The One Where Monica Got Shot


1. Identify the AR and MR for the Criminal Code offence 2. Look at the facts in the case. What facts support, or do not support, the required AR and MR? 3. Are there any defences that the accused might raise? 4. Conclusion – do you think that if the Crown laid charges, the accused would be convicted? Make sure to provide an argument here. You should also consider whether this case is similar or dissimilar to other cases we have looked at. E.g. if this case sounds just like the facts in R v Wilkins then you should consider whether the accused will be acquitted for the same reasons. *Note: This fact pattern is similar to ones I have used in the past, but it is not identical. Make sure you read this version of the case and assess the charges that I have listed. *Note: Only assess the charges that I have given you, however, it is up to you to identify any defences that are relevant. Only consider those we have covered in this class. The other instruction will be uploadedLY205 – S2020 – Final Exam – 1
LY205: Canadian Criminal Law
Summer 2020 Final Exam
DUE: Sunday, June 28, 2020, by 11:59 p.m. to the MyLS Dropbox
To complete this take-home exam, you must answer the questions following the fact pattern. How you
organize your answer is up to you (you can use point form, charts, essay style, etc.) Each answer should
be no longer than 1 page each. Make sure to edit your final copy for spelling and grammar, and include
your name and student number at the top (or on a title page.) Just a reminder – the late penalty for the
final exam is 20% per day. Make sure to submit on time.
The One Where Monica Got Shot
Monica and Chandler have been married for ten years and have two children together. In the
beginning, their marriage was perfect. Chandler liked to surprise Monica with her favourite flowers,
yellow roses, whenever she seemed sad. Monica always made sure to make delicious homemade
dinners for Chandler so that he could relax at the end of the day. Their relationship was the envy of their
friends. However, in the last few years Monica and Chandler had drifted apart. First it was work and the
stress of raising their children. More recently Monica suspected that Chandler was having an affair with
their friend Rachel. She was devastated.
Monica needed to get rid of Rachel so that she could return to her happy marriage and
reconnect with Chandler. They were happy once, and they could be again. At first, Monica tried to
discourage Rachel from coming by the house by being unpleasant whenever Rachel came by. When this
seemed to do nothing, Monica set up an anonymous email passing herself off as a head hunter and
started sending Rachel job ads that would require that she move far away. However, this failed as well.
Monica could see that her relationship was falling apart and was convinced that Rachel was the cause.
She was desperate.
One night, after a couple of glasses of wine, Monica decided the only way to save her marriage
was to kill Rachel. She thought of a few different ways to kill her but ultimately decided that she would
kill Rachel by putting poison in the wine that Rachel would always drink at her house. Monica and
Chandler only drank red wine, but Rachel insisted on drinking white wine. It had always annoyed Monica
that she had to have a bottle of white just in case Rachel came by. It would be the perfect way to kill
her! The next day Monica put poison in the bottle of white wine. She knew that Rachel was coming by
the house that evening to see Chandler, and Monica felt relieved that soon Rachel would be dead and
she could work on repairing her marriage.
That evening when Monica walked home from work she ran into Rachel at a coffee shop. Rachel
seemed unhappy and distracted. They talked briefly, but Monica did not learn what Rachel was upset
about. Monica was disappointed that Rachel did not have a drink at her house, but she feels certain that
one day she will and her plan will work. When Monica arrives home she finds an empty bottle of white
wine and her husband, Chandler, dead on the couch. Oh no! Why would he drink the white wine?!
Monica checks for life signs but finds none. What should she do?!
Monica calls her good friend Phoebe and tells her that Chandler was going to leave her. She
keeps saying, “he’s dead to me.” Monica does not tell Phoebe that she killed Chandler. She tells her
friend that she is a single parent now and needs to make sure her children are taken care of. Phoebe,
who always trusted Monica, makes some suggestions. Monica could go back to work. Chandler is a good
guy and will make sure they are financially stable. As the phone call continues Phoebe, who had been
LY205 – S2020 – Final Exam – 2
watching a Law & Order marathon, blurts out “You could always burn down the house, make it look like an accident, and collect the insurance?” Monica gets quiet at this suggestion. Burning down the house might solve the problem of the body as well. Phoebe, happy that she has said something to make her hysterical friend calm down, continues to explain the episode that she had just watched. Phoebe tells Monica how the accused on the show siphoned gas from their car and then spread that around the house. The character then set up a delayed start by creating a fuse with a candle and a box of matches. The trick, says Phoebe, was to make sure she had an alibi! Monica laughs at this and Phoebe feels good that she has cheered up her friend. When Monica ends the call Phoebe goes back to watching the next episode of Law & Order.
Monica goes into the garage to retrieve the gas from the car. Burn the house down! What a good idea. However, as she is trying to figure out how to get the gas out of the car she thinks about her children and what they will have to do now that Chandler is dead. They do not have a lot of savings, but Chandler’s life insurance policy should leave them in a pretty good place financially. But what did the policy say? Should she be worried that the circumstances she is trying to create here tonight might negate the policy? Worried, Monica returns to the house without the gasoline and calls her brother Ross who is an insurance agent and who helped Monica and Chandler set up their life insurance policies.
At first Monica keeps her voice light as she talks to Ross. She asks him how he is doing and what he is up to that night. However, after a few minutes Monica happens to look over at Chandler and breaks down into tears. She loved – loves – Chandler. How can he be dead? What is she going to do? Through her sobs Monica tells Ross that Chandler has taken his own life and that she is afraid that this means she will not be able to collect on his life insurance policy and her and the kids will have to sell the house. Ross, shocked to hear about Chandler, tries to comfort Monica. He is her older brother, and it is his job to protect her. He finds his copy of Chandler life insurance policy and reads through it over the phone. He notices that there are a lot of restrictions on the policy that Monica and Chandler purchased. He remembers that at the time they bought these they were just recently married and had very little money. He had meant to follow up with them after they had children to purchase a more expensive policy. Ross tells Monica everything will be fine. She will be covered no matter what. (he jokes – as long as she didn’t kill him!) And then he hangs up the phone.
Going on to his computer Ross creates a second life insurance policy for Chandler. On this policy he increases the amount of money that Monica will receive if Chandler dies. Previously it had been set at $50,000 but Ross changes it to $5 million. He also makes sure that there are no restrictions on this policy. No matter how Chandler dies the payout to Monica will be the same. Ross then enters a date from 6 months ago to make it appear that this policy was in effect today. Satisfied with his work Ross prints the form and forges the appropriate signatures. He then shreds the old policy and puts the new one in his files. Big brother to the rescue!
Meanwhile, back at the house Monica successfully gets the gasoline from the car and begins spreading it around the house. She cries as she does this. She loves this house, but Chandler is dead and there is nothing she can do about it. After spreading gasoline around the couch she stops when there is a knock at the door. Monica carefully makes sure that the guest cannot see the living room and then, calmly, she wipes the tears from her face and opens the door. Rachel is there. Monica is surprised, but she tries to show nothing as she steps outside on the front porch to meet Rachel and closes the door to the house behind her.
But when Monica looks Rachel in the eyes she feels her calm slipping away. This woman tried to break up her marriage! It is because of this woman that Chandler is dead in the other room! Monica begins screaming at Rachel and moving towards her. She tells Rachel that she is going to kill her. That she knows people who will come after Rachel and attack her in her sleep. She screams that Rachel will never be safe. Rachel, who had come to the house expecting to see Chandler, is shocked. But she also feels guilty. Monica is right, she should never had had an affair with Chandler. Rachel, who has
LY205 – S2020 – Final Exam – 3
previously had affairs with other married men, knows that when the wife finds out things can go very badly. She still has a scar on her leg from when Lucy, her boss’s wife, attacked her with a golf club after finding them in bed together. Not to mention, Monica seems especially angry right now. Far more upset that Lucy had been. As Monica comes towards her Rachel backs up.
At that moment Joey, Rachel’s friend, pulls up in his car. He leans out the car window as he smokes a cigarette and calls out, “hey, what’s going on here?” Rachel is immediately relieved until she turns back to see Monica lunging at her. Terrified Rachel pulls out the gun (the one she bought after the incident with Lucy) and shoots blindly towards Monica. Monica screams and falls to the ground. Joey yells, “oh crap” and gets out of his car and runs to Monica. Rachel stares at the gun in her hand, fingers trembling, and drops it to the ground. Joey calls out, “she’s still alive” and he grabs Monica. As he stands the cigarette falls from his mouth and lands on the front steps. Immediately the welcome mat catches on fire, and flames begin to travel up the door. Joey and Rachel watch in surprise and horror as the house quickly catches on fire. Monica moans in pain from the gun shot. “Is there anyone inside?” Joey asks her. Monica pauses, and then shakes her head no. “She’s bleeding out – I need to get her to the hospital now!” Joey grabs Monica and Rachel calls 911 as the house continues to burn.
Joey drives as fast as he can to the nearest hospital. He runs red lights and drives twice the speed limit, afraid that Monica will not make it. About a block from the hospital a police car spots the erratic driving, puts on its siren and indicates that Joey should pull over. He looks over his shoulder at Monica and the blood and instead drives even faster and pulls into the ER with screeching tires. ER staff quickly pull Monica from the car and take her into the ER as the police officer pulls in behind the car and arrests Joey for dangerous driving.
Monica was shot in the leg and after an operation she begins to make a recovery. In the days following the story of what had happened the previous night comes to light. By the time fire fighters arrived at the house the fire had spread throughout the entire first floor. They are able to get the fire under control, but the house itself is destroyed. A few days later they discover Chandler’s body. After many interviews with all the parties you have learned of the above facts. You have been asked to provide a recommendation to the Crown attorney. Knowing that the Crown only wants to lay charges if there is a reasonable chance of conviction, she wants to know whether you think the following charges are likely to be successful in court.
1. Monica for the first-degree murder of Chandler.
2. Phoebe for counselling an offence committed.
3. Rachel for the assault of Monica
4. Joey for dangerous driving
In your answer for each charge make sure to include:
(a) the mens rea and actus reus of the criminal code provision,
(b) facts in the case that show that there either is, or is not, evidence to support finding mens rea and actus reus,
(c) any defenses the accused could raise, and
(d) your conclusion (will the charge be successful?)
For each answer you should identify at least one other case we looked at that is similar or dissimilar to this case in a relevant way. In your conclusion you then include a discussion of this case to support your answer. You also should include any tests when determining the actus reus and mens rea. When you use such a test make sure you are clear what case that test came from.
LY205 – S2020 – Final Exam – 4
Relevant Criminal Code Provisions: s. 267 Assault with a weapon or causing bodily harm Every one who, in committing an assault, (a) carries, uses or threatens to use a weapon or an imitation thereof, or (b) causes bodily harm to the complainant, is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years or an offence punishable on summary conviction and liable to imprisonment for a term not exceeding eighteen months.
s.265 (1) Assault A person commits an assault when (a) without the consent of another person, he applies force intentionally to that other person, directly or indirectly; (b) he attempts or threatens, by an act or a gesture, to apply force to another person, if he has, or causes that other person to believe on reasonable grounds that he has, present ability to effect his purpose; or (c) while openly wearing or carrying a weapon or an imitation thereof, he accosts or impedes another person or begs. s. 249 (1) Dangerous operation of motor vehicles, vessels and aircraft Every one commits an offence who operates (a) a motor vehicle in a manner that is dangerous to the public, having regard to all the circumstances, including the nature, condition and use of the place at which the motor vehicle is being operated and the amount of traffic that at the time is or might reasonably be expected to be at that place;  Punishment (2) Every one who commits an offence under subsection (1) o (a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years; or o (b) is guilty of an offence punishable on summary conviction. Murder 229 Culpable homicide is murder  (a) where the person who causes the death of a human being o (i) means to cause his death, or o (ii) means to cause him bodily harm that he knows is likely to cause his death, and is reckless whether death ensues or not;  (b) where a person, meaning to cause death to a human being or meaning to cause him bodily harm that he knows is likely to cause his death, and being reckless whether death ensues or not, by accident or mistake causes death to another human being, notwithstanding that he does not mean to cause death or bodily harm to that human being; or  (c) where a person, for an unlawful object, does anything that he knows or ought to know is likely to cause death, and thereby causes death to a human being, notwithstanding that he desires to effect his object without causing death or bodily harm to any human being. Classification of murder  231 (1) Murder is first degree murder or second degree murder.
LY205 – S2020 – Final Exam – 5

