duty to act if you see someone that needs help
• Look to criminal code to see if you have a duty to act in a certain situation
Actus Reus with No Act?
• s. 263:
• Duty to safeguard opening in ice
• (1) Every one who makes or causes to be made an opening in ice that is open to or frequented by the
public is under a legal duty to guard it in a manner that is adequate to prevent
persons from falling in by accident and is adequate to warn them that the
• parent/child, master/servant, doctor/patient, prisoner/guard
Actus Reus with no Act?
• Housebreaking instruments – illegal to even have them with you even if you’re not breaking into a
house. Onus is on you to prove that you’re not using it to break into houses.
• “Care or control” of motor vehicle
• First act voluntary
• Care or control
o Ford (1982) – behind the wheel keeping warm until someone else came to get him,
court said he’s guilty because he could have driven while he was impaired
o Buckingham (2007) – drove to a bar but decided to cab home, had foot on gas
o Toews (1985) – laying on front seat in a sleeping bag with key in ignition, car radio
was on but car wasn’t – acquitted by supreme court
o Burbella (2002) – drove car into a ditch, then drank while he was in the ditch waiting
for the tow truck – car wasn’t able to be driven because it was crashed so he was
Pike (2004) was drunk, went and bought more alcohol put it in drivers seat – officer
charged him with care & control – acquitted because he charged too early.
Duties to Provide the Necessaries of Life 01/08/2013
• section 215 of tCriminal Code , a parent, foster parent, guardian or head of a family has a duty to
provide necessaries of life to a child under the age of sixteen, to a spouse, or to someone in their
charge who is detained, aged, ill or mentally disordered, who is unable to provide themselves with the
• criminal negligence, causing bodily harm by criminal negligence or manslaughter.
Duty to Provide the Necessaries of Life
• Naglik (1993)
• Barry (2004)
• P.(K.) 2007)
• Curtis (1998)
Charter – “lawful excuse”
• Child swimming watched drown 01/08/2013
Elements of a Crime
• Mens Rea
• Requirement that a guilty mind accompany the act that constitutes a crime
• Intent to do the act knowing the consequences or proceeded with reckless disregard (impaired)
• “Morally blameworthy”
• “Innocent not be punished” – Justice Lamer
Fundamental principle of justice – s. 7 Charter
S. 16 Criminal Code
S. 13 Criminal Code
Elements of the Crime
Murder – s. 229 of tCriminal Code
• Culpable homicide is murder where the person who causes the death of a human being
• means to cause his death
• means to cause him bodily harm that he knows is likely to cause his death, and is reckless
whether death ensues or not.
• Murder MOST serious – have to show that the person has to foresee that there may be death
Elements of the Crime
• Justice McLachlin of the Supreme CourtR. v. Théroux (1993) said that:
• “A person is not saved from conviction because he or she believes that there is nothing wrong with what
he or she is doing.
• The question is whether the accused subjectively appreciated that certain consequences would follow
from his or her acts, not whether the accused believed the acts or their consequences to be moral.
• Just as the pathological killer would not be acquitted on the mere ground that he failed to see his act as
morally reprehensible, so the defrauder will not be acquitted because he believed that what he was
doing was honest.” 01/08/2013
• Much of the time – motive not matter
• Latimer case – his daughter (12 years old) had a mental disorder, had seizures all day, scream in pain,
had the mind of a 2 month year old child, put her in a car to put her out of her misery. In jail, couldn’t
get parole because he refused to say what he did was wrong.
• May be an element of there is absolutely NO MOTIVE to commit the crime, or it can be an issue of
there was a motive TO commit that crime
• Charemski (1998) p. 8081 – had a huge financial gain if his wife was dead, she was
cheating on him
• “proved absence of motive” NOT “absence of prove motive”
• EUTHANASIA – GOOD ESSAY QUESTION*
Elements of a Crime
• Two distinct tests mens rea in Canada
thatdeliberately intended to bring about the consequences OR
subjectively realized their conduct might produce those consequences whether or not they actually
knew the risk.
reasonable persons , in the same circumstances as the accused, would haappreciated that
their conduct was creating a risk of producing prohibited consequences and would have taken
action to avoid doing so.”
