CASE FACTS PRINCIPLE BIG PICTURE MR: Motive, Purpose, Intention and Knowledge Purpose of MR = we should not punish

sh people who do not have a guilty mind. None of the states of mind are defined in the CC. Extremely problematic. MR should generally track the AR. Generally speaking, accused should have a culpable state of mind. (Theroux) The general MR which is required and which suffices for most crimes where no mental element is mentioned in the definition of the crime, is either the intentional or reckless bringing about of the result which the law, in creating the offence, seeks to prevent (p. 378 Buzzanga, Martin J.A.) CL presumption of subjective MR: Crown has to prove that accused had required state of mind (intended, willfully.. had the purpose for..) = inquiry into the actual subjective mind of the accused. Constitution recognizes stigma that comes along w/ accusing someone of being a murderer need a v. high level of MR in relation to that offence Complications that arise in MR Partial intent offences: there isn't MR relating to all elements of the offence ex. constructive murder: commit armed robbery and end up shooting guard who dies... person's defence is if he had stood still, i wouldn't have done it.. Historically could've been convicted of murder.. even if had NO intent. If convicted of attempt get convicted for something that did not actually end up happening. Why CL requirement SUBJECTIVE MR to commit someone of an offence? Proof of subjective MR is supposed to ensure that we only censure those that are morally blameworthy. Descending order of actual knowledge required subjective MR Intention Knowledge Recklessness Wilful blindness Some elements of offence required subjective MR and some elements required objective MR Eg. Disturbance of the peace: (fighting, shouting, screaming, swearing); have to have intentionally done these things (subjective), but you dont have to subjectively know that this would have caused a disturbance (objective). Its a reasonable person standard that is used. Intention If a person intended to commit the forbidden consequence, we are okay with convicting them. What does intention mean? Often gets confused with motive (for what purpose did they kill that person?) The first case deals with distinction between motive and intention == and when proof of motive is relevant to proof of intention Intent has to line up with element of the offence, motive does not Crim law doesn't care about motive (why you did it) There are times when motive is important in proving intent Electric kettle THREE circumstances when R v Lewis S.229: Culpable homicide is murder (a) where filled with proving motive may be the person who causes the death of a human

dynamite explodes and kills couple

being (i) means to cause his death, or (ii) means to cause him bodily harm that he knows is likely to cause his death, and is reckless whether death ensues or not; necessity of charging jury on motive = continuum = discretion for TJ i) where evidence as to ID of the murderer is purely circumstantial and proof of motive by the Crown is so essential that reference must be made to motive in charging the jury. ii) where there is proved absence of motive and this may become of great sign. in favour of accused. btwn these two points are cases where necessity to charge on motive depends on course of the trial and nature and value of evidence "motive" = "ulterior intention" motive = evidentiary BUT legally irrelevant to crim responsibility motive NOT an essential element of the prosecution's case -- absence of motive = in favour of the accused and worthy of note to the jury. -- Presence of motive = imp. in Crown's case on issues of identity (if can show that someone had the motive to commit an act, easier to prove that they did it) and intention, when the evidence is purely circumstantial. SO, motive is a Q of fact -- necessity of referring to it falls w/i duty of TJ

important (para.40) ***** ESSENTIAL 1) only circumstancial evidence as to ID of culprit essential for TJ to charge jury that there is not strong evidence that D is perpetrator.. 2) If defence has proven that there was no motive brings into doubt whether have the right person. 3) grey area some evidence of ID and up to the judge to determine if there is clear enough evidence of ID

R v Steane

Steane (Brit) was working in Ger. as actor when war broke out. Ger. ordered him to work for radio at threat of sending his fam to concentration camps. He does it

charged with doing acts likely to assist the enemy with intent to assist the enemy contrary to Reg 2A of Defence Regs 1939 unusual there are 2 MR elements but 1 AR element AR: did person commit act which is likely to assist enemy? (here, no doubt) normally, MR of this: Did accused intend to make broadcast? Para. 7 -- a man is taken to intend the natural

Would have been better to say this was done under duress. Intent made out bc intends natural conseq of his acts. We have doubts abt crim bc it was performed under duress. Lewis = 2 circumstances in which TJ had to put to jury a charge of motive:

but only in an effort to save his fam.

