cCriminal Law Template

Sources of Criminal Law

ñc ost Criminal offences are created by the Criminal Code. (exceptions CDSA-Drugs, Firearms)
ñc Frey v Fedoruk [1950] SCR 51- that no one shall be convicted of a crime unless the offence with which he is charged is
recognized as in the provisions of the Criminal Code or can established by the authority of some reported case as an offence
known to the law.

Criminal Code s9-

Criminal Offences to be under law of Canada

No person shall be convicted or discharged under s730

a)c of an offence at common law;

b)c of an offence under the Act of the Parliament of England (UK, Great Britain)
c)c of any offence under any Act or ordinance in force in any province or territory
ñc Common law offences are not allowed (s9) Code, common law defences are allowed (s8(3) Code in Criminal law and can be
created by the court. .
ñc R v Jobidon [1991] 2SCR 714- s8 Code - Common law principles apply to the extent that they are not inconsistent with the Code
or other Act of Parliament and have not been altered by them. In particular, s. 8(3) of the Code expressly provides that
exculpatory defences continue so to operate to exclude criminal liability.
ñc Levis (City) v . Tetrault [2006] 1SCR 420. ² SCC recognized a common law defence. T, who is charged with driving a motor
vehicle without a valid driver·s licence, raised the defence of due diligence, stating that he was unaware that the date appearing
on his licence was the date the licence expired rather than a payment due date.
ñc The due diligence defence raised by the company and by T has not been made out. The concept of diligence is based on the
acceptance of a citizen·s civic duty to take action to find out what his or her obligations are. Passive ignorance is not a valid
defence in criminal law.
ñc Defence of officially induced error, although it is available in Canadian criminal law, the company has not established that the
conditions under which it is available have been met. The issues the company raised with the SAAQ·s representative related at
most to administrative practices, not to the legal obligation to pay the fees by the prescribed date. Two fundamental conditions
that must be met for this defence to be available were therefore missing: the company could not have considered the legal
consequences of its conduct on the basis of advice from the official in question, nor could it have acted in reliance on that
opinion, since no information regarding the nature and effects of the relevant legal obligations had been requested or obtained.

s8 Code

(3)Common Law Principle Continued

Every rule and principle of the common law that renders any circumstance a justification or excuse for an act or a defence to a charge
continues in force etc..

The Power to Create Offences

A. Constitutional Division of Powers- Federal/Provincial both have powers to create non-criminal offences (regulatory offences) & use jail
for enforcement.
ñc s91 (27) Constitution Act 1867 Federal government- can only create criminal offences ´true crimesµ
ñc s92 (14) Constitution Act 1867 Provincial Governments do have jurisdiction over the administration of justice
ñc Procedural during criminal hearings is governed by Federal Rules and by the common law.
ñc R v almo-Levine 2003 SCC 74- whether the Narcotics Control Act falls under Parliament·s residuary jurisdiction for POGG, or
whether it is an exercise of the criminal law power under s. 91(27) of the Constitution Act, 1867, or whether, as the appellants
contend, it falls within neither head of federal jurisdiction and is ultra vires.
ñc POGG argument - Court upheld the constitutional validity of the NCA under Parliament·s residual authority to legislate for POGG: R.
v. Hauser, [1979]. In Labatt Breweries of Canada Ltd. v. Attorney General of Canada, [1980] the Court outlined three instances in
which the federal residual power applies: (i) the existence of a national emergency; (ii) with respect to a subject matter which did not
exist at the time of Confederation and is clearly not in a class of matters of a merely local or private nature; (iii) where the subject
 matter ´goes beyond local or provincial concern and must, from its inherent nature, be the concern of the Dominion as a wholeµ.
Narcotics fall under the third category of the POGG power.

