CANADIAN LAW AND

LEGAL INSTITUTIONS
WEEK 10 – CRIMINAL LAW

CRIM 135 FALL 2023

CAMIA WEAVER
WHAT IS CRIME?

Elements of criminal law

Public evil – addresses some societal “evil”: injurious or undesirable in relation to:
peace, order, security, health, morality

Prohibition - the act is prohibited by law

Penalty – range of penalties depending on:

seriousness, circumstances, offender, (victim(s)
WHO CREATES CRIMINAL LAW?
Only the federal government has jurisdiction to enact criminal law
Legislation creating “true” criminal offences:
• Criminal Code
• Controlled Drugs and Substances Act
• Youth Criminal Justice Act

Both federal and provincial governments have jurisdiction to create “quasi-criminal” or

regulatory law
Legislation creating quasi-criminal offences includes, for example :
• Motor Vehicle Act (Prov)
• Liquor Control Act (Prov)
• Environmental Protection Act (Fed)
• Fisheries Act (Fed)
MAIN CATEGORIES OF CRIMINAL CODE
OFFENCES
Crimes against the Person
e.g. culpable homicide (1st degree & 2nd degree murder, manslaughter),
kidnapping, unlawful confinement, sexual assault, robbery, assault, etc
Crimes against Property
e.g. theft, fraud, forgery, arson, breaking & entering, joyriding, trespass,
insider trading, counterfeiting, etc.
Crimes against the social good or morals (sometimes called “victimless crimes”)
e.g. offences related to prostitution (though prostitution itself is not illegal),
gambling, pornography, use/distribution of drugs
MAIN ELEMENTS OF CRIMINAL LAW
A BRIEF FORAY INTO A COMPLICATED TOPIC
PRELIMINARY COMMENTS
Most people do not understand the complexities of criminal law; maybe in part because media presents it as
relatively simple (and leaves out many details), and in part because most people react to situations
emotionally rather than intellectually
Law is developed and refined through interpretation and application of the law by lawyers and judges, which
always makes things more complex and subject to change
The basic concepts of criminal law will be covered here, but you must realize that there are a lot of “but ifs” –
situations where circumstances make a difference, and many details and nuances that create different results
In criminal law especially, the Charter has a huge impact. Where a person’s liberty is at risk the courts tend to
be very careful to protect the rights of the individual; this is also why the burden of proof is on the Crown
(prosecutor) to prove guilt “beyond a reasonable doubt”: a much higher standard than for a plaintiff in a civil
law case where the standard of proof is “on a balance of probabilities” – i.e. more likely than not
ACTUS REUS and MENS REA
The two main elements of a criminal offence (generally) are:
Actus reus = wrong conduct
Mens rea = wrong mind

Crown must prove beyond a reasonable doubt that the person

1. committed a culpable act, i.e.
a) an act prohibited by law or
b) failure to act where legally required
c) a “state of being” e.g. possession of stolen goods, care and
control of a motor vehicle while impaired by drugs/alcohol
2. Accompanied by an intention to act and/or cause the result
ACTUS REUS – THE CRIMINAL ACT
CONDUCT

Conduct must be voluntary – if not voluntary there is no actus reus

For example, if you trip and you fall into someone else and injure them there is no voluntariness in
your action so there is no actus reus for assault
Conduct may take different forms:
1. A positive act – an intentional action performed, such as assault or theft
2. A state of being – for example being “in care and control of a motor vehicle while impaired”; the person
does not actually do anything – they are just in a place (vehicle) with the ability to make the vehicle
move.
3. Omission/failure to act where there is a legal duty to act) – for example failure to provide the
necessaries of life (s. 215): parents/guardians are required by law to provide to persons in their care the
“necessaries of life” e.g. food and water, hygienic conditions, medical care, heating and colling, etc. and
failure to do so is an offence
ACTUS REUS
Generally three elements are involved:
Conduct – a voluntary act or omission or state of being
Circumstances – which are material (i.e. essential) to the offence
these are usually included in the wording of the offence, e.g.
• 265 (1) A person commits an assault when
(a) without the consent of another person, he applies force intentionally to that other person, directly or indirectly;