R v Rozzanga and Durocher

Members of Franco comm distributed pamphlets inciting hate towards Francos. This was to motivate French to look at refusal to open French high school as anti-franco sentiment ..Trying to stir up controversy. Docs meant to be satirical.

consequences of his acts Initial Court Decision: Anyone would know that by giving broadcast, one would assist enemy.. natural conseq of act... so he intended it.. Steane is guilty BUT if on totality of evidence, there is room for more than one view as to intent of the prisoner, jury should be directed that it is In a situation of war, bring in Q of whether acts they did were intended to assist enemy (when they are done in subjection to power of another.. ) Ulterior purpose was to save himself and his fam Crts could have said that crown must prove ulterior purpose of committing broadcast in order to successfully convict him BUT take direction of there is no intent at all for the offence, bc it is situation of war.. and there were threats made A man under duress cannot be taken to intend the natural consequences of his acts. Charged w/ of willfully communicating hatred against an identifiable group 319. (1) Every one who, by communicating statements in any public place, incites hatred against any identifiable group where such incitement is likely to lead to a breach of the peace is guilty of (a) an indictable offence [punishment is same for both look up in CC] Wilful promotion of hatred (2) Every one who, by comunicatin statements, other than in private conversation, wilfully promotes hatred against any identifiable group is guilty of (a) an indictable offence S. 319(1); (2) AR: communicating AR: promoting hatred AR (2): incitement leads to breach of peace diff btwn (1) and (2) is circumstance in which communication occurs (1) public place; (2) not in private place

1 - when it directly related to id of accused; 2 when lack of motive shows that there is a lack of intent. Steane: ex of where motive was relevant to intention bc accuseds motive was to save his fam, absence of intention to aid enemy. V rare circumstances in Lewis where motive is relevant to intention, and perhaps Steane is one of those ex. You could argue this either way.

Higher level of MR to obtain a conviction: S.319(2) requires willfully committing act. Infringes on freedom of speech S.319 (1) OK to limit freedom of speech... danger that ppl will be harmed in public place. BUT S.319 (2) is broad.. will have wider latitude ppl should be able to say what they want to say if they not harming anyone need to prove that they willfully did it.

R v Hibbert

Hibbert led victim to Bailey who shot victim. He claimed he only did it in fear of Bailey shooting him. His motive was fear and he did not have purpose or intention.

Definition of willfully: intentionally and recklessly in this case, willfully means intentional; not accidentally Para 39 Definition of Intention As a general, 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 purpose, intends that consequence High level of knowledge to make out intent -certain or substantially certain Appellants willfully (intentionally) promoted hatred against F.C. Community only if: a) their conscious purpose in distributing pamphlets was to promote hatred against that group, or b) they foresaw that promotion of hatred against group was certain to result, but distributed it as a means of achieving their purpose of obtaining French-lang high school. TJ: wrong in concluding that as long as crown proved that promotion of hatred was non accidental, then they could be convicted (CA says that this is too low of a threshold) S.21: (1) Every one is a party to an offence who (b) does or omits to do anything for the purpose of aiding any person to commit it Mental states specified in ss.21(1)(b) are not susceptible to being "negated" by duress. offence, does not require that accused actively view commission of offence he is aiding as desirable in and of itself. "purpose" = "intention".. doesn't incorporate "desire" It would be absurd to require Crown to prove that accused desired the killing of the victim to make out intent required under s. 21. Hibbert would be guilty under this section, bc he purposively participated in this act out of fear. Duress would be used in the defence Intention made out if person has acted

motive is not relevant in proving of intention. Accused cannot rely on CL defence of duress if he had an opportunity to extricate himself safely from the situation of duress. If accused had chance to take action that would have allowed him to avoid committing offence, it cannot be said that he had no real choice when deciding whether or not to break the law.

purposively to bring about forbidden act. We dont consider motive (desire) to establish intent.

Hard to infer what exactly the person was thinking at the time that he committed the act, so we look to the natural consequences of their act -- we can infer subjective knowledge of intent in terms of the natural consequences of their act (Steane) Bozzanga Willfully = intentionally --> brings about forbidden consequences consciously or being certain or substantially certain that certain consequence will come about (that's what intentionally means)
Helps us distinguish between intent and desire Crown doesn't have to prove that actor desired forbidden consequence to come about... not relevant to prove MR. What matters is INTENT. Couple Shows that: Courts sometimes R v Dawson charged w/ abducting his child contrary to separated. Mom don't follow rules in Lewis s.283(1)(a) of CC. couldn't take care (motive not required to prove offence for a parent, guardian or lawful of child intent) custodian of a child to take a child, not the anymore.. so she subject of a custody order, w/ intent to deprive agreed that another parent of the child of possession of that should live w/ child. father and he Doesn't say malicious intent -- so even if at the would be solely mall.. and one parent takes kids to bathroom responsible for while the other shops, one of the parents may his upbringing. fall w/i ambit of offence. Mother L'H-D (maj): Parliament decided that protection of eventually children rests in ensuring that ppl entitled to became fed up w exercise care and control over kids are able to do limited access so so. So, it criminalized conduct that intentionally sued for visitation interferes with a parent's right to do so. rights. consistent w/ purpose and scheme of child abduction provisions Iacobucci (maj): MR of offence is not simply intention to take child, but intention to take child from possession of one who is entitled to that possession prosecution of trifling offences is not to be expected. McLachlin (Dissent): mother conveyed her CL right