-s91(27)Argument of the Constitution Act 1867 This case confirms that the NCA in general, and the scheduling of marihuana in particular,
properly fall within Parliament·s legislative competence under s. 91(27) of the Constitution Act, 1867.-

The Canadian Charter of Rights and Freedoms

ñc it impacts criminal law and imposes limits on the jurisdictions of all governments subject s1. (the reasonable limitations clause)
& the seldom used s32 (notwithstanding clause)
ñc The Charter can be used by courts to invalidate offences that Parliament has created (not common) and used to strike down
criminal procedure (not common)
ñc R v Heywood [1994] 3SCR 761- (ie of criminal offence being struck down)- convictions of sexual assault involving children made
him subject to the prohibition in s. 179(1)(b) of the Criminal Code that he not commit vagrancy by loitering near playgrounds,
school yards or public parks. The use of the terms "at or near a playground" and "in or near a public park"-

Overbreadth and vagueness are different concepts, but are sometimes related in particular cases. They are related in that both are the
result of a lack of sufficient precision by a legislature in the means used to accomplish an objective. In the case of vagueness, the means
are not clearly defined. In the case of overbreadth, the means are too sweeping in relation to the objective. The effect of overbreadth is
that in some applications the law is arbitrary or disproportionate. Overbreadth and thus the deprivation of liberty it entails is not in
accordance with the principles of fundamental justice.
The Supreme Court judge accepted the trial judge's finding that s. 179(1)(b) violated ss. 7 and 11(d) of the Charter, but like the
trial judge found that the breaches were justified under s. 1.

R v Oakes [1986] 1 SCR 103 (rule of criminal procedure being struck down)

Issue: a finding that s. 11(d)(presumption of innocence) of the Charter had been violated, was the issue of whether or not s. 8 of the
Narcotic Control Act was a reasonable limit prescribed by law and demonstrably justified in a free and democratic society for the purpose
of s. 1 of the Charter.

ñc Section 1 of the Charter has two functions: First, it guarantees the rights and freedoms set out in the provisions which follow it; and
second, it states explicitly the exclusive justificatory criteria (outside of s. 33 of the Constitutional Act, 1982) against which limitations
on those rights and freedoms may be measured.
ñc The presumption is that Charter rights are guaranteed unless the party invoking s. 1 can bring itself within the exceptional criteria
justifying their being limited.

R. v. Labaye, [2005] S.C.J. No. 83-

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3. The Classification of Offences

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2 types of offences:

a)c summary offences conviction offences (max 6 months or $2000 fine or both)- only mode of trial for them is in the court of criminal
jurisdiction s469CCC
b)c indictable offences (usually more than 2 years imprisonment) s468CC²the accused can choose whether to have a trial by (called an
´electionµ see below):
I.c Superior court judge and jury,
II.c by superior court judge alone
III.c by provincial court judge

´hybrid offencesµ - a hybrid classification to allow the prosecutor discretion as to whether to proceed by indictable offence procedure or
summary conviction procedure.

Elections- Code can take away an ´electionµ in a number of situations:

I.c section 469 ²lists a series of offences that must be tried by judge and jury ( ie murder-public interest demands a jury trial)
II.c section 553- lists offences that will be tried in provincial court so the accused as

Note: if a trial will eventually take place in a superior court (either judge alone or a judge and jury) the matter does not go immediately to
trial-can be first referred to a preliminary inquiry.

ñc Provincial jails - less than 2 years in jail

ñc Federal penitentiaries ²there to serve sentences for indictable offences.
ñc
Classification of offences is important because it can:

a)c affected the scope of police powers;

b)c Affect the manner in which proceedings are conducted in court;
c)c Time limitations ² no statute of limitations for indictable offences but a 6 month limit for summary convictions after the
completion of the offence.
d)c arrangements for appeal
2 modes of trial:

a)c trial in front of ´court of criminal jurisdictionµ

b)c superior court of criminal jurisdiction
-the superior court can hear matters in 2 ways: either without a jury (a judge alone trial) or with a jury

Note: Not all less serious offences get sent to the lower courts and all serious matters to the superior courts{

4. Interpreting Criminal Provisions

Definitions

ñc s2-contains definitions that apply throughout the code.

ñc Code divided into Parts-each part at the beginning has definitions.

