motive is "always relevant, never essential," and is not part of the crime itself (conjunction of actus reus and mens rea)
Intent is "exercise of free will to use particular means to produce a particular result"; motive is "that which precedes and induces the exercise of the will" - intent is means, motive is end
Evidence of motive is always admissible, and useful to determine identity and possible intent - Crown can rely on it if its presence is proven, and if it is not proven it can be destructive to their case if they rely on it
Motive is legally irrelevant to criminal responsibility - you don't have to prove motive beyond a reasonable doubt to convict
Proved absence of motive is a fact in favour of accused, and jury should be alerted to it in the charge; absence of proved motive is not proof of absent motive
Motive is a matter of fact, and is specific to each case - jury charges don't always need to address it if it is not proven or not important (must be included in charge if proven or if absence is proven, but between that is for judge discretion and is not obligatory)
Motive can tie to specific intent if defined in statute - motive is part of mens rea (as ulterior purpose - does X with the intent of doing Y)
Presence of term "wilfully" means "intentionally" typically, not that it's a specific intent offence
Mathe - committing an actus reus as part of a prank, if it requires proof of specific intent (here robbery), is not criminal because the specific intent is not contemplated as part of the prank (no intention to commit an offence)
Here, the possibility of it being a prank raised a reasonable doubt about whether he intended to rob the bank but abandoned it (nothing intervened with his course of action to make him change his mind)
Bird
"air of reality" - a defence should only be raised if the facts could possibly substantiate it (evidential burden on accused)
The defence of abandonment requires that a person choose withdraw from the criminal enterprise ("change of heart") and that they unequivocally communicate their desire to do so
What this constitutes must be determined contextually, based on the facts of the case (determined by trier of fact) - if the facts don't pass the air of reality test, then abandonment can't be used
Fear or other considerations generally do not mitigate the unequivocal communication requirement (SCC upholding dissent)
Hebert - perjury requires the intent to mislead the court; it is possible to lie without intending to mislead the court if the facts hold up (in this case, lying to make the judge disbelieve the accused and attract attention to threats made against him)
Daviault - extreme intoxication, even if short of automatism, can negate the mental capacity to hold a specific intent for mens rea in specific intent crimes
General intent offences just require proof of intent to perform actus reus, which can usually be inferred from the performance itself (see Lewis)
Specific intent offences require a further intent, which goes above the general intent to perform an actus reus
Recklessness - attaches to the production of a consequence, in the absence of a specific intention (which would supersede it); determined subjectively, based on knowledge of risk; proof of recklessness is equivalent to full mens rea if the offence allows it; "less than full intention to produce consequences"; generally sufficient for mens rea, but statute can exclude it; can admit of subjective and objective determinations (if negligence), so check how offence is interpreted
Wilful blindness - knowledge that inquiry about some state of affairs is needed, but failing to make that inquiry in order to remain ignorant (advertent ignorance); equivalent of knowledge, determined subjectively; "less than full knowledge"
Recklessness and wilful blindness are entirely distinct forms of mens rea - wilful blindness refers to knowledge of present circumstances, recklessness to knowledge of future risks
Blondin
Knowledge need only be of general types if prohibited conduct is of a general prohibition (here, that the thing being transferred was a narcotic, not hashish in particular - also consider things like bodily harm; contrast violating laws about what you can import, where the specific thing must be considered)
Wilful blindness is equivalent to knowledge; if he suspected he might be trafficking a narcotic, he should've inquired
Sandhu
Juries must be informed that wilful blindness is equivalent to knowledge, and not just an extension or higher form of recklessness; Crown must prove knowledge, but recklessness is something less than that
Jury must decide if an accused has been wilfully blind, if there was some point at which the need for an inquiry was recognized but ignored
Recklessness cannot be mens rea for specific intent offence
Vinokurov
If you inquire after you recognize a need to do so, you are not wilfully blind even if unlawful consequences result (wilful blindness requires knowing omission of facts that would lead to certain knowledge)
Use of the term "knowingly" in a statute doesn't make the standard what a reasonable person would know - it remains subjective, for purpose of wilful blindness
Recklessness requires recognition of a risk
If no recognition of a risk, then there is no need to inquire
You can't substitute recklessness for wilful blindness if knowledge is required, but wilful blindness is not made out
Buzzanga and Durocher - use of the term "wilfully" in the statute excludes mere recklessness; "wilfully" doesn't have a fixed meaning, but it can often require that something be done intentionally and not accidentally
Requires "virtual intention" at least, which entails that the prohibited outcome is substantially certain to result from the accused's action (satisfying mens rea)
Hate speech requires that the intention be to promote hatred, not to create a furor or uprising (wilfully modifies "promotes hatred" not the expression itself - you don't wilfully promote hatred by intentionally distributing a satirical pamphlet)
If a risked outcome is substantially certain, then you can reasonably infer that the consequences were intended
Conduct appearing in the Code generally comes with a mens rea requirement; any additions or variations on mens rea should be treated as added to the general mens rea
PENAL NEGLIGENCE
Not all offences require proof of fault – for strict and absolute liability offences, proof of the commission of the act establishes a prima facie case.
For absolute liability, this is an irrebuttable presumption; commission of the act is all that needs to be proven
For strict liability, a defence of due diligence can rebut the presumption.
Penal negligence provisions are identified by the imposition of duties in the language of the law.
E.g. s. 217, 219
These can exist outside of the Criminal Code – provincial statutes can contain them.
Penal negligence cases use modified objective tests – the issue is what a reasonable person would’ve done in the circumstances, and whether the accused’s conduct fell “markedly short” of that standard. The accused’s mental state is relevant in determining this shortfall.
The modified objective test – cannot personalize the test, but must take into consideration circumstances at the time which would’ve affected their perception of the risk posed. If there’s a reasonable doubt about whether a reasonable person under the circumstances could’ve seen the risk or avoided the danger, then there’s no offence.
Penal negligence is a higher standard than civil negligence – it requires a “marked departure” from normal standards of care.
This potentially means that it is objectively dangerous conduct – there’s a reasonably foreseeable risk of non-trivial bodily harm.
Some offences have both mens rea and penal negligence elements – these are identified in the language of the statute (DeSousa).