R v Hinchey

to possession and custody of the child to the father when they divorced. she had right to visit the child; she did not have control or responsibility required to establish possession. Offence here: When a govt official receives gift with purpose to receive some kind of advantage/benefit Majority: it doesnt matter whether you know that you received it as a result of being in office. Interpretation of elements of the offence would make govt clerk or secretary guilty of a crime as a result of accepting an invitation to dinner or a ticket to a hockey game from one known to do business w the govt (642) Minority: well catch too many ppl. Many ppl receive things and dont necessarily think its bc of their position in govt, but rather its bc of the person (a friend)

Dawson and Hinchey -- Where courts wonder about decision in Lewis proof of motive might be relevant to proving intent.. otherwise might be too broad and encompass innocent behaviour

Summary (Intention) Obvious cases where intention is clear: person intends the natural consequences of his or her acts (Steane) You can often infer intention from circumstances. (i.e. you hold a gun to someones head: you intend natural consequences of your purposive acts) Cases where intention is in question. Buzzanga & Durocher: if there is some doubt as to intention there are 2 things you can posit: You can lead evidence that accuseds conscious purpose was to bring about an act (promote hatred) if person foresees that outcome is certain or substantially certain, you can make out intention For recklessness to be made out, person only has to be reasonably certain. Most cases intention not made out because motive does not line up with forbidden act. Lewis = framework for how to deal w/ questions of when motive doesnt line up w AR Gen Crown doesnt have to prove motive; will have to if accuseds id in doubt, or if motive tends to exonerate accused. There are middle cases like Steane, where circumstances (facts) bring into question the intention then motive may be relevant. All other cases briefly mentioned (Dawson, Hinchey) are examples where part of SCC says motive relevant, part says not. Middle ground: had it been one judge, would have had discretion as to whether to instruct jury or not. Although the Buzzanga & Durocher seems to be about interpretation of wilfully, Martin J. equates wilfully with intention. Its really about intention. Thats its function for this class.

Recklessness and Wilful Blindness Subjective MR: MR is specified in CC: Code specifically says words about what intention is required (B&D: Code says wilfully) intention/knowledge: easier to establish knowledge recklessness: still subjective MR, requires less of an advertence on part of accused towards the bringing out of intended act wilful blindness 2 4 are offences of general intent. Where no particular level of MR is fixed, lower levels of advertence can satisfy proof of subjective MR. if section of CC doesnt specify MR required you have to interpret it or refer to case law to see whether you need to have the highest level (intention) or whether recklessness or wilful blindness will suffice. ex. sexual assault cases in rln to consent (consent AR), accused also had to have knowledge that there was no consent in order to be found guilty R v G and another explains concept of subjective MR Cunningham not enough to say that he had ought to have foreseen the consequences (NOT RSN person std requires subjective std of the level of risk) Caldwell applied Objective Standard Objective MR: negligence
Recklessness Subjective state of mind Crown has to show that accused was subjectively aware that his/her conduct would create risk in question but s/he proceeded in the face of this subjective awareness of the risk. No reasonable person standard here (objective) Accused has to be aware of probability of risk, but standard is not one of what a reasonable person in a similar situation would have done or thought.

Cunningham

D tore gas meter from wall of cellar of house in order to steal money from inside. He left gas gushing out. Seeped into neighbouring house, victim inhaled it and life was in danger.

Caldwell

D found guilty of maliciously administering noxious substance. Court of Appeal said it was recklessness as to whether type of harm that occurred was likely, Court held a reasonableness standard should not be used not enough for D to have considered what might have happened; D had to subjectively know of the risk and deliberately proceed in the face of it. says you need to have subjective knowledge of risk in order to be guilty Imported reasonableness standard.

Affirmed the subjective approach to recklessness

inconsistency is

 accused could be guilty on the basis of MR of recklessness if reasonable person in that position would have thought of the risk and not proceeded with it. Clearly a person who thought about the risk but thought there was none, doesnt have the sort of guilty mind necessary to bring criminal sanction against them.

problematic causes interpretation in R v. G Shift back to subjective standard.