Strict Construction vs. Purposive Interpretation

ñc the principle that criminal statues are interpreted strictly of the liberty of the accused and gets the benefit of the doubt in
ambiguities has been modified.
ñc purposive interpretation is now used if strict interpretation gives a ridiculous result. Look at Parliaments intent in the
legislations

ñc R v Pare [1987] 2SCR 618 ² This case was about a young boy being sexually assaulted then killed. Accused was charged with
214(5) but issues with ´while committingµ was raised. A strict interpretation would have given a ridiculous result as the 2
minute wait in between the assault and murder would have resulted in a lesser charge. This principle is that where a murder is
committed by someone already abusing his power by illegally dominating another, the murder should be treated as an
exceptionally serious crime. Parliament has chosen to treat these murders as murders in the first degree. Courts used
purposive interpretation.

French /English - R v J.(D.), [2002] O.J. Break and Enters- The French and English versions of s. 72 are equally authoritative. They should
be read together to discern their shared meaning:
There are two distinctions between the French and English versions which take on some importance in the interpretative exercise.
Section 72(1) in the English version uses the word "enters" to describe the prohibited conduct, while the French version uses the phrase
"prend possession". The word "enters" can refer to a purely physical act. However, the phrase "prend possession" suggests the taking of
some form of control over the property.1

12 The second distinction between the two versions appears in s. 72(1.1).2 The closing words of the English version declare that it is
immaterial whether the person entering the property "has any intention of taking possession of the real property". The French version
uses the phrase "s'emparer définitivement" meaning "to seize" "for good" or "definitely": Collins-Robert French English Dictionary 2nd
ed.

13 The English version, viewed in isolation, suggests that any intention to take possession of the property, no matter how fleeting or
qualified, is immaterial to liability under the section. The French version speaks of a more specific and limited concept of possession.
That version declares that it is immaterial whether the person entering the property intended to take over the property.

14 The two differences between the French and English versions become significant when s. 72 is placed in its historical context. The
French version is truer to the crime's historical roots. Forcible entry was a crime at common law. There was, however, some uncertainty
as to whether it prohibited the taking of possession of real property by force from another where the person taking that possession had
some legal right to it: J.W.. Statutes were enacted as early as the fourteenth century prohibiting the use of force to take real property from
a person in possession of that property, even where there was a legal right to take possession. The Forcible Entry Act, 1381 (U.K.)

ñc R. v. Labaye, [2005] S.C.J. No. 83 above ² Swingers club in ontreal gave members codes to access thirds floor apartment for groups
sex. No money was paid and no one participated involuntarily. Court - Indecency has two meanings, one moral and one legal.
ñc Indecency Test - two steps test ....The first step is concerned with the nature of the harm. It asks whether the Crown has established a
harm or significant risk of harm to others that is grounded in norms which our society has formally recognized in its Constitution or
similar fundamental laws. The second step is concerned with the degree of the harm. It asks whether the harm in its degree is
incompatible with the proper functioning of society. Both elements must be proved beyond a reasonable doubt before acts can be
considered indecent under the Criminal Code.
ñc ´Indecencyµ Little Sisters at para. 59, this was described as ´conduct which society formally recognizes as incompatible with its
proper functioningµ. First, the words ´formally recognizeµ suggest that the harm must be grounded in norms which our society has
recognized in its Constitution or similar fundamental laws. This means that the inquiry is not based on individual notions of harm, nor
on the teachings of a particular ideology, but on what society, through its laws and institutions, has recognized as essential to its
 proper functioning. Second, the harm must be serious in degree. It must not only detract from proper societal functioning, but must
be incompatible with it.
ñc Canadian Foundation for Children, Youth & the Law v Canada (A.G.), [2004] 1 S.C.R. 76 ´reasonable forceµ by way of correction in
s43 of the CC. It appeared vague and many lower courts that found that s43 did not provide meaningful standards. The SCC ignored
this body of law and instead relied on expert evidence. ´on the basis of expert evidenceµ- so interpreted she held that s43 ´sets real
boundaries and delineates a risk zone for criminal sanctionµ that is sufficiently clear standard to avoid the charge of unconstitutional
vagueness.
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THE ELEENTS OF A CRIINAL or REGULATORY OFFENCE
ñc Each criminal offence has ´elementsµ that must be present before a conviction is possible. Indeed, all elements of the offence
must be present at the same time, or there will be no crime. It is convenient to think of the elements of an offence as:
ñc The physical elements or actus reus of the offence (the act that must be performed or omission that is proscribed, the
circumstances or conditions in which the act must occur, and any consequence that must be caused by the act); and

the mental or mens rea elements of the offence.

