Foresight of certainty when dealing with consequences

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Mens Rea and the Charter

  • Buzzaznga extends the intention requirement to encompass foresight of certainty when dealing with consequences of actus reus

  • Common law presumption of subjective mens rea form criminal offences is not the same as the (much less onerous) Charter requirement – Creighton says that s. 7 (principles of fundamental justice) requires subjective mens rea for very few offences

  • In Sault St. Marie, Dixon, in obiter, articulated his belief that for criminal offences only a subjective mens rea standard would be acceptable

    • Where the offence is criminal, the Crown must establish a mental element, namely, that the accused who committed the prohibited act did so intentionally or recklessly, with knowledge of the facts constituting the offence, or with wilful blindness toward them. Mere negligence is excluded from the concept of the mental element required for conviction

  • This was always a practical overstatement and has been qualified WRT the Charter by Creighton – but it is still a important principle that is reflected in the subjective mens rea found in most criminal offences

Principles of Fundamental Justice

Three Antonio Lamer Judgements – plus one dissent

1. Re B.C. Motor Vehicle Act (1986)

  • Combination of absolute liability and imprisonment violates s. 7

  • Where there is a risk that a person will be deprived of life, liberty or security of the person, fundamental justice is engaged

  • Whether any principle is one of fundamental justice “will rest upon an analysis of the nature, sources, rationale and essential role of that principle within the judicial process and in our legal system”.

2. Vaillancourt (1987)

  • Strikes down s. 230(d) – constructive murder with a weapon

  • “The ratio of Vaillancourt, strictly speaking, was that it is a principle of fundamental justice that before a person could be convicted of murder there must be proof beyond a reasonable doubt of at least objective foreseeability of deathMartineau

  • BUT, court split 4-4 on the issue of whether “there exists a principle of fundamental justice that a conviction for murder cannot rest on anything less than proof beyond a reasonable doubt of subjective foresight

3. Martineau (1991)

  • Strikes down s. 230(a) – constructive murder by causing bodily harm for the purpose of facilitating and offence

    • 230(c) was struck down in Sit (2991)

  • Suggests in obiter that 229(c), unlawful object murder, is also unconstitutional

  • Only mens rea requirement was intent to cause bodily harm

  • Now Lamer has his majority on the issue of subjective foresight – raises the bar for the mens rea of murder

  • “I concluded that objective foreseeability of death was the minimum threshold test before a conviction for murder could be sustained. I went on to state, however, that it was my view that the principles of fundamental justice require more; they demand that a conviction for murder requires proof beyond a reasonable doubt of subjective foresight of death”

4. Creighton (1993)

  • He loses; fault requirement for unlawful act manslaughter is left at objective foreseeability of the risk of bodily harm which is neither trivial nor transitory

  • He also loses on whether this test should be measured purely objectively (majority) or on a modified-objective basis

The Principles


Moral Voluntariness

Fault: blameworthy or culpable state of mind

Punishment must be proportionate to fault – punish intentional greater than negligence
NOT a Principle

Subjective foresight for all but a few offences

Symmetry between elements of AM and MR

“In R. v. Vaillancourt…I emphasized that the guiding principle underlying the constitutional analysis of fault in criminal law is that the state cannot punish a person as morally blameworthy unless such blameworthiness has been established” Creighton, per Lamer CJC

“The rationale underlying the principle that subjective foresight of death is required before a person is labelled and punished as a murderer is linked to the more general principle that criminal liability for a particular result is not justified except where the actor possesses a culpable mental state in respect of that result: see R. v. Bernard, [1988]… and R. v. Buzzanga and Durocher (1979)”
Sault Ste. Marie, Re B.C. Motor Vehicle Act, and Vaillancourt all stand for the proposition that a guilty verdict requires intentional conduct or conduct equated to it like recklessness or gross negligence.” Lebel, Ruzic
“In Daviault (1984)… the majority of the Supreme Court decided that voluntariness was a requirement of principles of fundamental justice under section 7 of the Charter and the presumption of innocence under section 11(d)” Stuart

  • “the mental aspect involved in willed or voluntary conduct may overlap to some extent in both the concept of mens rea and actus reus” Cory J, Daviault

