Chapter Ten Notes

Chapter Ten

Criminal Law: Mens Rea, Actus Reus, and Changing Definitions of Crime

A calm, dispassionate recognition of the rights of the accused and even of the convicted criminal,. . . the treatment of crime and the criminal mark and measure the stored-up strength of a nation, and are the sign and proof of the living virtue within it. (Winston Churchill, public speech, 1910)

The Intent of the Criminal Law and the Definition of Crime

Criminal law is probably the most widely discussed and debated of the many forms of Canadian law.

We must always remind ourselves that the criminal law is the most coercive and intrusive form of public law.

The task of those who create, enforce, and administer it is to ask continually about the circumstances in which this force should be used.

As Winston Churchill observed, the state of a civilized society can be divined from the manner in which it responds to its criminals.

The purpose of the criminal law is to punish certain acts that have been declared in law to be threats to the established social order.

Crime can be conceptualized as falling into one of three categories: offences against persons; offences against property; and offences considered to be evil in themselves, irrespective of whether harm befalls another person or the property of another person.

Examples of the first category of crime are straightforward enough: culpable homicide, sexual assault, robbery, assault, attempted murder, and the like.

Crimes against property are also easily determined: theft, fraud, income tax evasion, insider trading, forgery, and so on.

Offences considered to be punishable irrespective of their immediate impact on others include soliciting for prostitution, pornography, the use and distribution of certain drugs, and certain gaming activities.

In pre-state societies, no criminal law existed as such.

Killings and other serious assaults prompted myriad reactions: revenge executions, compensation from one tribe or clan to another, and conciliation between individuals or collectives.

In Canada, no Criminal Code existed until as late as 1892, when the federal government adopted the British reform code written by Sir James Fitzjames Stephen.

Despite its designation, this code was not really reformist, since it did not originate in a fresh reconstruction of principles and practice.

As Mewett and Manning noted, The Criminal Code of 1892 was only . . . the collecting into one more or less comprehensive statute of a multitude of existing provisions and common-law doctrines with some elimination of inconsistencies and tidying up of anomalies.

But no attempt was made to find a rational basis for the criminal law or to formulate a new Code on that basis.

Criminal law, unlike tort law, is concerned with public wrongs.

The state or the collective has determined that certain kinds of conduct must be responded to with various penalties, both to deter those who might be inclined to engage in these activities and to express community outrage and/or concern about a particular act.

The historical distinction between criminal and tort law creates an inevitable tension.

A citizen’s notion of justice is likely to be compensation for an inflicted harm, but the criminal law makes the state’s interest in conviction and punishment the objective of prosecution.

For victims of crime, the criminal law is typically less personal and less emotionally satisfying than the compensatory imperative of tort.

The victim receives no tangible benefit from the penalty imposed, be it a suspended sentence, discharge, fine, probation order, community service order, or imprisonment.

Another way of expressing the intent of the criminal law is to say that it defines what the state regards as intolerable deviance.

Over time, the definitions of deviance and the associated penalties have changed markedly, particularly for crimes defined as evil in themselves, the victimless offences listed earlier. While most legal scholars and the Canadian public agree that the designation of crimes against persons and property can be morally justified, debate continues about the appropriateness of using the criminal law to control such matters as the commercialization of sex, the public-health risks involved in the use and distribution of certain drugs, and the potential economic exploitation involved in certain forms of gambling.

To this point, we have recently seen a legislative initiative from the Trudeau Liberals, Bill C-45, “The Cannabis Act,” discussed at earlier points in this text, a proposal that will tax and regulate adult access to cannabis in Canada, eliminating almost 100 years of criminal prohibition.

But debate also continues about what constitutes crimes against persons and property.

[T]he definition of crime should openly face the moral issues. . . .

Deviant behaviour is nothing less or more than it has always been: rule breaking.

It is behaviour which is proscribed by those who have the institutionalized power, and occasionally the consensual authority, to create rules; it is behaviour which places its perpetrator at risk of being punished by those who have the institutionalized power, and occasionally the consensual authority, to do something to those who do not keep to the rules.

Mens Rea and Actus Reus: Prerequisites for Conviction

The basic conceptual elements of a crime remain, at least in theory, consistent over time. The concepts of mens rea and actus reus have their origins in the development of the criminal law of England.

In order to be convicted of a criminal offence, an individual must have committed an actus reus, an evil act, and must simultaneously possess mens rea, an evil mind or intention.

It is only the coincidence of mens rea and actus reus that can lead to criminal conviction.

Ex. Take the theft of a chocolate bar. The actus reus is the taking of the bar from a store without giving payment; the mens rea is the intention to do so.

However, if a person were forced at gunpoint to steal the bar or were two years old, there would clearly be no intention to commit the offence.

If, in another example, the police were to discover heroin in a person’s luggage, they could fairly presume actus reus—commission of the act of possession of heroin. But if the possessor had no knowledge of the presence of the heroin, and the court believed this to be Culpable homicide is murder (a) where the person who causes the death of a human being (i) means to cause his death, or (ii) means to cause him bodily harm that he knows is likely to cause his death, and is reckless whether death ensues or not.]

What degree of concurrency is required between the wrongful act and the requisite mens rea?

There can be no doubt that under the classical approach to criminal law, it is the intent of the accused that makes the wrongful act illegal.