ñc In Canadian law, the mental elements normally describe the actual or ´subjectiveµ state of mind of the accused (things such as
intent, or planning and premeditation, or recklessness, or knowledge, or willful blindness.).

It is becoming increasingly common, however, to produce offences that have an objective mens rea, such as negligence.

ñc Objective mens rea is determined not according to the state of mind of the accused (the subject), but according to what a
reasonable person in the position of the accused would have known or foreseen.

As a general proposition of interpretation, a true crime will be interpreted as requiring subjective mens rea unless it is clear that
Parliament wished to impose objective liability.
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(a) Acts and Statutory Conditions - The act must be the act of the accused and must be the kind of act described in the relevant provision.
Further, the act must be committed under the circumstances or conditions specified in the offence. For example, an accused cannot be
convicted of the offence of break and enter with intent to commit a criminal offence pursuant to s. 348 (1) (a) unless he ´breaksµ and
´entersµ something that qualifies as a ´placeµ according to the Criminal Code, with the relevant mens rea.

See, for examples of the interpretation of acts and actus reus conditions:
ñc  vD·Angelo, [2002]- s. 161(1)(a) Code attending a public park or public swimming area(key issue in dispute) where persons
under the age of fourteen years are present or can reasonably be expected to be present, D'Angelo is a member of the club.

b rship is auto
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b rship is icud d i th r t h pays r his apart
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 ñc Ëeld: 2 reasons 1. there are many secondary and tertiary users of the pool. The secondary users are people from neighbouring
communities who purchase club memberships. The tertiary users are non-members who use the pool for various classes and
programs Importantly, many of the users in all of these categories are children. 2. The societal interest in protecting children
from sexual abuse supports Parliament's use of the preventive part of its criminal law power. I agree with this forceful statement.
In my view, it is as applicable to the interpretation of s. 161 of the Code as it was to s. 810.1.
ñc  v J.(D.), [2002) (reviewed above). Forcible entry occurred only where the entry interfered with the peaceable possession of a
person in actual possession of the property. A known person simply walking in the front door, straight through the residence
and out the back door did not have such an intention. Further, JD did not act in a manner likely to cause a breach of the peace or
a reasonable apprehension of such a breach. Court issue- court must interpret s. 72(1) French and English versions different.
(see above) The direct link between the manner in which possession is taken and the breach or apprehended breach of the
peace found in the language of s. 72(1) is consistent with the purpose underlying the offence, that being to prevent breaches of
the peace which can arise from confrontations between those seeking to take possession of real property and those in actual
and peaceable possession of that real property. The appellant's entry into s. V.B.'s residence was not accompanied by any
force, violence, or threat of force or violenceOE WOk

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ñc CDA- ’ . 2 ² ´poeionµ mean poeion in 4.3 of the Coe.

ñc s4.3 Code- ´Possessionµ for the purpose of the code
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ñc Possession may be actual or attributed by law.

1.c actual ² actual possession is proven where it is established that a person has the subject matter in his/her personal
possession.
2.c attributed ² possession may be attributed to someone in 3 ways.
I.c s4(3)(a)(i)- a person is in possession of a thing when s/he knowingly has it in the actual custody or possession of
another.
II.c s 4(3)(a)(ii)- one is in possession when s/he knowingly has the subject matter in a place for the use or benefit of
him/herself. (irrelevant if place neither belongs to nor is occupied by the person.)
III.c s4(3)(b)- ´constructive possessionµ may be attributed to person where one of two persons with knowledge and
consent of the rest, has anything in his/her custody or possession, the thing is deemed to be custody and
possession of each and all of them. (note:- person who has custody-actual possession. Possession is attributed to
others or through actual possession and the knowledge and consent of the rest.