“Although moral involuntariness does not negate the actus reus or mens rea of an offence, it is a principle which, similarly to physical involuntariness, deserves protection under s. 7 of the Charter. It is a principle of fundamental justice that only voluntary conduct – behaviour that is the product of a free will and controlled body, unhindered by external constraints – should attract the penalty and stigma of criminal liability. Depriving a person of liberty and branding her with the stigma of criminal liability would infringe the principles of fundamental justice if the accused did not have any realistic choice.” Lebel, Ruzic

The first requirement of the principles of fundamental justice is that a blameworthy or culpable state of mind be an essential element of every criminal offence that is punishable by imprisonment. This principle reflects the fact that our criminal justice system refuses to condone the punishment of the morally innocent. As both McIntyre and Wilson JJ. pointed out in R. v. Bernard, individuals who render themselves incapable of knowing what they are doing through the voluntary consumption of alcohol or drugs can hardly be said to fall within the category of the morally innocent. Such individuals possess a sufficiently blameworthy state of mind that their imprisonment does not offend the principle of fundamental justice which prohibits imprisonment of the innocent.”
The second requirement of the principles of fundamental justice is that punishment must be proportionate to the moral blameworthiness of the offender. This was held to be a principle of fundamental justice in R. v. Martineau… and R. v. Creighton…. There are a few crimes in respect of which a special level of mens rea is constitutionally required by reason of the stigma attaching to a conviction and by reason of the severity of the penalty imposed by law. Accordingly, murder and attempted murder require a mens rea based on a subjective standard. No exception from the principle of fundamental justice should be made with respect to these offences and, as specific intent offences, drunkenness is a defence. ” Sopinka, Davidault
R. v. Hundal… and R. v. DeSousa… make it clear that there is no general constitutional principle requiring subjective foresight for criminal offences. In other words, an objective fault requirement is constitutionally sufficient for a broad range of offences other than those falling within the relatively small group of offences alluded to in Vaillancourt.” Lamer CJC, Creighton

Creighton – three lessons

Section 222… (5) A person commits culpable homicide when he causes the death of a human being,

(a) by means of an unlawful act;
(b) by criminal negligence;
Creighton was charged under s. 222(5)(a): unlawful act manslaughter
I. Mens rea of unlawful act manslaughter

R. v. DeSousa, 1992

  • Context is s. 229: Unlawfully causing bodily harm

  • It is now settled that the fact that an offence depends upon a predicate offence does not render it unconstitutional, provided that the predicate offence involves

    • a dangerous act,

    • is not an offence of absolute liability (Re Motor Vehicle Act)

    • and is not unconstitutional

  • Unlawful conduct is a predicate offence involving carelessness or negligence

  • DeSousa established, per Sopinka J., “the underlying unlawful act required for manslaughter requires ‘proof that the unlawful act was “likely to injure another person” or in other words put the bodily integrity of others at risk’

  • Unlawful act manslaughter rely on establishing the mens rea and actus reus of a predicate offence (an unlawful act as defined in DeSousa or criminal negligence) plus an additional mens rea element

  • The common law authorities have established that this extra fault requirement is foreseeability of the risk of bodily harm and not foreseeability of death – albeit, back in the day the only fault requirement may have been the mens rea of the predicate offence (Blackstone)

  • This is an objective test of mens rea

  • “So the test for the mens rea of unlawful act manslaughter in Canada… is (in addition to the mens rea of the underlying offence) objective foreseeability of the risk of bodily harm which is neither trivial nor transitory, in the context of a dangerous act. Foreseeability of the risk of death is not required.”

  • The question is whether the common law jurisprudence is consistent with s. 7 of the Constitution Act, 1982: a principle of fundamental justice

    • “The question is whether this test violates the principles of fundamental justice under s. 7 of the Charter.”

  • Lamer CJC argues that “the common law offence of manslaughter is unconstitutional because it does not require foreseeability of death. The Chief Justice concludes that the offence of manslaughter must be ‘read up’ to include this requirement in order to bring it into line with the principles of fundamental justice enshrined in s. 7 of the Charter, and in particular with the principle that the moral fault required for conviction be commensurate with the gravity and the stigma of the offence

  • McLachlin J. justifies this lower standard WRT to section 7. in a number of ways:

    • By the very act of calling the killing manslaughter, the law indicates that the killing is less blameworthy than murder.