However, not only must the guilty mind, intent or mens rea be present, it must also be concurrent with the impugned act. Professor D. Stuart has referred to this as “the simultaneous principle”:

There is, then, the classic rule that at some point, the actus reus and the mens rea or intent must coincide. Further, I would agree with the conclusion of James J. that an act (actus reus) which may be innocent or no more than careless at the outset, can become criminal at a later stage when the accused acquires knowledge of the nature of the act and still refuses to change his course of action. . . .

It is crucial to a correct charge under s. 212(a)(ii) that the jury understand that there must be intention to cause bodily harm which the accused knows is likely to cause death.

Intention to cause bodily harm, without knowledge that such is likely to cause death, is not sufficient.

Under s. 212(a)(i), it was open to the jury to infer from his conduct and on all of the evidence that in doing so, he intended to kill her.

The question whether criminal conviction for murder should be premised upon objective or subjective intention is one that will continue to be debated within criminal law.

In essence, the distinction is between what a reasonable person would be expected to intend and what the accused actually did intend.

The test of foresight is not what this very criminal foresaw, but what a man of reasonable prudence would have foreseen.

Within the context of a criminal prosecution, a person who fails to make such enquiries as a reasonable and prudent person would make, or who fails to know facts he should have known, is innocent in the eyes of the law.

There are many criminal offences for which the requisite mens rea is a subjective intention to commit the given offence, but is founded on “recklessness” or “advertent negligence” rather than a direct intent.

Certainly every crime requires proof of an act or failure to act, coupled with an element of fault which is termed the mens rea.

This court has made it clear that s. 7 of the Canadian Charter of Rights and Freedoms prohibits the imposition of imprisonment in the absence of proof of that element of fault. . . .

Depending on the provisions of the particular section and the context in which it appears, the constitutional requirement of mens rea may be satisfied in different ways.

The offence can require proof of a positive state of mind such as intent, recklessness or wilful blindness.

Alternatively, the mens rea or element of fault can be satisfied by proof of negligence whereby the conduct of the accused is measured on the basis of an objective standard without establishing the subjective mental state of the particular accused.

In the appropriate context, negligence can be an acceptable basis of liability which meets the fault requirement of s. 7 of the Charter. . . .

Thus, it is clear that the basis of liability for dangerous driving is negligence.

The question to be asked is not what the accused subjectively intended but rather whether, viewed objectively, the accused exercised the appropriate standard of care.

It is not overly difficult to determine when a driver has fallen markedly below the acceptable standard of care.

It is fair to conclude from Justice Cory’s reasoning that the very nature of mens rea changes as one moves from offence to offence.

Once we leave the realms of subjective intention, recklessness, or wilful blindness, we next move into the territories of strict and absolute liability offences.

Strict liability offences are public welfare or regulatory offences requiring no proof of intention and rarely raising the issue of the liberty of the accused.

The prosecutor must prove an objective intent, but an element of reverse onus applies to the accused: the accused must prove that he or she had no intent to commit the crime or, alternatively,  that he or she exercised due diligence or had a reasonable belief in the legitimacy of his or her conduct, based on a mistake of fact.

Ex. the hunting of a particular species out of season, contrary to the Migratory Birds Convention, would likely be considered a strict liability offence.

An absolute liability offence is an offence for which intent is irrelevant; the prosecutor need prove only that the person in question committed the offence.

Ex. Certain parking infractions may be constructed as absolute liability offences, though it may well be that, at least in certain circumstances, courts would hold such an approach to be contrary to the presumption of innocence guaranteed by the Charter.

Mens Rea and Parties to an Offence

One final issue with regard to mens rea should be discussed: parties to an offence.

Under section 21 of the Criminal Code, parties to an offence may be held as criminally responsible as the person or persons who actually commit the crime. 21. (1) Every one is a party to an offence who (a) actually commits it, (b) does or omits to do anything for the purpose of aiding any person to commit it; or (a) abets any person in committing it. (2) Where two or more persons form an intention in common to carry out an unlawful purpose and to assist each other therein and any one of them, in carrying out the common purpose, commits an offence, each of them who knew or ought to have known that the commission of the offence would be a probable consequence of carrying out the common purpose is a party to that offence.

In most circumstances, the meaning of this section of the Code can be readily understood.

Ex, If a person provides a gun for the purpose of a crime, drives the getaway car, or keeps a lookout for the police, that person will be held to be as guilty of the crime as the person who pulls the trigger or robs the bank.

Stan is walking down the street and sees his friend Fred beating Jim, whom Stan knows and doesn’t particularly like. If he simply walks by and allows Fred to continue the beating, is he a party to the offence? What if he smiles at Fred? What if he shouts encouragement to him? What if Stan volunteers to hold Jim down? In short, at what point does Stan violate section 21 of the Code by doing or omitting to do anything for the purpose of aiding another person to commit an offence?

Mewett and Manning provide a framework, if not a definitive answer, for this conundrum: Where a person is actually present when the crime is committed by the actor, whether his mere presence will amount to aiding or abetting depends upon the circumstances but, as a general proposition, some act of aiding or abetting must occur over and above mere presence. . . .

Mere voluntary presence, in itself, does not amount to aiding or abetting, presence together with some form of participation might.

Defences to and Mitigations of Criminal Offences

There are many circumstances in which people charged with criminal offences will be able to escape responsibility, or some degree of responsibility, for their crime.

Ex. they may have inflicted harm in self-defence; they may have been enticed by the police to commit a crime (usually related to illegal drugs or prostitution); they may have been forced at gunpoint to help rob a bank; they may have been mistaken about a woman’s consent to sexual relations; or they may have been too intoxicated or too emotionally or mentally disturbed to understand or appreciate the alleged offence.