Elements of a Crime
• Subjective = “what was actually going on in the mind of this particular accused at the time in question”
• Objective = not what was in their mind but that “what should have been there, had the accused
• R. v. Creighton (1993) Objective
• Subjectivemens rea more blameworthy? Because completely aware that what you’re doing was
Actus Reus/Mens Rea 01/08/2013
• Must happen at same time
R. v. Fagan – rear wheel rested on the foot of constable, car was stopped, vicors pointed out that
the car was pointed out and Fagan made an offensive remark an said he could wait, Fagan was
charged with assaulting an officer – did mens rea and actus reus happen at the same time?. Defense
said did not occur at same time, court did not accept defense and court said actus reus was an
Mens Rea/ Mistake of fact
R. v. Ladue – visited his friends veronica apartment, he said he thought veronica was asleep and
had sex with her but she was actually dead, charged with offering indignity to a human corps, his
defense was that he was so drunk that he didn’t know she was dead, tried to explain behaviour saying
that she was a drug addict and often in this comatose state, can’t be convicted because didn’t intend to
cause an indignity to a human corps. Said he Raped her, yes, but can’t charge mens rea of trying to
cause indignity. Court said you can’t use a defense that is an admission to another crime. Convicted.
SubjectiveMens Rea – Forms of Intent
Subjective Mens Rea – Intent/Knowledge
S. 155 (1) – “Every one commits incest whoknowing that another person is by blood relationship his or
her parent, child, brother, sister, grandparent or grandchild, as the case may be, has sexual intercourse with
SubjectiveMens Rea – Intent/Knowledge
S. 265 CC – Assault – “person commits and assault when (a) without the consent of another person, he
applies force intentionally to that other person, directly or indirectly”
Murder s. 231 (2) of the Criminal Code
“Planned and deliberate” – highest standard court has
First degree – planned and deliberate – no parole
Second degree – deliberate not premediated – have chance of parole after 10 years
It IS first degree murder if its :
murder of police officer, sheriff, prison warden, prison guard (peace officer) or anyone employed for the
preservation and maintenance of the public peace IN THE COURSE OF DUTIES 01/08/2013
murder in course of hijacking, sexual assault, kidnapping or hostage taking, criminal harassment, terrorist
activity, using explosives etc.
Defense of insanity – if crazy, can prove there wasn’t the mental element to intend/plan it. Can lower
Forms of Intent – Intention/Knowledge
Alberta Court of Appeal K. (M.M.) (2006) – p. 75 VJ
“A planned murder is one that was conceived and carefully thought out prior to being committed
. . . It requires that a design or scheme be arranged beforehand . . . A deliberate murder is one that is
considered, not impulsive . . . A person commits deliberate murder when he thinks about the
consequences and carefully thinks out the act, rather than proceeding hastily,
rashly or impulsively.”
Forms of Intent – Intention/Knowledge
Buzzanga and Durocher – (1979) – Justice Martin “as a general rule, a person who foresees
that a consequence is certain or substantially certain to result from an act which he does in order to
achieve some other purposes, intends that consequence.”
Guess (2000) – s. 139(2Criminal Code – attempt to obstruct, pervert, or defeat the course of justice
Personal relationship with the accused on a homicide case
Ancient common law principle
Takes the mens rea of an offence to an intended victim and transfers itactus reus of the same
offence to another victim
Droste (1984) – intended to kill his wife, put gas in the car and put his entire family in the car. Parents
(him and wife) got out of the car but the children died. Court said planned and deliberate and in the course
of trying to kill his wife he killed his children, used transfer of intent. Upheld up to the supreme court.
Fountaine (2002) intended to commit suicide (not illegal) and committed murder instead. Court tried to
transfer intent from him to the person he killed. Can’t take intent for a non crime to a crime – not guilty.
Vandergraaf (1994) – tried to throw peanut butter on ice but then hit a woman in the face with it. He was
acquitted – no proof he tried to apply force to a person.
Recklessness as Subjective Mens Rea
2) Recklessness 01/08/2013
“Reckless with respect to a consequence of their actions, when they foresee that it may occur but do not
desire it or foresee it as certain.”
R. v. Sansregret (1985)
Reckless as to consent of sexual assault victim
Gone to see ex girlfriend, she feared for her own safety, he wanted to have sex with her, she consented
only because she was scared of him. Said she didn’t consent at all just wanted him out of the house. Court
said he couldn’t have knowledge and he got off because Recklessness wasn’t in that section of the
Justice McIntyre in Sansregret “the attitude of one who, aware that there is danger that his conduct could
bring about the result prohibited by the criminal law, nevertheless persists despite the risk. It is, in other
words, the conduct of one who sees the risk and takes the chance.”
Objective element – what would a reasonable person have done in that situation?
Changed the criminal code – s. 273.2 to make sure recklessness is in this section.