Consequence (prohibited outcome) –this refers to the outcome of the

conduct where the offence includes or defines the prohibited outcome, e.g.
• 267 Every person is guilty of an indictable offence and liable to imprisonment for a term of not
more than 10 years or is guilty of an offence punishable on summary conviction who, in committing an
assault,
(b) causes bodily harm to the complainant,
EXAMPLE: ASSAULT CAUSING BODILY HARM CCC S. 267(B)

Conduct: intentionally applying force to another person directly or indirectly

Circumstance: without consent

Consequence: bodily harm

MENS REA – THE GUILTY MIND
WHAT IS MENS REA?
Actus reus is the physical part of the offence; mens rea is the mental part
The mental element is generally a form of intention, but it is not so simple – in fact it is
quite complex, with multiple elements
Capacity: children under 12 cannot be charged with criminal offences because
(according to the law) they have not developed the capacity to fully understand right
and wrong and to understand the consequences of their actions. Similarly, some mental
disorder may prevent a person from having the capacity to understand right from wrong
and may be found Not Criminally Responsible by Reason of Mental Disorder (NCRMD)
Forms of intention: it is not just full positive intention (plan, aim, goal) that qualify;
mens rea includes recklessness and willful blindness as well (next slide)
Voluntariness: while a person can “intend” to commit an act, if that intention and act
are the result of compulsion (threat or necessity) there is no real voluntariness –
although there are limits to this defence
 MENS REA

• Guilty mind
• Wrongful “intention” includes:
Full intention for conduct and consequences
Recklessness in conduct which is likely to cause consequences
Willful blindness as to circumstances and/or consequences
TWO TYPES OF MENS REA

• Subjective
• What a person actually knows, is aware of, intended

• Objective
• Based on reasonableness of a prudent person in the circumstances – with the
same knowledge and in the same circumstances as the accused
• Imposes a reasonable standard of care
• This is the form of mens rea required for crimes of negligence
CAUSATION AND
INTERVENING
CIRCUMSTANCE
S
WHAT EVENTS MAY BREAK THE CHAIN OF
CAUSATION?

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THE ACT MUST CAUSE THE
OUTCOME/CONSEQUENCE

Seems obvious, doesn’t it? As with most things in law, this can get tricky.

There are two types of causation, which we will not review in detail here. They are:
Factual Causation: But for the actions of the accused, would the outcome have happened? It is enough
that the actions were a significant contributing cause of the consequence for most offences

Legal Causation: Is the accused morally responsible for the outcome? i.e. was the consequence a
reasonably foreseeable outcome of the conduct? If the outcome is foreseeable and the accused
proceeds anyway, they are morally responsible.
FACTUAL CAUSATION – A SCENARIO
• Conduct - Artemis poisons the food of her abusive husband Dick, intending to kill him
•
• - Dick eats the food
• - Dick picks a fight with Artemis about her housekeeping and begins shouting and throwing things
• - During the argument Dick grabs his chest, collapses, and dies
• - An autopsy shows poison in his system
• - Autopsy also shows that Dick had heart disease (of which he and Artemis were unaware) and died of a heart
attack not related to the poison
•
• Consequence – Dick dies

• Did Artemis murder her husband?

• Did she commit an offence?
MODES OF PARTICIPATION
WHAT PART DID YOU PLAY?
FIVES WAYS TO PARTICIPATE IN A CRIME

1. Principal - the person who actually physically commits a crime

2. Aiding – helping some one commit a crime
3. Abetting – encouraging a person to commit a crime
4. Forming intention in common – forming a partnership in committing a crime
(different from conspiracy*)
5. Counselling – Advising someone to commit a crime
 AN OVERVIEW OF SOME OF
THE MOST COMMON LEGAL

DEFENCES DEFENCES TO CRIMINAL

CHARGES
CRIMINAL LAW DEFENCES

There are a number of commonly used defences which will not be covered here:
mistaken identity, alibi, putting Crown to the proof of each element of the
offence, etc. These are factual defences that depend on evidence rather than
legal concepts.
The defences covered here are based in law that has developed over many years
from court decisions that consider whether a person is legally and morally
responsible for the crime; moral responsibility is at the heart of criminal law.
THREE CATEGORIES OF DEFENCE

• We will cover three main areas of defence:

• Mistake
• Defences of Excuse
• Defences of Justification
MISTAKE

What happens when a person commits a crime by mistake?

