Full Text:Volume 1

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Volume I: Criminal Law

Sources of Criminal Law

What is Criminal Law

Constitutionally, criminal law in its simplest form is a "prohibited" act with "penal consequences".[1] Jurisprudence mandated a further requirement that there be a criminal "public purpose"[2], which includes goals such as "public peace, order, security, health" and "morality".[3]

It is said to only apply to conduct that "is so inconsistent with the shared morality of society so as to warrant public condemnation and punishment".[4]

Acts that are considered "innocent or morally neutral" should not be included.[5]

There is no necessary requirement that criminal law be for the purpose of harm prevention.[6]

It is suggested that the purpose of criminal law is to preserve the well being and general order of society.[7] It is to protect the public.[8]

One of primary concerns of the proper functioning of the system is toe ensure that "the innocent must not be convicted".[9]

One of the essential requirements for a properly functioning justice system is that it must have "public confidence", which is necessary for the integrity of the rule of law.[10]

It is a constitutional requirement that everyone, including all public officers, are subject to the ordinary laws of the country.[11]

  1. Proprietary Articles Trade Association v Attorney General of Canada, [1931] A.C. 310, per Lord Atkin, at p. 324
    Reference re Firearms Act (Can.), [2000] 1 SCR 783, 2000 SCC 31 (CanLII), per curiam
  2. Margarine Reference, [1949] SCR 1, 1948 CanLII 2 (SCC), at p. 50
  3. Margarine Reference, ibid.
    Reference re Firearms Act, supra, at para 27
  4. R v Greenwood, 1991 CanLII 2730 (ON CA), per Doherty JA
  5. Greenwood, ibid.
  6. R v Malmo-Levine, [2003] 3 SCR 571, 2003 SCC 74 (CanLII), per Gonthier and Binnie JJ
  7. R v Chisholm, (1985), 18 CCC (3d) 518, 1985 CanLII 3587 (NS CA), per Macdonald JA, at p. 531
  8. R v B(SJ), 2002 ABCA 143 (CanLII), per Berger JA, at para 65
  9. R v Mills, 1999 CanLII 637 (SCC), [1999] 3 SCR 668, per McLachlin and Iacobucci JJ, at para 71
    R v Leipert, 1997 CanLII 367 (SCC), [1997] 1 SCR 281, per McLachlin J, at para 24
  10. R v Hall, 2002 SCC 64 (CanLII), per McLachlin CJ ("Public confidence is essential to the proper functioning of ... the justice system as a whole... Indeed, public confidence and the integrity of the rule of law are inextricably intertwined.")
  11. R v Campbell, [1999] 1 SCR 565, 1999 CanLII 676 (SCC), per Binnie J, at para 1(It is a "constitutional principle that everyone from the highest officers of the state to the constable on the beat is subject to the ordinary law of the land. ")

Source of Criminal Law

The Parliament of Canada has the sole power to enact criminal prohibitions and determine their punishments.[1]

  1. R v Lloyd, 2016 SCC 13 (CanLII), per McLachlin CJ, at para 1

Constitutional Authority to Create Law

The Constitution Act, 1867 sets out the divisions of powers between the federal and provincial governments. Section 91(27) bestows the authority upon the federal government to create legislation in relation to criminal law.[1] However, when it comes to matters relating to the investigation and prosecution of criminal offences, s. 92(14) bestows authority upon the provincial government to administer.[2] This power permits the provinces to constitute provincial and territorial courts which are created by the provincial court act or equivalent.

The federal power over criminal law includes the power to create substantive law relating to crimes.[3] It also empowers the federal government to grant jurisdiction to specific courts, including those constituted by the provinces, over certain offences.[4]

The power is not limited to those acts or omission that result in some harm.[5] Legislature may legislate on grounds of morality where it safeguards values which are "integral to a free and democratic society".[6]

  1. More specifically, in relation to "the criminal law, except the constitution of courts of criminal jurisdiction, but including the procedure in criminal matters."
  2. s. 92(14) authorizes the province to makes laws in relation to "the administration of justice in the province, including the constitution, maintenance, and organization of provincial courts, both of civil and of criminal jurisdiction, and including procedure in civil matters in those courts."
    see also exception in wording of 91(27)
  3. Reference Re Young Offenders Act (PEI), 1990 CanLII 19 (SCC), [1991] 1 SCR 252, per Lamer CJ
  4. References Re Young Offenders Act (PEI), ibid.
  5. R v Malmo-Levine, [2003] 3 SCR 571, 2003 SCC 74 (CanLII), per Gonthier and Binnie JJ
  6. R v Butler, [1992] 1 SCR 452, 1992 CanLII 124 (SCC), per Sopinka J(Parliament may legislate "on the basis of some fundamental conception of morality for the purposes of safeguarding the values which are integral to a free and democratic society")

Common Law

The tradition of the common law allows for judges to "incrementally" adopt rules "where legislative gasp exists".[1]

Courts are expected to make incremental changes in order to "adap[t] to reflect societal change" so that the law reflects the "needs and values" of society.[2]

The legislature retains the power to expand, modify, restrict, or abolish any common law power subject to necessary constitutional limits.[3]

No Common Law offences

Section 9 of the Criminal Code provides that there can be no common law criminal offences.[4]

Criminal offences to be under law of Canada

9 Notwithstanding anything in this Act or any other Act, no person shall be convicted or discharged under section 730 [order of discharge]

(a) of an offence at common law,
(b) of an offence under an Act of the Parliament of England, or of Great Britain, or of the United Kingdom of Great Britain and Ireland, or
(c) of an offence under an Act or ordinance in force in any province, territory or place before that province, territory or place became a province of Canada,

but nothing in this section affects the power, jurisdiction or authority that a court, judge, justice or provincial court judge had, immediately before April 1, 1955, to impose punishment for contempt of court.

R.S., 1985, c. C-46, s. 9; R.S., 1985, c. 27 (1st Supp.), s. 6, c. 1 (4th Supp.), s. 18(F); 1995, c. 22, s. 10.

CCC


Note up: 9

Traditionally, the common law of Great Britain included criminal offences that were defined by the common law. [5]

However, under s. 8, common law defences maintain a role in the criminal law.[6]

8 ...

Application of criminal law of England

(2) The criminal law of England that was in force in a province immediately before April 1, 1955 continues in force in the province except as altered, varied, modified or affected by this Act or any other Act of the Parliament of Canada.
...
R.S., 1985, c. C-46, s. 8; 1993, c. 28, s. 78; 2002, c. 7, s. 138.

