WEEK 6: Regulatory Offences Generally: Persons convicted of reg.off generally NOT morally blameworthy.
The Half-Way House Approach to Regulatory Offences: based on the notion that it should be possible for
defendants, who are charged with regulatory offences, to argue that they were not negligent.
•Under the half-way house approach, the Crown must prove beyond reasonable doubt that the accused committed
the actus reus elements of the regulatory offence in question.After the Crown has succeeded in proving the actus
reus beyond reasonable doubt, the burden of proof shifts to the accused to establish his or her innocence by
proving on the balance of probabilities that he or she was not negligent.
•Sault Ste. Marie (1978) – The charge was that the City “did discharge or cause to be discharged, or permitted to
be discharged, or deposited materials into Cannon Creek and Root River, or on the shore or bank thereof, or in
such place along the side that might impair the quality of the water in Cannon Creek and Root River.”
•SCC endorsed the half-way house approach & ruled that it should be applied to MOST, but not all reg. offences.
•SCC stated 3 categories of offence: full mens rea offences, strict liability offences, absolute liability offences.
•Sault Ste. Marie SCC indicated that there are 4 factors that the courts should examine in deciding whether a
regulatory offence should be designated as being one of strict or absolute liability.
o (1). The overall regulatory pattern in a statute; (2). The subject matter of the regulatory offence;(3). The
severity of the penalty; and (4). The precise wording of regulatory legislation.
•s.189(a)(3) of the Ontario Highway Traffic Act: Where a person has been convicted of [the offence of failing to
stop his/her motor vehicle when requested to do so by a police officer, the court may make an order suspending
the driver’s licence to drive for a period of three years] where it is satisfied on the evidence that the person
willfully continued to avoid police while a police officer gave pursuit.
•s.37.3(2) federal Competition Act: No person shall be convicted of an offence under s.36 or 36.1, if he est’ed that,
(b) he took reasonable precautions and exercised due diligence to prevent the occurrence of such error.
Due Diligence Defence: available where an accused is able to prove on the balance of probabilities that he or she:
•Took all reasonable care (took all reasonable precautions) to avoid the harm; or reasonably believed in a
mistaken set of facts which, if true, would render the act or omission innocent.
Absolute Liability and the Charter: s.94 of the B.C. Motor Vehicle Act:(1)[Aperson] commits an offence and is
liable, (c) on a 1 conviction, fine of not less than $300 & no more than $2k and to imprisonm’t for no less than
7days & no more than 6months, &(d) on a subsequent conviction, regardless of when the contravention occurred,
to a fine no less than $300 & not more than $2k & imprisonm’t for no less than 14 days & not more than 1yr
•(2) Subsection [94(1)] creates an absolute liability offence in which guilt is established by proof of driving,
whether or not the defendant knew of the prohibition or suspension.
WEEK 7:Aiding andAbetting the Commission of An Offence:s.21(1) of the Criminal Code provides that
everyone is a party to an offence who “actually commits it; or does or omits to do anything for the purpose of
aiding any person to commit it; or abets any person in committing it.”
•In order to convict an accused of aiding the principal, the Crown needs to prove that the accused actively
rendered assistance to the principal (a.r) and did so with the intent to provide such assistance (m.r).
•“…” abetting the principal, “…” encouraged the principal (a.r) and did so with intent to provide such
3.Attempt: s.24 of the Criminal Code:(1) Everyone who, having an intent to commit an offence, does or omits to
do anything for the purpose of carrying out his intention is guilty of an attempt to commit the offence whether or
not it was possible under the circumstances to commit the offence. (2) The question whether an act or omission by
a person who has an intent to commit an offence is or is not mere preparation to commit the offence, and too
remote to constitute an attempt to commit the offence, is a question of law.
The Mens Rea ofAttempts: Ancio (1984) – The mens rea requirements for a criminal attempt may only be
fulfilled by an actual intention to commit a crime. This means that the mens rea requirements for attempts may be
even more onerous, from the Crown’s point of view, than the m.r requirements for the completed offence itself.
•The actus reus of attempt must NOT be mere preparation to commit a crime, but it can be the next step done by
the accused with intent to commit the crime after the preparation in complete.
The Actus Reus of Conspiracy: The Crown must prove that the co-conspirators jointly formed an intent to
implement the common plan to commit a crime (“meeting of the minds”). 8.Counseling an Offence That is NOT Committed: Hamilton (2005) case•The actus reus for counseling an
offence that is not committed “…will be established where the materials or statements made or transmitted by the
accused actively induce or advocate – and do not merely describe – the commission of an offence.”
•In order to prove mens rea for counseling the offence that is not committed, “…it must be shown that the accused
either intended that the offence counseled be committed, or knowingly counseled the commission of the offence
while aware of the [substantial and] unjustified risk that the offence counseled was in fact likely to be committed
as a result of the accused’s conduct.”
WEEK 8: The M’Naghten Rules: The House of Lords affirmed the availability of the insanity defence if it was
“clearly proved that, at the time of the committing of the act, the … accused was labouring under such a defect of
reason, from disease of the mind, as not to know the nature and quality of the act he was doing, or, if did know it,
that he did not know he was doing what was wrong.”
The Modern Day NCRMD Defence s.16(1) of the Criminal Code: reads as follows: No person is criminally
responsible for an act committed or an omission made while suffering from a mental disorder that rendered the
person incapable of appreciating the nature and quality of the act or omission or of knowing that it was wrong.
The Meaning of “Mental Disorder:” SCC in the Cooper (1980) case stated that a “disease of the mind” is “any
illness, disorder or abnormal condition which impairs the human mind and its functioning, excluding however,
self-induced states caused by alcohol or drugs, as well as transitory mental states such as hysteria or concussion.”
