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found in the code and case law interpretations of prohibited acts, omissions, status or circumstances. Note that if the code is vague, there is the principle of strict construction.
What is the Actus Reus (the prohibited conduct or omission)?
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Start with the statute (language, definitions provided)
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Turn to the case law for interpretations of the words.
Omissions – failure to act where there is a legal duty to act
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Policy question – whether/when failures to act should give rise to criminal liability?
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Criminal liability should be imposed for omissions when there is a legal duty to act
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General proposition – there is no general duty to be a good Samaritan, even if it is easy and would not expose one to risk, and would be the morally right thing to do.
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Courts started recognizing common law legal duties to act in certain categories of circumstances. At least 3 of these broad categories:
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i. circumstances where there is a relationship of dependency (eg. Parent to child, doctor to patient, jailer to inmate)
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ii. Circumstances where the actor undertook to do something (undertaking)
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iii. Circumstances where people dealing with dangerous objects/performing dangerous tasks – duty to use reasonable care
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these are duties to act that are codified in the CC, and the omission to perform these duties may amount to criminal negligence or common nuisance.
s.215
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Duty to provide the necessaries of life to:
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Children under 16 (parent is obligated)
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Spouse or common law partner
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A person under their charge if that person is unable to provide themselves with the necessaries of life due to age, illness, mental disorder, and is unable to withdraw themselves from the charge
The charge will be made out where the person under charge is in destitute or necessitous circumstances, or if their life is endangered. It is NOT a defence that someone else, who is not under legal duty to do so, provided the necessities of life
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A religious belief is not a lawful excuse (Tutton and Tutton)
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Note the mens rea requirement is objective
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s.216
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Everyone who undertakes surgical or medical treatment to another person or to do any other lawful act that may endanger the life of another, except in cases of necessity is under a legal duty to have reasonable knowledge, skill and care
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Includes someone who is donating blood and knows they are infected with AIDS, they have a duty to not donate (Thornton)
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s.217
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Everyone who undertakes to do an act is under a legal duty to do it if an omission to do it is or may be dangerous to life
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The mere expression of words indicating a willingness to do an act does not trigger this duty (Browne)
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s.217.1
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Everyone who undertakes or has the authority to direct how another does work or performs a task is under a legal duty to take reasonable steps to prevent bodily harm to that person or any other person arising from that work
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s.218
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Abandoning or exposing a child under 10 so that its life is or is likely to be endangered is an offence
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Note: this requires proof of subjective mens rea (R v H(AD))
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s.79
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Duty to take care of explosives
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s.89
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Duty to take care with firearms
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Failing to act in these circumstances can give rise to:
Common nuisance
s.180(2)
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Everyone who does an unlawful act or fails to discharge a legal duty and thereby
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Endangers the lives, safety, property, or comfort of the public
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Obstructs the public in the exercise or enjoyment of any right that is common
** the nuisance has to be directed to the public generally rather than specific people (Thornton)
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Criminal negligence
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Defined in s.219: everyone who is criminally negligent who in doing anything or in omitting to do anything shows wanton and reckless disregard for the lives and safety of others.
s. 219(2): duty means duty imposed by law
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s.220: criminal negligence causing death
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s.221: criminal negligence causing bodily harm
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s.222(5)(b): where the acts of the accused were a significant contributing cause to the death (Nette)
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Issue: do common law duties still exist? SCC hasn’t ruled on this, they have tried to fit the act within the legal duties in the CC. IF the common law duties exist, how does this interact with s.9 of the CC (no person shall be convicted of an offence at common law)
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Thornton 1991 ONCA
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The accused was HIV-positive an infectious, and he donated blood to the Red Cross and withheld the information. The blood was screened and rejected. He was charged with committing a common nuisance endangering the lives or health of the public.
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Issue: can a legal duty arise out of common law?
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Held: Donating blood which is known to be HIV positive is a breach of the common law duty to refrain from conduct which one foresees could cause serious harm to another person (s.216). Had it not been detected by screening, it would have endangered the public (this does not require actual harm). The public was in danger from the moment he donated blood. The accused had personal knowledge of the consequences of his blood passing to others, and deliberately withheld the info so he also had mens rea.
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ONCA said that common nuisance can be created based on common law duties.
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Cuerrier 1998 SCC
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nondisclosure by the accused of HIV status foreclosed any possibility of a valid consent – constitutes fraud. It enforces a duty of disclosure in some circumstances. BUT this is not like creating a common law duty because it still turned on consent.
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Fit offence of non-disclosure into offence of sexual assault, rather than sticking to framework of omission-based offence
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Did not recognize statutory duty to disclose under s. 216
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Court was nuanced to and careful to define circumstances required for nondisclosure to be fraudulent
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1) Will not be fraud unless the dishonest act is coupled with deprivation on the part of the complainant – deprivation that may have caused complainant to refuse sexual contact
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2) Crown must show that complainant was exposed to a significant risk of bodily harm
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Mabior 2012 SCC
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Criticized the Cuerrier test: it is too uncertain – what constitutes a significant risk, and what constitutes serious bodily harm?
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When should non-disclosure of HIV status amount to fraud vitiating consent?
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Held: Where there is a realistic possibility of transmission of HIV, a significant risk of serious bodily harm is established. If the accused fails to disclose in this situation, consent is vitiated (fraud)
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turned on consent rather than the creation of a new duty
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didn’t address the issue of common law duty
Ramifications of this case: should there be a common law duty to disclose? What gets in the way of this? S.9 and weak precedents
Undertakings impose a duty to act (s.217) -
Browne 1997 ONCA
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Drug dealers. She swallowed bag of cocaine. He said he would take her to hospital, they put her in taxi and take her to hospital. She died.
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Issue: to find a legal duty, there had first to be the finding of an undertaking.
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Acquits on basis that there was no undertaking
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Held: the word “undertaking” must be interpreted in a context where the threshold is sufficiently high to justify serious penal consequences
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“nothing short of a binding commitment”… it must not be a mere statement, must be clear with binding intent.
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Notes: if this was recognized as an undertaking in this case, it could change the landscape of what a “good Samaritan” is
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Issue of causation: even if calling a taxi instead of an ambulance is viewed as unreasonable, what is the evidence that shows the breach of the duty caused the death? ESSENTIAL ELEMENT OF ACTUS REUS – where is the proof that she would have lived if an ambulance was called?
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Also where is the proof of mens rea? Conduct that shows wanton and reckless disregard for the lives and safety of other people
Status offences: criminalization of a state of being (brings up lots of charter issues)
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Parliament rejected the option of criminalizing being a member of a group, rather one has to be participating in the group
Prohibited Circumstances: assault as an example, where the act itself criminal where there is no consent.
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