These “excuses” for crime are highly controversial and are often criticized for supporting unjust societal assumptions.

Is it reasonable, for example, that the voluntary consumption of alcohol should diminish an accused’s responsibility for the offence of murder?

The state of the criminal law often reflects the values of a culture that forgives men their preconceptions and, at least tacitly, lends support to excessive use of alcohol.

In the pages that follow, we look at two specific kinds of defence to a criminal charge—drunkenness and mistake of fact.

These are only two of many possible defences or mitigations of criminal responsibility.

There are many other ways in which a person may defend against a criminal charge.

It may be possible, first, to negate mens rea or actus reus—to establish that the accused did not have the “evil intent” to commit the crime in question, or that he did not commit the “evil act” in question.

Ex. if an illegal substance is found in the accused’s apartment, but the accused establishes that he had no knowledge of the presence of this illegal substance, this will negate mens rea—he had no evil intent to possess the prohibited substance.

Similarly, if it is established that the accused attacked a victim after she was already dead, there can be no actus reus for homicide—no “evil act” of killing another human being.

As noted above, there are also a number of justifications for the commission of crimes: acting under duress, necessity, defence of the person, provocation, defence of property, and entrapment.

Section 17 of the Criminal Code sets out a justification for the commission of crime under duress:

17. A person who commits an offence under compulsion by threats of immediate death or bodily harm from a person who is present when the offence is committed is excused for committing the offence if the person believes that the threats will be carried out and if the person is not a party to a conspiracy or association whereby the person is subject to compulsion, but this section does not apply where the offence that is committed is high treason or treason, murder, piracy, attempted murder, sexual assault, sexual assault with a weapon, threats to a third party or causing bodily harm, aggravated sexual assault, forcible abduction, hostage taking, robbery, assault with a weapon or causing bodily harm, aggravated assault, unlawfully causing bodily harm, arson, or an offence under sections 280 to 283 (abduction and detention of young persons).

In other words, in order for an accused to claim duress as a defence to a criminal charge, the threat must be immediate, the person making the threat must be present when the offence is committed, the accused must believe that the threats will be carried out, and the person threatened must not be part of a criminal conspiracy.

Finally, in most circumstances, Canadian courts have held that duress cannot apply as a defence where serious offences involving personal violence have been committed by an accused.

The defence of necessity is somewhat similar to the defence of duress.

There may arise the situation where a person is confronted with the choice of two evils.

If he is faced with threats of death or grievous bodily harm if he does not commit an offence, he may have the defence of compulsion.

Necessity may arise when he has a free choice between one thing and another and chooses the one that amounts to a criminal offence.

Ex. A starving man may have to choose between starvation and stealing a loaf of bread; a man whose wife is in labour may have to choose between exceeding the speed limit or have his wife give birth in his car.

In the case of Morgentaler v. R.,11 a crime (as it then was) of procuring the miscarriage of a woman through the surgical intervention of abortion, the accused argued that his behaviour was necessary to protect the mental and/or physical health of the woman in question.

The defence of entrapment typically varies in instances of consensual crime.

The police often intervene in the underground economy of drugs or prostitution, posing as interested purchasers of the services in question.

The argument in some of these circumstances is that, had it not been for the actions of the police in requesting drugs or sex from the accused, the crime would not have been committed.

In other words, normally law-abiding accused were “entrapped” by the actions of the police.

Canadian courts have generally not permitted entrapment as a defence.

Only in circumstances where police conduct amounts to an abuse of process—where conduct, in the words of section 24(2) of the Charter, “would bring the administration of justice into disrepute”—can this defence be successfully raised.

In other words, it is not technically accurate to think of entrapment as a defence to a criminal charge.

Rather, the court is asked to balance the value of illegally obtained evidence with the tendency of police conduct in obtaining that evidence to “bring the administration of justice into disrepute.”

If the tendency of the conduct to bring our system of justice into disrepute is greater than the value of the evidence obtained, the evidence will be excluded.

If not, regardless of whether entrapment has taken place, the evidence will be admitted.

Finally, the Charter itself, as in the case of entrapment, can produce a range of potential “defences” to criminal charges, particularly in relation to sections 2 to 7 and section 15: for example, the right to freedom of expression; the right to life, liberty, and security of the person; the right to be tried within a reasonable time; the right to equality before the law; and so on.

The Defence of Drunkenness

Consider the following excerpt from the judgment of the Alberta Court of Appeal in the case of R. v. Point; the case makes clear that intoxication must be extreme in order to qualify as a defence to a criminal charge

The defence appeals Deborah Point’s conviction for the second degree murder of Audrey Trudeau.

The primary ground of appeal is that the trial judge erred in the application of the “air of reality” test and as a result, wrongly declined to charge the jury on manslaughter, despite the request of both the Crown and the defence to do so.

In considering whether a defence should be put to a jury, the threshold determination for the trial judge is whether it has an air of reality.

Supreme Court of Canada decisions  have made it clear that there are two components to the air of reality test: The question is whether there is (1) evidence (2) upon which a properly instructed jury acting reasonably could acquit if it believed the evidence to be true.

The second part of this question requires the trial judge to determine whether the evidence relied upon is reasonably capable of supporting the inferences required to acquit the accused.

Should drunkenness ultimately be irrelevant to the determination of guilt and have potential applicability only to the sentence to be imposed? The answer to this question was at least partially decided by the Supreme Court of Canada in the 1994 case of Daviault v. R.

In this case a 65-year-old woman who was confined to a wheelchair invited Mr. Daviault to her home for a drink.

He brought with him a 40-ounce bottle of brandy.