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Criminal law is based on the idea that we may be criminally liable (responsible/accountable) for the consequences of our actions when we have acted and when we do so knowingly. This is the mens rea and actus reus (more on this in lesson 2!)

Lesson 1:


This course is broken down into three sections. In the first section, we will focus on actus reus or the guilty act. Next, we will turn to the second element of criminal offences, mens rea or the guilty mind. In the final section of the course, we will look at the use of defences.


Consider the following example from p. 48 of your text:


Rigaud is climbing a mountain with his friend Lightwood. They enter into a ferocious fight and Rigaud knocks Lightwood unconscious by hitting him on the head with an ice pick. Rigaud comes to believe that Lightwood is dead and, four hours later, he throws Lightwood over a cliff. 


The body is later recovered by the police. Forensic experts are prepared to testify that Lightwood was still alive when he was thrown over the cliff and that he would most probably have survived had he not been so gravely wounded by the fall from the top of the cliff. 


Rigaud’s lawyer claims that her client cannot be convicted of homicide because when he threw his friend off the cliff, he honestly believed Lightwood was dead. 


The above is called a fact pattern. As we move through the course, you will learn how to assess this and other fact patterns. However, before we learn the techniques start with your own intuition. Criminal law is designed to hold people responsible for certain kinds of actions. Do you think Rigaud is guilty? What do you think he is guilty of? Did Rigaud perform an action that he should not have performed? Does he have some kind of excuse? Spend a few minutes thinking about the case of Riguad and write down what you think about his case. Is he guilty? Should he be punished?


Criminal law, like any kind of law, is integral to a well-functioning society as it lays out the rules that we all need to abide by. However, unlike other areas of law, Criminal law is specifically concerned with actions we, as a society, think are wrong. Criminal law reflects the moral norms of a society. This is not to say that everything that we think is immoral or unethical is or should be illegal. But it should be the case that anything that is illegal is also immoral or unethical.


For example, murder is prohibited under Criminal Law. The reason we have a law against murder is that, in general, Canadians believe that murder is immoral or unethical. It is wrong to murder someone. Is this always the case? Many of us may feel that it is immoral or unethical to see a little old lady struggling with her groceries and not lend a hand. Do we have a law that makes it illegal not to help the old lady? No. So, in this case, the action (or inaction) may be unethical but still legal.


This example shows the relationship between our ethical standards or norms and criminal law. Criminal law is designed to prohibit what has been determined (by us) to be unethical actions. When our ethical norms change, the law should, and often does, change as well. For example, aiding someone to take their own life was considered to be immoral in Canada, and therefore there was a law that prohibited it. This law was challenged in a number of court cases, including Rodriguez v British Columbia (AG) in 1993 and Carter v Canada in 2015. The Supreme Court of Canada took into consideration that there could be cases in which helping a person to end their own life, if they were suffering from a terminal condition, might not be unethical. Now the law includes an exception that allows for medical assistance in dying—more on this below.


Under the Constitution Act, 1867 the Federal Government has jurisdiction over “criminal law and the procedures relating to criminal matters.” In Canada, a crimeconsists of two elements:

  1. Conduct that is prohibited because it is considered to have an “evil or injurious or undesirable effect upon the public”; and
  2. A penalty may be imposed when the prohibition is violated. (2)


In (1) we can see the link between what is morally or ethically wrong and what is criminal. Crimes are actions (or omissions) that are morally bad (evil), injurious (harmful to others), or have an undesirable (harmful) effect upon the public.


True Crimes vs Regulatory Offences

True Crimes Regulatory Offences
Action is “so abhorrent to the basic values of society that it ought to be prohibited completely.”


Accused* is considered morally culpable.

Action is not itself wrong, but unregulated activity would create dangerous conditions for certain members of society.


Accused may not be morally culpable.

Examples: murder, sexual assault, fraud, theft, robbery. Examples: regulation of packaging of food products, control of misleading advertising.

In this course, our focus will be on True Crimes. Notice that under True Crimes, the accused is considered to be morally culpable. This means we see them as failing to be ethical or moral in the circumstance. Why is this important? Usually, to be convicted of a True Crime, our expectation is that the accused acted in a way that was “on purpose” and that they “knew what they were doing.” Consider the following two scenarios:


Scenario A: As students leave the classroom at the end of the lecture the professor gathers her materials and pushes aside the students in her way. One of the students falls and hits his head on the desk.


Scenario B: As students leave the classroom at the end of the lecture the professor gathers her materials and heads for the door. As she gets near to a group of students the professor trips on her untied shoelace and crashes into a student who then falls and hits his head on the desk.


In Scenario A, it feels like the professor is morally culpable for her actions. She did something that she should not have done. Perhaps she should have been more patient or careful in exiting the classroom. When she chose to shove the student out of the way, she demonstrated her willingness to harm others. It is easy to say that in this scenario, the professor is guilty of a wrongful act.


In Scenario B, the student is hurt, but it appears to be an accident. The professor did not intend to hurt the student and did not seem to foresee the possibility that she might trip. Perhaps she was careless, but it feels like she is not guilty in the same way as the professor in the previous example.


We need laws that talk about both kinds of situations, but True Crimes are concerned with Scenario A. In these cases, the accused is considered morally culpable.


*” Accused” refers to the person who has been charged with a criminal offence. After the court case, they will be either acquitted (not guilty) or convicted (guilty) of the offence.


Public Law vs Private Law

There are two kinds of law, public and private. Public law has to do with the relationship between individual citizens and the Government. These areas of law are concerned with the interests that affect all Canadians. For example, Constitutional law regulates the relationship between levels of Government and the Government and the individual. The Canadian Charter of Rights and Freedoms shows what rights you have against the Government. This is different from private law, which are the laws that govern the relationship between individuals (or individuals and businesses.) These are the laws that are relevant when you sue your neighbour for loud noises or destroying your prize roses.


In this course, we are only looking at Criminal law, which is a type of public law. It is important to consider what this means. In criminal law, we look at laws that govern the relationship of individuals with the Government. If a person breaks the law, they are breaching the agreement they have with the Government.The agreement to follow the law. Read that sentence again. The criminal law is between the accused and the Government, not the accused and the victim. In fact, the victim (if alive) is only a witness to the actions of the accused. Does this make sense? The idea here is that the Government set up rules for our benefit. The accused has allegedly broken the rules. Therefore, the victim of the crime is, in a sense, the Government. The person harmed, on the other hand, was told they would be protected by the Government. They were not protected. Therefore the person harmed has been wronged, not by the accused, but by the Government that failed to protect them.


The above may sound a little strange at first. For now, just keep it in mind as you read through the materials.


There are two main sources of Criminal Law in Canada:  (1) Legislation and (2) Judicial decisions.



Legislation referes to the laws that we have. The main statute (law) that we will be working with in this course is the Canadian Criminal Code. A link to the online version of the code is located under the Course Materials tab. I have also linked specific sections of the code in the Weekly Schedule when it is relevant.


The Canadian Criminal Code (or CC) contains a list of prohibited conduct (acts or omissions) that constitute criminal offences. It also includes the kind and degree of punishment if the accused is convicted.


In addition to the CC a few other federal statues provide criminal law. For example, the Youth Criminal Justice ActControlled Drugs and Substances Act, and Crimes Against Humanity and War Crimes Act. These statutes have a direct impact on criminal law. The Charter of Rights and Freedoms and The Canada Evidence Act have an indirect impact as they create the framework for the application of criminal law.


Criminal code offences fall into three categories in terms of punishment.

Summary Conviction Offences: May be tried before a provincial or territorial court judge or justice of the peace sitting alone.


Max penalty fine of $5000, 6 mos sentence, or both.

E.g. carrying a weapon while attending a public meeting; obtaining food, beverage or accommodation by fraud.
Indictable Offences:


May be tried by more than one court procedure depending on the seriousness of the offence.


E.g. murder, manslaughter, aggravated sexual assault
Hybrid Offences (most common):


May be tried using eitherSummary Conviction or Indictable procedure. E.g. Assault, assaulting a peace officer, sexual assault, unlawful imprisonment.


Hybrid Offences are the most common. This is because often the harm caused by a crime can differ dramatically between cases. As we will learn in future lessons assault can include kicking your friend in the leg or attacking someone to the point where they face serious injuries and possible death. Under hybrid offences the Crown can decide whether the assault is more or less serious and then follow the appropriate procedures.

The second source of Criminal law is Judicial Decisions. The laws in the CC are inexact. For example  the law says that it is first-degree murder to kill someone in a way that is planned and deliberate. What does this mean? How do we know when something is planned and deliberate? The words give us a general sense – the accused must have planned – put some kind of thought into their action. The act must be deliberate – this clearly rules out accidents. This hardly seems like enough information to know whether the accused is guilty.


When we have a case that is decided by a Judge (not a jury), then the Judge will interpret what “planned and deliberate” means. They will look at past cases and prior decisions. They will look at the intention of
Parliament when it drafted the law. They will see how the law was applied in previous cases. And then, they will make a call regarding how to apply it in this case. In this way, Judges are creating criminal law.


CAUTION: Canada is a democracy with legislative supremacy. What this means is that our elected officials (the Government) create our laws. A judge cannot create a new law. What the Judge has to do is figure out how to apply the law in the situation before them. This may mean applying the law in a way it has never been applied before. So, in a sense, they are creating law, but not in the same way that Parliament creates laws.