CCC


Note up: 8(2)

Section 11(g) of the Charter provides that no person can be found guilty of an offence other than those that constitute an offence under Canadian law or international law.[7]

Equity in Criminal Law

The principles of the laws of equity have no relevance to criminal law.[8]

  1. Fleming v Ontario, 2019 SCC 45 (CanLII)}}, per Cote J, at [http://canlii.ca/t/j2pd2#par42 para 42 ("That being said, the courts cannot abdicate their role of incrementally adapting common law rules where legislative gaps exist .... This Court has in fact relied on the ancillary powers doctrine to recognize the existence of common law powers in many circumstances in the past. As Moldaver J. explained in concurring reasons in R. v. Reeves, 2018 SCC 56, the ancillary powers doctrine has been used to affirm many common law police powers now considered fundamental." [quotation and citations removed])
    R v Mann, 2004 SCC 52 (CanLII), at para 17
  2. Mann, ibid., at para 17 ("The Court cannot, however, shy away from the task where common law rules are required to be incrementally adapted to reflect societal change. Courts, as its custodians, share responsibility for ensuring that the common law reflects current and emerging societal needs and values")
  3. Fleming, ibid., at para 42 ("Of course, the legislature always retains the power to expand, modify, restrict or abolish such common law powers, subject to constitutional limits.")
  4. see also R v Amato, [1982] 2 SCR 418, 1982 CanLII 31 (SCC), per Dickson J
  5. R v Rapicon Inc., 2019 ABPC 98 (CanLII), per Rosborough J, at para 23
  6. See s. 8 and Levis (City) v Tétrault, 2006 SCC 12 (CanLII), per LeBel J
    Frey v Fedoruk et al., [1950] SCR 517, 1950 CanLII 24 (SCC), per Cartwright J
    Amato, supra
    Note that s. 8(2) permits the English criminal law as it was immediately before April 1, 1955 to still apply
  7. See section 11(g) of the Charter
  8. R v Steinkey, 2017 ABQB 378 (CanLII), per Belzil J, at para 33

Criminal Legislation

All criminal offences are created by statute of Parliament. Most are found within the Criminal Code of Canada, with additional criminal offences in the Controlled Drugs and Substances Act and several others.

Law Must Comply with Charter Rights

Criminal law is only valid where it complies with the Canadian Charter of Rights and Freedoms. Offences that are in violation of the Charter or criminal procedures that violate the Charter cannot be enforced.

Rules of evidence and procedure in criminal matters are governed by federal law under s. 91(27). Accordingly, criminal courts must apply the Canada Evidence Act and enact rules of court pursuant to the Criminal Code.[1]

  1. for example see s. 482(1) and (2)
    see also Role of the Trial Judge and Case Management

Laws of England

8
...

Application of criminal law of England

(2) The criminal law of England that was in force in a province immediately before April 1, 1955 continues in force in the province except as altered, varied, modified or affected by this Act or any other Act of the Parliament of Canada.
...
R.S., 1985, c. C-46, s. 8; 1993, c. 28, s. 78; 2002, c. 7, s. 138.

CCC


Note up: 8(2)

Criminal offences to be under law of Canada

9 Notwithstanding anything in this Act or any other Act, no person shall be convicted or discharged under section 730 [order of discharge]

(a) of an offence at common law,
(b) of an offence under an Act of the Parliament of England, or of Great Britain, or of the United Kingdom of Great Britain and Ireland, or
(c) of an offence under an Act or ordinance in force in any province, territory or place before that province, territory or place became a province of Canada,

but nothing in this section affects the power, jurisdiction or authority that a court, judge, justice or provincial court judge had, immediately before April 1, 1955, to impose punishment for contempt of court.

R.S., 1985, c. C-46, s. 9; R.S., 1985, c. 27 (1st Supp.), s. 6, c. 1 (4th Supp.), s. 18(F); 1995, c. 22, s. 10.
[annotation(s) added]

CCC


Note up: 9

See Also

Presumption of Innocence

General Principles

See also: Presumptions and Principles of Fundamental Justice

At common law, all prosecutions start with a presumption of the accused's innocence. [1]

The presumption is said to be a "hallowed principle lying at the very heart of criminal law".[2]

The presumption of innocence requires that the Crown has the onus of proving all essential elements of proof beyond a reasonable doubt.[3]

Relationship to Right of Cross-examination

The right to cross examine a witness is necessary for trial fairness and is "closely linked to the presumption of innocence".[4]

  1. R v Bourque, 69 W.W.R. 145, [1969] 4 CCC 358 (BCCA), 1969 CanLII 981 (BC CA), per Branca JA
    R v Wiltshire (1881), 6 Q.B.D. 366, 14 Cox C.C. 541 (C.C.R.)(*no CanLII links)
    R v Oakes, 1986 CanLII 46 (SCC) , [1986] 1 SCR 103, per Dickson CJ, at para 30
  2. Oakes, ibid., at para 29
  3. R v Ewanchuk, 1999 CanLII 711 (SCC) , [1999] 1 SCR 330, per Major J
    R v Chase, 1987 CanLII 23 (SCC) , [1987] 2 SCR 293, per McIntyre J
    R v PLS, 1991 CanLII 103 (SCC) , [1991] 1 SCR 909, per Sopinka J
  4. R v Osolin, 1993 CanLII 54 (SCC) , [1993] 4 SCR 595, per Cory J

Constitutional Right

The right to a presumption of innocence is expressly protected in s. 11(d). It is also implicated in the rights under s. 7 of the Charter to rights of life, liberty and security of the person.[1]

Under section 11 of the Charter:

Any person charged with an offence has the right
...

(d) to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal;

CCRF

The purpose of the presumption is to protect the fundamental liberty and human dignity of the accused.[2] The person faces "grave social and personal consequences" from the law and so needs protection.[3]

The principle is an essential element to a system founded in the rule of law.[4]

Section 6 of the Criminal Code states:

Presumption of innocence

6 (1) Where an enactment creates an offence and authorizes a punishment to be imposed in respect of that offence,

(a) a person shall be deemed not to be guilty of the offence until he is convicted or discharged under section 730 [order of discharge] of the offence; and
(b) a person who is convicted or discharged under section 730 of the offence is not liable to any punishment in respect thereof other than the punishment prescribed by this Act or by the enactment that creates the offence.

...
R.S., 1985, c. C-46, s. 6; R.S., 1985, c. 27 (1st Supp.), s. 4, c. 1 (4th Supp.), s. 18(F); 1995, c. 22, s. 10.

CCC


Note up: 6

From the right to the presumption flows the right to be convicted on when the offence has been proven beyond a reasonable doubt and the obligation on the Crown to bear the burden of proof.[5]

Statutory Presumptions

Consideration of whether a statutory presumption is constitutional should include consideration of whether:[6]

  1. importance of the legislative objective,
  2. how difficult it would be for the prosecution to prove the substituted fact beyond a reasonable doubt,
  3. whether it is possible, and how easy it is, for the accused to rebut the presumption, and,
  4. scientific advances
  1. R v Oakes, 1986 CanLII 46 (SCC) , [1986] 1 SCR 103, per Dickson CJ, at para 29
  2. Oakes, ibid. ("...The presumption of innocence protects the fundamental liberty and human dignity of any and every person accused by the State of criminal conduct. An individual charged with a criminal offence faces grave social and personal consequences, including potential loss of physical liberty, subjection to social stigma and ostracism from the community, as well as other social, psychological and economic harms. ...")
  3. Oakes, ibid.
  4. Reference Re Motor Vehicle Act (British Columbia) s. 94(2), 1985 CanLII 81 (SCC), [1985] 2 SCR 486 ("It has from time immemorial been part of our system of laws that the innocent not be punished. This principle has long been recognized as an essential element of a system for the administration of justice which is founded upon a belief in the dignity and worth of the human person and on the rule of law.")
  5. Oakes, supra, at para 32
  6. R v St. Onge Lamoureux, 2012 SCC 57 (CanLII), per Deschamps J, at para 31

Actus Reus and Mens Rea

General Principles

See also: Standard of Proof

In a criminal trial, the Crown will present evidence that will tend to establish the offence for which the accused is charged.[1] Each offence in the Criminal Code is broken down into "elements" that are to be proven.[2] Each element that is considered "essential" must be proven beyond a reasonable doubt before a judge can return a guilty verdict.[3]

The elements of a particular offence are derived from the explicit wording of the offence and are implied by the judicial interpretation of the offence.