The complainant had a drink and fell asleep.

When she awoke during the night to go to the bathroom, Mr. Daviault appeared, threw her on the bed, and sexually assaulted her.

He had consumed seven or eight beers before arriving at the woman’s home and drank the entire 40-ounce bottle of brandy between 6 p.m. and the assault some nine hours later.

Mr. Daviault remembered nothing of the assault, having experienced an alcoholic blackout.

Testimony at trial by the accused and by a pharmacologist supported the view that Mr. Daviault had lost contact with reality, his brain temporarily dissociated from normal functioning.

The Court held that Mr. Daviault’s conviction could not stand, and ordered a new trial.

The majority argued that even though voluntary intoxication may be reprehensible, it does not follow that its consequences in every conceivable situation are voluntary or predictable.

Accordingly, if on rare occasions the accused can establish on a balance of probabilities that he was so intoxicated as to be in a state akin to automatism or insanity, he should not be held to have the mens rea necessary for criminal conviction.

Further, the Court argued that a conviction of the accused in such circumstances would offend the presumption of innocence, and could not be saved by section 1 of the Charter.

There was, perhaps predictably, a negative public reaction to the Court’s decision in Daviault.

In response to much criticism of the Court’s ruling, the federal government enacted section 33.1 of the Criminal Code, which states, in effect, that self-induced intoxication is no longer a defence to a criminal charge of “assault or any other interference or threat of interference by a person with the bodily integrity of another person.”

Drunkenness can, however, serve to reduce a charge of murder to one of manslaughter, as the Point case and many others indicate.

Intoxication short of automatism is not a defence to a charge of arson under s. 434 of the Criminal Code. . . .

That section reads: 434. Every person who intentionally or recklessly causes damage by fire or explosion to property that is not wholly owned by that person is guilty of an indictable offence and liable to imprisonment for a term not exceeding fourteen years.

A majority of the Court of Appeal was concerned that if s. 434 were found to be a general intent offence, so as to preclude consideration of intoxication short of automatism, that would improperly transform the examination of recklessness into an objective inquiry.

With respect, I cannot agree.

Recklessness describes the act of one who sees the risk and acts without regard for the consequences: Sansregret v. The Queen

It always involves a subjective inquiry—and this case is no exception.

However, the offence of arson under s. 434 does not involve sophisticated reasoning.

The risk of damage by fire is typically obvious, even when it involves a chain of events and not the simple application of a match to the property in question.

I have difficulty seeing how intoxication short of automatism would prevent an accused from foreseeing the risk of causing damage to someone else’s property by fire.

Complex reasoning is not required to recognize the danger.

Thus, preventing an accused from advancing the defence of intoxication does not transform recklessness into an objective inquiry.

Rather, it recognizes the fact that intoxication short of automatism will not deprive an accused of the minimal intent required for this crime.

In view of this conclusion, there is no need to resort to policy considerations to determine the availability of the defence of intoxication.

Section 434 involves damage to property.

In my view, it would erode the policy underlying the offence of causing damage to property by fire if an accused could rely on self-induced intoxication as a defence.

For these reasons, I am respectfully of the view that the trial judge and the majority of the Court of Appeal erred in characterizing s. 434 as a specific intent offence for which the defence of intoxication could be raised.

Properly classified, s. 434 is a general intent offence, meaning that intoxication short of automatism may not be considered”.

The Defence of Mistake of Fact

Consider, however, the ambit of the defence of mistake of fact.

If a man has an honest but mistaken belief that a woman has consented to sexual activity, should this preclude a conviction for sexual assault? What can you conclude from the following excerpts of facts in Pappajohn v. R.15 and Sansregret v. R.16—should either accused be able to avail himself of the defence of honest but mistaken belief in consent, with the mens rea of the crime negated by this belief?

First consider the case of Pappajohn v. R.:

The complainant was a real estate saleswoman employed by a well-known and well-established real estate firm in Vancouver.

She was successful in her work. The appellant is a businessman who was anxious to sell his home in Vancouver, and he had listed it for sale with the real estate firm with which the complainant was associated.

She was to be responsible for the matter on her firm’s behalf. On August 4, 1976, at about 1:00 p.m., she met the appellant by appointment at a downtown restaurant for lunch.

The purpose of the meeting was to discuss the house sale. The lunch lasted until about 4:00 or 4:30 p.m.

During this time, a good deal of liquor was consumed by both parties.

The occasion became convivial, the proprietor of the restaurant and his wife joined the party, and estimates of the amount of alcohol consumed varied in retrospect, as one would expect.

It does seem clear, however, that while each of the parties concerned had a substantial amount to drink, each seemed capable of functioning normally.

At about 4:00 p.m. or shortly thereafter, they left the restaurant.

The appellant drove the complainant’s car while she sat in the front passenger seat.

They went to the appellant’s house, the one which was listed for sale, to further consider questions arising in that connection.

Up to the time of arrival at the home, at about 4:30 or 5:00 p.m., there is no significant variation in their accounts of events.

From the moment of arrival, however, there is a complete divergence.

She related a story of rape completely against her will and over her protests and struggles.

He spoke of an amorous interlude involving no more than a bit of coy objection on her part and several acts of intercourse with her consent.

Whatever occurred in the house, there is no doubt that at about 7:30 p.m., the complainant ran out of the house naked, with a man’s bow tie around her neck and her hands tightly tied behind her back with a bathrobe sash.

She arrived at the door of a house nearby and demanded entry and protection.

The occupant of the house, a priest, admitted her.