The Charter of Rights and Freedoms (or Charter) guarantees your rights or freedoms in a number of areas. For example, the Charter outlines your Freedom of Speech or Freedom of Religion. These are rights and freedoms you have against the Government. Or, in other words, the Government cannot take away your Freedom of Speech.


Since the Government created the CC it is the case that the laws in the CC cannot take away your rights and freedoms that are protected in the Charter. Now – here I said they cannot do it. This is actually not an absolute right. The Government can, under very limited circumstances, take away your rights. But, in general, any time the CC violates your Charter rights, the CC law will be declared invalid. The Charter provides a limit on the kinds of Criminal Laws we can have.


For example, Section 7 says, “Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.” (You can access the full Charter here: When a person is convicted of a crime and imprisoned the Government is violating their Section 7: Right to Liberty. This Right to Liberty is why the Canadian Government cannot show up on your doorstep and arrest you without cause. The Government cannot lock up its political rivals in order to win an election. However, when it comes to a criminal conviction this is a case where violation of this right can be justified by looking to the “principles of fundamental justice.” Basically, imprisoning people is important to our justice system and can be justified as long as they are proven to be guilty in a court of law.


This is a simplified version of a Charter analysis. For our purposes it is important to understand the basics, but we will not be performing more complex applications of the Charter in this course. There is a great course on the Charter that you should take if this is of interest to you!


I mentioned Carter v Canada (AG) SCC 2015 above. This is the case that changed our Criminal Laws regarding assisted death. The CC has two laws:


S.14 No person is entitled to consent to have death inflicted on them, and such consent does not affect the criminal responsibility of any person who inflicts death on the person who gave consent.


  1. 241 (1) Everyone is guilty of an indictable offence and liable to imprisonment for a term not more than 14 years who, whether suicide ensures or not,

(a) counsels a person to die by suicide or abets a person in dying by suicide; or

(b) aids a person to die by suicide.


The problem was that some people who are suffering from terminal illnesses wanted to have the option to end their own lives at a time of their choosing. In some cases, this would require the help of another person. However, according to s.14 you cannot consent to your own death. Therefore, whoever ends the person’s life will be criminally liable regardless if they were asked to do so. In addition, s.241 says you are guilty of an offence if you counsel, aid or abet another person in taking their own life. If a person with a terminal illness wanted advice on how to end their own life, the person providing the advice would be guilty of this offence. If they needed help accessing certain drugs, whoever helped would be liable. There are good reasons why we have these laws in place. However, it seems that we are also preventing people from doing something they genuinely want to do.


Think back to the earlier discussion of morality and the law. If a doctor were to help a patient take their own life, and this is something the patient really wanted, is the doctor acting unethically? Are they a criminal?


In Carter the main question was did these sections of the CC violate the rights of Canadian under S.7? Does it violate the right to life, liberty and security of the person? Ultimately the Supreme Court of Canada decided that these laws did violate our rights. They decided that we each have the right to control of our own bodies and the right to make such a personal choice about our lives.


In the decision, the Court said, “The appropriate remedy is therefore a declaration that s.241(b) and s.14 of the Criminal Code are void insofar as they prohibit the physician-assisted death for a competent adult person who (1) clearly consents to the termination of life; and (2) has a grievous and irremediable medical condition (including an illness, disease or disability) that causes enduring suffering that is intolerable to the individual in the circumstances of his or her condition.” (Carter at para 127)

As a result the Court declared the prohibitions on assisted suicide invalid and asked Parliament to draft new laws. The Court cannot change the CC, only Parliament can do this. See p. 19 of your text for a summary of the options available to the Court. Parliament then passed Bill C-14 which created exceptions in the CC to allow for medical assistance in dying. S.241 now reads:


241 (1) Counselling or aiding suicide: Everyone is guilty of an indictable offence  and liable to imprisonment for a term of not more than 14 years who, whether suicide ensues or not, (a) counsels a person to die by suicide or abets a person in dying by suicide; or (b) aids a person to die by suicide.

(2) Exemption for medical assistance in dying: No medical practitioner or nurse practitioner commits an offence under paragraph (1)(b) if they provide a person with medical assistance in dying in accordance with s.241.2


Before ending this lesson I want to review a few key concepts or terms you may be unfamiliar with. I will be using these terms throughout the course.


Burden of Proof: The burden refers to who has to make their case in a court of law. In Criminal Law the burden of proof is on the Crown. The Crown is required to prove their case. If they do not convince the Judge or Jury then the accused is acquitted. NOTE: in some places around the world the burden is on the accused. If this is the case then the accused is required to prove their innocence, and if they fail, they are declared guilty. This is important because whoever has the burden has the harder job. In Canada, we give the harder job to the Crown because we would rather it be the case that a guilty person is acquitted than an innocent person is convicted.


Quantum of Proof: The quantum is the amount of proof. The Crown must prove their case – how do we know when have they done this? In Criminal Law the Quantum of Proof is beyond a reasonable doubt. This is a very high degree of proof. This is basically certainty – we are as certain as we can be that the accused is guilty of the crime. If we are not that certain, then the accused should be acquitted.

Cases: You may have noticed that cases in Criminal Law usually look like the following: R v Smith. As mentioned earlier, in Criminal law the two parties are the accused and the Crown or the Government. In Canada, our Government is represented by the monarch of Britain – in this case, the Queen. Therefore all Criminal cases are Regina v the Accused. This is shortened to R v the Accused. Because all criminal trials are against the Crown in your text, and in my notes, I will often leave out the R.


Lesson 2:

Actus Reus and Mens Rea

In Lesson 1 you learned that we look for both the actus reus and mens rea in determining criminal liability. We will continue to unpack these ideas in this lesson before focusing on actus reus.


Beverly McLachlin is the 17th Chief Justice of the Supreme Court of Canada. She is the first and only woman to hold that position so far. She has also been the longest-serving Chief Justice serving in that role for 17 years. McLachlin retired in December of 2017 and we now have a new Chief Justice. This is important as McLachlin is a strong voice that has impacted the interpretation and application of Canadian law over many decades. You are likely to encounter her name several times throughout this course.


In a case called R v Mabior SCC 2012* then Chief Justice McLachlan wrote the following in her decision. She said,

“A criminal conviction and imprisonment, with the attendant stigma that attaches, is the most serious sanction the law can impose on a person, and is generally reserved for conduct that is highly culpable – conduct that is viewed as harmful to society, reprehensible and unacceptable. It requires both a culpable act—actus reus– and a guilty mind—mens rea– the parameters of which should be clearly delineated by the law.”


To understand this quote let’s look at each element.

  • Most serious sanction: labelling someone as criminal is a serious action (as is any imposition on the freedom of those who are accused.) It is crucial that we meet a significantly high standard to prove guilt. As we learned last lesson, the quantum of proof is beyond a reasonable doubt. This is the highest standard, and the burden is on the Crown.
  • Conduct that is harmful: This conduct is more than inconvenient or annoying.  This conduct harms other people and this is unacceptable. When people are harmed this also harms the State by undermining its ability to protect citizens.
  • Highly culpable: culpable means to be, “responsible & deserving of blame for having done something wrong.”) This means it is not an accident.
  • Culpable act & guilty mind bad act for which you can be blamed (actus reus) AND guilty mind (mens rea).
  • Clear in the law: we should be able to look at an offence in the CC and figure out what these elements are.

From this we know that to prove someone is guilty we must show that they have both (a) performed the guilty act (actus reus) and (b) had a guilty mind (mens rea)


*Recall from Lesson 1 criminal cases are between the government (represented by the Queen or Regina) and the accused. So, in this case, this is a criminal trial between the government and the accused, a man whose last name is Mabior. The SCC after the case name indicates the level of court. The SCC is the Supreme Court of Canada or our highest court. Finally 2012 tells us what year the court made its decision.


Casanova become disillusioned with his marriage to Henriette and commences an affair with Bettina. Casanova then decides to leave his wife and persuades Bettina (who is unaware of Henriette’s existence) to marry him. Casanova and Bettina subsequently participated in a marriage ceremony. Casanova derives some perverse pleasure from his belief that his marriage to Bettina is bigamous. However, Casanova subsequently receives a telephone call and is informed that Henriette was struck by a car and expired 20 minutes before the marriage ceremony with Bettina.


Strange case, right? But it is useful for us as we discuss the relationship between the actus reus and mens rea.


Bigamy – or being legally married to more than one person – is a crime in Canada. Under s.290 of the CC it states:


S.290 (1) Every one commits bigamy who (a) in Canada, (i) being married, goes through a form of marriage with another person.


The section later clarifies that this will not apply if the accused had a good faith reason to believe their spouse was dead or that their divorce was legitimate, etc.


What guilty act does s.290 prohibit? The act of marrying a second person while already legally married. What is the guilty mind? While s.290 does not clearly state this, as we will learn in Lesson 5, the guilty mind is when Casanova does this with intention. In the fact pattern it says that Casanova “derived some perverse pleasure” from the idea of committing bigamy.  This shows us that he knew what he was doing and he did it on purpose. This shows the guilty mind. Did he perform the guilty act? Did Casanova marry a second person? He did not. Since Henriette was dead at the time of the second marriage Casanova did not perform the guilty action. It is not enough that Casanova intended or wanted to break the law – he actually has to break the law in order to be criminally liable.


Here you can see the importance of both the guilty act (actus reus) and guilty mind (mens rea.) for the next few lessons we will be focusing on the guilty act, and then in lesson 5 we will look at the guilty mind.


In this course I will often shorten actus reus to AR. You are welcome to do this as well on tests and in the discussions.


The accused’s AR is comprised of the prohibited (voluntary) conduct that occurs in certain circumstances resulting in harmful consequences. These are called the Three Cs.  Using the three categories is particularly helpful when you are just starting your law journey. As we progress through the course you will have the option to stop breaking down the AR into these three if you would like. For now, we will use them to learn the proper technique.


  1. Conduct: voluntary act or omission constituting the central feature of the crime.
  2. Circumstances: the surrounding and material circumstances, and
  3. Consequences: the consequences of the voluntary conduct.


Let’s apply them to s.290 Bigamy and the Case of Casanova.

First we begin by identifying the Three Cs in s.290


S.290 (1) Every one commits bigamy who (a) in Canada, (i) being married, goes through a form of marriage with another person.


What is the Conduct? Marrying a second person.

What are the Circumstances? Already married to a person.

What are the Consequences of the conduct? Being married to two people at the same time.


Now that we have identified the AR we can look at the fact pattern and see what evidence we have related to the Three Cs.


Did Casanova marry a second person? Yes, Casanova married Bettina.

Was Casanova already married to someone? No. At the time of the second marriage Henriette was dead.

Is Casanova now married to two people? No


I often find it helpful to use a table to work through a fact pattern. Here is a table for determining whether Casanova has performed the AR for Bigamy.