It depends on the type of mistake:
 Mistake of law is generally no defence: it is assumed that we know the law
 Mistake of fact may be a defence
 MISTAKE OF FACT

Mistake of fact can negate required elements of

mens rea:
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BUT there are exceptions – notably re consent 815 0 9 2 2
CONSENT IN GENERAL

Consent is a difficult subject because there are different rules applied in different situations.
Generally, lack of consent is a “material circumstance” that must be proved. Some examples:

 in theft, it is necessary to prove that the owner of the item stolen did not consent to
the taking of it
 in trespass, Crown must prove that there was no consent by the owner for the
person to be on the property
 in common assault, it is necessary to prove the victim did not consent (although this
is complicated in respect to sports and some other areas)
 Consent in relation to sexual assault has special considerations, and is complex
CONSENT TO INFLICTION OF BODILY HARM

No one can consent to have death inflicted upon them per CCC s. 14
(although exceptions now exist in law for Medical Assistance in Dying
under very strict criteria and procedures)
There is no such law in relation to bodily harm, but the courts have stated that
public policy and morals militate against the validity of consent to
bodily harm where there is no social value in it (Jobidon 1991)
SOCIAL VALUE = CONSENT IS VALID

Social Value No/Insufficient Social Value

Examples: Examples:
• Medical treatment • Fist fights between adults where
• Sports (within the context of fair non-trivial bodily harm is both
play) intended and achieved
• Movie stunts
• Sadistic sexual activity which is
inherently degrading and
dehumanizing
SEXUAL ASSAULT AND CONSENT

Two main areas have been problematic in relation to consent and assault:
1) Mistaken belief in consent or age in sexual assault
2) Intoxication preventing capacity to form intent
MISTAKEN BELIEF IN AGE OR CONSENT

The law in Canada says that a mistaken belief (even if it is honest) in consent or
age will not be a defence to an offence of sexual assault of an underage person
unless
the accused took all reasonable steps to ascertain the age of the
complainant (CCC s.150.1)
Reasonable steps are also required to be sure of consent at any age; there is no
defence of mistake where
the accused did not take reasonable steps, in the circumstances known to the
accused at the time, to ascertain that the complainant was consenting (CCC
s. 273.2)
INTOXICATION AND INTENT

• A thorny issue is whether intoxication can be a defence based on lack of mens rea, i.e if a person is too
intoxicated to be able to form the intent to commit the criminal act, can they be convicted?
• This was a particular problem for offences involving elements of assault – including sexual assault,
because of public outrage that someone could be excused because they were intoxicated
• To overcome this problem, Parliament enacted s. 33.1 of the Criminal Code which basically said that if a
person voluntarily became so intoxicated that they became “akin to an automaton” (i.e. without a
functioning mind and not in control of their actions) they would nonetheless be held criminally
responsible due to the initial intent to become intoxicated
• This was problematic, however, because it tries to import one intention (to consume intoxicants to the
point of automatism) to other actions (assault) which is not permissible in law – it infringes on the right
to be presumed innocent until proven guilty
CHARTER CHALLENGE AND
AMENDMENT TO CCC S. 33.1

CCC s. 33.1 was found to be unconstitutional by the SCC in May 2022 (R .v. Brown, R. v. Sullivan, R. v. Chan)
because it infringes on the Charter s. 7 right to be presumed innocent until proven guilty.
the section was worded so that there is a presumption that a person who voluntarily becomes
intoxicated intends all acts that result from that intoxication, even when they are intoxicated to the
point where they have no mental capacity to form intention, and where their actions cannot be said to
be voluntary
The federal government very quickly (June 2022) amended the section so that the wording is changed from
intention to negligence – i.e. that a reasonable person in the same circumstances would realize that their
voluntary intoxication could create reasonably foreseeable risk of a violent loss of control
CONSENT TEA
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DEFENCES NECESSITY
AND

OF EXCUSE
DURESS
EXCUSES RECOGNIZED AS DEFENCES

Necessity and duress are similar defences that basically say “yes, I intentionally
did what I did and I knew what I was doing, but it wasn’t my fault (I am not
morally responsible) because some circumstance outside of myself made me do
it”