She was in an upset state and exhibited great fear and emotional stress.

The police were called, and these proceedings followed. . . .

There is circumstantial evidence supportive of a plea of belief in consent: (1) Her necklace and car keys were found in the living room. (2) She confirmed his testimony that her blouse was neatly hung in the clothes closet. (3) Other items of folded clothing were found at the foot of the bed. (4) None of her clothes were damaged in the slightest way. (5) She was in the house for a number of hours. (6) By her version, when she entered the house, the appellant said he was going to break her. She made no attempt to leave. (7) She did not leave while he undressed. (8) There was no evidence of struggle. (9) She suffered no physical injuries, aside from three scratches. . . .

Now consider the Supreme Court of Canada’s decision in R. v. Sansregret: McIntyre J.:

The appellant, a man in his early 20s and the complainant, a woman of 31 years, had lived together in the complainant’s house for about a year before the events of October 15, 1982.

Their relationship had been one of contention and discord with violence on the part of the appellant: “slappings” or “roughing up” in his description, “blows” in hers.

The appellant had left the house for short periods and in September 1982, the complainant decided to end the affair.

She told the appellant to leave and he did.

On September 23, 1982, some days after his dismissal, the appellant broke into the house at about 4:30 a.m.

He was “raging” at her and furious because of his expulsion.

He terrorized her with a filelike instrument with which he was armed.

She was fearful of what might occur, and in order to calm him down, she held out some hope of a reconciliation and they had intercourse.

A report was made to the police of this incident, the complainant asserting she had been raped, but no proceedings were taken.

The appellant’s probation officer became involved and there was evidence that he had asked the complainant not to press the matter, presumably because it would interfere with the appellant’s probation.

On October 15, 1982, again at about 4:30 a.m., the appellant broke into the complainant’s house through a basement window.

She was alone, and awakened by the entry, she seized the bedroom telephone in an effort to call the police.

The appellant picked up a butcher knife in the kitchen and came into the bedroom.

He was furious and violent. He accused her of having another boyfriend; pulled the cord of the telephone out of the jack and threw it into the living room; threatened her with the knife and ordered her to take off her nightdress and made her stand in the kitchen doorway, naked save for a jacket over her shoulders, so he could be sure where she was while he repaired the window to conceal his entry from the police, should they arrive.

He struck her on the mouth with sufficient force to draw blood, and on three occasions rammed the knife blade into the wall with great force, once very close to her.

He told her that if the police came, he would put the knife through her, and added that if he had found her with a boyfriend, he would have killed them both.

At one point, he tied her hands behind her back with a scarf.

The complainant said she was in fear for her life and sanity. By about 5:30 a.m., after an hour of such behaviour by the appellant, she tried to calm him down.

She pretended that there was some hope of a reconciliation if the appellant would settle down and get a job.

This had the desired effect. He calmed down and after some conversation, he joined her on the bed and they had intercourse.

The complainant swore that her consent to the intercourse was solely for the purpose of calming him down, to protect herself from further violence.

This, she said, was something she had learned from earlier experience with him.

In her evidence she said: I didn’t consent at any time. I was very afraid. My whole body was trembling. I was sure I would have a nervous breakdown. I came very, very close to losing my mind. All I knew was I had to keep this man calm or he would kill me.

At about 6:45 a.m., after further conversation with the appellant, she got dressed and prepared to leave for work. She had a business appointment at 8:00 a.m.

She drove the appellant to a location which he chose, and in the course of the journey, he returned her keys and some money that he had taken from her purse upon his arrival in the early morning.

Upon dropping him off, she drove immediately to her mother’s home, where she made a complaint of rape. The police were called and the appellant was arrested that evening.

In both Pappajohn and Sansregret, the Canadian judiciary was divided about the defence of mistaken belief in consent.

In Pappajohn, Supreme Court Justice Dickson concluded, “It does not follow that, by simply disbelieving the appellant on consent, in fact, the jury thereby found that there was no belief in consent and that the appellant could not reasonably have believed in consent.”

In other words, the appellant may not have been believed by the jury, but the jury may have been mistaken.

And in Sansregret, the trial judge concluded: [H]is honest belief finds support in the testimony of the complainant.

She knows him and, in her opinion, notwithstanding all the objective facts to the contrary, he did believe that everything was back to normal between them by the time of the sexual encounter.

His subsequent behaviour as well attests to that fact. I do not like the conclusion which this leads me to. There was no real consent. There was submission as a result of a very real and justifiable fear.

No one in his right mind could have believed that the complainant’s dramatic about-face stemmed from anything other than fear. But the accused did. He saw what he wanted to see, heard what he wanted to hear, believed what he wanted to believe.

Both cases were resolved in the Supreme Court of Canada, and in both instances the accused was convicted.

The defence of honest mistake of fact remains as a legal possibility, but it seems clear that it is not to be a purely subjective test of the accused’s intention; wholly unreasonable beliefs, however honestly held, are not likely to be viewed as negating the mens rea required for conviction.

In 1992, partially in response to cases such as Daviault, Pappajohn, and Sansregret, the federal government enacted the following definitions of consent with respect to sexual assault:

Meaning of “consent”

273.1(1) Subject to subsection (2) and subsection 265(3), “consent” means, for the purposes of sections 271, 272 and 273, the voluntary agreement of the complainant to engage in the sexual activity in question.