Conduct Marry a second person Casanova married Bettina.
Circumstances While already married Casanova’s first wife was dead.
Consequences Married to two people. Casanova is only married to Bettina.



Assault is a criminal offence we will return to many times throughout the course. Let’s start with the CC:


  • A person commits an assault when
    • (a) without consent of another person, he applies force intentionally to that other person, directly or indirectly.


There is more to the offence, but this is the main part and a good place for us to start. This definition of Assault is a core definition in the CC. This means that this definition applies to all forms of assault, including sexual assault, sexual assault with a weapon, threats to a third party causing bodily harm, and aggravated sexual assault.


Let’s break it down into the Three Cs.


What is the Conduct? (a) Direct or indirect application of force

What are the Circumstances? Without the person’s consent.

What are the Consequences of the conduct? None.


We will unpack each of these. First, you may think it is strange that there is no consequence. The typical case of assault that I think of is when one person punches the other during a fight. Clearly, in that case, the victim would be physically injured. This would be a consequence. The reason there is no consequence is because s.265 is a core definition. If the accused did punch someone and injure them they would likely be charged under s.267 which says,


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,

(a) carries, uses or threatens to use a weapon or an imitation thereof,

(b) causes bodily harm to the complainant, or

(c) chokes, suffocates or strangles the complainant.


You can see here that in order to understand s.267 you have to figure out what an “assault” is. The definition for assault is in s.265. If you were identifying the Three Cs for s.267 then you would include “bodily harm” as a consequence of the prohibited act.


The conduct for assault is direct or indirect application of force. What does this mean? It is basically any form of touching another person, whether directly (you punch them) or indirectly (you hit them with your bag.) There is no requirement that the force be particularly strong. Now, the criminal law does not tend to worry about the case where the force is “trifling or transient” or small. Remember, criminal law is interested in prohibiting acts that violate our moral norms.


The circumstances for assault are without the person’s consent. This adds another dimension to the conduct. If you ask your friend to give you a hug, then this is not an assault. An assault occurs when the touching – in whatever form – is not consented to by the victim or complainant.* What counts as consent can be complicated, and we will look at this issue further when we turn to Sexual Assault. For now, we just need to know that the circumstances for Assault is that the complainant does not consent to the application of force.


*I will primarily be using the term “complainant” to refer to the person harmed by the criminal action.


Able and Brown are neighbours. Brown is very particular about his lawn and will often spend all day on Sunday mowing the lawn with various loud machines. Able works Saturday nights, and tries to sleep in on Sundays. One Sunday Able is so annoyed by the noise that Brown is making that he goes outside to confront him. After they argue, Able punches Brown in the jaw. Is Able guilty of the AR for Assault?


Here I will assume Able is being charged under s.267 – Assault with a weapon or causing bodily harm.

Conduct Direct or indirect application of force Able punched Brown in the jaw.
Circumstances Without consent Brown did not consent to being punched in the jaw.
Consequences That caused bodily harm to the complainant. Brown has been punched in the jaw and likely has an injury.

From the above it appears that Able does meet the AR for s.267. He has performed the guilty act.


What is the guilty act for Sexual Assault? Here is the CC:


271 Everyone who commits a sexual assault is guilty of

(a) an indictable offence and is liable to imprisonment for a term of not more than 10 years or, if the complainant is under the age of 16 years, to imprisonment for a term of not more than 14 years and to a minimum punishment of imprisonment for a term of one year; or

(b) an offence punishable on summary conviction and is liable to imprisonment for a term of not more than 18 months or, if the complainant is under the age of 16 years, to imprisonment for a term of not more than two years less a day and to a minimum punishment of imprisonment for a term of six months.


Hmmmm…. You may have noticed that there is nothing here to describe what sexual assault is. The above lists punishment, but no description. But, we know from s.265(2) that the definition of Assault that we looked at will apply to Sexual Assault. However, this doesn’t get us too far. What is the difference between assault and sexual assault?


Recall from Lesson 1 we learned that the sources of Criminal law are legislation and judicial decisions. The legislation in the CC does not provide us with enough information. The details have therefore been added through judicial decisions. The key case for sexual assault is R v Chase SCC 1987. In this case the SCC had to decide if the case before them was of an assault or a sexual assault.


The Facts: In Chase the accused went to a neighbour’s house and went to the basement where a 15-year-old girl and her brother were hanging out. The only adult in the house was their grandfather asleep upstairs. The accused struggled with the girl, and in doing so grabbed her by the arm, shoulder, and breasts. The accused said, “Come on dear, don’t hit me, you know you want it.” The girl and her brother made a phone call and the accused left.


In this case it was clear that the accused had done something. We can see that her applied force (grabbed the complainant’s arm, shoulder and breasts.) We know there was no consent. But it seems like there was something sexual about the act. Previously, in order to find sexual assault the Court required that the accused applied force to the genitals of the complainant. The SCC agreed that if the genitals had been touched this would be a sexual assault. But was this definition too restrictive? Ultimately, the SCC decided it was.


Justice McIntyre wrote the decision in Chase and he said that sexual assault is assault within any of the definitions under s.265(1) which is committed in circumstances of a sexual nature, such that the sexual integrity (or dignity) of the complainant is violated. Further, this test is an objective one. We determine if the circumstances are sexual not by asking those involved, but by looking at the situation as a reasonable observer would. In addition, Chase provided a list of factors to consider when determining if it is a case of sexual assault. These factors are:

  • Part of the body touched
  • Nature of the contact
  • Situation in which it occurred
  • Words and gestures accompanying the act
  • Motive of the accused (sexual gratification)
  • Intent (to commit a sexual assault)
  • All other circumstances surrounding the conduct, including threats, which may or may not have been accompanied by force.

Not all of these factors need to be present, but rather these factors should be considered in making a determination.

What is the AR for Sexual Assault?

Conduct Direct or indirect application of force
Circumstances Without consent and in circumstances of a sexual nature
Consequences That violates the sexual integrity of the complainant.


Consider the following fact pattern:


Blimber is a youth worker who is employed by the provincial government. While he was one of the staff members at a custodial institution, some youths complained that he touched them on the arms and legs. Blimber is surprised there have been such complaints, and he says that he only touched the youths as a means to demonstrating genuine concern for their welfare. Crown counsel is considering laying charges of sexual assault against Blimber. Do you think that such charges are likely to succeed at trial?


Remember, at the moment we can only assess whether Blimber meets the AR requirements for sexual assault. Let’s break it down:


Conduct Direct or indirect application of force Blimber touched the youths. Touch is a form of force.
Circumstances Without consent and in circumstances of a sexual nature It appears that the youths did not want to be touched, so it was likely without consent.

Was it in circumstances of a sexual nature?

Consequences That violates the sexual integrity of the complainants. Was the sexual integrity of the complainants violated?


In this case we can see that finding evidence for certain parts of the AR is easy, and for others it is difficult. Clearly Blimber touched the youths and it seems like they did not consent. However, did this happen in circumstances of a sexual nature? Did it violate the sexual integrity of the complainants? For this fact pattern the answer to these questions are unclear. Because the answer is not obvious, this is also likely where the arguments in court will focus. The Crown might argue that because Blimber was in a position of authority over the youths, a position he used to touch people who did not want to be touched, that this is sexual in nature. On the other hand the defence attorney may argue that Blimber’s intention, while potentially misguided, was only to show concern. It was not sexual in nature. As you will notice, both of these arguments arise when we consider the factors from Chase.


Since this is a fictional scenario, I can’t tell you how the case turned out. What I want you to notice is that if you were to make an argument, as you will in later assignments and tests, you need to find the weak spot. The place when you can make an argument. There is no point arguing about the application of force because we know that Blimber touched the youths. However, there is much to be gained arguing about the sexual nature of the circumstances as is it very unclear if this applies.


ot all CC offences will have all three Cs. Here are three examples:

  • S.131(1): Perjury: Conduct: to lie; Circumstance: when truth is expected; Consequence: none. Your lies do not have to be believed.
  • S.351(1): Being in Possession of Housebreaking Instruments: Conduct: in possession of the instruments; Circumstances: Without lawful excuse.  It is reasonable to infer that such instruments will be, or have been, used to break into a house/car/ etc. Consequence: do not need to actually break into a house/car/etc.
  • S.335(a): Being an occupant in a car knowing it was taken without the owner’s consent: Conduct: being in the car (but do not have to prove that accused was involved in taking the car); Circumstances: being in a car the accused knows is stolen; Consequences: none (unless you count being in the car.)


As you can see all three charges lack a consequence. The rationale behind this is that these charges are preventative in nature.


A central feature of AR is voluntariness. What this means is that we are only interested in guilty acts that are performed voluntarily by the accused. This means that the action was the result of the accused’s free will. You can think voluntary as being the opposite of accidental. It has to do with having control over your own actions and body.


Consider the following example (and I know some of you will be familiar with this!) Sam and Jay are siblings, and Jay is older. Jay takes Sam’s arm and uses it to hit him with. When Sam cries, Jay says, “Why are you hitting yourself?”


In this case we can say that while it is Sam’s arm that is hitting Sam, he did not hit himself voluntarily. Jay had control of the arm. In criminal law we are only concerned with guilty actions that are the produce of the accused’s free will.


Compare the following cases:

R v King (1962) SCC

  • King goes to the dentist and while there he is injected with a sedative. The dentist warns King not to drive after the appointment, but King does not hear the warning. While driving home King loses consciousness and gets into an accident.
  • The Supreme Court (SCC) determines that there is no AR unless the action is the result of a willing mind at liberty to make a definite choice or decision.
  • The accused’s loss of consciousness made him unable to control the vehicle, and this led to the accident. King was drugged and unaware that he was drugged.
  • Therefore the SCC acquits King because the guilty act (driving dangerously) was not voluntary.


R v Shaw (1938) ONCA

  • The accused was subject to sudden attacks of fainting. He had been treated for epilepsy prior to the accident. On the day in question Shaw was driving when he fainted. This caused a car accident that killed two passengers and injured three other people.
  • Shaw (like King) was not conscious. However, this case is different from King because Shaw was aware that he could become unconscious while driving. We may say that the accident was not voluntary, since he was unconscious. However, the choice to drive knowing he could faint was voluntary.
  • The court (in this case the Ontario Court of Appeal) did find Shaw criminally liable. Ultimately a new trial was ordered for other reasons.


These two cases help illustrate what will be required for voluntariness. It must be the accused’s choice. But once the accused has made a choice then they are implicated for those consequences which are reasonably foreseeable.


So far we have discussed the case where the accused has performed a guilty act. There are also a few cases in the CC where the accused is liable for what he or she failed to do. These charges are rare, and are often connected to an already existing duty.


Consider the following:

Murdstone is walking past a lake. As he walks he hears pitiful screams coming from Kit, a 4-y-o boy who is drowning. Murdstone could easily wade into the water and save Kit. He decides not to and keeps walking. Kit drowns.