R v Creighton (Fault for Manslaughter)

Creighton, Caddedu, and Martin consumed cocaine and alcohol. C injected himself, Ca, M w/ cocaine. M immediately began to convulse & stopped breathing. They were unsuccessful in resuscitating her. Ca tried to call

C was charged for manslaughter under s. 222(5) (a) and (b) of CC: A person commits culpable homicide when he causes the death of a human being, (a) by means of an unlawful act; (b) by criminal negligence; Issue: Was CL use of manslaughter (s.222) violation of S.7 of the Charter? Reasons McLachlin J. (Maj): CL requirement for MR of manslaughter of "objective foreseeability of the risk of bodily harm which is neither trivial nor transitory, in the

Maj: If a person has committed a manifestly dangerous act, it is reasonable, to infer that he failed to direct his mind to the risk the need to take care. BUT, this may be negated by evidence raising RSN doubt as to lack of capacity to appreciate the risk. So, if AR and MR are ade out, necessary to ask if the accused possessed requisite capacity to appreciate risk flowing from conduct.

911 but C's threats prevented him from doing so. They cleaned fingerprints from around the house and then left. Ca came back hours later and called the police.

context of a dangerous act is constitutional. unlawful act must be objectively dangerous and unreasonableness must be a marked departure from SOC of a RSN person. Maj dismissed Lamer's focus on "stigma" as indicator for requirement of MR. manslaughter named differently from murder bc meant to be treated as less blameworthy Punishment reflects this (it has no min sentence). Maj dismissed that there must be symmetry btwn all AR & MR elements Symmetry would req that accused could foresee death. This means that courts would abandon thin skull rule (affirmed in Smithers) = not RSN to req symmetry in all cases. Policy considerations that supported maj's conclusion: 1) broader standard is required for deterrence. tells ppl that if act in dangerous way even where death is not FORE, they may be held liable for deaths that are caused. 2) broader standard accords w sense of justice aggressor must take victims as they find them. 3) broader standard removes hassle of making distinctions btwn FOREbility of harm/death Maj made point of criticizing test proposed by Lamer. L's test personalizes obj test to a point where it resembles subj test. RSN person should not be vested with "frailties" and characteristics of accused. policy demands a single, uniform legal standard for such offences ONLY in cases of incapacity should characteristics be considered. Standard (manslaughter) = what a RSNbly prudent person would have done in all the circumstances. activities that pose greater threat req greater

If yes, necessary moral fault is established

SOC. person may fail standard by undertaking act they are not qualified in resulting in culpable negl, or person who is qualified may negligently fail to exercise special care req by activity. Maj suggests 3-step test for unlawful act manslaughter: Establish AR - must constitute marked departure from SOC of RSN person in all circumstances of case This includes carrying out an act in a dangerous manner or carrying out an inherently dangerous act. Establish MR - activity must have been done while there was obj foresight of harm inferred from facts. Std=RSN person in circumstances of accused. Establish capacity Given personal characteristics of accused, were they capable of appreciating risk? Dissent Lamer: standard for manslaughter should be "objective forseeability of the risk of death", and obj standard should take into account experiences of accused & particular "human frailties" Lamer applied his "stigma" doctrine (he developed in R. v. Vaillancourt). stigma of manslaughter is less than murder but is serious enough to req at least obj FOREbility of risk of death. Crimes involving underlying unlawful act gen require symmetry. No extenuating circumstances that suggest an exception should be made. Lamer suggests 3-part test to approach unlawful act MS: Establish unlawful act -- crown must show that accused performed unlawful act that was objectively dangerous and caused death ( R v De Sousa) That is, a RSN person would foresee risk of harm. Establish MR of predicate offence (can't extend to Strict Liability offences)

 Establish foresight of risk of death must show that RSN person in circumstances and possessing characteristics of accused would foresee act creating a risk of death. key to analysis rests on whether accused had control over "frailty" which made him unable to foresee risk. It is the control that produces moral culpability.
R v City of Sault Ste Marie (Fault of Regulatory Offences) The City of Sault Ste Marie hired a contractor to dispose of garbage. Contractor used landfill that was next to a creek. Eventually some garbage found its way into waters of the creek. As a result Sault Ste Marie was charged under ON Water Resources Act w depositing materials into watercourse that might impair quality of water Accused denies having MR to accompany causing/permitting pollution, the AR of the offence Court creates third category of offence for regulatory offences, strict liability, where Crown doesn't have to prove MR, but burden is shifted to accused to prove due diligence. Distinction btwn MR for crim offence & public welfare offence Where offence is criminal, MR must be established Correct approach in public welfare offences is to relieve Crown of burden of proving MR and to virtual impossibility of proving wrongful intention, and admitting the defence of reasonable care. prosecution must prove beyond RSN doubt that D committed prohibited act and D need only establish on BOP defence of RSN care. Three categories of offences are therefore now recognised: 1) True Crimes = offences in which MR must be established criminal offences 2) strict liability = MR need not be established public welfare offences defence of RSN belief in a mistaken set of facts defence of RSN care is available 3) absolute liability = not open to accused to exculpate New trial ordered... the city did not lead evidence directed to a defence of due diligence, not did TJ address himself to the availability of such a defence.