Where no consent obtained

273.1(2) No consent is obtained, for the purpose of sections 271, 272 and 273, where (a) the agreement is expressed by the words or conduct of a person other than the complainant; (b) the complainant is incapable of consenting to the activity; (c) the accused induces the complainant to engage in the activity by abusing a position of trust, power or authority; (d) the complainant expresses, by words or conduct, a lack of agreement to engage in the activity; or (e) the complainant, having consented to engage in sexual activity, expresses, by words or conduct, a lack of agreement to continue to engage in the activity. 273.1(3) Nothing in subsection (2) shall be construed as limiting the circumstances in which no consent is obtained.

Where belief in consent not a defence

273.2 It is not a defence to a charge under section 271, 272 or 273 that the accused believed that the complainant consented to the activity that forms the subject-matter of the charge, where (a) the accused’s belief arose from the accused’s (i) self-induced intoxication, or (ii) recklessness or wilful blindness; or (b) the accused did not take reasonable steps, in the circumstances known to the accused at the time, to ascertain that the complainant was consenting.

There is no defense of implied consent to sexual assault in Canada . . . the complainant’s fear need not be reasonable, nor must it be communicated to the accused in order for consent to be vitiated.

The bottom line, as Young notes, is that “convictions will be obtained even if women do not express or manifest their fears, and even if women do not express or manifest a lack of consent. Criminality is established once the complainant testified that she subjectively and internally felt that way.”

The Supreme Court went even further, however, requiring consent to be communicated by the complainant, in order to avoid criminal conviction: . . . the evidence must show that he believed that the complainant communicated consent to engage in the sexual activity in question.

A belief by the accused that the complainant, in her own mind, wanted him to touch her, but did not express that desire, is not a defence.

S. 273.1(1) as “the voluntary agreement of the complainant to engage in the sexual activity in question”.

Consent to the “sexual activity in question” necessarily means the complainant’s voluntary agreement both to engage in touching of a sexual nature and to the manner in which that touching is carried out.

The starting point for the analysis of consent under the actus reus of sexual assault is s. 273.1(1).

When a complainant does not voluntarily agree to the sexual activity which occurred, consent does not exist within the meaning of s. 273.1(1), and the inquiry for the purposes of the actus reus of sexual assault is complete.

If there is no consent ab initio, it is pointless to inquire whether there was fraud under s. 265(3)(c) which would have vitiated the complainant’s consent.

In other words, without voluntary agreement as to the “how”—the manner in which the sexual activity in question occurred—there is no consent within the meaning of s. 273.1(1).

Unlike under s. 265(3)(c), which requires both a dishonest act and a deprivation, consent under s. 273.1(1) has never required an analysis of the risks or consequences caused by unwanted sexual touching.

It is the unwanted nature of non-consensual sexual activity that violates the complainant’s sexual integrity and gives rise to culpability under the criminal law, not just the risk of further harm that the sexual touching may create.

Requiring an analysis of the risks or consequences of non-consensual touching by applying s. 265(3)(c) whenever deception is later discovered, adds a barrier to the simple ability to demonstrate whether the activity which occurred was agreed to when it occurred.

It thereby undermines the values of personal autonomy and physical integrity sought to be protected by making sexual assault an offence.

By any definition, when someone uses a condom, it is part of the sexual activity. It is therefore part of what is—or is not—consented to. When individuals agree to sexual activity with a condom, they mean an intact condom. They are not merely agreeing to a sexual activity, they are agreeing to how it should take place. That is what s. 273.1(1) was intended to protect.

Self-Defence: R. v. Lavallee

A clear defence to a criminal charge of assault and to other offences against persons is to be found in self-defence—the concept that the assault, or, in some circumstances, even the homicide, cannot be labelled a culpable act as the individual in question was only defending him or herself (in the case of a homicide, from a potentially lethal attack).

Section 34 of the Criminal Code states: 34. (1) Every one who is unlawfully assaulted without having provoked the assault is justified in repelling force by force if the force he uses is not intended to cause death or grievous bodily harm and is no more than is necessary to enable him to defend himself. (2) Every one who is unlawfully assaulted and who causes death or grievous bodily harm in repelling the assault is justified if (a) he causes it under reasonable apprehension of death or grievous bodily harm from the violence with which the assault was originally made or with which the assailant pursues his purposes; and (b) he believes, on reasonable grounds, that he cannot otherwise preserve himself from death or grievous bodily harm.

Consider the ambit of this defence in the 1990 decision of the Supreme Court in R. v. Lavallee.

Lyn Lavallee had been living with Kevin Rust for three to four years. From all accounts it was a highly dysfunctional and violent relationship.

Rust beat Lavallee regularly, and had threatened to kill her. She had pointed a gun at Rust on at least two occasions and threatened to kill him if he ever touched her again.

One summer night in August 1986 Lavallee shot Rust in the back of the head as he was leaving her bedroom. She made the following statement to the police:

He grabbed me by the arm right there. There’s a bruise on my face also where he slapped me. He didn’t slap me right then, first he yelled at me, then he pushed me and I pushed him back and he hit me twice on the right-hand side of my head. I was scared. All I thought about was all the other times he used to beat me, I was scared. I was shaking as usual. The rest is a blank, all I remember is he gave me the gun and a shot was fired through my screen. This is all so fast.

And then the guns were in another room and he loaded it the second shot and gave it to me. And I was going to shoot myself. I pointed it to myself, I was so upset. OK, and then he went and I was sitting on the bed and he started going like this with his finger (Lavallee made a shaking motion with her index finger) and said something like “You’re my old lady and you do as you’re told” or something like that.

He said, “Wait till everybody leaves, you’ll get it then,” and he said something to the effect of “Either you kill me or I’ll get you,” that was what it was.