Is Murdstone liable to Kit’s death? For failing to save him? While it may seem that Murdstone is a bit heartless, his actions are not criminal unless the following is true:


  1. Murdstone is in Quebec where there is a statutory duty to rescue those in danger if this can be done without undue risk to the rescuer; or
  2. There is a pre-existing relationship between Murdstone and Kit such that Murdstone has a duty to help Kit.


We will focus on (2). What does it mean to have a relationship with pre-existing duties? These are described in s. 215 and s.217 of the CC.


S.215 Duty of persons to provide necessaries – everyone is under a legal duty

  1. As a parent, foster parent, guardian or head of family, to provide necessaries of life for a child under the age of sixteen years;
  2. To provide the necessaries of life to the spouse or common law partner; and
  3. To provide necessaries of life to a person under his charge if that person
    1. Is unable, by reasons of detention, age, illness, mental disorder or other cause, to withdraw himself from that charge, and
    2. Is unable to provide himself with necessaries of life.


Necessaries of life = food, drink, medical care, and any other goods and services that preserve life (includes rescuing from drowning, a fire, if reasonable to do so.)


s.215 has to do with the kinds of relationships that exist where one person is dependent upon the other. A child who needs their parent to ensure they have proper food or medicine. An elderly grandparent reliant on a grandchild to drop off groceries. In the case of Murdstone if Kit were Murdstone’s son and Murdstone was watching him while he swam, then Murdstone is responsible for Kit. To fail to rescue Kit (as long as it is possible to do so) breaches the legal duties Murdstone has and he could be charged.


What is the AR for s.215?

Conduct Failing to provide the necessaries of life
Circumstances There is a relationship of dependence between the parties (parent, partner, caregiver)
Consequences The person to whom the duty is owed is in destitute or necessitous circumstances, or their life or health is endangered.



You may have seen this story in the news. The Stephen’s successfully appealed the decision that I am discussing here. However, that decision is now being challenged as well. For our purposes we are looking at the first decision in 2016.


David and Collet Stephen’s 19 month-old-son Ezekiel was ill. They thought he had croup or the flu and treated him with natural remedies of hot peppers, garlic, onions, and horseradish. A family friend said that Ezekiel may have viral meningitis, but the parents kept using same remedy.

Ezekiel began to have trouble breathing. At this point his parents take him to the hospital. By the time he arrives he is showing very little brain activity. Ezekiel dies.


Ezekiel’s parents were charged under s.215

Conduct Failing to provide the necessaries of life The Stephens did not take Ezekiel to the doctor/hospital. This is a failure to provide medical care.
Circumstances There is a relationship of dependence between the parties (parent, partner, caregiver) Ezekiel is the son of the Stephens and is under the age of 16.
Consequences The person to whom the duty is owed is in destitute or necessitous circumstances, or their life or health is endangered. Failure to take Ezekiel to the hospital resulted in his death from viral meningitis.


Note: The court does not require that the Stephens, or any parents, acted perfectly. The question the court asks is did the Stephens act the way a reasonably prudent parent would have acted? In this case they decided the Stephens did not.


From the above it seems the Stephens met the AR for the charge. After the trial David Stephens was sentenced to 4 months in jail and probation for 24 months. Collet Stephens was sentenced to 3 months in house arrest and 240 hours of community service. As mentioned above the Stephens appealed this decision and this decision was overturned and they were acquitted on all charges. Currently the acquittal is under investigation and there may be another trial in the future. We will see.


S.215 covers the case where we have a pre-existing legal duty. S.217 Duty of Persons Undertaking Acts addresses the situation where you create a new legal duty. Basically, you can think of this as the case where you make someone a promise which causes them to rely on you. If you then break that promise it is possible for you to be charged under s.217. For example, if I offer to lead a group of tourists on a dangerous mountain climbing trip I am promising that I will follow through with that action. The tourists, trusting me, will follow me on this trip. If I decide half-way through that I no longer want to lead the group and I sneak away in the middle of the night, leaving them without a guide, then I have broken a promise to them. They relied on me, and I bailed. By making the promise I create a legal obligation to follow through. If one of the tourists was to get injured after I left, then I could be charged under s.215.


Lesson 3:



In this lesson we turn to the issue of causation. This is an element of the actus reus. Causation is what connects the prohibited conduct to the consequence. Consider the following quote from Justice Arbour:


“In determining whether a person could be held responsible for causing a particular result, in this case death, it must be determined whether the person caused that result both in fact and in lawFactual causation, as the term implies, is concerned with an inquiry about how the victim came to his or her death, in a medical, mechanical, or physical sense, and with the contribution of the accused to that result. Where factual causation is established, the remaining issue is legal causation.”


Legal causation…is concerned with the question of whether the accused should be held responsible in law for the death that occurred. It is informed by legal considerations such as the wording of the section creating the offence and principles of interpretation.” (p. 50)


Arbour indicates that we need to be concerned with two types of causation. First, factual causation. You can think of this as the scientific way of asking if a particular consequence was caused by particular conduct. Second, legal causation. You can think of this as being tied to our legal concepts. In law, do we link conduct X to consequence y? When evaluating the AR for a charge we need to have both factual and legal causation.


Let’s take a closer look at both factual and legal causation.


We always begin by checking for factual causation, but in reality, issues in factual causation are fairly rare. The majority of prosecution in a court case will be focused on the issue of legal causation.


The test for Factual Causation is informed by the common law (judge-made law) in offences other than murder. (So we look to court cases, not the CC for the most part.) How do we determine if there is factual causation? Use the following test.


The “but for” test [counterfactual] The Crown must prove that “but for” the actions of the accused, the prohibited consequences would not have occurred.


What does this look like? Consider the following two examples:


EG #1: In a hurry to get to class I zip into the parking lot and quickly back into a parking space. There was already a bike in that parking space. I run over the bike with my car and destroy the bike.


It is my action of driving the car that is necessary for the destruction of the bike. Counterfactual: In a world in which I did not hastily back up my car, the bike would be undamaged.


EG #2: In a hurry to get to class I zip into the parking lot. I notice that a bike has been run over.


My presence has no impact on the destruction of the bike. Counterfactual: In a world in which I never drove into the parking lot, the bike would still be damaged.


Facts: The accused applied for credit at Eatons. In the application she provided her real name and address, however, she lied about other items on the application. Once the accused received the credit the she always paid off her bill on time. Eaton’s complained that the accused had committed fraud and she was charged with “obtaining credit by false pretenses.” Upon investigation it was clear that Eaton’s had only used the accused’s name and address when they issued her credit.


In order to find that the accused has met the AR for the offence it must be the case that her prohibited conduct (providing false information) caused the relevant consequence (receiving credit under false pretenses.) However, in this situation, while the accused, did, in fact, provide false information, Eatons did not rely on it. Eatons only used the true information regarding the accused’s name and address. Therefore, Winning provides an example where there was no factual causation between the conduct and the consequence and therefore the accused was acquitted.



Legal Causation has to do with whether this conduct is recognised as legally connected to the relevant consequence. Sometimes this is called the test for “remoteness” and we ask if the consequence was too remote to create criminal liability for the accused. One way to think about a consequence being too remote is to consider whether the accused could have foreseen the consequences.


Example: Return to the bike. The question would be > if I’m not looking, is the presence of the bike something I ought to consider, or not? Is it reasonably foreseeable that there might be a bike in the parking spot? If yes, then I should be on the lookout because it is not too remote. If no, then it is too remote and there is no legal causation and I cannot be legally liable.


Example: R v Trakas (2008) ONCA

Facts:  Trakas planned to sell his motorcycle. An individual came to Trakas’ house and took the motorcycle for a test drive, leaving his own pickup in the driveway. Then another man (Shilon) came and drove the pickup away. Trakas realized he had been duped. Trakas got into his SUV and followed the pickup truck.


The wild chase lasted for more than 25 min with the two vehicles reaching speeds of between 110 and 180 km/hr.  They ran stop signs, tailgated, passed dangerously, and made sudden lane changes. During the chase Trakas repeatedly called the police on his cellphone and requested their intervention. A police officer who had been intended to deploy a spike belt suddenly entered the roadway and was hit by Trakas. He was thrown and died from his injuries.


Both Trakas and the pickup driver (Shilon) were charged. Who caused the death of the police officer?


Factual Causation:

Trakas: Since it is Trakas’ SUV that hits the officer we can say that – but for the actions of Trakas the officer would not have been hit and killed.


Shilon: Since Shilon is involved with the theft of the motorcycle and leads Trakas on a dangerous chase throughout the city we can also say that – but for the actions of Shilon, Trakas would not have hit the officer.


Therefore, both Trakas and Shilon have met the requirements for the factual causation of the officer’s death.


Legal Causation:

Trakas: While the overall car chase was dangerous, on the stretch of hwy where the officer was hit, Trakas was going the speed limit, was driving within his lane, and was, basically, driving safely. As a result of the Court decided that it was not reasonably foreseeable that a police officer might step into that particular stretch of road. Trakas may have caused the officer’s death, but he is not legally responsible for it.

Shilon: was participating in a theft and driving dangerously. When he was tried with criminal negligence causing death the court decided quite differently. While it was not foreseeable for Trakas, driving normally, to foresee the presence of the officer, the court states that when you choose to drive dangerously it is foreseeable that a person might be injured. And, Trakas was reacting to Shilon in an entirely predictable manner. The Court said,

“Accordingly, it was an available inference that the police officer’s death occurred in the ambit of the risk created by the actions of the driver of the pick-up truck and that the driver ought reasonably to have foreseen such harm.”


Causation for Homicide

here are special causation rules when it comes to causing death through murder, manslaughter, infanticide, criminal negligence causing death, dangerous driving causing death, and impaired driving causing death.


First, in order to be charged with one of these offence, the victim must be dead. With today’s advances in medicine, determining whether death has occurred can be tricky.

    • E.g. old standard: if a person stopped breathing and their heart was not beating (normal resuscitation measures fail) then the victim is dead.
    • Now? Life support machines?? Brain death?


Parliament has not defined death for the purpose of criminal law. In 1981 the Law Reform Commission of Canada came out with a report that advocated the following:

  1. A person is dead when an irreversible cessation of all that person’s brain functions has occurred;
  2. Determined by prolonged absence of spontaneous circulatory & respiratory functions;
  3. When (2) made impossible by use of artificial means of support, it is to be determined by any means recognised by the ordinary standards of medical practice. (pg. 55-56)


What if the victim is already dying?

  • When might this happen?
    • Terminally ill patient: Patient requests help in dying. It was the law that a doctor would be criminally liable for helping a terminal patient end her life. This changed in 2015 with the R v Carter SCC decision and Bill C-14 from June 2016 which changed provisions in the criminal code to allow assisted suicide in certain cases.
    • “Angel of Mercy”: Elizabeth Wettlaufer who worked in Woodstock and killed 8 elderly patients (between the ages of 75 and 96) in nursing homes. Regardless of their condition (there is no mention) Wettlaufer is still charged with 8 charges of First degree murder.