established three categories of liability

R v Wholesale Travel Group distinction between true crimes and regulatory offences

WT sold vacation pkgs which it advertised as being at "wholesale prices" when they were not wholesale prices at all.

himself by showing that he was free of fault. Arise where legislature has made it clear that guilt would follow on mere proof of proscribed act Decision: S. 32(1) = prov enactment = does not create crim offence; the words cause and permit are frequently found in public welfare statutes and don't denote clearly either full MR or absolute liability and so fit much better into an offence of strict liability Re: constitutionality of strict liability (SL) Why would SL offences potentially infringe Charter? Puts onus on accused to show s/he has been duly diligent. (violates presumption of innocence? S.11(d)) May also be a violation of S. 7 potential violation of liberty bc of potential of penal consequence inconsistent w fundamental principles of justice. S.37.3(2) No person shall be convicted of offence if establishes that (A) act/omission giving rise to offence w which he is charged was the result of error (b) he took rsn precautions and exercised due diligence to prevent the occurrence of such error (c) he/another person, took rsn measures to bring error to attn of class of persons likely to have been reached by the representation or testimonial; and (d) measures referred to in paragraph (C), except where the representation related to a security, were taken forthwith after representation was made or testimonial published. (b) provides defence of due diligence (thereby characterizing offence as of SL)

Maj (Lamer, LaForest, Sopinka, Gonthier, McLachlin, Iacobucci) held that reverse onus infringed s.11(d) of the Charter. However, only 4/7 held that it could not be saved under s. 1. Since the remaining 2 judges (L'Heureux-Dube and Cory) found the reversal of onus did not violate s. 11(d), a majority was had by those that argued a reversal of onus was constitutionally justifiable by a 5 to 4 margin. You cannot have potential of imprisonment w/o proof w some degree of fault... so agreed to have (c) and (d) struck. strict liability with potential resulting in imprisonment does not violate the Charter (so long as they provide due diligence defence to the accused)

 (c), (d) allows for conviction despite defence of due diligence no defence in due diligence if did not inform public right away of this mistake.
True Crim offences vs Public Welfare offences True crimes = it would be unjust to put ppl in jail w/o proof of reprehensible state of mind Public Welfare = if did not allow for SL in these cases, govt would be unable to really enforce these measures (ex. If only consequence of breaking environmental law was fine, companies may just acnt for it in budget & continue polluting) Why OK to sometimes have harsh penalties for PW offences in absence of proof of full MR? licensing justification (40-42): they have made choice to operate knowing that they are engaging in a regulated activity (voluntarily agreed to be regulated under terms) license implies that they accepted the risk that if they do not take due diligence, they may be found liable (41) prsns who enter regulated field are in best position to control harm which may result so should be responsible for it (42) less costly to place burden on companies to comply w regs than it would be to make govt workers go out and see if are individually complying gives incentive to company to comply w/ regulatory framework

Vulnerability justification (48) Regulatory legislation... plays a legitimate and vital role in protecting those who are most vulnerable and least able to protect themselves to provide optimal protection of these groups, it makes sense to be able to

impose serious consequences for commission of these offences If strike down SL, we remove IMP tools for protecting vulnerable groups and forget that ppl in industry are licensed and have consented to regs. Given context, does SL violate S7 or 11? NO! Reasoning: S. 7 (L'H-D): proof of neg is sufficient to comply w S.7 why? I) these are ppl who have agreed to operate under regulated regime so not unfair to hold them to std of neg... ii) impossible for govt to spend money to monitor (only way is to make reg measure efficient) If require proof of MR crts will be backed up (difficult to obtain info about what they had in mind when committed offences... hard to prove in crt that person had guilty subjective MR) Although potential for deprivation of liberty (s.7), it's in acc w PFJs bc do not require full MR for public welfare offences L'H-D: SL does not violate presumption of negligence Crown still has to prove that ppl i) committed the AR; ii) if accused fail to make out due diligence defence, it is only then that they are found guilty presumption is OK when defence of due diligence is available. even if SL offence, Crown needs to establish some level of moral wrongdoing to obtain conviction.. have to show that they committed forbidden consequence and were negligent in doing so. we presume them to be innocent, and they were proven not be.

