Criminal Law Notes

-prohibited conduct

-must be voluntary (Rabey, Stone, Parks, Ruzic)- refers to physical, either conscious or unconscious, (except in Ruzic which contains a moral element)

-can be an act or omission of legal duty that causes harm or occurs in prohibited circumstances (or both)

-some offences require that D caused a prescribed harm or consequence, which crown must prove BRD (e.g. murder)- issue often hinges on MR
-no CC rules on causation, guided by CL
-two types of causation: factual and legal

-factual: low threshold, link bw D`s conduct and harm (‘but for’), if RD – can lead to an acquittal; proof of factual cause is not by itself sufficient to est legal cause

-legal: more rigorous, def as a cause beyond de minimis range- need not be sole or substantial (Smithers); may also be rearticulated as `significant contributing cause` (Nette)- neither applies for 1^st degree murder- test is instead if D`s actions formed substantial cause of death (Harbottle)

-homicide: s. 229, incl knowing death will likely be caused, incl murder (1^st or 2^nd degree, s. 231(7)), manslaughter, infanticide

-1^st degree- planned and deliberate or falls w in circumstances listed in s. 231; 2^nd degree- residual, what does not fall under 1^st

-manslaughter, s. 234: i) where MR not proved for murder, ii) where it was foreseeable that death would ensue, iii) where it arised in context of provocation; argued it should be given higher degree of CH protection in regards to MR- covers wide range of conduct

-thin skull rule: unforeseeable characteristics of V do not negate causation (Smithers, Blaue)

-NAI and remoteness: limit liability, not typically successfully used

-NAI: only negates if intervening cause is independent (White, Blaue)

-remoteness: limits legal causation if original act is de minimis (Smithers)

-refers to state of mind or moral blameworthiness, defined specifically in certain offences but not all

-based on principle that criminal liability should not be imposed on morally innocent, that moral fault should be proportional to seriousness of offence (Martineau, Motor Vehicles, Vaillancourt)

-distinction bw objective and subjective fault

-for each element of AR, MR must be proven but it need not be the same MR (except for predicate offences- only attaches to offence charged- De Sousa)

-full mens rea = subjective; includes intent, knowledge, wb, recklessness

-objective MR: crim, penal negligence, strict and absolute liability

-true crimes: in CC (but need not be), serious crimes w severe penalties; assumed if statute is silent presumed that R, WB, I, K will suffice (but not for negligence) (Buzzanga; SS Marie); can have objective MR for all other true crimes (Creighton), but cannot have strict or absolute liability (Hundal)

-manslaughter and unlawfully causing bodily harm does not require subjective foreseeability of death or harm, objective reqmt is constitutional (Creighton; DeSousa)

- stigma offences: murder, attempted murder, theft, crimes against humanity, war crimes- must have subjective MR (Finta, Vaillancourt, Martineau)

-reg offences: against public order, less serious penalty, not in CC, presumed objective MR applies and is strict liability (Buzzanga; SS Marie); presumed if it is prov, but can be federal

-determining the level of MR required:

-ascertain meaning of express MR words and if they are so minimal as to violate s. 7 of the CH (esp for serious crimes); also unconstitutional if absolute liability has penalty of loss of liberty (Motor Vehicles)

-if no express MR, classify as a true crime (presumed sub MR) or reg offence (presumed obj MR, presumed strict liability)

- assess if presumptions can be rebutted thru words or context of statute (e.g. is absolute liability if there is no defense of due diligence, unimportance of penalty, etc. (SS Marie, Pontes)

-for full MR, proof that D committed act R, WB, I, K will suffice (but not for negligence)

-for strict liability- crown need only prove AR and D must rebut MR on BoP w defense of due diligence