For a list of elements of major offences, see Offences by Category.

Actus Reus and Mens Rea

Common with all criminal offences in Canada are the basic requirements that the Crown must prove there was an action or omission (known as the "actus reus") and that there was a simultaneous criminal intent (known as the "mens rea") within particular circumstance.[4]

What constitutes a actus reus and mens rea depends on the offence itself which is defined by federal legislation. [5]For example, a drug possession charge requires proving mens rea by establishing that the accused had knowledge of the presence of the substance on their person. An assault, however, requires proving mens rea by establishing an intention to apply force.

In a trial situation, it is fundamental that the Crown must prove the elements of the particularized charge as they are the charge and not simply the abstract definition of the offence as found in the Code.[6]

There are more static elements that need to be proven, such as the identity of the accused as the person subject to the offence, jurisdiction of the court over the person accused, and the timing of the offence. Identity can sometimes be a non-trivial issue where the accused was not caught in the act. Courts are very wary of wrongful convictions based on identity. [7] The jurisdiction and time elements simply establish that the court is able to adjudicate the matter. Judges cannot concern themselves of offences outside of the province or offences without any specific time period.[8]

Defences

Where defences are concerned, the Crown has no obligation to disprove them unless the evidence provides an "air of reality" to the availability of a defence.

  1. see more at Role of the Crown
  2. sometimes referred to as the corpus delicti ("body of the offence")
  3. R v Graham, [1974] SCR 206, 1972 CanLII 172 (SCC)
  4. R v Gillis, 2013 NBPC 3 (CanLII), per Lampert J, at para 84
    R v Butt, 2012 CM 3006 (CanLII), per d'Auteuil, at para 29
  5. Section 8 of Criminal Code prohibits common law offences
  6. R v Saunders, 1990 CanLII 1131 (SCC), [1990] 1 SCR 1020, per McLachlin J, at para 5 ("It is a fundamental principle of criminal law that the offence, as particularized in the charge, must be proved.")
  7. see Identity
  8. see also Time and Place

Simultaneous Principle

The "simultaneous principle" requires that there be "an intersection of the act and fault requirements of the criminal offence in question". [1]

This "simultaneous principle" is not to be applied strictly. For example, it is not necessary that the mens rea form "at the inception of the actus reus".[2] There only needs to be some overlap at some moment in time.[3] Accordingly, an act may start off innocent and then become the basis of criminal liability once the mens rea is formed during the act.

For the purpose of considering the simultaneous principle, a series of acts may be considered a continuous transaction.[4]

  1. R v McCague, 2006 ONCJ 208 (CanLII), per Trotter J
  2. Cooper, ibid. 1993 CanLII 147 (SCC), [1993] 1 SCR 146, per Cory J
  3. Cooper, ibid. ("There is, then, the classic rule that at some point the actus reus and the mens reas or intent must coincide")
  4. Cooper, ibid.
    see also R v Paré, 1987 CanLII 1 (SCC), [1987] 2 SCR 618, per Wilson J

Actus Reus

The actus reus concerns the "external elements" of the offence.[1] It is an act or omission of the accused that is required for proof of the offence.[2]

Criminal law only punishes those acts which are conscious and voluntary.[3]

Voluntariness

Fundamental to criminal liability is that the criminal act be voluntary as it reflects respect for a person's autonomy and only punishes those who have the capacity to conform with the law.[4] All actions are presumed to be voluntary.[5]

Reflexive actions of accused can be considered involuntary.[6]

Omissions

An omission can make out an actus reus where there is a legal duty to act.[7]

  1. R v Leech, 1972 CanLII 242 (AB QB), per Macdonald J, at para 18 ("actus reus means all the external ingredients of the crime") citing Williams, Criminal Law, 2nd ed
  2. see numerous references to "act or omission" within the code, referring to all "external ingredients" of the offence at issue
  3. R v Mathisen, 2008 ONCA 747 (CanLII), per Laskin JA
  4. R v Luedecke, 2008 ONCA 716 (CanLII), per Doherty JA, at para 56
  5. R v Stone, 1999 CanLII 688 (SCC), [1999] 2 SCR 290, per Bastarache J, at para 171
  6. R v Pirozzi (1987), 34 CCC (3d) 376 (Ont. C.A.), 1987 CanLII 6810 (ON CA), per curiam
    R v Mullin, 1990 CanLII 2598 (PE SCAD), (1990), 56 CCC (3d) 476 (P.E.I.C.A.), per Carruthers CJ
    R v Wolfe, (1974) 20 CCC (2d) 382 (Ont. C.A.), 1974 CanLII 1643 (ON CA), per Gale CJ: accused hits victim on head with telephone by reflex
  7. see Duty of Care

Circumstances of the Act or Omission

Certain offences only criminalize acts that occur only within certain circumstances. Where the circumstances in which the conduct takes place are an essential element to the offence these are referred to as the "attendant circumstances" or "external circumstances".[1]

A typical example of external circumstances is the required proof of lack of consent in assault-based offences such as sexual assault.[2]

  1. e.g. United States of America v Dynar, [1997] 2 SCR 462, 1997 CanLII 359 (SCC), per Iaccobucci J. uses the term "attendant circumstances"
  2. see Consent in Sexual Offences

Consequences of the Act or Omission

See also: Causation

The code definition of the Offence will sometimes describe necessary consequences that must arise for the Offence to be complete. This requires the crown to prove that the consequence occurred and that the consequence was caused by the Accused's conduct.

Mens Rea

An offence cannot be complete without proof of the requisite blameworthy state of mind, also known as the "mens rea" of the offence.[1]

The requirement is not one that is fixed but will depend on the specifics of the offence.

It can be either on an "objective" or "subjective" standard.

The mens rea will apply not simply to the level of intention behind the accused's conduct but will also apply to their level of knowledge, depending on the offence. The subject of the knowledge will be either the knowledge of the circumstances in which the conduct occurs or knowledge of the consequences that result from the conduct.[2]

There are several available mens rea standards including negligence, knowledge, wilfulness, recklessness, general intent or specific intent.

The standard applicable for a given offence will be set by the wording and interpretation of the legislation.[3]

The mens rea required for an offence will be applied to three types of elements. Elements of conduct, circumstances, and consequence. The elements of conduct refers to the actus reus of the offence.

The mens rea does not require that the accused be aware that what they are doing is a crime. The maxim that "ignorance of the law is no excuse" exempts any requirement of such awareness.[4]

The mens rea does not include the proof of any "motive" for the commission of the offence.[5] But aspects such as motive will go towards the overall moral blameworthiness of the offence which in turn affects the penalty to be imposed.[6]

Minimum Constitutional Level of Mens Rea

The principles of fundamental justice within s. 7 of the Charter "require proof of a subjective mens rea with respect to the prohibited act".[7] This because it is not appropriate for criminal law to punish the "morally innocent".[8]

  1. R v Butt, 2012 CM 3006 (CanLII), per d'Auteuil , at para 29
  2. Butt, ibid., at para 29
  3. Butt, ibid., at para 29
  4. see s. 19 of the Criminal Code
    see also Defences for "ignorance of the law" principle
  5. Butt, supra, at para 29
  6. R v Bernard, [1988] 2 SCR 833, 1988 CanLII 22 (SCC), at para 78 ("those generally more serious offences where the mens rea must involve not only the intentional performance of the actus reus but, as well, the formation of further ulterior motives..."
  7. R v Vaillancourt, 1987 CanLII 2 (SCC), [1987] 2 SCR 636, per Lamer J, at p. 653
  8. Vaillancourt, ibid., at p. 653

Included Offences

See also: Lesser Included Offences

Causation

General Principles

Certain offences in the Criminal Code require not only that the offender do a prohibited act along with the requisite mens rea, but also that the act caused a particular result. Criminal responsibility for causation must be established in fact and in law.[1] This makes a distinction between the physical, biological, or medical cause a particular result and the legal boundary that would attribute responsibility to the accused for the result.