•Stone (1999): The Supreme Court of Canada stated that trial judges, in determining whether the condition that
the accused claims to have suffered from is a disease of the mind, should follow a more “holistic” approach.
The Two Branches of the NCRMD Defence: Once it has been established that the accused suffered from a
mental disorder at the time of the offence, the next step is to establish either (i) that the accused was “incapable of
appreciating the nature and quality of the act or omission; OR (ii) of knowing that it was wrong. (see s.16(1)).
The Meaning of “Appreciate” the Nature and Quality of theAct or Omission: SCC stated in Cooper “…the
word ‘appreciate’imports an additional req’mt to mere knowledge of the physical quality of the act. The req’mt,
unique to CAN, is that of perception, an ability to perceive the consequences, impact, and results of a physical
The Meaning of “Wrong:”: The SCC in the Chaulk (1990) case stated that the word “wrong” in s.16(1) means
“wrong according to the ordinary moral standards of reasonable members of society.”
DefiningAutomatism: for automatism to constitute a defence, cause of automatism must be something other
than a “disease of the mind.” If a “disease of the mind” causes an involuntary act, then the accused cannot rely on
the defence of automatism, and must rely instead on the defence of not criminally responsible on account of
mental disorder (NCRMD).
Psychological Blow Automatism:An accused person can only raise a defence of psychological blow automatism
in a case where there is an “extremely shocking trigger” – the type of shock that might cause an “average normal
person” to enter into a state of impaired consciousness. (See Rabey (1980) case).
WEEK 9: Mistake of Fact situations arise when the accused commits the actus reus element of the offence, but
operates under a serious mistake as to the real facts of the situation. In light of the facts, as the accused honestly
believed them to be, the accused had no reason to believe that he was committing a criminal offence.
Should a Mistake of Fact be BOTH Honest AND Reasonable? Generally, the courts held that an accused
person must raise a reasonable doubt that he entertained an honest mistake, generally no add’tl reqm’t that the
mistake be reasonable H/e, altho a m.o.f doesnt have 2b reasonable, accused cannot be reckless or willfully blind.
SexualAssault and Honest Belief in Consent: s.273.2 It is not a defence to a charges of [sexual assault; sexual
assault with a weapon; aggravated sexual assault] that the accused believed that the complainant consented to the
activity that forms the subject-matter of the charge, where (a) the accused’s belief arose from the accused’s (i)
self-induced intoxication, or (ii) recklessness or wilful blindness; or (b) the accused did not take reasonable steps,
in the circumstances known to the accused at the time, to ascertain that the complainant was consenting.
•In sex’l assault context, accused would only have a defence in mistaken belief in consent if (1) he believed the
victim communicated consent to the sexual activity in question; & (2) he had taken reasonable steps, given the
circumstances known to him at the time, to discover whether the victim consented to the sex’l activity in question. Satisfying an Evidentiary Burden in the Mistake of Fact Defence: In an attempt to satisfy the evidentiary
burden of proof, the accused must convince the trial judge that there exists some evidence upon which a “…
properly instructed jury could reasonably, on account of that evidence, conclude in favour of the accused.”
Consent andAssault in Section 265: (1) Aperson commits an assault when–(a) w/o the consent of another
person, he applies force intentionally to that other person, directly or indirectly;(2) This section applies to all
forms of assault, including sex’l assault, sex’l assault with a weapon and aggravated sex’l assault.(3) no consent is
obtained when the complainant submits or does not resist by reason of– (a) the application of force to the
complainant or to a person other than the complainant; – (b) threats or fear of the application of force to the
complainant or to a person other than the complainant; – (c) fraud;–(d) the exercise of authority.
Consent and Sexual Assault: Section 273.1 states that consent in the context of a charge of sexual assault means
“the voluntary agreement of the complainant to engage in the sexual activity in question.”
•Section 273.1(2) provides that: No consent is obtained…, where (a) the agreement is expressed by the words or
conduct of a person other than the complainant;(b) the complainant is incapable of consenting to the activity;(c)
the accused induces the complainant to engage in the activity by abusing a position of trust, power or authority;(d)
the complainant expresses, by words or conduct, a lack of agreement to engage in the activity; or(e) the
complainant, having consented to engage in sexual activity, expresses, by words or conduct, a lack of agreement
to continue to engage in the activity.
•Jobidon (1991) – SCC stated consent shouldn’t b a defence to a charge of assault when adults intentionally apply
force that causes “serious hurt or non-trivial bodily harm to each other in the course of a fist fight or a brawl.”
Provocation Defence: defence of provocation may only be raised in relation to a charge of murder and, if
successful, it reduces a charge of murder to manslaughter.
•defence of provocation is available to accused persons despite the fact that they intended to kill their victims.
Provocation in S.232: (1) Culpable homicide that otherwise would be murder may be reduced to manslaughter if
the person who committed it did so in the heat of passion caused by sudden provocation. (2)Awrongful act or an
insult that is of such a nature as to be sufficient to deprive an ordinary person of the power of self-control is
provoc. enough if the accused acted upon it on the sudden and before there was time for his passion to cool. (3)
For the purposes of this section the questions (a) whether a particular wrongful act or insult amounted to
provocation, and (b) whether the accused was deprived of the power of self-control by the provocation that he
alleges he received, are questions of fact, but no one shall be deemed to have given provocation to another by
doing anything that he had a legal right to do, or by doing anything that the accused incited him to do in order to
provide the accused with an excuse for causing death or bodily harm to any human being.
•SCC in Thibert (1996): “…the wrongful act or insult must be one which could, in light of the past history of the
relationship between the accused and the deceased, deprive an ordinary per