Step 1: Criminal or Regulatory Offence
Criminal Offences: Protect individual interests (harm/morality); Punishes past conduct; Conduct is inherently
wrong.
Regulatory Offences: Protect the public (matter of public policy); Prevention of future harm; Conduct is not
inherently wrong.
Regulatory Offences (no MR)
Presumption: Prima facie strict liability.
Exception: If Parliament is clear it is an absolute liability offence
Absolute Liability
Only requires Crown to prove AR beyond a reasonable doubt. No defense permitted.
Cannot be absolute liability if there is a possibility of imprisonment (s 7 violation; Re BC Motor)
Strict Liability
Only requires Crown to prove AR beyond a reasonable doubt. Accused can prove an MR defense on a
balance of probabilities.
Reverse onus is a justified infringement of s 11(d) (Wholesale Travel Group)
Defenses (Objective Analysis)
1) Mistake of Fact: Did the accused reasonably believe in a mistaken set of facts which, if true, would render
the act or omission innocent?
2) Reasonable Care: Did the accused take all the reasonable steps to avoid the particular event?
Step 2: What are the AR requirements?
1) Voluntariness – physical voluntariness (Kilbridge; King)
2) Act or Omission
3) Causation (murder; manslaughter; arson; dangerous driving causing death)
4) Circumstances/Consequences
Omissions
Requires a) legal duty and b) failure to act.
Specific Omission: Sets out the legal duty and the punishment for the failure to discharge the duty.
General Omission: Legal duty is not defined and must be found elsewhere (i.e., statute: undertaking
[Browne]; common law [Thorton])
Causation
Factual Causation
“But for” Test: “but for” the acts of A, would B have died?
Legal Causation
Multiple Contributing Causes
Smithers/Nette Test: Did the accused make a significant contribution to the victim’s death?
Substantial Causation Test (1st degree murder): Did the accused commit an act or series of acts which are
of such a nature that they must be regarded as a substantial and integral cause of the victim’s death?
Thin Skill Rule: You take your victim as you find them.
Intervening Acts
Smithers/Nette Test: Did the accused make a significant contribution to the victim’s death?
Substantial Causation Test (1st degree murder): Did the accused commit an act or series of acts which are
of such a nature that they must be regarded as a substantial and integral cause of the victim’s death?
Is there a break in the chain of causation?
o S 224: Not broken if death could have otherwise been prevented by resorting to proper means.
o S 225: Not broken if immediate cause of death is proper or improper treatment that is applied in
good faith.
Objective Tools for Assessing Impact of an Intervening Act (Maybin)
1) Reasonable Foreseeability: Was the general nature of the intervening act and risk of non-trivial
harm objectively foreseeable at the time of the dangerous and unlawful acts? (natural events)
a. Apply the broad view
i. Narrow view: was it reasonably foreseeable that the bouncer would have
punched the unconscious person?
ii. Broad view: was it reasonably foreseeable that there would be an intervention
from the bar staff and some harm could occur?
2) Intentional or Independent Act (third party)
a. Were the acts of the third party so overwhelming that it is only proper to say that
person is responsible, not the accused – that a new causal chain was started?
b. Did the actions of the accused set the stage for the intervening act (coincidentally
occurred) or did the act of the accused trigger or provoke the act of the intervening
party?
Step 3: What is the MR requirement?
Presumptions: 1) MR is required; 2) Subjective fault is required
Exception: When Parliament has, by express language or necessary implication, disclosed such an
intention and there is no possibility of imprisonment.
Subjective Fault
1) Intent/Purpose/Willfulness
a. Exercise of free will
2) Knowledge (Theroux; Briscoe)
a. To act with knowledge that the prohibited result is certain or morally certain
b. Willful Blindness
i. Imputes knowledge to an accused whose suspicion is aroused to the point where he or
she sees the need for further inquiries, but deliberately chooses not to make those
inquiries.
ii. Did the accused shut his eyes because he knew or strongly suspected that looking would
fix him with knowledge?
3) Recklessness (Miller)
a. The attitude of one who, aware that there is a danger, that his conduct could bring about the
prohibited consequences but nevertheless persists, despite the risk.
i. Knowledge of risk is required.
b. Different than negligence because it requires foresight.
Common Sense Inference: A person usually knows what the predictable consequences of his or her
actions are and, when they act in a way that creates a risk of those consequences, they mean to bring
them about (Buzzanga).
o The more likely the consequences, the stronger the inference.
o Purpose is to determine what the accused actually intended, not to fix them with the intention
of a reasonable person.
Motive: Proof of motive can be evidence for subjective fault; lack of motive can be evidence for absence
of subjective fault.
Objective Fault (negligence)
Modified Objective Test: (Beatty;Roy)
1) In the light of all the relevant evidence, would a reasonable person have foreseen the risk and taken steps
to avoid it, if possible?
a. Reasonable Person: Someone in the same circumstances (i.e., environmental conditions) and
experiencing any sudden, onset, unexpected illness/condition as the accused (Hundal)
i. The reasonable person does not share the same characteristics as the accused (i.e.,
experience, age, etc.) (Creighton)
ii. Capacity Exception: Will share any characteristics that removes the accused’s ability to
appreciate risk (Creighton)
1. If there is a capacity issue – you don’t use the objective standard.
2. Note: If the person lacked capacity due to drugs or alcohol, then the issue is
whether they took the drugs/alcohol willingly (voluntaries).
2) Was the accused's failure to foresee the risk and take steps to avoid it, if possible, a marked departure
from the standard of care expected of a reasonable person in the accused's circumstances?
a. Role of Subjective Fault: If the accused intended the proscribed conduct, then this constitutes a
marked departure.
Step 4: Is there contemporaneity?
Principle of Contemporaneity: AR and MR must coincide.
Theories of Contemporaneity
1) Continuous Acts: As long as the MR comes at some point during the AR, there is contemporaneity
(Cooper)
a. The extent to which there is concurrence will largely depend upon the nature of the act. (Cooper)
b. An unintentional act followed by an intentional omission to rectify that act or its consequences
can be regarded as one whole continuous act. (Miller)
2) Duty Theory: If you cause a risk, and you realize that the risk was there and you don’t do anything about
it, that establishes contemporaneity. (Miller)
Note: MR cannot be superimposed when there is no AR (Williams)
Ex., TEST FOR DANGEROUS DRIVING (Roy)
1) Viewed objectively, was the accused driving in a manner that was dangerous to the public? (AR)
2) In the light of all the relevant evidence, would a reasonable person have foreseen the risk and taken steps to
avoid it, if possible? (MR)
a. Consider: circumstances, sudden illnesses, capacity issues
3) Was the accused's failure to foresee the risk and take steps to avoid it, if possible, a marked departure from
the standard of care expected of a reasonable person in the accused's circumstances? (MR)