ñc Ñ 
 Ñ  - . v. Y (2005) f th 
w f m
u
 p 
 w w
 hu
d fd futu  t . W
t
t g t d f th t
 
d g t d f t  futu . Ë d: If d f d
t h
d phyc
 ct  
 bj ct wth fu w dg f t
ch

ct  th  /h w b fud  p 
 p  f t. N m
tt  hw b f th ct
ct
g wth d c t hw th
d f d
t t cutdy f th bj ct wgy
d wth th t t t d
 wth t  m phbt d w
y.

Wh th  th T
 Judg E d  Fdg Th
t th Ed c Et
bh d B yd


b Dubt Th
t th App 
t Ñ  d th
N c 
y   
f th Off c f Ñ  f St  Ñp ty
I d  t p p  th Cw mut t
bh th fwg:
(1) m
u
  phyc
 h
dg f th phbt d bj ct;
(2) w dg ;
d
(3) ct.

ñc . . M

 [1969]
ñc . . Ñ

 [2005] O.J. No. 5127 (Ont. C.A.) for te
pplic
tion of tese concepts to possession of

teri
ls found in
residence.
F
cts- two people s
red
n
p
rt
ent. One ten
nt w
s busted wit coc
ine wile te oter w
s out. Te issue
t tri
l w
s weter
 the appellant had knowledge and control of the cocaine found in the bathroom and therefore had it in her possession. Prosecution
must prove that knowledge had extended beyond mere quiescent knowledge and disclosed some measure of control.

constructive joint possession . v. Terrence, [1983] s4(b)Code (see above) there must be knowledge, consent, and a measure of control
on the part of the person deemed to be in possession.

The element of knowledge is dealt with by Watt J. . v. Sparling, [1988]: There does not have to be direct evidence of knowledge of drugs
in a house to prove the fact. It may be established by circumstantial evidence. The finding of narcotics in plain view in the common area of
residence, the presence of a scale in a bedroom occupied by the applicant and the applicants apparent occupation of the premises may
be the requisite for knowledge.
ñc The onus is on the Crown to prove beyond a reasonable doubt, all of the essential elements of the offence of possession.
ñc This can be accomplished by direct evidence or may be inferred from circumstantial evidence

’d Consent as an Element of the Actus eus - Consent as an Element of the Actus eus - Often the question of absence of consent by
the victim is an important actus reus condition that must be present for offences to occur. Consent is a complex idea, animated by statute
and the common law. c
ñc . . Ew
 [1999] - A oitio for sex
l
ss
lt reqires proof beyod re
so
ble dobt of two b
si elemets t
t te

sed ommitted te
ts res
d t
t e 
d te eess
ry mes re
. Te
ts res of
ss
lt is 
ted sex
l toig.
Te mes re
is te itetio to to oig of or beig reless of or ilflly blid to
l
 of oset eiter by ords or

tios from te perso beig toed.
ñc The
  e of ex
l

l i e
blihed by he poof of hee elemen : (i) ohing, (ii) he ex
l n
e of he on
 ,
nd
(iii) he
bene of onen . The fi wo of hee elemen 
e obje ive. I i ffiien fo he Cown o pove h
he
ed·

 ion wee voln
y. The Cown need no pove h
he
ed h
d
ny men e
wi h epe o he ex
l n
e of hi
beh
vio. The
bene of onen , howeve, i pely bje ive
nd de emined by efeene o he ompl
in
n · bje ive
in en
l 
e of mind ow
d he ohing,
he ime i oed.
ñc The accused·s perception of the complainant·s state of mind is not relevant and only becomes so when a defence of honest but
mistaken belief in consent is raised in the mens rea stage of the inquiry
ñc The
e e
of exu
l

ult cot
i two ele
et: itetio to touch
d kowig of, o beig eckle of o wilfully blid to,

l
ck of coet o the p
t of the peo touched.
ñc 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.