He kind of smiled and then he turned around. I shot him but I aimed out. I thought I aimed above him and a piece of his head went that way.

The arresting officer told the court that en route to the police station Lavallee had said “He said if I didn’t kill him first he would kill me. I hope he lives. I really love him.”

The Supreme Court of Canada concluded that Lyn Lavallee was not guilty of any criminal offence—that her actions in shooting Kevin Rust amounted to self-defence.

The decision has met with mixed reviews.

Many women’s groups have praised the judgment as an important step forward, a long-overdue expansion of the concept of self-defence through recognition that a battered woman does not need to be in immediate danger of being killed to have a reasonable fear of lethal attack.

Others have been sharply critical, suggesting that her actions are highly relevant to the sentence to be imposed, but not to the issue of her guilt of the crime of manslaughter.

Sentencing: Does the Punishment Fit the Crime?

The sentencing of those convicted of criminal offences is of great interest to Canadians. Discussions about crime in the House of Commons typically centre on the penalties thought to be appropriate for certain kinds of crimes.

As discussed in earlier chapters, the Criminal Code sets out three categories of criminal offences: summary offences, indictable offences, and hybrid offences.

A maximum penalty for summary conviction offences is stated in s. 787(1) of the Code:

787. (1) Unless otherwise provided by law, everyone who is convicted of an offence punishable on summary conviction is liable to a fine of not more than five thousand dollars or to a term of imprisonment not exceeding six months or to both.

The Criminal Code sets punishments for indictable offences according to the nature of the prohibited conduct.

A conviction for the indictable offence of first degree murder, for example, carries an automatic term of life imprisonment without parole eligibility for 25 years; conviction for the indictable offence of sexual assault with a weapon carries a term of up to 14 years’ imprisonment.

All stated punishments are a maximum, unless otherwise indicated.

Sentencing attempts to accomplish a range of potentially complementary purposes: general deterrence, specific deterrence, community denunciation, and rehabilitation.

When a court adopts the principle of general deterrence, it imposes a sentence in order to deter the general public from committing the specific crime.

Specific deterrence is deterrence particular to the individual offender; the court attempts to find a penalty that is sufficient to deter that offender.

Community denunciation, although often conceptualized as state vengeance, can also be understood and appreciated for its educative purpose and impact.

Social denunciation can fairly be linked to the possibility of a general deterrent effect: The sentence by emphasizing community disapproval of an act and branding it as reprehensible has a moral or educative effect and thereby affects the attitude of the public.

One then hopes that a person with an attitude thus conditioned to regard conduct as reprehensible will not likely commit such an act.

The sentencing goal of rehabilitation is somewhat more elusive, focusing society’s response on the offender rather than on the act committed by the offender.

The rise of rehabilitation as a sentencing strategy reflects a belief in the science of corrections.

Legislators and the judiciary now share—with social scientists, psychiatrists, and administrators—the responsibility for the control of criminals.

Ruby went on to discuss the factors considered most important in arriving at an appropriate sentence for a specific crime. He set out 10 such factors: 1. the degree of premeditation involved; 2. the circumstances surrounding the actual commission of the offence; i.e., the manner in which it was committed, the amount of violence involved, the employment of an offensive weapon, and the degree of active participation by each offender; 3. the gravity of the crime committed, in regard to which the maximum punishment provided by statute is an indication; 4. the attitude of the offender after the commission of the crime, as this serves to indicate the degree of criminality involved and throws some light on the character of the participant; 5. the previous criminal record, if any, of the offender; 6. the age, mode of life, character, and personality of the offender; 7. any recommendation of the trial judge, any presentence or probation official’s report, or any mitigating or other circumstances properly brought to the attention of [the] Court; 8. incidence of crime in jurisdiction; 9. sentences customarily imposed for the same or similar offences; 10. Mercy.

How these factors are to be interpreted is largely a matter of ideology, with individual judges espousing social and political choices, albeit within the framework of existing statute and case law.

Rehabilitation, reducing the risk of reoffending is relevant, but cannot overwhelm a deterrent sentence.

It all lies in the mouth of an accused to plead the hardship his action brings to others. Nonetheless, undue hardship may be a ground for tempering an otherwise appropriate sentence.

Restorative Justice: A Framework for the Future?

Restorative Justice is an old idea with a new name.

Its roots can be found in Aboriginal healing traditions and the non-retaliatory responses to violence endorsed by many faith communities.

It represents a return of the simple wisdom of viewing conflict as an opportunity for a community to learn and grow.

It operates on the premise that conflict, even criminal conflict, inflicts harm, and therefore individuals must accept responsibility for repairing that harm.

Communities are empowered to choose their response to conflict.

Victims, offenders and communities actively participate in devising mutually beneficial solutions, and implementing those solutions.

Conflicts are resolved in a way that restores harmony in the community members’ relationships, and allows people to continue to live together in a safer, healthy environment.

Restorative justice means many different things to many different people, and many organizations claim to be practitioners of restorative justice: police agencies, community groups, victims’ groups, and so on.

As a consequence, some have suggested that there needs to be a universal standardized approach to restorative justice.

In the excerpt that follows, Toronto lawyer Jonathan Rudin points out the shortcomings of L such an approach—that it would essentially contradict the value of restorative justice itself.

The first rationale—that everyone should be treated the same when coming before the courts—suffers from two problems.

The first is that it compares an idealized version of the justice system with the practical realities of restorative justice programs.

A better comparison would be with the actual reality of justice as it is practised on the ground as compared to the actual practice of restorative justice.