Recklessness & or knowledge on the lack of consent are both states of mind that will justify a conviction
Forms of Intent Recklessness
Arson S. 433 Every person who intentionally or recklessly causes damage by fire or explosion to
property, whether or not that person owns the property, is guilty of an indictable offence and liable to
imprisonment for life where
the person knows that or is reckless with respect to whether the property is inhabited or occupied; or
the fire or explosion causes bodily harm to another person
R. v. Brain
He was outside beside a storage hut, smoking a cigarette, flicked into a pile of cardboard boxes – he said
there was no intent to burn anything down. Court said it was reckless because it’s obvious a fire could
Murder, damage to property, criminal harassment
Forms of Intent Recklessness
Negligence S. 219
Every one is criminally negligent who
in doing anything, or
in omitting to do anything that it is his duty to do,
shows wanton or reckless disregard for the lives or safety of other persons
Marked departure from the standard of a reasonable person 01/08/2013
R. v. Barron – drinking, decided to streak infront of girls. One of the boys hesitated at the top of the stairs,
Barron gave him a slight push friend fell down the stairs and died. 16, drunk, is he guilty? Acquitted.
Forms of Intent – Willful Blindness
Mens rea – exists where the person is virtually certain something is the truth, but they “shut their eyes” to
R. v. Harding (2001) – Ont. C.A. – must have “(1) a subjective realization (2) of the likely result of his
actions and (3) deliberately avoid actual knowledge while engaging in or pursuing an activity.”
Different than recklessness
La la la la la
R. v. Oluwa – (1996)
Mr oluwa was charged with importing heroine, had stop in Vancouver coming from Tokyo, going on to
mexico. He said “do not have mens rea for importing heroine into Canada, trying to import to Mexico.”
Willful blindness, should have found out where he was going. Didn’t ask that last question, therefore its
R v. Malfara –
paid $50 to bring a package to jail. It was weed. Court said most people would have been suspicious but
he was not, can’t be willfully blind. Ordered a new trial.
Objective Mens Rea
This standard the Crown has to prove that the accused person’s conduct fell below the standard of a
Test = marked departure from the standard of care expected of a reasonable person
No personal characteristics?
Dangerous driving, careless driving 01/08/2013
“accused’s driving conduct fell below the standard of the reasonable driver acting prudently in all of the
Dangerous & Careless
Hundal (1993) – modified objective test (has subjective elements)
“whether a reasonable person, with the same knowledge of the facts as the accused, would
have appreciated the risk generated by the accused’s driving conduct and would have refrained from taking
such a risk.”
heart attack, epileptic seizure or detached retina Parties to an Offence & Inchoate Offences 01/08/2013
Not just individuals
“principal” who committed the offence, the “aider” who enabled someone else to commit the criminal
act, the “abettor” who encouraged another person to commit a crime, and a “counsellor”
Principal – someone who actually committed the offence and has the mens rea and actus reus
required for the particular crime. There may be more than one principal.
Aider – enabling (or omitting to do something) that allows someone else to commit a crime
Abettor – encouraging another to commit a crime.
Counsellor – an individual who, through acts or words, induces a person to commit the offences they
21. (1) Every one is a party to an offence who
(a) actually commits it;
(b) does or omits to do anything for the purpose of aiding any person to commit it; or
(c) abets any person in committing it.
assists the principalequally culpable for the same offence.
Aiding & Abetting
Aiding is helping without encouragement or instigation, abetting means promoting or instigating a
crime to be committed (vocal)
Abetting communication that would encourage, and some that would encourage without actually helping
supplies a weapon, acts as a lookout or drives the “getaway” car.
aid or abet the assistance must have been renderebefore orduring the course of the offence.
Helping after the offence makes one an accessory after the fact (see below).
R. v. Kulbacki,  M.J. No. 9 (Man. C.A.)
20 year old man owned motor vehicle. Sixteen year old companion drove his car over 90mph on rough
highway, he did nothing to stop the driver. The court found owner omitted stopping her, he was an aider
because he had authority over the car even though he didn’t say anything.
R. v. Laurencelle (1999), 28 C.R. (5 ) 157 (B.C. C.A). Parties to an Offence & Inchoate Offences 01/08/2013
Man kidnapped, kidnappers demanded money. Mrs laurencelle came home and foun him, she brought him
water every once in a while, tried to comfort her, she was afraid of the principles in this situation. Trial judge
found that she made the wrong decision helping because she let the kidnappers stay in her home. Court of
appeal said there was no evidence that she allowed them to stay in her home nor did she have a duty to
kick them out. He said feeding the victim did not make her an aider or abettor
22. (1) Where a person counsels another person to be a party to an offence and that other person is
afterwards a party to that offence, the person who counselled is a party to that offence,
notwithstanding that the offence was committed in a way different from that which was
(2) Every one who counsels another person to be a party to an offence is a party to every offence that the
other commits in consequence of the counselling that the person who counselled knew or ought to have
known was likely to be committed in consequence of the counselling.
Definition of “counsel”
(3) For the purposes of this Act, “counsel” includes procure, solicit or incite.
Must intentionally solicit another person to commit an offence
counselled may not actually commit an offence but simply help another party
“procure, solicit or incite”
must actually be encouraged
liable foevery offence that the person commits as long as the counsellor knew, or ought to have known,
that other offe