  1. Devlin says in the English case Bodkin Adams (1957) “it did not matter whether Mrs. Morrell’s death was inevitable and that her days were numbered. If her life were cut short by weeks or months it was just as much murder as if it were cut short by years.”


Basically, the answer is it does not matter. If you kill someone who had decades left to live or minutes, you are still killing them and it may be a form of homicide.


What happens if a person dies because of a combination of factors? Perhaps the accused hit a person who would have recovered, except they were already weakened by an illness or another physical injury? Perhaps the victim would have recovered from their injury, except once reaching the hospital the medical staff failed in their duty to care “appropriately” for the patient? In these cases it seems that the victim would not have died EXCEPT for some factor that the accused did not know about, and did not control. We will look at these cases in what follows.


Smithers v the Queen (1978) SCC

Facts: SMITHERS and COBBY (the victim) were on opposing “midget hockey” teams. They traded insults during the game. After the game COBBY tried to leave the arena, but SMITHERS followed him. SMITHERS “directed one or two punches” at COBBY’s head. As teammates pulled SMITHERS away, he kicked COBBY in the stomach. COBBY collapsed, gasping for air He stopped breathing and was dead by the time he got to the hospital. COBBY died as a result of “aspiration of foreign materials present from vomiting.” Normally when a human vomits the epiglottis covers the windpipe, which protects the air passage. For some reason this did not happen in COBBY’s case.


The Supreme Court (SCC) looked at the following question > was there sufficient evidence that SMITHERS’ kick CAUSED the vomiting and death? Did SMITHERS cause COBBY to die?


Note: This is an issue of legal causation. But for Smithers’ kick, Cobby would not have died. But is Smithers liable for the death of Cobby?


Smithers was charged under s.205 (now s.222) or Unlawful Act Manslaughter.

  • 222.(1) Homicide – a person commit homicide when, directly or indirectly, by any means, he causes the death of a human being.
  • (2) Kinds of homicide – Homicide is culpable or not culpable.
  • (4) Culpable homicide – Culpable homicide is murder or manslaughter of infanticide.
  • (5) a person commits a culpable homicide when he causes the death of a human being , (a) by means of an unlawful act. (ASSAULT)


Basically this offence is for cases in which the accused performed an unlawful act (in this case an assault) which resulted in the death of a person. Because this charge requires that the accused killed via an unlawful act, you actually need to perform two AR analyses – one for the unlawful act and one for manslaughter.


  Manslaughter Assault
Conduct Do anything Direct or indirect application of force
Circumstances Through an unlawful act Without consent
Consequences Cause death of a human being.  


Smithers meets the conduct as he did assault Cobby (which is the unlawful act). The question is – did this cause (legal causation) the death of Cobby?


In the SCC’s decision, Justice Dickson writes the following:


“[I]t may be shortly said that there was a very substantial body of evidence, both expert and lay, before the jury indicating that the kick was at least a contributing cause, outside the de minimis range, and that is all that the Crown is required to establish. It is immaterial that the death was in part caused by a malfunctioning epiglottis to which malfunction the appellant may, or may not, have contributed.” (J Dickson, pg. 62)


He goes on to add, It is a “well-recognised principle that one who assaults another must take his victim as he finds him.”


What does this mean? In order for SMITHERS to CAUSE COBBY’s DEATH it must be a CONTRIBUTING CAUSE OUTSIDE THE DE MINIMIS range. This means that the unlawful act does not have to be the SOLE or ONLY CAUSE, but that it must be a SIGNIFICANT CAUSE.


  • Outside the de minimisrange means = must show that the act had more than a MINIMAL IMPACT on the events leading up to the victim’s death. It is not a TRIVIAL cause.

This may seem strange to you. However, this type of language is common in court cases. What happens next is that this case says – kicking COBBY was a non-insignificant cause of his DEATH. So, this is an EXAMPLE for future litigation. Similar cases will be decided the same, and lower courts are bound by the decision of the SCC. So yes – it is unclear, but it provides a framework and then the details are worked out on a case-by-case basis.


ALSO NOTE: Dickson says that it is a “well-recognised principle that one who assaults another must take his victim as he finds him.” This means that SMITHERS must take COBBY as he finds him, a man who, unknown to SMITHERS, has a malfunctioning epiglottis.


Think about this – if you assault someone (unlawful act) that person may be very strong or very weak. You are liable to the extent that they are injured, even if it turns out that they are surprisingly fragile. This is called the thin skull rule. 


Smithers was convicted.


R v Harbottle (1993) SCC

How does this work for murder charges? Murder is either first-degree or second-degree. They are considered the most serious charges in the criminal code. If you are convicted of first-degree murder your sentence is life with no eligibility for parole for 25 years. Because the penalty is so severe, Parliament and the Court have ensured that it is very difficult to convict someone of these charges. We want to be as certain as possible that the accused is, in fact, guilty. When it comes to causation we have some extra rules to determine causation for murder charges. R v Harbottle provides us with the test for first-degree murder, and then R v Nette provides us with the test that replaces (or formalizes) the test from Smithers.


FACTS: The accused and a companion sexually assault the victim and then discussed how they would kill her.  The other man strangled the victim while the accused held her down. The victim died. The accused was charged with first-degree murder.



229 Culpable homicide is murder

  • (a)where the person who causes the death of a human 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;

231 (1) Murder is first degree murder or second degree murder.


The AR for first degree murder is basically the same as Manslaughter, the main differences between the charges have to do with the MR (“planned and deliberate.”)


The question before the Court in Harbottle was whether they should use the same causation test from Smithers when looking at first-degree murder. If you return to the test from Smithers (must be a contributing cause outside the de minimis range) then Harbottle will have caused the victim’s death. This likely aligns with your intuition. However, using the Smithers’ test, Harbottle might also have caused the first-degree murder if he had (i) stood in the hallway to ensure no one interrupted them, or (ii) provided the room in which the victim was killed, or (iii) left the victim to die (or be saved) after the assault took place. The fear was that using Smithers would too easily find that a person has caused the first-degree death of another person. As Justice Cory says,


“In my view, an accused may only be convicted … if the Crown establishes that the accused has committed an act or series of acts which are of such a nature that they must be regarded as a substantial and integral cause of the death… The substantial causation test requires that the accused play a very active role-usually a physical role-in the killing.” (J Cory p. 60-61)


Thus, the Harbottle test is: The accused’s conduct must constitute a “substantial and integral cause” in cases of first-degree murder.


In this case, the court determined that the victim could not have been strangled and killed if not for Harbottle holding her down.



R v Nette (2001) SCC

Our final case for this lesson is R v Nette. After Harbottle in 1993 we have our new test for causation for first-degree murder. When Netter is tried in 2001 the SCC considers the Smithers test but updates it so that it works better with the test from Harbottle.


FACTS: The victim was a 95-y-o woman. The accused broke into her house with the intention to steal various items. Finding the victim at home, the accused took the victim into the bedroom and hog-tied her and then left her on the bed (hog-tied – tied feet and hands together.) There was also some clothing wrapped around her head and neck. Once the accused was finished taking the items they wanted they left the house without untying the victim.


Sometime 24-48 hours after the robbery, the victim fell off the bed and suffocated. The medical evidence is inconclusive regarding exact cause of her death.

    • It could be… 
      • Tied position?
      • Ligature around neck?
      • Victim’s age?
      • Lack of muscle tone?
      • Congestive heart failure?
      • Asthma?


During the trial the defense council argued that there were multiple causes of death, and the actions of the accused were not a substantial and integral cause (HARBOTTLE TEST)


Justice Arbour said that the Harbottle standard is too high, as this was not a case of first-degree murder. Instead, Smithers is the appropriate test. Arbour changed the test slightly creating the Nette test: The accused’s conduct must constitute a “significant contributing cause.” Thus, when we are dealing with a first-degree murder charge it must be the case that the accused’s prohibited conduct was a substantial and integral cause of death, but with lesser charges the accused’s prohibited conduct need only be a significant contributing cause.

The accused was convicted.

Lesson 4: Intervening Acts

We have talked about the case where there are multiple causes of death (e.g. Smithers and Nette.) Now we turn to a slightly different case. What if something happens between the act and the death that has an impact on whether the person dies? Intervening Acts are acts or events that occur between the accused’s original wounding of the victim and the victim’s death. Consider the following example:

Bob stabs Paul with a pocket knife. Three minutes later Sam arrives on the scene and strangles Paul to death. Did Sam break the chain of causation between the original stab wound inflicted by Bob and Paul’s subsequent death?

What principles do we use? In this lesson we will untangle this issue.


Kitching and Adams (1976)

Consider the following case:

Kitching and Adams drop Junor on the sidewalk several times while Junor is in a state of extreme intoxication. From being dropped on the sidewalk Junor is injured in the form of severe brain injuries. Junor is taken to a hospital and attached to a respirator because he is unable to breathe on his own. A neurologist examines Junor and determines, through various tests, that Junor had suffered complete brain death. However, Junor is kept on the respirator in order to maintain Junor’s bodily functions because he was an organ donor. The hospital needed time before removing Junor’s kidneys for transplant. Once Junor’s kidneys were removed the health care team took him off life support which caused all remaining life signs to cease.

Kitching and Adams were charged with manslaughter. They appealed this conviction and argued that what caused Junor’s death was not their actions (dropping him) but rather the hospital’s actions (removing Junor from life support.) Since Kitching and Adams did not cause Junor’s death, they could not be convicted of manslaughter. The prohibited conduct did not cause (factually & legally) the consequence.

In the decision O’Sullivan considered the argument, but ultimately dismissed it. He said,

“The assumption underlying counsel’s conduct in this case is that there can be only one cause of death. I think that the law is that the conduct of the defendant in a criminal trial need not be shown to be the sole or ‘the effective’ cause of a crime. It is sufficient if it is a cause… I think the authorities are clear that there may be two or more independent operative causes of death.” (p. 66)

The judge has determined that while we might say that the removal from life support was one cause of Junor’s death, it was not the only cause. Kitching and Adams prohibited conduct can still cause Junor’s death even if that death was also caused by the actions of the doctors. O’Sullivan clarified, “Whether or not the kidneys had been removed, the deceased could not have lasted more than a short period of time even with artificial assistance.”

From this case it is clear that in any case where a doctor removes a patient from life support this will not count as an intervening cause. The person whose conduct caused the victim to be in a situation of needing life support will still be responsible.

Turn to page 63 and read about R v Maybin (2012.) What are the facts in this case? Were the accused still responsible for the death of the victim? Why or why not?


Improper Medical Treatment


Whether or not a victim of an attack will die from that attack will depend, in some cases, on the medical care they receive. In some cases a failure to provide medical care will interrupt the chain of causation from the accused’s conduct to the consequence of death. Compare these two cases (both from the UK.)