ñc . . J6 [1991]- llustrat f the cmm law fluece  the reach f statutry prss) fst fght- wth cset ssue-
whether there are cmm law lmtats whch restrct r egate the legal effecteess f cset  certa types f cases.
ñc s265 Code- a general rule that one cannot commit assault if the other person agrees to the application of force. ( within normal rules
of games)
ñc It has also set limits on the types of harmful actions to which one can validly consent, and which can shelter an assailant from the
sanctions of the criminal law.
ñc s8 C inicat s that cmmn law principl s cntinu t apply t th xt nt that th y ar nt incnsist nt with th C r th r
Act f Parliam nt an hav nt b n alt r  by th m.
ñc . . C   [1998] - accs d had npot ct d s xal  latons wth th two complanants wthot nfomng th m h was ËIV-
post . n th  had t st d post of ËIV Both complanants had cons nt d to npot ct d s xal nt cos wth th accs d bt
th y t stf d at tal that f th y had known that h was ËIV-post th y wold n   ha ngag d n npot ct d nt cos wth
hm. Th common law shold ths b chang d to p mt d c t as to s xally tansmtt d ds as that ndc s cons nt to b t at d
as fad tatng cons nt nd  s.265 Cod .
ñc s265(3)(c)- consent vitiated by fraud ² failure to disclose that he was ËIV positive is a type of fraud that may vitiate consent to sexual
intercourse.
ñc Look for- dishonest act or behavior that vitiates consent-´must relate to consent to engage in unprotected sexual intercourseµ in
unprotected sexual intercourse. The defendants actions must be assessed objectively to determine if a reasonably person would find
him/her to be dishonest. A dishonest act is either deliberate deceit of their ËIV status or non disclosure.

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’

 - Where the relevant offence prescribes a ´consequenceµ that must occur before the offence is complete, the Crown
prosecutor must prove that the accused caused the consequence to occur, beyond a reasonable doubt.cc
c
Williams shows, if causation is not proved, the accused cannot be convicted of an offence that requires his act to produce a prohibited
consequence.

enezes shows that causation is a two-stage analysis, requiring ´factual causationµ and ´legal or imputable causation.µ

Nette deals with the higher standard of responsibility of imputable cause that is required to secure a first-degree murder conviction, and it
illustrates the legal causation principle of the ´thin skull.µ Both Nette and enezes illustrate how most imputable causation principles
explain why blame can be assigned in criminal cases, in spite of arguments that might, in civil cases, reduce or even eliminate civil
liability.

. v. Williams, [2003] 2 S.C.. 134 - Crown alleges an offence predicated on an aggravating consequence, it must prove the consequence
beyond a reasonable doubt. An accused who fails to disclose his ËIV-positive status cannot be convicted of an aggravated assault
endangering life in circumstances where the complainant could already have been ËIV-positive.

. v. enezes, [2002] ² negligence while driving each young man was driving his car along a stretch of roadway in north ississauga.
Neither had consumed alcohol. The vehicles travelled at a high rate of speed. At a point, r. euszynski·s car left the road and struck a
utility pole. Tragically, the driver was killed instantly. narrow issue- whether a person who survived a street race in which the second
participating party lost his life can be held criminally accountable for that death solely on the basis of his co-participation in the
dangerous racing activity.

The Crown argues that the accused·s actions were, as a matter of fact, a contributing cause of Jacob euszynski·s death beyond the de
minimis range. It is said the culpability of r. enzes is as a co-principal not an aider and abettor³the accused, on his own actions,
caused r. euszynski·s death. It is submitted the accused·s driving demonstrated a wanton and reckless disregard for the lives and
safety of others including Jacob euszynski. The prosecution argues that the risk of bodily harm or death was reasonably foreseeable in
the circumstances of the race pursued by r. enezes and the deceased.

. v. Nette, [2001] - ´Ëog-tied grannyµ 95 year old burglarized, tied and died of asphyxiation.

Text - court revisited and reformulated Smithers test- concluded that- ´the causation standard expressed in Smithers is still valid and
applicable in all forms of homicide. ( murder, manslaughter, and infanticide) to explain the standard to the jury- it may be preferable to
phrase the standard of causation in positive terms using the phrase such as ´significant contributing causeµ rather than using
expressions phrased in the negative such as ´not a trivial causeµ or ´not significantµ.