R v Transport Robert (Absolute liability = does not require proof of a fault element = once crown has prove AR of offence,guilt is established)

Truck driver was guilty of offence where a wheel became detached from truck while on highway. Ss.5 removes due diligence defence Penalty is fine w no imprisonment D argue that it is a violation of s.7 bc was denied defence

Truck driver: you're endangering my livelihood w/o proving that i knew i was doing something wrong Court: No risk of imprisonment, stigma associated w offence is not high and severe of penalty (fine) may not invoke stigma is that you're negligent.. not that you're a killer of people on the highway.
CA: upheld as constitutional ON HTA.

SO.. penalty of imprisonment for an absolute liability offence violates s.7 of the Charter.. If NO risk of imprisonment and stigma of offence is low, then there's it's not a violation of s.7 What about no risk of imprisonment and high stigma?

Mistake of Fact
traditional defence: Crown has prove MR for offence.. and you say had some reason for doing that MF and ML are not that i did not have MR, because i believed in set of circumstances.. and thought they turned out not to be true... I didn't have malicious state of mind Papajohn created this in re: to defence Following Pappajohn v. R., where there is no statutory wording to the contrary: 1) When offence requires subjective MR, mistake need be honest and reasonable relevant to assessment of credibility of accused. 2) Where fault element requires objective negligence, mistake must be honest and reasonable. 3) Where defence of due diligence is available, mistake must be both honest and reasonable, w burden of proof on accused on regulatory offences. 4) Where offence is one of absolute liability, mistake of fact is no defence.

R v Beaver Mistake of Fact

Louis and Max Beaver were arrested selling

Does conviction based on possession require knowledge of nature of the object? Knowledge was required.

Knowledge is an essential element o possession

heroin to undercover officer & charged w possession & sale of illegal narcotic under Narcotic Drug Act. Max was in actual physical possession of drug but Louis was charged by association as he knew Max had the heroin. In defence, Louis claimed that he thought pkg was milk sugar and that they were only trying to defraud the officer. TJ instructed jury telling them if they find that they were in possession their actual knowledge was irrelevant.

Cartwright (Majority): fundamental principle of crim law that MR of an offence must be proven to secure a conviction. provisions in Drug Act are criminal in nature, and any offence that allows punishment of prison requires proof of MR. Beaver did not know the character of the substance, and he was acquitted of possession. However, he did represent the substance as a narcotic and therefore was convicted on the charge of selling a narcotic. Dissent (FTX) this is SL but that's what parliament intended, so too bad, so sad S.4.1(d) Every person who... (d) has in his possession any drug save and except under the authority of a license from the minister first had and obtained, or other lawful authority... is guilty of an offence, and is liable. S.17: places reverse onus on accused to show that he did not know that it was heroine (so, absolute liability offence if found of possession, then you're guilty unless prove that did not know that it was a controlled substance) language is clear.. any place where drugs has been found makes without more one who occupies, controls or has in his possession a possessor of a drug without lawful authority... parliament has provided that occupier shall be deemed to have been in possession unless he proves that the drug/article was there without his authority, knowledge of r consent or that he was lawfully entitles to the possession provisions are severe, but duty of courts to give effect to parliament's intent (duty of court to uphold legislative intent) Cartwright (majority) this can't be right. 27 It would be within the power of parliament to enact absolute liability offences... but I would refuse to impute such

The crown argued that it was not necessary to prove mens rea since it w a regulatory offence

Guilty of selling but not of possessio (need to have knowledge for that)

offence.

an intention to Parliament unless the words of the statute were clear and admitted of no other interpretation In this case, the words of the section do admit another interpretation. The interpretation is that in order to be found of possession, crown has to prove that accused knew what he was selling. presumption that serious crim offences require proof of MR in absence of clear language that states otherwise 22 example of X purchasing what he thinks is baking soda form the pharmacist which turns out to be heroin.. he is in possession, but has no MR in re: to

R v Nguyen; R v Hess

Hess and
Nguyen charged w having sex w minor under 14 under s. 146(1) of CC (since repealed). In case of H, judge quashed indictment on ground that s. 146(1) violated s. 15 of the Charter ON CA reversed this & ordered a new trial. In case of N, MB TJ convicted and this was upheld by MB C.A., finding that although impugned provision violated s. 7 (not 15), it

Does s. 146(1) violate s. 7 of the Charter? Can s. 1 save it? S.146(1) no longer exists: every person who has sexual intercourse with a female person who a) is not his wife, and b) is under the age of fourteen years, whether or not he believes that she is fourteen years of age or more, is guilty of an indictable offence liberty of person are in jeopardy removes mistake of fact defence does it violate S.7 bc denies liberty w/o proof of MR violation of life, liberty or security of person... PFJ that justifies it? No. Is it nonetheless justifiable under s.1 (not in acc w PFJ, so hard to see that it's nonetheless justifiable in a free and democratic society) Wilson: CL presumption of MR (Beaver) for true criminal offence cites Motor Vehicle reference to say that one cannot be exposed to risk of imprisonment w at least minimum of due diligence defence

Prior to the Charter, parliament had to use express statutory language to displace requirement of that the Crown prove MR (St Sault Marie) W advent of the charter, parliament must show that a law that makes it unnecessary to prove MR, w/o defence of due diligence (at min) is justifiable in a free and demo society.

was saved by s. 1.