    • Nor does the sentence attached to manslaughter require elevation of the degree of mens rea for the offence.

    • Finally, the principle that those causing harm intentionally must be punished more severely than those causing harm unintentionally is strictly observed in the case of manslaughter.

Gravity of the offence – sentencing

  • Proposition: There is a s. 7 requirement that punishment be proportional to moral blameworthiness, which in turn requires those that cause harm intentionally be punished more severely than those who cause harm through negligence

  • Lamer CJC finds that the mere foreseeability of bodily harm test of fault is unconstitutional on seriousness and symmetry grounds

  • In gainsaying the argument based on the gravity of manslaughter, McLachlin J. structures her argument around three of “the four factors relevant to determining the constitutionality of a mens rea requirement, as set out… in R. v. Martineau

    1. The stigma attached to the offence, and the available penalties requiring a mens rea reflecting the particular nature of the crime;

    2. Whether the punishment is proportionate to the moral blameworthiness of the offender; and

    3. The idea that those causing harm intentionally must be punished more severely than those causing harm unintentionally.

  • WRT sentencing, the second and third factors, McLachlin notes that the less onerous objective test of foreseeability of bodily harm is justified because “the sentence can be and is tailored to suit the degree of moral fault of the offender.”

  • She also notes that the principle that the principle that “those causing harm intentionally must be punished more severely than those causing harm unintentionally…is strictly observed in the case of manslaughter”


  • Lamer CJC, in addition to finding that “the stigma attached to a conviction for culpable homicide, albeit culpable homicide which is not murder, to be significant enough to require, at a minimum, objective foresight of the risk of death in order for the offence to comply with s. 7 of the Charter” also raises the issue of the symmetry between the mens rea and the consequence of the crime

  • Obviously, according to McLachlin, if the fault element of the killing (as opposed to the predicate offence) is simply objective foreseeability of bodily harm and not death, there is no symmetry

  • DeSousa is the authority for the proposition that there is no common law or constitutional principle that a fault requirement must be related to each element of the actus reus, including any prohibited conseqauence

    • Thus, “while the rule that there must be symmetry between the mens rea and the prohibited consequences of the offence is a general rule of criminal law… fundamental justice does not require absolute symmetry between moral fault and the prohibited consequences.”

  • For his part, Lamer CJC distinguishes crimes (like manslaughter) where the consequences form the essence of the offence from the few crimes (like dangerous driving causing bodily harm) where a consequence forms part of the actus reus of an offence, but where the essence of the offence is conduct which is inherently risky to life or limb, and so “proof of the accused having engaged in prohibited conduct which is such that any reasonable person would inevitably have foreseen the risk involved will serve as a substitute for objective foresight”

Policy considerations

  • See handout: Feb 4

In summary: The gravity of the offence (low stigma, flexibility in punishment and lower punishment than murder), the non-obligatory nature of symmetry and “policy considerations support a test for the mens rea of manslaughter based on foreseeability of the risk of bodily injury, rather than death.” The principles of fundamental justice in s. 7 of the Charter do not require a much stricter test of foreseeability of death.
II. Interpretation of the objective fault requirement

  • On the authority of Hundal: The objective test for criminal fault… requires a ‘marked departure’ from the standard of the reasonable person

III. No individual factors short of incapacity

  • Lamer CJC would have adopted a modified objective test for determining what the marked departure from the standard of reasonable person means; McLachlin J. goes for a purely objective test

  • The legal standard of care is always the samewhat a reasonable person would have done in all the circumstances. The de facto or applied standard of care, however, may vary with the activity in question and the circumstances in the particular case.”

    • “the legal duty of the accused is not particularized by his or her personal characteristics short of incapacity; it is particularized in application by the nature of the activity and the circumstances surrounding the accused's failure to take the requisite care”

  • “Considerations of principle and policy dictate the maintenance of a single, uniform legal standard of care for such offences, subject to one exception: incapacity to appreciate the nature of the risk which the activity in question entails. The principle that the criminal law will not convict the morally innocent does not require consideration of personal factors short of incapacity.”