On this basis, the argument collapses at the outset.

Despite the fact that criminal law is the same across the country, there is no uniformity in sentencing today.

Within provinces there is great discrepancy in the way certain offences are handled.

In some cases those discrepancies emerge when comparing even neighbouring judicial districts. More broadly, for example, crime tends to be treated with longer jail sentences in smaller communities than in big cities.

Offences that might result in suspended sentences, discharges or terms of probation in a city such as Vancouver, regularly result in jail sentences in smaller towns.

This problem is even more pronounced when the sentencing practices are examined on a province by province basis.

It is clear when looking at such figures that some provinces are, for example, more likely to use jail as a sanction than other provinces.

The second problem with this argument is that it advocates a model of equality that is at odds with the prevailing view of equality held by the courts.

The idea that equality is achieved by making sure everyone receives a similar sentence for a similar crime is an argument for formal equality—equality of treatment.

The Supreme Court of Canada has explicitly recommended that courts adopt a more restorative, and thus a more individualized, approach to sentencing.

The bureaucratic impetus for standardization, although understandable, has two regrettable and related difficulties.

The first is that by centralizing what can be funded, the amounts of funds available, and often the types of offences amenable to restorative justice programs, local creativity and responsiveness is choked off and the scope for restorative justice programs is pushed to the lowest common denominator.

When restorative justice programs begin to resemble cookie cutter solutions, they lose their ability to respond to local needs and thus their effectiveness is compromised.*

Finally, we should consider the relevance of restorative justice for the future of sentencing.

To date, our courts in Canada and in most other Western jurisdictions have been dominated by a rationale of either punishment or enforced treatment.

In the sentencing circles that have recently emerged among Canada’s Indigenous peoples we see an alternative model, one that stresses restorative justice, consensus, and the building of community in response to the offender’s crime.

One of the more innovative approaches to sentencing is “circle sentencing,” which is being practised by territorial and provincial judges in the Yukon Territory and in several provinces.

In circle sentencing, all of the participants in the case—the judge, prosecutor, defence lawyer, victim, offender, and community residents—sit in a circular arrangement and discuss all facets of the case.

The circle, which represents a radical departure from the formal courtroom decorum, is designed to break down the formality of the court process and to provide a forum for the disposition of cases that is based on healing, consensus building, and returning to communities the responsibility for resolving conflicts.

In cases adjudicated in sentencing circles, the judge sets an upper limit on the sentence that may be imposed.

Participants in the circle informally discuss the offender and his or her circumstances.

When the discussion has concluded, a consensus on the most appropriate sentence is reached, and this is the disposition that is imposed on the offender.

Circle sentencing not only empowers the community but also expands the information base from which sentencing decisions are made.

In addition to considering the facts of the case and the circumstance of the offender, the discussions in sentencing circles often include a dialogue on problems that exist in the community and how these can be addressed and resolved.

An amendment to the Criminal Code in 1995 codified the purpose and principles of sentencing in Canada. Purpose 718. The fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives: (a) to denounce unlawful conduct; (b) to deter the offender and other persons from committing offences; (c) to separate offenders from society, where necessary; (d) to assist in rehabilitating offenders; (e) to provide reparations for harm done to victims or to the community; and (f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community.

This section simply sets out the objectives of the sentencing process, as developed within the common law.

A more controversial sentencing principle emerged, however, in the same amendment to the Criminal Code. Section 718.2(e) states: “A court that imposes a sentence shall also take into consideration the following principles: (e) all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders.”

This principle was more clearly set out in the Supreme Court of Canada’s decision in R. v. Gladue.

In this case the Supreme Court made it very clear that sentencing judges must take into account the unique circumstances of Indigenous peoples in sentencing—that the kind of sentence appropriate for an Indigenous person may well be quite different from the kind of sentence appropriate for a non-Indigenous person, whether he or she is living on or off a reserve.

This decision has, perhaps understandably, provoked a significant amount of discussion, with both Indigenous and non-Indigenous support and criticism.

Some argue that the decision is a politically correct justification of inequality, while others argue that Gladue represents an important first step toward recognizing the distinct nature of First Nations peoples and their long-standing overrepresentation within Canada’s criminal justice system.

After considering all of the various factors involved and in particular, the Gladue report, the sentencing judge imposed a suspended three-year sentence with a lengthy series of probationary terms during that period.

The Crown now seeks to appeal that sentence. Justice Blair went on to dismiss the appeal by the Crown, quoting from former

A sentencing judge .  .  . enjoys a position of advantage over an appellate judge in being able to directly assess the sentencing submissions of both the Crown and the offender.

A sentencing judge also possesses the unique qualifications of experience and judgment from having served on the front lines of our criminal justice system.

Perhaps most importantly, the sentencing judge will normally preside near or within the community which has suffered the consequences of the offender’s crime.

As such, the sentencing judge will have a strong sense of the particular blend of sentencing goals that will be “just and appropriate” for the protection of that community.

The determination of a just and appropriate sentence is a delicate art which attempts to balance carefully the societal goals of sentencing against the moral blameworthiness of the offender and the circumstances of the offence, while at all times taking into account the needs and current conditions of and in the community.

The discretion of a sentencing judge should thus not be interfered with lightly.

Conclusion: The Criminal Law as a Barometer of Culture

In closing, we should recall a point made at the outset of this chapter: the task of those who create, enforce, and administer this law is to continually question the circumstances in which such force should be used.

To paraphrase Churchill, how we define and respond to our criminals will tell us a lot about ourselves.