For facts to come before the court, they need to be established by way of evidence.
2 longstanding principles – foundation for proof of guilt in crim law
presumption of innocence (11(d) of Charter)
requirement of proof beyond a reasonable doubt
referred to as the “golden thread” that runs through criminal law
Oakes SCC 1986
Argued that s.8 of Narcotics Control Act violates the presumption of innocence in s.11(d) of Charter because it could be possible for a conviction to occur despite the existence of a reasonable doubt
Held: The act contains a reverse onus, a violation of 11(d) and it is not a reasonable limit
Note: a reverse onus is upheld as constitutional in Chaulk
Underlying purpose – protects fundamental liberty and human dignity of any person accused by the state of criminal conduct they fact grave social and personal consequences, loss of liberty, social stigma and ostracism
Very grave consequences – presumption of innocent is CRUCIAL
Presumption of innocence is not normally rebutted until Crown proves guilt beyond a reasonable doubt
Burden of Proof
Actus Reus the physical element, the thing done
Mens Rea guilty mind
Crown must prove beyond a reasonable doubt the actus reus, mens rea, and the absence of a lawful defence
An exception is where we put a burden of proof on the accused in relation to a specific defence, eg. Insanity defence
NCRMD s.16 of CC
Evidentiary presumption that we are all sane
Crown doesn’t have to prove that we are all same, falls to the applicant to prove the elements of the defence
Reverse onus – always a question of constitutionality (s.11(d)) of charter
An instance where reverse onus struck down = OAKES possession for purpose of trafficking
Quantum of Proof
Lifchus SCC 1997
Judge told jury to use phrase “reasonable doubt” in its ordinary, everyday sense
Held: instructions were an error – phrase has special meaning and it is intertwined with the presumption of innocence
A trial judge is required to explain that something less than absolute certainty, and something more than probable guilt is required for a jury to convict
2. Balance of probabilities (51%) – more likely than not, used in reverse onus situations
3. Some evidence/air of reality – filter for the jury for a defence
Starr SCC 2000
Trial judge failed to explain special legal significance of “reasonable doubt”
Held: trial judge erred by not complying with the Lifchus standard. The reasonable doubt standard falls much closer to absolute certainty than to proof on a balance of probabilities.
Introduction to Actus Reus: Contemporaneity and Voluntariness
Prohibited conduct cannot be too vague/broad and cannot be retroactively prohibited
Contemporaneity doctrine that governs the relationship between mens rea and actus reus: with regard to all offences that require proof of fault, the offences cannot be proved unless the mens rea and the actus reus coincide. There must be a temporal overlap between the mental fault and the prohibited conduct. The doctrine is applied flexibly.
It has not been explicitely held to be a principle of fundamental justice within the meaning of s.7
If the AR is complete before the MR intention to inflict bodily harm arises, there will be no criminal conviction
Drove over an officer’s foot, but then remained there when asked to move.
The initial action may have been unintentional, but once he knew the car was on the foot it was intentional (not just omission or inactivity) and it became criminal at this point
The court looked at the act and omission together: illustrative that the court takes a general approach to actus reus (not a narrow approach)
Miller England
Accused was smoking and fell asleep, woke up to mattress smoldering and left the room.
The last thing he did was an omission, but this is ok for arson (the failure to extinguish the fire made intentional his previous unintentional act and was regarded as ONE act)
Cooper SCC 1993
Accused charged and convicted of manual strangulation. Testified he got angry at the victim, grabbed her by the throat and shook, then recalled nothing until he awoke in his car and she was dead. He was drunk. She died 2.5 mins after he grabbed her
Held: It can be reasonably inferred that when he grabbed her neck there was the necessary coincidence between the strangulation and the likelihood it would cause death (it is not necessary that it continue until the death). It is not necessary for the guilty act and the intent to be completely concurrent.
Only necessary that MR be present AT SOME TIME between the beginning and the end of the AR
Same approach in Meli, Phagen and Miller cases
Bottineau
Accused confined grandchildren to room without food or water
Could not be convicted because crown could not determine a moment in time in this neglect where MR was present?
NO, sufficient for AT SOME POINT the accused to recognize action would result in death of grandson
Williams SCC 2003
In a relationship where they had unprotected sex, then Williams tested positive and was counseled on the duty to disclose. They continued to have unprotected sex, and then the victim tested positive. He was charged with aggravated sexual assault.
Issue: before testing there was endangerment but no intent, afterwards there is intent but potentially no endangerment. When did she contract the virus?
Held: conviction sustained for attempted aggravated sexual assault. There was reasonable doubt as to whether he was endangering the life of the victim WHILE he was aware of his HIV status.
MR requirement couldn’t be proved, doesn’t lend itself to continuing transaction theory
Act must be:
1. Physically voluntary
2. a prohibited act or omission
3. Factually and legally caused the harm 1. Voluntariness the prohibited conduct is a product of the will of the accused. Consciousness alone is not enough to establish voluntariness, an element of control is required (conscious choice). There must also be moral voluntariness (Ruzic).
This is not expressly mentioned in the Code, it is a common law principle and requirement. Why? It is unfair to convict someone for an unintentional act (eg. Severe mental disorder, extreme intoxication, sleepwalking, automatism… where it is physically impossible to fulfill a legal duty.
Debate: About whether this should be lodged in mens rea or actus reus. Basically it doesn’t really matter (UNLESS strict liability), it just needs to be established in order to have a conviction. There may be overlap (Daviault).
Kilbride v. Lake 1962 New Zealand
Man returned to his car and had a ticket for not displaying a warrant of fitness. It was there when he left the vehicle, and had detached when he was away. Although this was a strict liability offence (no mens rea requirement):
A person cannot be made criminally responsible for an act or omission unless it was done or omitted in circumstances where there was some other course open to him: he must be responsible for the physical ingredient of the offence. The actus reus was NOT as a result of his conduct here.
Ruzic SCC 2001
She was a drug mule, and had been threatened by traffickers (who knew information about her) that they would harm her mother if she didn’t deliver the drugs.
Held: if the accused had been subject to duress, they may have chosen to engage but not to morally commit the crime
“criminal liability will only be borne by those persons who knew what they were doing and willed it”
introduces us to moral voluntariness – not voluntary in a moral sense, involves defence of duress