The standard to prove causation is the same as between all homicide offences, including murder, manslaughter, operation of a motor vehicle causing death.[2] Likewise, the standard applies equally to offences involving bodily harm.

The criminal standard of causation in criminal matters is that the "accused's conduct be at least a contributing cause of the [result], outside the de minimis range"[3]

Criminal law does not include any issues of contributory negligence nor does it apportion responsibility for harm caused outside of sentencing.[4]

The inference of foreseeability can be rebutted with evidence of intoxication.[5]

  1. R v Nette, 2001 SCC 78 (CanLII) , [2001] 3 SCR 488, per Arbour J, at para 44
  2. R v KL, 2009 ONCA 141 (CanLII), per Watt JA, at para 17
  3. KL, supra, at para 17 citing:
    R v Smithers, 1977 CanLII 7 (SCC) , [1978] 1 SCR 506, per Dickson J, at p. 519
    R v Nette, 2001 SCC 78 (CanLII) , [2001] 3 SCR 488, per Arbour J, at paras 71 and 72
  4. Nette, supra, at para 49
    KL, supra, at para 18
  5. R v Seymour, 1996 CanLII 201 , [1996] 2 SCR 252, per Cory J, at para 23
    See R v Daley, 2007 SCC 53 (CanLII) , [2007] 3 SCR 523, per Bastarache J for details on the law of intoxication

Offences where causation is an essential element

Causation by Offence

A person who intentionally stabs another person will generally be considered to have intended to cause bodily harm.[1]

  1. R v Abbaya, 2000 ABPC 202 (CanLII), per Allen J, at para 76

Homicide

Accident

A panic response to circumstances may render an act involuntary.[1]

Case Digests

See Also

Causation of Death

General Principles

See also: Causation and Homicide (Offence)

Homicide is defined in s. 222(1) as occurring where a person "directly or indirectly, by any means, ... causes the death of a human being.". Culpable Homicide (i.e. murder, manslaughter, or infanticide) is defined in section 222(5) as "when [a person] causes the death of a human being...by means of an unlawful act".

Causation is explicitly identified as existing where the death might have been otherwise "been prevented by resorting to proper means"(s. 224) or where the immediate cause of death is proper or improper treatment applied in good faith (s.225) or where the victim is already suffering from a terminal condition. (s 226)

The "Smithers test" for causation applies to all types of homicide. The test requires that the accused's act be a "significant contributing cause" of death beyond something trifling or minor. Thus, the unlawful act remains the legal cause of death even where the act by itself would not have cause death as long as it was beyond the de minimus. [1]

By implication, causation is in no way limited to a direct, an immediate, or the most significant cause.[2]

Factual and Legal Causation

A distinction is made between factual causation and legal causation.[3] The former being the broader of the two.

  • Factual causation requires "an inquiry about how the victim came to his or her death, in a medical, mechanical, or physical sense, and with the contribution of the accused to that result"[4]

To put it simply, the question is "but for" the act would death have arose? [5]

  • Legal Causation addresses the moral element of whether the accused "should be held responsible in law for the death"[6]

It is not necessary for a judge to explain to a jury the distinction between legal and factual causation. The jury need only be instructed on deciding "whether the accused's actions significantly contributed to the victim's death".[7]

In terms of evidence, it is not necessary for the Crown to prove the exact mechanism by which death was caused. It is only necessary that it be proven that an unlawful act led to injuries which caused death.[8]

Degree of Participation in Constructive Murder

Where the offence is "constructive murder" under s. 231(5), that there is an added requirement (or enhanced Harbottle standard) that the accused be a "substantial cause of death".[9] Given the nature of first degree constructive murder there is an added degree of participation in the killing to engage s. 231(5).[10] To that end, the Crown must prove the accused "committed an act or series of acts that are of such a nature that they must be regarded as a substantial and integral cause of the deceased’s death. An accused must play a very active role – usually a physical role – in the killing".[11]

The added participation requirement still permits convictions for secondary parties.[12] The aider's conduct must satisfy the same Hartbottle participation standard.[13]

  1. R v Smithers, 1977 CanLII 7, per Dickson J - defines manslaughter as “a contributing cause of death, outside the de minimis range” (p. 519)
    R v Nette, 2001 SCC 78 (CanLII), per Arbour J, at paras 71 to 72
  2. R v Maybin, 2012 SCC 24 (CanLII), per McLachlin CJ, at para 20
  3. R v Kippax, 2011 ONCA 766 (CanLII) , [2011] O.J. 5494, per Watt JA, at paras 22 to 27
  4. Nette, supra, at para 44 ("In determining whether a person can be held responsible for causing a particular result, in this case death, it must be determined whether the person caused that result both in fact and in law. Factual causation, as the term implies, is concerned with an inquiry about how the victim came to his or her death, in a medical, mechanical, or physical sense, and with the contribution of the accused to that result. Where factual causation is established, the remaining issue is legal causation.")
  5. Maybin, supra, at para 15
  6. Nette, supra, at para 45 ("Legal causation, which is also referred to as imputable causation, is concerned with the question of whether the accused person should be held responsible in law for the death that occurred. It is informed by legal considerations such as the wording of the section creating the offence and principles of interpretation. These legal considerations, in turn, reflect fundamental principles of criminal justice such as the principle that the morally innocent should not be punished: ... In determining whether legal causation is established, the inquiry is directed at the question of whether the accused person should be held criminally responsible for the consequences that occurred. ")
  7. R v Sinclair (T.) et al., 2009 MBCA 71 (CanLII), per Hamilton and Freedman JJA
  8. R v Stewart, 2003 NSCA 150 (CanLII), per Oland JA, at para 30
    R v Rahman, 2014 NSCA 67 (CanLII), per Farrar JA, at para 75
  9. Nette, supra, at para 73
    R v Tomlinson, 2014 ONCA 158 (CanLII), per Watt JA, at para 141
    R v Harbottle, 1993 CanLII 71 (SCC) , [1993] 3 SCR 306, per Cory J, at pp. 323-324
  10. Tomlinson, supra, at para 142
    Nette, supra, at para 61
  11. Tomlinson, supra, at para 141
    Harbottle, supra, at p. 324
  12. Tomlinson, supra, at para 145
    R v Ferrari, 2012 ONCA 399 (CanLII) , 287 CCC (3d) 503, per Rosenberg JA, at para 68
  13. Tomlinson, supra, at para 145
    Ferrari, supra, at para 85
    Harbottle, supra, at p. 316

Deemed Causation of Death

Death that might have been prevented

224 Where a person, by an act or omission, does any thing that results in the death of a human being, he causes the death of that human being notwithstanding that death from that cause might have been prevented by resorting to proper means.
R.S., c. C-34, s. 207.

CCC


Note up: 224

Death from treatment of injury

225 Where a person causes to a human being a bodily injury that is of itself of a dangerous nature and from which death results, he causes the death of that human being notwithstanding that the immediate cause of death is proper or improper treatment that is applied in good faith.
R.S., c. C-34, s. 208.