In the case of Necessity – the outside force is an event beyond the control of the
accused, e.g. natural disaster, dangerous animal, extreme weather, pursuit
In the case of Duress – the outside force is a threat of significant harm to the
accused or someone else by another person
 1. Imminent peril or danger
REQUIREMENT
2. No reasonable legal alternative
S FOR 3. Proportionality between the harm inflicted and
NECESSITY the harm avoided
TWO EXAMPLES
R. v. Perka (1984) SCC Accused were importing marijuana off via boat off the
coast of Alaska but ran into mechanical problems and poor weather. They were
forced to enter Canadian waters and ran aground. They had to dump their load to
prevent the boat from capsizing. They claimed a defence of necessity
SCC: No necessity. The danger must be so pressing that human instinct
requires immediate action, and that there is no reasonable legal alternative
R. v. Primus (2010) QCA Accused was driving at high speed to escape persons who
had threatened him and were pursuing him in another car shooting at him. During
the chase, the accused crashed, killing his passenger. Accused was charged with
dangerous driving causing death.
QCA: Necessity is available. It was not proven beyond a reasonable doubt that
a reasonable person in the position of the accused would have found a legal
alternative
DURESS – STATUTORY AND COMMON LAW
DEFENCES

• Criminal Code s. 17 outlines the statutory defence of duress, which has

certain requirements
However a common law defence of duress is still available, which provides a wider
defence the statutory defence
 Criminal Code s. 17 – required elements
1) Compulsion by threats of immediate death or
bodily harm
2) From a person who is present when the crime is
committed
DURESS AS A 3) Accused believes the threat
STATUTORY 4) Accused is not part of a conspiracy or
association related to the crime committed
DEFENCE
s. 17 Is not available if the crime is one of 22 listed
serious crimes (murder, kidnapping, hijacking,
sexual assault, robberies, assault causing bodily
harm, etc.
 R. v. Ruzic (2001) SCC
Facts: The accused, a 21 year old woman from
Yugoslavia, arrived in Canada with a false passport and
heroin. She said she had been systematically
intimidated (violent assaults) by a paramilitary
“warrior” in Yugoslavia who threatened to kill her
DURESS: THE mother if she did not carry the drugs.
• Does this meet the s. 17 requirements?
COMMON LAW
No, but the SCC The SCC found that the “immediacy”
DEFENCE and “presence” requirements infringe Charter s. 7:
it is a principle of fundamental justice that only
truly voluntary conduct should attract criminal liability
And that the broader common law defence (without
immediacy or presence) is available
 DEFENCES
DEFENCE OF
OF SELF/OTHERS
AND

JUSTIFICATIO DEFENCE OF PROPERTY

N
 CRIMINAL CODE S. 34
Highlights:
A person may use a reasonable amount of force in self defence if s/he
reasonably believes that force is being used or threatened against him/herself
or another individual and acts to defend themselves or the other individual
Relevant circumstances include:
• The nature of force/threat
• The imminence of the force/threat and absence of alternative response
• The person’s role in the incident (did s/he initiate the incident?)
• The type and proportionality of the response

The defence is not available to repel force that is lawful, unless the defender
reasonably believes the force is unlawful
CRIMINAL CODE S. 35 – DEFENCE OF
PROPERTY
A person is not guilty of an offence if:
 they reasonably believe they are in “peaceable possession” of property
 They reasonably believe someone is about to or is
entering/taking/destroying property unlawfully
 They commit the offence in order to prevent the unlawful
entering/taking/destroying
 The act committed (i.e. the “defence”) is reasonable in the circumstances
(proportionality) – i.e. use of no more force than is necessary to prevent
the unlawful entering/taking/destroying
CONCLUSION

I have not included any discussion of sentencing such as Boyd has included in the text; while sentencing is
an important (final) part of criminal law, the whole discussion of sentencing is too complex to delve into
here, including issues such as:
What is the purpose of sentencing (punishment, retribution, rehabilitation, other)?
Do sentences achieve the purpose?
Are minimum sentences appropriate, or are judges in a better position to decide according to
sentencing principles and the circumstances of the case?
My focus here has been on some of the complex components involved in determining guilt or innocence in
a criminal case, and I hopefully have shown that they are rarely as simple as they appear at first. The
principles of criminal justice have developed to try and strike a balance between protecting society and
ensuring that the rights of the individual are also protected, not just through Charter rights but also
through requirements of sufficient evidence of both a guilty act and a guilty mind together, which adds up
to moral responsibility, and criminal liability