Not all expressions of Charter rights will be afforded the same protection; freedom of expression is very serious for issues around political speech/participation, but hate speech is socially useless and contradicts the values expressed in the Charter so it's easier to justify infringing the freedom in that case
Any expressive, non-violent communication can be protected under 2(b) of Charter (distinguish form and content - content is protected, form isn't always); give it a large and liberal interpretation
S. 1 analysis must balance Charter values with circumstances of case
Minimal impairment doesn't always mean least intrusive measure if a stronger restriction is not redundant and accomplishes things that weaker restrictions can't
Reverse onus can balance how difficult/easy it is to convict someone (balance of probabilities is weaker standard than beyond reasonable doubt)
Dagenais
Third branch of proportionality test must also balance the deleterious and salutary effects of the measures as well as the effects and the objective
Even if there's a pressing objective that could merit a strong limitation, if that limitation is cannot be reasonably justified for a free and democratic society, it can fail the Oakes test
ACTUS REUS
two types of actus reus: act and omission
Dunlop- failing to prevent a crime, or being at the scene of a crime, does not make an accused guilty on its own
Moore - failing to identify yourself when a police officer sees you commit an offence violates an implied duty, and interferes with their legitimate pursuit of their own duties - this constitutes obstruction of a peace officer
Dissent from Dickson J - this would violate presumption of innocence and right to silence; duties in criminal law must be explicit from statute or common law, and you thus cannot violate an implicit duty; powers of arrest already require identification, and it should only be triggered then
culpable acts must be voluntary, effectively meaning non-involuntary, physically speaking - mental or moral coercion does not negate voluntariness for actus reus
relevant considerations: was the action a matter of choice or conscious action? did some external force compel the act? was there some explanation for involuntariness - epileptic seizure, extreme phobia, injury?
Wolfe - reflex actions are not voluntary for purpose of actus reus
Causation has two elements - factual responsibility and legal responsibility
Factual causation - was the act a necessary condition for the occurrence of the consequence? But for the act, would the consequence have arisen?
Legal causation - can we legally hold you responsible for the consequence? Was your contribution to the consequence significant enough to merit liability?
Smithers - "contribution outside the de minimis range" is all that is required for factual causation
Nette
causation requires both factual and legal elements
mens rea can inform causation analysis
statutory rules can define causation analysis
language for a jury charge for murder should NOT be of “de minimis”, which is too vague. The proper language is “substantial contributing cause”.
Maybin
Multiple causes for an offence does not necessarily raise a reasonable doubt if the standard tests (but-for) yield certain results (but for the brothers beating the victim, he wouldn't have died)
Causation test is just what comes from Smithers/Nette- factually, was the action a "significant contributing cause" to the death (updated Smithers from "de minimis" per Nette)? If so should we hold the accused morally responsible?
Two tests can be useful for causation, but are only tools for the analysis in Nette; neither can by itself break a causal chain
Reasonable foreseeability
Interruption by an independent and intentional act
No mechanical test for causation - must be case- and fact-specific
Factual causation is just the but-for test
Legal causation addresses issues like whether a novus actus interveniens interrupts the causal chain
Possible grounds for novus actus: abnormal or extraordinary or unreasonable act; non-natural coincidence, voluntary conduct by intervening party, reasonable foreseeability
Problems with reasonable foreseeability:
Scope of what is reasonably foreseeable
What sort of things are reasonably foreseeable (general bodily harm vs a specific sort of harm)
Time to assess foreseeability is at the time of the assault, not at the time of the intervention
So general nature of consequence is relevant; you may not be able to predict that a shark will eat your victim when you throw them off a boat, but you can predict that they'll suffer bodily harm
Focus on the nature of the intervening act, not the actor
Reasonably foreseeable harm is a legitimate reason for legal causation
Intervening acts can, but need not, break a causal chain; depends on whether the intervening act overwhelms the original act, or if the original act is still ongoing at the time of the consequences
If an intervening act was sufficiently independent, causal chain can be broken (remoteness); if intervening act was a response to the original act, then unless it overwhelms the original act causation persists
Winning - causation in non-homicide cases
If no reliance on the original act, then no causality is established (in this case, obtaining credit under false pretenses)
Thin skull rule applies in homicide cases - take your victims as they come, regardless of their personal idiosyncrasies (Smithers - victim's malfunctioning epiglottis didn't absolve Smithers of the assault that contributed beyond de minimis to the death)
Blaue - a Jehovah's Witness refusing a blood transfusion was not sufficient to break causal chain after she was stabbed
If injury was an operating cause in the death (substantial contributing cause, in Maybin/Nette terms), then causality was maintained
It is no defence to say that someone wouldn't have died if they had taken more care of themselves
Third-party intervention can break causal chain when the initial injury is no longer operative at the time of death
Smith - even though good-faith medical efforts made the stabbing worse, the stab wound was still a significant contributing cause because it was still operative; "death flowed from the wound"
Liability only would've been waived if the subsequent injuries alone killed the victim
De minimis - "the law does not concern itself with trifles"
Possible defence, but hasn't been upheld by SCC
Kubassek - de minimis dismissed because, while the actual assault was minimal, it was not a trifle (done to disrupt a wedding, only accidentally non-injurious)
Must be analyzed using all the facts
MENS REA
Mens rea has to be proven at time that actus reus was committed (except for objective liability/penal negligence, wherein actus reus fails if it falls short of standard of care)
Mens rea is subjective; requires intention to perform actus reus (and its natural consequences) and knowledge of the relevant facts/circumstances
Since mens rea is subjective, we have to infer its existence from external evidence (confessions, statements about mental state when offence committed, circumstantial evidence); the stronger the evidence, the more reasonable the inference
Mens rea must not be proven objectively - what a reasonable person would've known or thought is irrelevant
Mens rea is generally identified in statute (if it appears in the Criminal Code, it is presumptively a general mens rea offence, where intending an actus reus is sufficient, unless otherwise specified), and unless the statute specifies otherwise a reasonable doubt about the mens rea is enough to acquit
Motive is not part of mens rea - why you did it can be useful for the trial, but mens rea itself is just the intention to perform a specific act
Specific intent crimes require an extra intention for mens rea (defined in the crime), and usually requires further evidence for proof; raising a reasonable doubt about the specific intent is sufficient to acquit for a specific intent offence, though it generally leads to a general intent crime charge
Charter (s. 7) can require proof of subjective fault in some cases
3 levels of mens rea - full intention (intention and full knowledge), wilful blindness (awareness of need to inquire, but the accused ignored it to remain ignorant), and recklessness (awareness of a risk but proceeding regardless)
Wilful blindness is equivalent to knowledge of facts, and will suffice for specific intent offences
Recklessness apples to the production of consequences, and does not suffice to establish specific intent offences
For offences involving the production of consequences, either recklessness or wilful blindness/full knowledge can suffice for mens rea unless specified in statute (Buzzanga; virtual intention = awareness of substantial certainty that offensive consequences would take place, and proceeding regardless)
Robinson - you can reasonably infer that a person intends the natural consequences of their acts, but that is not a presumption (it is only a permissive inference)