CCC


Note up: 225

Acceleration of death

226 Where a person causes to a human being a bodily injury that results in death, he causes the death of that human being notwithstanding that the effect of the bodily injury is only to accelerate his death from a disease or disorder arising from some other cause.
R.S., c. C-34, s. 209.

CCC


Note up: 266

Killing by influence on the mind

228 No person commits culpable homicide where he causes the death of a human being

(a) by any influence on the mind alone, or
(b) by any disorder or disease resulting from influence on the mind alone,

but this section does not apply where a person causes the death of a child or sick person by wilfully frightening him.
R.S., c. C-34, s. 211.

CCC


Note up: 228

Intervening Acts

The doctrine of intervening acts can limit the scope of legal causation. The law recognizes an intervening cause that "'break the chain of causation' between the accused's acts and the death" which results in the "accused’s actions not being a significant contributing cause of death" [1]

It has been suggested that the intervening should be something that in some way is "extraordinary or unusual".[2]

  1. R v Tower, 2008 NSCA 3 (CanLII), per Cromwell JA, at para 25 ("To be convicted of manslaughter, the accused’s acts must have been a significant contributing cause of the deceased’s death: ...The accused’s actions do not have to have been the sole cause of death; there may be other contributing causes. However, the law recognizes that other causes may intervene to “break the chain of causation” between the accused’s acts and the death. This is the concept of an “intervening cause”, that some new event or events result in the accused’s actions not being a significant contributing cause of death: ...")
  2. R v Sinclair (T.) et al., 2009 MBCA 71 (CanLII), per Hamilton and Freedman JJA

Duty of Care

General Principles

Certain criminal offences create a duty of care, where, if the standard of care is violated, will result in a criminal act. The offences that impose a duty of care include:

  1. breach of duty towards explosives (80)
  2. unsafe storage of a firearm (86)
  3. Criminal negligence (219)
  4. dangerous operation of a motor vehicle (249)
  5. failing to provide necessities of life (215)

Further, there are special duties of care. Persons who take care or control "inherently dangerous materials" that may cause serious injury or death have a "special duty of care".[1]

See also s. 430(5.1) concerning breach of duty causing danger to life or mischief to property.

  1. R v Gosset, 1993 CanLII 62 (SCC), [1993] 3 SCR 76, per McLachlin J

Standard of Care

Any criminal duty of care requires a standard of care that includes, at a minimum, a "modified objective test" for mens rea.[1]

For any offence where the standard of care involves objectively dangerous conduct, the conduct must be shown to be a "marked departure" from the norm. Wherein a "reasonable person in the position of the accused would have been aware of the risk" and "would not have undertaken the activity".[2] The assessment, then, is of a "reasonably prudent person in the circumstances" the accused found himself when the events occurred.[3]

Thus, if the accused's actions show a marked departure from the standard of care described in the offence provision, he still cannot be convicted if a reasonably prudent person in the position of the accused would not have been aware of the risk or would not have been able to avoid the creating the risk.[4]

  1. see R v Hundal, [1993] 1 SCR 867, 1993 CanLII 120 (SCC), per Cory J, at p. 887 (SCR)
  2. R v Beatty, 2008 SCC 5 (CanLII), [2008] 1 SCR 49, per Charron J
  3. Beatty, ibid., at para 40
  4. R v Tayfel (M), 2009 MBCA 124 (CanLII), per Hamilton JA, at para 51

Possession

General Principles

There are three types of possession:[1]

  • personal / actual possession
  • constructive possession
  • joint possession

Possession can be proven through both direct or circumstantial evidence.[2]

These forms of possession are outlined in s. 4 of the Criminal Code:

Possession

4. (3) For the purposes of this Act,

(a) a person has anything in possession when he has it in his personal possession or knowingly
(i) has it in the actual possession or custody of another person, or
(ii) has it in any place, whether or not that place belongs to or is occupied by him, for the use or benefit of himself or of another person; and
(b) where one of two or more persons, with the knowledge and consent of the rest, has anything in his custody or possession, it shall be deemed to be in the custody and possession of each and all of them.

...
R.S., 1985, c. C-46, s. 4; R.S., 1985, c. 27 (1st Supp.), s. 3; 1994, c. 44, s. 3; 1997, c. 18, s. 2; 2008, c. 18, s. 1.

CCC


Note up: 4(3)

Section 4(3) is not limited to merely defining "possession" wherever it is found in the Code. It applies to all offences where the act of possession is a material element to the offence.[3]

Knowledge and Control

At common law, possession requires control[4] as well as knowledge.[5]

The statutory requirements of s.4(3) mean that the totality of evidence establish beyond a reasonable doubt that the accused had knowledge and control.[6]

Controlled Drugs and Substances Act

Possession under s. 2 the Controlled Drugs and Substances Act adopts the same definition as the Criminal Code:

Definitions

2 (1) In this Act,
...

“possession”

“possession” means possession within the meaning of subsection 4(3) [forms of possession defined] of the Criminal Code;

CDSA


Note up: 2

  1. R v Anderson, 1995 CanLII 1338 (BC CA) , [1995] 29 W.C.B. (2d) 357 (BCCA), per Rowles JA
  2. Warner v Metropolitan Police Commissioner (1968), 52 Cr. App. R. 373 (H.L.)
  3. R v Lovis; R v Moncini, [1975] 2 SCR 294, 1974 CanLII 170 (SCC), per Martland J
  4. R v Terrance, 1983 CanLII 51 (SCC), [1983] 1 SCR 357, 147 DLR (3d) 724, per Ritchie J
  5. R v Kocsis, 2001 CanLII 3593 (ON CA), (2001) 157 CCC (3d) 564 (ONCA), per MacPherson JA
  6. Anderson, supra
    R v Fisher, 2005 BCCA 444 (CanLII), per Smith JA

Interpretation of Possession

Actual/Personal Possession

“Personal possession” (ie. the actual handling of the thing) requires that “the accused must be aware that he or she has physical custody of the thing in question, and must be aware as well of what that thing is. Both elements must co-exist with an act of control (outside of public duty)”[1] Thus, actual/Personal possession requires that:[2]

  1. there be an actual physical custody of the object
  2. a knowledge of the nature of the object while with custody.[3]

For the purpose of possession under s. 4(3)(a)(ii), there should be more than mere responsibility over the place where the object is found. There must be control over the place where the item is kept.[4]

In certain circumstances personal possession can be drawn from evidence of fingerprints, but this will depend on the circumstances of the case. The determination is a question of fact.[5]

Fingerprints on a container of drugs, by itself, is not sufficient to establish possession of the drug. [6]