8 - prior to charter, parliament had to use express statutory language to displace requirement that the prosecutor prove MR (St Sault Marie). W advent of charter, parliament must show that a provision that makes it unnecessary for Crown to prove MR and does not provide accused, at min, w due diligence defence is a rsn limit that can be demonstrably justified in free and demo society
Issue: can this law be justified under S.1? What is the objective of the government in enacting this type of law? 9 - objective is to protect female children from harms that may result from premature sex and pregnancy and, secondly to protect society from social problems that sexual intercourse w children may produce another to deal w child prostitution Wilson agrees w first objective... what are these harms? designed to protect female children from premature sex ... this is a pressing and substantial concern. BUT does not accept the second rationale: 11 - i am far from persuaded that this provision is also designed to address problem of child prostitution. The provision does not seek to penalize sale of sex for money. It does not even refer to prostitution Rational connection between goal of parliament and means used? Yes! (12) creation of absolute liability offence for sexual intercourse w a female under 14 yrs of age is one way to deal w problems that young females may experience as a result of premature intercourse Provision fails at proportionality stage. 14 there is no proof that abs liability deters people from having sex w minor

 it assumes that before having intercourse w a young girl, the accused, including a teen-aged accused, will address his mind to a fairly obscure of the Code (16) deterrent.. mistake of age defence only provides defence for girls that are close to 14... not ones that are/look significantly younger (17) No documentation of the fact that deterrence has occured from this provision.
Conclusion: offence violates s.7 protect young girls from unwanted pregnancy, but not proportionate to negative effect. No evidence of deterrence.. only protects a small subset of women. The harms that it resolves is that it eliminates protection of morally innocent. Not sufficient to say that we will deal w it at prosecution; (22). We cannot have faith that the prosecutor and judge will take these flaws into account when deciding how the accused will be punished(22) Alternative could have been a law saying that mistake of fact defence available for girls between 12-14... but not below 12! (this would be a less intrusive measure) S. 273.2: It is not a defence to a charge under s.271, 271, or 273 that accused believed that complainant consented to activity that forms the subject matter of the charge, where (b) accused did not take rsn steps in the circumstances known to accused at the time, to ascertain that complainant was consenting. If remove defence of facts, means that accused can be convicted w absence of MR that he had mistaken of fact that complainant had consented Appellant = violation of s7 of the charter bc creates obj std by which to judge accused's conduct.... and violation of s.11 by placing onus on accused to show that he took rsn steps. Issue: does section violate S.7 in a way not in acc w PFJ?

R v Darrach

Accused & complainant worked in the same retail store. He was her supervisor. They had a sexual rlnship, which ended after some time, though they continued to see one another casually bc they lived almost next door to one another. On one

MR = POV of rsn person in the circumstances of the accused, knowing what he knew. ** Test is sufficiently subjective

occasion, accused lent the complainant a small sum of money. When he asked the complainant for repayment, they agreed to meet. Following mtg, they walked home together, ending up in the accused's apartment, where he sexually assaulted her.

Decision: it was upheld! Justice Morden: Sexual assault carries sufficient social stigma to require subjective MR on part of accused. Provision introduces obj component of MR... but it is modified & personalized acc to subj awareness of accused at the time. accused is to take rsn steps, in circumstances known to the accused at the time, to ascertain that the complainant was consenting. In other words, accused is not under obligation to determine all the relevant circumstances issue is what he actually knew, not what he ought to have known it does not require that all rsn steps be taken... merely that prsn about to engage in sex take Rsn steps.. to ascertain that complainant was consenting. Were prsn to take rsn steps, and still make mistake abt presence of consent s/he could ask judge to acquit on that basis If assessment was from pov of externalized, rsn person, then conviction could result even in the absence of MR. In this case, It allows accused to say i took all rsn steps, in the circumstances that i found myself.. in hindsight, i might have take diff steps, but in the circumstances, i took it to be a true statement of her age THIS sufficient to meet constitutional requirements!