Jordan (1956): The accused stabbed the victim during a disturbance in a café. The victim was taken to hospital to be treated for his injury. However, a few things went wrong during the treatment. Here is how it was described in the court decision:

“The stab wound had penetrated the intestine in two places, but it was mainly healed at the time of death. With a view to preventing infection it was thought right to administer an antibiotic, terramycin. It was agreed by the two additional witnesses that, that was the proper course to take, and a proper dose was administered. Some people, however, are intolerant to terramycin, and Beaumont was one of those people. After the initial doses he had a bad reaction, one that was only attributable to terramycin. The terramycin was stopped. But then restarted the next day by another doctor.”

If we look at the description carefully we can see an important idea – the doctor’s made a medical mistake. Administering terramycin the first time was an accident. They did not know (and could not have known) the victim was allergic to it. If the victim had died after that first dose then the accused would still be responsible. See the thin skull rule from the previous lesson. However, when the doctor’s made the mistake of repeatedly giving the victim the terramycin, despite his reaction to it, this becomes a medical mistake. Even more importantly, the victim dies from the medical mistake and not the stab wound as the wound was actually healing at the time of his death. The court says that the stab wound was no longer operative at the time of death.

Smith (1959): During a fight on a military base the accused stabbed three people with a bayonet. As the victims were treated for their injuries several things went wrong:

  • The victim was dropped twice while carried to the hospital;
  • Once at the hospital, the victim was not given a saline solution, they health care team was unable to perform a blood transfusion, and they accidentally gave him artificial respiration despite the fact that his lung had collapsed.
  • The victim died. A doctor later said that if the victim had been given proper treatment he would most likely have survived – about a 75% chance.

You might look at Smith and assume the outcome would be the same as Jordan. In both cases the health care team made important mistakes that harmed the victim. However, the difference in Smith is that the victim died quickly. At the time that they died they were dying from the stab wound. Thus, the accused was convicted because at the time of the victim’s death the stab wound was still operative.


Refusal of Medical Treatment

What about the case where the victim refuses medical treatment and the lack of medical treatment causes the victim to die? This may sound a little strange, but there are times when someone may refuse treatment because they are afraid, they feel it is unnecessary, or for religious reasons. From the case law we can see that refusal of medical treatment is similar to the thin skull rule. It is dissimilar from the case of a medical mistake.

In Holland (1841) UK the accused ambushed the victim and during the ambush cut him across the finger with an iron weapon. When the victim went to seek medical help he was told that the cut would likely become infected and the best option would be to amputate the finger now. This may sound extreme – but consider the year. This case took place in 1841. You can imagine that there would not be many ways that could prevent infection. You can also imagine that the victim may be afraid to amputate his finger as this would be very painful and may also result in infection. Two weeks later the victim contracted tetanus. At this point the finger was amputated but it was too late. The victim died.

Did the accused cause the death of the victim? The court convicted Holland. Justice Maule said,

“[I]t made no difference whether the wound was in its own nature instantly mortal, or whether it became the cause of death by reason of the deceased not having adopted the best mode of treatment, the real question is, whether in the end the wound inflicted by the prisoner was the cause of death.”

From this case we can take this principle and apply it to a more modern situation such as when a victim refuses a blood transfusion for religious reasons and then dies. When this happens, the accused remains responsible for causing the death. We can expand our understanding to the thin skull rule to refer not only to cases where the victim may be physically fragile, but also cases where the victim may refuse medical treatment. In either case, by attacking the victim, the accused is responsible for causing the harm even if the harm could be less if they had attacked someone else.


Lesson 5: Subjective Liability

The mens rea (which I will shorten to MR) is often called the fault element. You can think of MR as what makes a particular prohibited action something that attracts moral blame. It reflects an underlying unifying legal principle, there should be no criminal responsibility without personal fault. Or, as former Chief Justice McLachlin said,


Mens rea… refers to the guilty mind, the wrongful intention, of the accused. Its function in the criminal law is to prevent the conviction of the morally innocent– those who do not understand or intend the consequences of their acts.” (J. McLachlin Theroux(1993))


Consider the following three examples:

  1. You take a cellphone from the desk in class. You believe it belongs to you, but actually it is your classmate’s phone. [you were not trying to steal]
  2. Bob throws his bat in the air to celebrate his victory after the game. His bat hits Sam on the head, instantly killing him. [Bob was not trying to kill Sam]
  3. Sally plays with matches in an abandoned building. She lights some boxes on fire and then races out of the building when it gets out of control. Sally is 7-y-old. [some people may not be held legally liable for their actions – e.g. children.]


In each of these examples the prohibited action might be there, but we are lacking the appropriate mental state.

There are two types of MR. In this lesson we are going to look at subjective MR and then next lesson we will turn to objective MR. The main difference is that when we are looking at subjective MR we are asking what did the accused actually think or know at the time? For objective MR we ask what the accused should have thought or known at the time.


In general, for subjective MR the accused must:

  1. Deliberately intend to bring about the consequences; or
  2. Subjectively realize that their conduct might produce such prohibited consequences.


To unpack subjective MR we will look at intention, knowledge, recklessness, and willful blindness.


For most CC offences the Crown must prove MR in the form of intended consequences and/or actual knowledge of particular circumstances. We find the accused more blameworthy if they intended to break the law or cause harm to another person and if they understood the nature of their act.


Knowledge in the CC is straight forward. We ask: did the accused know or understand the nature of their action? (or material circumstances?)


Recall Casanova. We might ask – Did Casanova know that he was already married? That he was getting married to Bettina?


Consider a more complicated example. In Lesson 3 you read about the case Harbottle. In that case the accused held the victim down while another man strangled her. It is pretty clear that since Harbottle was in the room with both the other man and the victim he understood what was going on.


Let’s change the example slightly. Imagine that Harbottle had worked with his friend to lure the victim to the room. Harbottle participated in that part of the criminal offence and had discussed the sexual assault with the other man. Thus, he knows or understands what the other man is going to do. However, Harbottle himself does not go to the room and therefore is not there when the other man strangles the victim. In this second scenario it seems that while Harbottle knew that the victim would be assaulted, he may not have known that she would be killed. Since this is subjective MR we can only look at what Harbottle actually knew.


You may be thinking – there’s something a little fishy here. You may be right. We will return to this idea when we look at wilful blindness.


long with knowledge, CC offences most often require that the accused acted intentionally. This will most often refer to the conduct in terms of the AR. Did the accused perform the conduct of the AR intentionally? In other words, did the accused perform the conduct on purpose? Did they mean to? Was the action in line with the choices of the accused? (The opposite of intentional is accidental.)


NOTE: Careful not to confuse intention with motive. In criminal law intention means that your action is the product of your will. It is similar to the analysis we did for voluntariness when we looked at AR. What this means is that if a person threatens you at gunpoint and forces you to rob a bank, and you do, your intention is to rob the bank. You might prefer to not rob the bank, but you have made a choice. In this case you may be able to raise a defense (such as duress) but we would still say that you acted intentionally.


R v Buzzanga and Durocher (1979) ONCA is a useful illustration for intent. In this case the accused were trying to get the attention of French Canadians living in their area regarding the building of a French language school. To encourage local people to support their position they created and distributed flyers that appeared to be from the opposite side and contained hate speech. They were charged under s.319 (2) Wilful promotion of hatred which says,


Every one who, by communicating statements, other than in private conversation, wilfully promotes hatred against any identifiable group


If we begin by breaking this down by the AR we can see that the accused must:


Conduct: communicate statements

Circumstances: Not in private conversation

Consequences: that promote hatred*


*You could also break down this charge without the consequence – since it does not need to be the case that any hatred is actually promoted (similar to Perjury.)


Once we have established that the accused meets the AR requirements, we then turn to the MR. What are we looking for? The accused must have a basic understanding or knowledge of what they are doing. It can’t be the case that the accused were unaware that the pamphlets contained hate speech. For example, let’s say I include a picture of a sheep in the lecture notes this week. I think I’m being funny, and I include a tag line like “criminal law tells us not to be baaaaa-d” (comedy gold!) However, it turns out that one of my students is from a country where sheep are used as a symbol to refer to a particular racial minority. From the student’s perspective, I have just included hate speech in my lesson notes.  While I may meet the AR for the charge, my lack of knowledge means I will not meet the MR. I simply did not know the connection between sheep and hate speech. In this case Buzzanga and Durocher do know that they are distributing hate speech because that was the point. They wanted people to react to the hate speech.


Do the accused need to have acted with intention? What is the meaning of “willfully” in s.319? In this case the problem is that while Buzzanga and Durocher know that they are distributing hate speech, they are not doing it to attack the group that is targeted. This is not the typical case and the Court had to figure out what to do. The Court discussed whether s.319 meant that the accused needed to wilfully communicate the statements? Or willfully promote hatred? It is clear that the accused did the former, but it is unclear about the latter.


The Court decides that s.319 requires that the accused wilfully promoted hatred in order to be convicted. The use of the word wilfullymeans that the accused must have intended to cause hatred to be promoted. Since the intention of the accused was to rally support, not make French Canadians feel discriminated against, they do not have the required MR for the offence. This case was heard at the ONCA (Ontario Court of Appeal.) In its decision it found that the trial judge had misunderstood “willfully” and ordered a new trial.


From Buzzanga and Durocher we get the following definition for intention:


  1. it is your conscious purpose, or (2) you foresee the consequences that were likely to result and act in that manner anyway.


Intention and Theft


 For certain CC offences there are additional requirements on top of knowledge plus intention. We will look at two examples here. The first is theft. Here is the CC offence:


322(1) Every one commits theft who fraudulently and without colour of right takes, or fraudulently and without colour of right converts to his use or the use of another person, anything, whether animate or inanimate, with intent (a) To deprive, temporarily or absolutely, the owner of it, or a person who has a special property interest in if, of the thing or his property or his interest in it;


The AR for theft is:

Conduct: Take or convert something.

Circumstances: To which they have no right

Consequences: Deprived the owner of it, temporarily of absolutely.


A few things to note here: Converting to your use could include selling the stolen item. So the idea under theft is that the accused has taken something (could be anything, animate or inanimate – alive or not); the accused has no right to that something they took (e.g. they are not a part owner); and the owner of the something does not have the something, for a long time or just a little time.


If we were to use knowledge and intention for our MR then this is what the MR would look like:

  • The accused knew that the object was not their own
  • The accused intended to take it.


For the most part this will work. However, a problem arises when we consider the case of someone who is playing a joke. Let’s say that you see your friend’s phone and, as a joke, you take the phone. When you do this you have met the AR: taken something that was not yours and deprived the rightful owner of their property, even if only temporarily. You also meet the MR: you knew the phone was not yours and you intended to take it – to play a practical joke. Clearly, the criminal law is not interested in cases like this.