  1. R v Beaver, 1957 CanLII 14 (SCC), [1957] SCR 531, per Cartwright J, at pp. 541-42
    R v Morelli, 2010 SCC 8 (CanLII), [2010] 1 SCR 253, per Fish J, at para 16
    R v York, 2005 BCCA 74 (CanLII), per Oppal JA, at para 20 ("Personal possession is established where an accused person exercises physical control over a prohibited object with full knowledge of its character, however brief the physical contact may be, and where there is some evidence to show the accused person took custody of the object willingly with intent to deal with it in some prohibited manner")
    R v Terrence (1983), 1983 CanLII 51 (SCC), per Ritchie J
  2. R v Franks (G.G.), 2003 SKCA 70 (CanLII), [2003] S.J. No. 455; 238 Sask.R. 1; 305 W.A.C. 1 (C.A.), per Bayda JA
    R v Kocsis, 2001 CanLII 3593 (ON CA), per MacPherson JA
    R v Hess (1948), 94 CCC 48 (BCCA), 1948 CanLII 349 (BC CA), per O'Halloran JA
    R v Bonassin, 2008 NLCA 40 (CanLII), per Welsh JA, at para 26 (" Described generally, the three components of possession have been stated to be: (1) knowledge of the item, (2) intention or consent to have possession of the item, and (3) control over the item")
  3. R v Beaver (1957), 118 CCC 129 (SCC), 1957 CanLII 14, per Cartwright J
  4. R v Bertucci, 2002 CanLII 41779 (ON CA), per O'Connor JA, at para 20
  5. R v Lepage, [1995] 1 SCR 654, 1995 CanLII 123 (SCC), per Sopinka J
  6. R v Breau, (1987) 33 CCC (3d) 354 (N.B.C.A.), 1987 CanLII 6811 (NB CA), per Ayles JA
    R v Kuhn (No. 1) (1973), 15 CCC (2d) 1, 1973 CanLII 922 (SKCA), per Culliton CJ

Constructive Possession

Constructive possession will apply where there is no actual possession, but there is circumstantial evidence that shows "that the accused may still be attributed to having possession of a certain object or thing."[1]

Constructive possession requires the following:[2]

  1. knowledge of the item
  2. intent/consent to possess the item
  3. control over the location of the item[3]

The crown must prove knowledge extending beyond "quiescent knowledge" that discloses some degree of control of the item[4]

A person cannot have constructive possession where it is established that another person has exclusive control.[5]

Possession can still be established even if it considered the property of some third party.[6]

Constructive possession of drugs found in a suite or house can be established where the accused is shown to have control over a property searched and knowledge that the items were in the place.[7] Even where the accused did not have exclusive control over the place, he can still be found in joint possession of the items.[8]

Constructive possession does not require proof of actual possession at any time.[9]

A person who is to receive a package by mail can be found to be in constructive possession of its contents even where it may have been removed prior to delivery.[10]

Appellate Review

Whether a possession under s. 4(3) exists is a question of fact.[11]

  1. R v Callan, 2014 SKQB 173 (CanLII), per Konkin J, at para 10
  2. R v Kocsis, 2001 CanLII 3593 (ONCA), (2001), 157 CCC (3d) 564, per MacPherson JA
    R v Fisher, 2005 BCCA 444 (CanLII), per Smith JA
    R v Pham, 2005 CanLII 44671 (ON CA), per MacPherson JA
    R v Roan, 1985 ABCA 24 (CanLII), per Harradence JA
  3. R v Terrence, 1983 CanLII 51 (SCC), [1983] 1 SCR 357, per Ritchie J
  4. Pham, supra (affirmed by the Supreme Court of Canada), 2006 SCC 26 (CanLII), [2006] 1 SCR 940, per McLachlin CJ
  5. R v Marshall, 1968 CanLII 999 (AB CA) (1969), 3 CCC 149 (ABCA), per McDermid JA
  6. Pham, supra
  7. R v Basarowich (C.J.), 2010 MBQB 4 (CanLII), 249 Man.R. (2d) 64, per Greenberg J, at para 10
  8. Basarowich, ibid., at para 11
  9. Fisher, supra, at para 24 ("neither constructive possession nor joint possession requires proof of manual handling...")
  10. R v Brenton, 2016 CanLII 24207 (NL SCTD), per Handrigan J, at para 18
  11. R v Pham, 2005 CanLII 44671 (ON CA), per Kozak J, at para 27

Joint Possession

Joint possession amounts to a form of possession wherein multiple people can be deemed to be in possession or custody of the object. By function of s. 4(3)(b) custody and possession of a second party is deemed where "with the knowledge and consent of the rest" the primary persons "has anything in his custody or possession".

To establish joint possession there must be:[1]

  1. knowledge of the object,
  2. consent of the accused,
  3. and a degree of control over it

It is necessary that there be some evidence of "active concurrence" by the accused to possession by another person. Passive acquiescence is not enough.[2]

Consent must be more than "indifference or passive acquiescence".[3]

In circumstances of spouses living together in which one is engaging in criminal activity, a court may infer the elements of possession to the non-participatory co-accused spouse where they are shown to be aware of the criminal activity going on in a residence she resides in and does little if anything to stop it.[4]

Joint possession does not require proof of actual possession at any time.[5]

Control can be derived from knowledge of the presence of the item in their place of residence coupled with the choice not to refuse storage of the item there by another person.[6]

Each element must be proven beyond a reasonable doubt.[7]

  1. R v Terrence 1983 CanLII 51 (SCC), [1983] 1 SCR 357, per Ritchie J
    R v Williams, 1998 CanLII 2557 (ON C.A.), per McMurtry CJ
    R v Pham, 2005 CanLII 44671 (ON CA), (2005), O.R. (3d) 401, 203 CCC (3d) 326 (Ont.C.A.), per Kozak J, at paras 15 to 17
    R v Bjornson, 2009 BCSC 1780 (CanLII), per Bennett J, at para 18
    R v Quach, 2008 SKPC 62 (CanLII), per Hinds J
    R v Franks, [2003] S.J. No. 455, 2003 SKCA 70 (CanLII), per Bayda CJ
    Re Chambers and The Queen, 1985 CanLII 169 (ON C.A.), per Martin JA
    R v Fisher, 2005 BCCA 444 (CanLII), per Smith JA
  2. R v Marshall, 1968 CanLII 999 (AB CA) (1969), 3 CCC 149 (ABCA), per McDermid JA
    Pham
    R v Caldwell (1972), 7 CCC (2d) 285 (ABCA), 1972 ALTASCAD 33 (CanLII), per Allen JA
  3. R v Piaskoski, 1979 CanLII 2920 (ON CA), per Martin JA
  4. R v Mihalkov, 2009 ONCA 154 (CanLII), per Doherty JA (2:1) - majority upholds trial judge's inference. Dissent trial judge cannot impose duty to report police
  5. Fisher, supra, at para 24 ("neither constructive possession nor joint possession requires proof of manual handling...")
  6. Chambers and The Queen, 1985 CanLII 169 (ON CA), per Martin JA
  7. Fisher, supra

Innocent Possession

See also: Innocent Possession

There is suggestion that where the sole intent at all times of possession is to destroy or removing the accused's control over the contraband is not criminal.[1] Stated differently, there must be an intent to control the item in question.[2]

There are certain objects, where "human experience tells us that the nature of the property found would simply not be the subject of unknowing possession."[3]

  1. R v Glushek, 1978 ALTASCAD 175 (CanLII), (1978), 41 CCC (2d) 380 (Alta. S.C. App. Div.), per Sinclair JA
    R v Christie (1978), 41 CCC (2d) 282 (N.B. S.C. App. Div.), 1978 CanLII 2535 (NB CA), per Hughes CJ
    R v York, 2005 BCCA 74 (CanLII) , (2005), 193 CCC (3d) 331 (BCCA), per Oppal JA
    See also R v Loukas, 2006 ONCJ 219 (CanLII), [2006] OJ No 2405 (Ont. C.J.), per M Green J
  2. Christie, supra
  3. R v Ho, 2010 ABPC 258 (CanLII), per Semenuk J, at para 7
    R v Balasuntharam, 1999 CanLII 1979 (ON CA), (1999), OJ No 4861, per curiam
    R v Drury and Hazard, 2000 MBCA 100 (CanLII), per Huband JA