  • This aspect of the ruling is impractical – it’s “based on a shaky majority, far too insensitive and likely to be sidestepped by trial judges and juries”

  • There is a grave potential for injustice

  • Already, the purely objective standard for fault (which the court says applies an any situation) has been ignored WRT defences:

    • the reasonable belief requirement for self-defenceR. v. Petel

    • the objective standard required to assess the defence of duress – Hibbert


  1. Genesis of defence (statute or common law)

  2. Elements of defence or test used to apply it

  3. Case law on how elements of test are applied

  4. Any statutory reform that affects case law

  5. Know allocation of burden of proof

Mistake of Fact – not strictly a defence

  • Common Law: Pappajohn and Ewanchuck

  • “Mistake is a defence...where it prevents an accused from having the mens rea which the law requires for the very crime with which he is charged. Mistake of fact is more accurately seen as a negation of guilty intention than as the affirmation of a positive defence.” Pappajohn, per Dixon J.

R. v. Ewanchuck, 1999

  • “No defence of implied consent to sexual assault exists in Canadian law”

  • “The accused may challenge the Crown’s evidence of mens rea by asserting an honest but mistaken belief in consent. The defence of mistake is simply a denial of mens rea.

    • “It does not impose any burden of proof upon the accused. The accused need not testify in order to raise the issue… [A]s a practical matter, this defence will usually arise in the evidence called by the accused.”

  • “In the context of mens rea – specifically for the purposes of the honest but mistaken belief in consent – ‘consent’ means that the complainant had affirmatively communicated by words or conduct her agreement to engage in sexual activity with the accused. ”

  • Statutory Reforms: “Not all beliefs upon which an accused might rely will exculpate him. Consent in relation to the mens rea of the accused is limited by both the common law and the provisions of ss. 273.1(2) and 273.2 of the Criminal Code” – apply to sexual assault only

  • “As an initial step the trial judge must determine whether any evidence exists to lend an air of reality to the defence. If so, then the question which must be answered by the trier of fact is whether the accused honestly believed that the complainant had communicated consent.

  • “Any other belief, however honestly held, is not a defence. Moreover, to be honest the accused’s belief cannot be reckless, willfully blind or tainted by an awareness of any of the factors enumerated in ss. 273.1(2) and 273.2.”

  • “If this evidence raises a reasonable doubt as to the accused’s mens rea, the charge is not proven.”

    • Acquittal is entered

Officially Induced Error of Law – not strictly a defence

  • Common Law: Levis v. Tetrault is leading case. Establishes analytical framework first articulated in Jorgensen

  • a limited but necessary exception to the rule that ignorance of the law cannot excuse the commission of a criminal offence”

  • Section 19 of the CCC: “Ignorance of the law by a person who commits an offence is not an excuse for committing that offence.”

  • “However, the inflexibility of this rule is cause for concern where the error in law of the accused arises out of an error of an authorized representative of the state and the state then demands, through other officials, that the criminal law be applied strictly to punish the conduct of the accused.”

    • “In such a case… the fundamental fairness of the criminal process would appear to be compromised” Levis

  • In Jorgensen, “Lamer C.J. equated this defence with an excuse that has an effect similar to entrapment.

  • “The wrongfulness of the act is established. However, because of the circumstances leading up to the act, the person who committed it is not held liable for the act in criminal law.

  • The accused is thus entitled to a stay of proceedings rather than an acquittalLevis

Elements: The accused must prove six elements:

  1. that an error of law or of mixed law and fact was made;

  2. that the person who committed the act considered the legal consequences of his or her actions;

  3. that the advice obtained came from an appropriate official;

  4. that the advice was reasonable;

  5. that the advice was erroneous; and

  6. that the person relied on the advice in committing the act.

  • “It…is necessary to establish the objective reasonableness not only of the advice, but also of the reliance on the advice”

  • “Various factors will be taken into consideration in the course of this assessment, including

    • the efforts made by the accused to obtain information,

    • the clarity or obscurity of the law,

    • the position and role of the official who gave the information or opinion,

    • and the clarity, definitiveness and reasonableness of the information or opinion

  • It is not sufficient in such cases to conduct a purely subjective analysis of the reasonableness of the information. This aspect of the question must be considered from the perspective of a reasonable person in a situation similar to that of the accused.


Director of Public Prosecutions v. Beard, 1920 (HL)

  • Sets out three rules that narrowed the ability of a defendant to claim drunkenness as a defence

  1. Intoxication can ground a defence of legal insanity

    • Never used; dead letter

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