Here’s an actual case with similar facts: In R v Wilkins (1965) ONCA a police offer was writing a parking ticket to put on a car. A friend of the owner of that car came up to the officer and told him – I will ride your motorcycle around this parking lot if you don’t stop writing that ticket! The police officer did not hear the accused, and the accused went ahead and drove the motorcycle around the lot. The accused was charged with theft. In his defense he argued that he was just “playing a joke” on the victim.


At the ONCA the court said,

“In the instant case the facts could not possibly justify a conviction of theft. The accused did not intend to steal the vehicle, that is, to convert the property in it to his own use but only to drive it… his intention was merely to play a joke on Nichol [the officer] and the [trial] Judge so found. The intention to perpetrate this joke, stupid though it was, is incompatible with the evil intent which is inherent in the crime of theft.” (79)


Thus, while Theft does require that the accused had knowledge and acted intentionally, we need to understand these ideas in a particular way. The accused must also be acting fraudulently. What this means is that it is not enough that the accused took the motorcycle on purpose (intention) but he must also have done it for some sort of “evil purpose.” Thus, when you take your friend’s phone unless you are doing it to sell it, or destroy it, or in another way harm your friend, you will likely not meet the requirement of acting fraudulently and therefore would not be convicted of theft.


Intention and First-Degree Murder


Like Theft in order to convict the accused of first-degree murder, you need a little bit more than intention. In s.231(2) of the CC first-degree murder is murder that is planned and deliberate. If it is not planned and deliberate, it is second-degree murder. This is important, as the penalty for first-degree murder is more severe than for second-degree murder. So, what does it mean for a murder to be planned and deliberate? This is how the SCC described it in Banwait (2011) 


“A planned murder is one that is committed as a result of a scheme or plan that has been previously formulated or designed. It is the implementation of that scheme or design. A “murder” committed on a sudden impulse and without prior consideration, even with an intention to kill is not planned murder.”


What does this mean? It is not enough that the accused intended to attack the victim. It must also be the case that there is history or plan behind the intention. If Bob stabs Sue because she made him furious we might say that he acted with intention and purpose, but perhaps also suddenly out of an uncontrolled emotion. If Bob stabs Sue as part of a plan to get the inheritance money from their dying father, then it seems that Bob acted with intention and purpose as part of a plan he had made.


Consider the following two cases:

R v Smith (1980) QBCA Smith and Skwarchuk go on a hunting trip together. After stopping at an abandoned farmhouse they get into a big fight. Smith shoots Skwarchuk in the left elbow. Skwarchuk, who was yelling and screaming, runs away from Smith. Smith reloads his gun and shoots Skwarchuk at least twice from long range. Skwarchuk falls to the ground. Smith approaches and shoots him in the head. Skwarchuk was charged with first degree murder. However, this was changed to second degree.


R v Bujold (2010) Que CA Bujold had broken up with his girlfriend and had been trying to reconcile with her. He spent the day feeling lonely and drinking beer. He made a decision to kill both his girlfriend and himself. He wrote letters of apology which he then brought with him when he went to her house that evening. Bujold knocked on the door, and upon entering the house, he stabbed his girlfriend 17 times. Bujold was convicted of first-degree murder.


You may agree that Bujold should have been convicted of first-degree murder, but may also think Smith should have been. Smith was not acting impulsively. He tracked Skwarchuk down and shot him. How is this not first-degree murder? In the decision, the Court said,

There must be some evidence that the killing was the result of a scheme or design previously formulated or designed by the accused and the killing was the implementation of that scheme of design. It is obvious a murder committed on a sudden impulse and without prior consideration, even though the intent to kill is clearly proven, would not constituted a planned murder.” (emphasis added)


Thus, Smith is not first-degree murder because there is no evidence that Smith went to the cabin or on the trip with a plan to kill Skwarchuk. We need that plan, a history to his intention, to find him guilty of first-degree murder.

Transferred Intent

What happens is the accused plans and intends to kill one person, but accidentally kills someone else?

Consider the following:


Bob, Sam, and Charlie go on a hunting trip. Bob is angry at Sam and decides that this trip is a perfect cover to shoot him. While the three men are walking through the forest Bob takes aim and shoots. However, since Sam was not wearing his glasses at the time, he ends up shooting Charlie, not Sam.


According to our analysis so far we know that in order to be convicted of first-degree murder it must be the case that Bob intended to kill Charlie and that the murder was planned and deliberate. However, the killing of Charlie is an accident. Bob thinks highly of Charlie and it devastated at Charlie’s death. To say that Bob is not guilty, however, feels a bit strange. Charlie would not have been shot if it were not for Bob’s desire and plan to kill Sam. How does the law make sense of this? When the AR is applied to one person (in this case Charlie) but the MR is applied to another (in this case Sam) the Crown can make the argument that the MR is transferred to Charlie. Note: if you do not use transferred intent then Bob cannot be convicted of first degree murder. This would likely be a lesser charge of manslaughter.


This principle was applied in R v Droste (1984) SCC. In this case the accused intended to kill his wife and collect the life insurance policy. His plan was to set the car on fire, and leave his wife in the car. The accused soaked the car in gas. Then he got into the car with his wife and two children to drive to a birthday party. On the way a fire broke out. This was not his plan – the accused had intended to wait until only his wife was in the car. Tragically, both the wife and accused survived, but the children were trapped in the car and died. Droste was charged with the first-degree murder of his children even though there was no evidence he wished them any harm.


Before we move on to objective MR we need to look at two more aspects of subjective MR: recklessness and wilful blindness.


Recklessness is considered a state of mind (MR) that can, for some CC offences, be used instead of intention. Where intention requires that accused actually intended (purposely acted to achieve) the outcome, recklessness requires a bit less. Recklessness is about taking risks that are not considered to be appropriate. Generally, you can only use recklessness if there is language in the CC offence that indicates that you can use it (or, in some cases, absence of language that prohibits it.) So, as you recall from Buzzanga and Durocherthey must wilfully promote hatred. The use of the word wilfully means that it cannot be the case that they were reckless instead.


Recklessness means that the accused was subjectively aware that his or her conduct would create the risk in question AND they acted anyway. This means that the accused must themselves be aware that they are taking the risk. Your text discusses three offences (murder, damage to property, and arson) that include “reckless” in the offence. (p. 96-97) Let’s look at Arson in greater detail with a case.


First, what is the AR and MR for s.434 Arson – Damage to Property?


Every person who intentionally or recklessly causes damage by fire or explosion to property that is not wholly owned by that person is guilty of an indictable offence and liable to imprisonment not exceeding fourteen years.


AR Breakdown:

Conduct: sets fire/causes explosion on property

Circumstance: property is not wholly owned by the accused.

Consequence: Damage to the property


MR Breakdown:

  • The accused must perform the conduct (set fire/cause explosion to property) either intentionally or recklessly.
  • The accused must know they do not wholly own the property.


Consider this case: in R v Brain (2003) the accused was smoking cigarettes in a store unit hut, and discarded some of the cigarette butts in a cardboard container. This container caught on fire and burned down the store unit. The accused claims he did not mean for the store unit to burn down.


  AR Brain MR Brain
Conduct Sets fire/causes explosion Yes. Brain discarded the cigarette butts in the cardboard container which caused the fire. Accused does this either intentionally or recklessly Brain testifies that he did not burn the store down on purpose (no intention.)

Was Brain reckless?

Circumstances Property is not wholly owned by the accused Brain did not own the property. Accused knows they do not wholly own the property Brain knew he didn’t own the store.
Consequences Damage to property The store burned down.    


You can see from the table that the key question in this case, on which Brain’s innocence or guilt rests, is did he act recklessly? When we are looking at this question we need to ask: Was Brain subjectively aware that his conduct would create the risk in question, and then did he take the risk anyway? In other words, was Brain aware that discarding the cigarette butts in the cardboard container may create a fire? It seems like Brain, and most of us, would be aware of this risk. And, in fact, Brain was convicted. The Court said,


“[T]he defendant must have known that his conduct, the reckless flipping of a live cigarette [butt] into flammable material, would cause the event, namely a fire, and that he was reckless as to whether or not the fire occurred. In other words, he just did not care one way or the other, and the moves the conduct into the realm of the criminal.”

Willful Blindness

Wilful Blindness applies in the situation where the accused could say they didn’t know what was going on, but they should have. It gets around the situation in which the accused knows what is going on, but decides not to ask any questions or get confirmation in the hopes of avoiding criminal liability.

Read about R v Briscoe on p. 101 of your text. Write a short summary of the facts. What did Briscoe do? What did he know?

Briscoe is charged with aiding in the assault and murder of the victim. We will talk at greater length about aiding and abetting in a future lesson, so I will not go into the details here except to say that in order to find Briscoe guilty the Crown must prove that Briscoe had sufficient knowledge of what Laboucan and the others planned to do to the victim.

At the SCC the court looked at the case. They knew that Briscoe had heard Laboucan talking about killing someone earlier in the day. Briscoe knew when they got to the golf course “something was going to happen” although he wasn’t sure exactly what. Briscoe did not ask questions, but did admit that he had a “strong, well-founded suspicion.”

The SCC finds that Laboucan did not know what was going to happen. However, he was wilfully blind. This means that Briscoe was virtually certain about what was going to happen, but deliberately did not ask any questions. In Briscoe the SCC is clear – proof of wilful blindness can substitute for proof of knowledge.

Constitutionally Required Fault

In a previous lesson we discussed the relationship between the Charter and the Criminal Code. Since the Charter only allows the government to restrict your liberty (e.g. imprisonment) when it can be justified, it is often very difficult for the Crown to prove an accused has the required MR for offences with particularly severe or lengthy sentences. The idea is that if the government is going to take away your liberty, it should be very difficult to do and we should be as sure as we can be that you actually did what you are being accused of. Since murder has a very serious and severe penalty, there are requirements when finding MR that come from the Constitution.

Currently, when the accused is charged with first or second degree murder it must be the case that the accused had subjective foresight of the likelihood of death. What this means is that (a) this is not about death that happens recklessly or negligently, and (b) criminal code offences that create a murder conviction because the death happens in a particular way or during particular circumstances, still have to meet this MR threshold.

You may be familiar of the case of Travis Vader from a few years ago.  In this case the victims (the MCanns) were missing, but no bodies were ever recovered. During the trial the Crown persuasively made the case that Vader must have killed the McCann’s after robbing them. Under s.230 of the CC if the accused causes the death of a human being while committing a robbery, whether or not the accused meant to cause the death, it is considered murder. However, s.230 is an example of a zombie provision in the CC. It is an offence that was declared in violation of the Charter but has yet to be physically removed from the CC itself. In R v Vader the judge was unaware of this and convicted Vader under s.230. This was challenged and eventually Vader was instead charged with manslaughter because there was insufficient proof that Vader deliberately intended or subjectively foresaw the likelihood of the death of the McCans.




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