Elements

Proof of possession cannot be established by looking at the evidence individually, but rather the court must look at the evidence as a whole.[1] It is a matter that is determined on the facts of each case.[2]

The onus remains on the crown throughout. Even where the evidence "cries out for an explanation by the accused", it will simply create an evidential onus or even create a prima facie case, however, it will not require the accused to testify or prohibit from arguing that the crown failed to prove the element.[3]

In establishing possession, it is expected that there will be gaps in the evidence that can be filled by inferences.[4]

  1. R v Brar (G.), 2008 MBQB 133 (CanLII) , 234 Man.R. (2d) 1, per MacInnes JA, at paras 37 to 38
  2. R v Smith, 1973 CanLII 1546 (BC CA), per Taggart JA ("possession ... is a matter to be determined on the facts of each case.")
  3. Brar, ibid., at para 38
  4. R v Anderson-Wilson, 2010 ONSC 489 (CanLII), per Hill J, at para 73 (“will involve hiatuses in the evidence which can be filled only by inference”)

Manual Handling of Object

The manual handling of an object it not a necessary element of proof in constructive possession or joint possession.[1]

Brief handling of an object for the purpose of disposing of it, even while aware of its illegal character, is not enough to be in possession of it as it is conduct "inconsistent with retaining or dealing with the goods".[2]

  1. R v Fisher, 2005 BCCA 444 (CanLII), per Smith JA
  2. R v Glushek (1978), 1978 ALTASCAD 175 (CanLII), 41 CCC (2d) 380, per Sinclair JA - brief handling of stolen goods

Knowledge

See also: Knowledge and Wilful Blindness

There cannot be possession without knowledge of the nature of the object.[1] Knowledge requires that an accused have knowledge of “the criminal character of the item in issue”[2] It must be proven beyond mere “quiescent knowledge” that disclosed some degree of control over the items in question.[3]

Knowledge can be established by circumstantial evidence.[4] It can also be established by direct or circumstantial evidence, or a combination of both.[5]

However, it will often depend on the visibility of the object as well as the accused's connection with the location.[6]

For example, where drugs are found in a vehicle or house the courts consider the control the accused had over the location as well as the likelihood of the accused being aware of where the items were found.[7]

Occupancy does not automatically infer knowledge of the items within the dwelling.[8]

Knowledge can be inferred by recklessness or willful blindness.[9] It can be proven by circumstantial evidence without any direct proof.[10]

The knowledge component of possession can be established where contraband is found in plain view in a common area of a residence.[11]

Sparling

  1. R v Beaver, 1957 CanLII 14 (SCC), [1957] SCR 531, (1957), 118 CCC 129 (SCC), per Cartwright J
    R v Martin (1948), 1948 CanLII 101 (ON CA), 92 CCC 257, per Laidlaw JA, at p. 266 (Ont. C.A.)
  2. R v Chalk, 2007 ONCA 815 (CanLII), per Doherty JA, at para 18
  3. R v Traimany, 2011 MBQB 15 (CanLII), per Clearwater J, at para 34
  4. R v Sparling (1988), OJ No 107, [1988] OJ No 107 (Ont. H.C.)(*no CanLII links) , at p. 6:
    "There is no direct evidence of the applicant’s knowledge of the presence of narcotics in the residence. It is not essential that there be such evidence for as with any other issue of fact in a criminal proceeding, it may be established by circumstantial evidence. In combination, the finding of narcotics in plain view in the common areas of the residence, the presence of a scale in a bedroom apparently occupied by the applicant, and; the applicants apparent occupation of the premises may serve to found an inference of the requisite knowledge"
  5. R v Pham, 2005 CanLII 44671 (ON CA), per Kozak J, at para 18
  6. R v Grey, 1996 CanLII 35 (ON C.A.), per Laskin JA
  7. R v Gordon, 2011 ONSC 5650 (CanLII), per Backhouse J - acquittal - drugs found in vent of car
  8. Grey, supra, at p. 423 (“I would not prescribe a firm rule for inferring knowledge from occupancy”)
  9. see Intention
    R v Bennett, 2008 CanLII 3411 (ON SC), per Belobaba J, at para 17
    R v Aiello (1978), 1978 CanLII 62 (ON CA), 38 CCC (2d) 485, 30 N.R. 558, per Martin JA
  10. Aiello, ibid.
  11. Sparling, supra

Consent and Intent

The element of consent to possess an object requires that the accused consent to the object remaining in place after he or she has knowledge of its existence. This is not limited to those who approve of the custody of the drugs. A person who discovers drugs and spends time maintaining custody of it while considering what to do with it may be found to consent to possessing it.[1]

  1. R v Christie (1978), 41 CCC (2d) 282 (NBCA), 1978 CanLII 2535 (NB CA), per Hughes CJ -- woman held onto discovered drugs in car for 1 hour

Control

Control over an object refers to the accused's ability to exert "some power or authority" over that object.[1]

The element of control over the object is established by showing that the accused had an intention to exercise control. Where the person is shown to have control over the area where the object is stored, they can be found to exercise control over the object itself.[2]

Proof of manual handling of the object does not necessarily imply control. There may be no control where the handling was for the sole purpose of turning it over to the authorities or to destroy it.[3]

It is not necessary that the accused actually examine or look at the item to be in possession of it. [4]

A finding that the accused was in control of the vessel containing the object at issue, is not sufficient to establish control of the object itself.[5]

Simply being one of several persons residing in a residence is not enough to establish control.[6] Control requires that the Crown "prove is that an accused had the ability to exercise some power (i.e., some "measure of control") over the item in issue. It is not necessary for the Crown to prove that such power was in fact exercised."[7] A "measure of control" does not require predominant control.[8] There must be the ability to "exercise a directing or restraining power" over the item.[9]

A trier-of-fact may conclude that "someone living in premises in which marihuana plants or other illegal drugs are openly located is in a position to exercise some measure of control over those drugs."[10]

Control can be established by the fact that the accused had the ability to grant and withhold consent to contraband.[11] This will include power to grant or withhold access to a residence.[12]

  1. R v Colvin, 1942 CanLII 245 (BC CA) , [1943] 1 DLR 20, per O'Halloran JA, at p. 25 (DLR) ("It follows that `knowledge and consent' cannot exist without the co-existence of some measure of control over the subject-matter. If there is the power to consent there is equally the power to refuse and vice versa. They each signify the existence of some power or authority which is here called control, without which the need for their exercise could not arise or be invoked")
  2. R v Marshall, 1968 CanLII 999 (AB CA) (1969), 3 CCC 149 (ABCA), per McDermid JA -- acquitted of drug possession as he had no control over drugs in vehicle he was in See also R v Pham, 2005 CanLII 44671 (ON CA), per Kozak J
  3. R v Terrence, 1983 CanLII 51 (SCC), [1983] 1 SCR 357, per Ritchie J
  4. R v Daniels, 2004 NLCA 73 (CanLII), (2004), 191 CCC (3d) 393, per Welsh JA, at para 12 (Nfld. C.A.)
  5. R v Bertucci, 2002 CanLII 41779 (ON CA), per O'Connor ACJ, at para 20 - judge misdirected by stating they may find control if accused in control of vessel
  6. R v Masters, 2014 ONCA 556 (CanLII), per curiam, at para 23
  7. R v Wu, 2010 BCCA 589 (CanLII), per Frankel JA, at para 20 ("The law with respect to control in the context of constructive possession is well known. What the Crown must prove is that an accused had the ability to exercise some power (i.e., some measure of control) over the item in issue. It is not necessary for the Crown to prove that such power was in fact exercised: R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253 at 15-17, 137, 138; R. v. Webster, 2008 BCCA 458, 238 C.C.C. (3d) 270 at paras. 42-44.") - three adults lived in a house with a grow-op on the upper floor. No evidence of active involvement in grow-op.
    R v Webster, 2008 BCCA 458 (CanLII), per Frankel JA, at #par42 paras 42 to 44
  8. R v Dipnarine, 2014 ABCA 328 (CanLII), per curiam
    Terrence, supra
  9. Dipnarine, ibid., at para 18
  10. Wu, ibid.
  11. R v Savory, 1996 CanLII 2001 (ON CA), (1996), 94 O.A.C. 318, per curiam
    R v Sahlen (2005), Carswell Alta. 2115 (ABQB) (*no CanLII links)
    R v Chambers, 1985 CanLII 169 (ON CA), per Martin JA, at p. 446 - ostensible control of access to accused's room amounted to control over drugs found therein
  12. R v Fisher, 2005 BCCA 444 (CanLII), per Smith JA (3:0), at para 41