R v Kundeus (Mistaking one offence for another)

K charged with trafficking LSD when he sold mescaline to undercover cop, not knowing that

Intention to commit a crime (trafficking mescaline), althoughLaskin C.J.C. (Spence J. concurring) offered lengthy dissent in that if not the precise crime charged, will provide necessary MR bc there is doubt that accused was accused cannot contend that he was acting lawfully or offering/intending to sell innocently. Trafficking offences do not require MR**
mescaline, that cant be translated to finding that

capsules actually contained LSD and not mescaline. TJ convicted him of trafficking in LSD on account that MR was there re trafficking mescaline. BC CA set aside the conviction. Crown appealed to SC. Summary Mistake of Fact 1. Is it MOF, MOL, or mixed fact/law?

accused offered and intended to sell LSD. At worst, it would require a new trial.

2. The general principle is stated by s. 19, which states that ignorance of the law ... is not an excuse for all federal and provincial offences This distinction is not always clear If mixed, use the MOF framework POLICY: Everyone knows, or is capable of knowing, the law Citizens would otherwise have an incentive to remain ignorant of the law We would instead be litigating on whether the A knew the law Failure to apprehend the law is, in itself, culpable and it is justified not because it is fair but because it is necessary (Campbell) Issues arise when the A cannot speak or read English or French Examples of MOL: Concluding that the judges decision correctly states the law, unless it is from an ultimate court of appeal (Campbell) Reliance on an erroneous judgment of an inferior court is not a reasonable excuse for the failure to provide a breath sample (MacIntrye) 3. There are three exceptions to the general principle: mistake that goes to the MR, officially induced error of law, or impossibility. 4. A) Mistake that goes to the MR Refer to the language of Code offence There are offences that require the accused to know that his conduct is illegal (Campbell): Knowingly Maliciously (Campbell) Wilfully

 Without colour of right o However! It is not a defence to offences that use the phrase without reasonable justification or excuse Conclusion: Therefore, I conclude that this is (or is not) a mistake going to the MR and is therefore a valid defence. 4. B) Officially Induced Error of Law POLICY: this would encourage people to learn the law and people shouldnt be punished for doing do (MacLean) o This act is not morally culpable (MacLean) o It has been suggested that because of the inherent nature of this defence, it will only work once in someones lifetime (Johnson) There is some conflicting authority on whether the A is required to raise a doubt or BOP but it is most likely on BOP o Does not! Include a duty counsel lawyer (Pea) Elements of the offence (Levis citing Jorgenson): 1. That an error of law or of mixed law and fact was made 2. The person who committed the act considered the legal consequences of actions 3. The advice came from an appropriate official 4. The advice was reasonable; a. It is not sufficient to conduct a purely subjective analysis of the reasonableness of the information (Levis) b. Must be considered from the perspective of the RSN person in a situation similar to that of the accused (Levis) 5. The advice was erroneous; and 6. The person relied on the advice committing the act Factors that would be relevant in establishing officially induced error (Levis): 1. The efforts made by the accused to obtain information 2. The clarity or obscurity of the law 3. The position and role of the official who gave the information/opinion 4. The clarity, definitiveness, and reasonableness of the information/opinion Conclusion: Therefore, this has been an officially induced error of law and is a valid defence. 4. C) Impossibility physically impossible for the A to ascertain the law Requirements (Catholique) o The law is unpublished in official form (aka the Gazette), AND o The Crown is unable to prove that the accused had actual notice of the law However! It does not include situations where: o It is impossible to define the law because it is still in a state of flux (Campbell)

o It is difficult to keep up with newly promulgated regulations (Molis) Conclusion: Therefore, impossibility has not been set out and this is not a valid defence. Nude gogo POLICY reasons why defence R v Campbell She engaged to do this performance, where dancer told by should not be available: and Mynarchuk earlier she had refused to bc she relief upon Couchard that Everyone knows, or is capable statement made by C. that SC had ruled that the SC had ruled of gogo dancing was legal. that gogo knowing, the law decision was made at trial division & later dancing was now Citizens would otherwise have reversed on appeal legal. an MOF = defence to crim charge = where it is said incentive to remain ignorant of that facts believed by accused, if true, would law have afforded a defence. We would instead be litigating Here, MOL = she made a mistake in misunderstanding significance of the decision of a on whether knew the law judge.. and in her concluding that decision of TJ Failure to apprehend the law was law (when only that of SC is) is, in MOL can negative malicious intent required for itself, culpable and it is crime (ex. where law requires that prsn wilfully, justified not maliciously or knowingly do something wrong, it bc it is fair but bc it is could be a defence of negativing intention to necessary show that bc of mistake in understanding of law, (Campbell) there was no wilful intent or malice) This is not one of these situations.. No special intention is required.. only MR necessary for this offence is that appellant intended to do which she did (which in this case is gogo dancing) Defence should not be allowed as a matter of public policy BUT it should be considered in mitigation of sentence She would have to have a sophisticated knowledge of that the judge said, and significance of it... unfair to put that on her.