Text- The fact that the appellants actions might not have taken longer to occur in a different person, or that death might have taken longer
to occur in the case of a younger victim, does not transform this case into one involving multiple causes.

To a Jury- Criminal law -- Second degree murder -- Causation -- Charge to jury ² Appropriate standard of causation for second degree
murder ² Ëow applicable standard should be explained to jury -- Whether trial judge misdirected jury on standard of causation.

’
Offences can be committed by a showing that the accused failed to act, or omitted to act.
To be guilty by omission
(1) the offence must contemplate guilt for omissions,
(2) the accused must be placed under a legal duty to act either by the provision charging him or by some incorporated provision, and
(3) the omission in question must be a failure to fulfill that legal duty. c

.Statutory Duties
ñc s215(1)- Duty of persons to provide the necessities of life-everyone is under a legal duty
a)c as a parent, foster parent, guardian or head of a family, to provide necessaries of life for a child under the age of 16
 b)c to provide necessaries of life to their spouse or common-law partner and
c)c to provide the necessaries of life to a person under his charge if that person
i) is unable by reason of detention, age, illness, mental disorder, or other cause, withdrawal himself from that charge
and
ii) is unable to provide himself with the necessaries of life.
. v. Ñeterson, [2005] ² ´Necessities of lifeµ s 215(1) includes not only food, shelter and medical attention necessary to sustain life but
also protection from harm.

 v . Ñeterson [2005]- ´under his chargeµ in s215(1)(c)- under his charge imposes duty where
i) one person is under another charge
ii) the person is unable to withdrawal from the charge and
iii) the person is unable to provide himself with the necessities of life.

ñc s 216 Code -Duty of persons undertaking dangerous acts- everyone administering surgical, or medical treatment to another
person doing an lawful act that may endanger (except in necessity) is under a legal duty to have/use reasonable knowledge, skill
and care.
 v. odgers (1969) - the standard is objective and based on reasonable knowledge of the medical community.
ñc s 217 Code- Duty of persons undertaking acts- everyone who undertakes to do an act is under a legal duty it if an omission to do
the act is or may be dangerous.  v. Browne ’1997 -Only binding and intentional commitments will suffice to expose an accused
to criminal liability for failing to act. The mere expression of words indicating a willingness to do an act cannot trigger the legal
undertaking- ´I am going to take you to the hospitalµ The word "undertaking" in s. 217 must be interpreted in this context. The
threshold definition must be sufficiently high to justify such serious penal consequences.
ñc s 217.1 Code- Duty of persons directing work ²everyone 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 task.
ñc s 218 Abandoning a Child ² abandoning a child under 10 endangering life or health or permanently damage ²hybrid offence.
ñc s219 (1)(b)- Criminal negligence- b) omitting to do anything that is his duty to do and shows wanton or reckless disregard.
ñc
text pg 107- provides that parent, spouse, or guardian has a legal duty to provide the necessities of life and is an offence to fail to do so.
If this offence is committed, or is criminally negligent in omitting to perform another legal duty imposed by law, he or she can be
convicted of manslaughter by means of an unlawful act, or criminal negligence

. v. Moore, [1979] - police ask cyclist for id-he refused a refusal to identify yourself to a police officer who saw you commit a crime has
been held to be an obstruction of a police officer under section 129 of the Criminal Code.
c
c
" c#c$ c
c
c
ñc 1st degree murder- requires proof of planning and deliberation ( premeditation)
ñc 2nd degree murder requires only that the accused intended to cause death, or intended to cause bodily harm that he knows is
likely to cause death.
c
c
As indicated, subjective
ens ea focuses on the actual state of
ind of the subject of the posecution, na
ely, the accused. Since what
so
eone thinks o wants o knows is pesonal to hi
unless co

unicated, subjective
ens ea odinaily
ust be gleaned
cicu
stantially, including by using the co

on sense infeence that pesons usually tend to intend the natual consequences of thei
acts. Since the state of ´knowledgeµ is not often
anifested cicu
stantially the way appaent intent is, the law will assu
e that the
accused knew of the ele
ents of the offence unless the so-called ´defence of
istake of fact,µ discussed below, is
ade out. The close
link between knowledge and
istake of fact
akes it sensible to discuss the ´defenceµ togethe with this
ens ea concept.
c
Fo exa
ple, one fo
of fist degee
ude equies poof of planning and delibeation (pe
editation), while second degee
ude
equies only that the accused intend to cause death, o intend to cause bodily ha
that he knows is likely to cause death.

ost offences equie
oe than one
ental state to exist. Fo exa
ple, to be guilty of
ude, the accused
ust know that the living
thing he is killing is a hu
an being and intend to cause death to that hu
an being.

A sexual assailant
ust intend to touch the co
plainant, and know that she is not consenting (although as indicated, that knowledge will
be assu
ed absent a
istake of fact defence being aised successfully).
If an offence is explicit and specifies the relevant state of mind, then only that state of mind will suffice. This is why ´assaultµ contrary to
section 265 requires ´intentionalµ touching, and not simply reckless touching. any offences do not specify the relevant mental state. If a
true crime is silent as to the mental state and the offence requires a consequence, it is implied that intention or ´recklessnessµ in bringing
out the consequence will suffice (that presumption was rebutted for the offence charged in . v. Buzanga and Durocher below, requiring
the Crown to prove actual intention to bring about the consequence).

Again, subject to exception (see for example C.C. s. 150.1) where an offence sets out conditions or circumstances that have to exist, the
accused must, as a general rule, know that those conditions or circumstances exist before the offence can be committed, although the
mens rea known as ´willful blindnessµ can substitute for full knowledge. Use the mens rea provided for in the relevant provision, as
construed according to relevant criminal law principles. In the cases included below, the most common mental states are identified and
illustrated:

(a) Intention, and Ulterior ens ea ² Intention is a complex idea. The accused must have the very intention required by the relevant
provision. For example, Vandergraff intended to throw the object, but not to make contact with the victim. Ëis ´assaultµ was not intended
and he was not guilty. Ëe could have been charged with criminal negligence causing injury, but the wrong charge was laid. For his part
urray intended to hold the Bernardo tapes, but not for the purpose of obstructing justice. Ëe was therefore not guilty. .(J.S.) intended to
shoot into a crowd, with intent to kill a human being (albeit not the one killed), opening the door to his possible murder conviction during
his upcoming trial, depending on how the evidence comes out.

ens ea- it doesn·t matter what the person thinks was going to happen- it what he intended the actus rea
edit this- back of crime law text glossary- means rea- the prohibited mental or fault element for the commission of a criminal offence. It
may include intent, purpose, wilfulness, knowledge, recklessness, wilful blindness, criminal negligence, or negligence depending on the
offence.

. v. Vandergraff, [1994] .J. No. 503 (an. C.A.) ² (Did the prosecution elect the wrong crime-maybe negligence with objective standard.)
Facts- Fan throws peanut butter and injuries someone. There was no proof of intention to apply force to a person. Imputed intent to
wound, maim, disfigure or endanger life, in the case of aggravated assault where intent to apply force was already established, did not
apply here. The accused's conduct was foolish, negligent and may have been criminal, but did not constitute assault.

. v urray, [2000] O.J. No. 2182 (Ont. S.C.J.) ²Berardo tapes held for possible construction of deference and not the obstruction of
justice.

. v. J.S.., 2008 O.N.C.A. 544- shooting on Younge street J.S.. did not shoot s. Creba. Ëis actions were not the immediate and direct
cause of her death. Causation for the purpose of determining criminal liability for homicide is not, however, limited to the direct and
immediate cause. Section 222(1) of the Criminal Code provides: A person commits homicide when, directly or indirectly, by any means, he
causes the death of a human being.

Section 229(c) provides as follows: s. 229. Culpable homicide is murder

«
(c) where a person, for an unlawful object, does anything that he knows or ought to know is likely to cause death, and
thereby causes death to a human being, notwithstanding that he desires to effect his object without causing death or bodily
harm to any human being.

. v. eiler is one of this court·s more recent pronouncements on s. 229(c).

eiler was charged with murdering a man named Biuk. On the evening in question

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