Specific Scenarios

Items Found in a Vehicle

There are differing lines of cases on whether finding of an item within a motor vehicle owned and operated by an accused is prima facie proof of possession by the accused. [1]

Simply being a passenger is not prima facie evidence of possession of contraband inside.[2]

"[M]ere passive acquiescence in the transportation of the drugs" is not sufficient [3]

A sole occupant and driver in close proximity to drugs in plain view allows the inference of knowledge and control.[4]

The Crown must prove the accused knew of the presence of the drug in the vehicle and that that he had a measure of control over it.[5]

However, "where one of two persons has opium in his custody or possession, another who knows that fact, even though he has no measure of control over it, but nevertheless co‑operates with the person who has such custody in an effort to prevent detection" that person has possession. [6]

Where there are multiple occupants in a vehicle containing contraband, knowledge and consent can be inferred based on the relationship and mutual activities of the occupants as well as the vehicle's contents.[7]

A driver is not necessarily going to be in the same position as a passenger. The driver, often operating with the owner's consent, can determine who enters and stays in the vehicle. The pasture me "merely acquiesce" to the driver. [8]

  1. Gallant v The Queen (1960), 128 CCC 129 (NB SCAD), 1960 CanLII 492 (NB CA), per Ritchie JA, at p. 131 - presumption exists
    cf. R v Lincoln, 2012 ONCA 542 (CanLII), per curiam - no presumption
    R v Watson, 2011 ONCA 437 (CanLII), per Laskin JA, at paras 11 to 13
    R v Vauteur, 1969 CanLII 1012 (NB CA) , (1970), 1 CCC 324, per Bridges CJ
  2. R v Sigouin, [1966] 1 CCC 235, 1964 CanLII 716 (QC CA), per Taschereau JA
    R v Sutherland et al., 2005 MBQB 230 (CanLII), per Jewers J
  3. R v Williams, 1998 CanLII 2557 (ON CA), (1998), 125 CCC (3d) 552 (Ont. C.A.), per McMurtry CJ, at p. 558
  4. R v Mulligan-Brum, 2011 BCCA 410 (CanLII), per Levine JA, at para 13
  5. R v Grey, 1996 CanLII 35 (ON CA), [1996] OJ No 1106 (C.A.), per Laskin JA, at para 15
  6. In R v Lou Hay Hung, 1946 CanLII 118 (ON CA), (1946), 85 CCC 308 (Ont. C.A.), per Robertson CJ
  7. R v McRae, 1967 CanLII 440 (SK CA), (1967), 3 CCC 122 (Sask. C.A.), per Wood J
  8. R v Anderson-Wilson, 2010 ONSC 489 (CanLII), per Hill J

Items Found in a Residence

Items found in a house can be subject to constructive possession by a person residing there.[1] However, occupancy alone is not always sufficient to establish possession.[2]

Generally, personal papers are to be found in a location where a person has access and control. It is a valid inference to infer that where documents such as “income tax forms, invoices, cancelled cheques, leases, insurance papers and the like” are found in a residence that the person identified in the documents is an occupant with “a significant level of control”.[3]

Mere presence in a residence and knowledge of the presence of contraband in the room or residence is not sufficient to establish possession, evidence must show control.[4]

Frequently, drugs found in a house may be the subject of constructive possession of the resident.[5]

  1. e.g. R v Biggs, 2016 ONCA 910 (CanLII), per MacPherson JA
  2. R v Grey (1996), 1996 CanLII 35 (ON CA), 28 O.R. (3d) 417 (C.A.), per Laskin JA ("I would not prescribe a firm rule for inferring knowledge from occupancy")
  3. R v Emes, 2001 CanLII 3973 (ONCA), per curiam at 8
    R v Basarowich, 2010 MBQB 4 (CanLII), per Greenberg J, at para 26
    cf. Biggs, supra
  4. R v Colvin and Gladue (1942), 78 CCC 282 (BCCA), 1942 CanLII 245 (BC CA), per McDonald CJ both accused persons were found visiting a premise where narcotics were present, found not in possession of the drugs
    R v Edwards, 2012 ONCJ 422 (CanLII), per Paciocco J, at para 23
  5. Biggs, supra
    Grey, supra
    R v Pham (2005), 2005 CanLII 44671 (ON CA), 77 O.R. (3d) 401 (C.A.), per Kozak J aff’d 2006 SCC 26 (CanLII), [2006] 1 SCR 940, per McLachlin CJ
    R v Turner, 2012 ONCA 570 (CanLII), 295 O.A.C. 274, per Armstrong JA
    R v Savoury, [2008] OJ No 2896 (S.C.)(*no CanLII links)
    R v Allison, 2016 ONSC 2446(*no CanLII links)

Possession of Firearms

When considering the circumstances of a discovered firearm, factors to consider when drawing an inference of possession include:[1]

  • The physical proximity of the fire run to the accused;
  • The degree of visibility of the firearm
  • The degree of communal use of A vehicle containing the firearm;
  • The nature and number of weapons in a particular space;
  • The nature of other items located proximate to the firearm capable of providing context for inferences of knowledge in control (E.g. binoculars, map, duct tape, masks etc.)

Generally, where the items hidden, more than physical proximity will be needed.[2]

Criminal responsibility for certain weapons offences such as s. 94(1) can be established by voluntary occupancy in a vehicle knowing there is a weapon inside does not require proof of control.[3]

  1. R v Anderson-Wilson, 2010 ONSC 489 (CanLII), per Hill J
  2. Anderson-Wilson, ibid.
  3. Anderson-Wilson, ibid., at para 68 ("Criminal liability for voluntary occupancy in a vehicle knowing there is a weapon in the conveyance does not, unlike a possession charge, require proof of control")

Possession of Drugs

Possession of controlled substances can be made on the totality of the circumstances.

A history of unexplained spending without a proportionate source of income can lead to an inference of possession of drugs found on the premises.[1]

  1. R v Ramos, 2015 SKQB 57 (CanLII), per Acton J

Other

Knowledge may be inferred from physical possession of a receptacle containing concealed contraband, however, it cannot create a presumption.[1]

A passenger may be in possession of a stolen car. It depends on the number of factors suggesting knowledge and control. Suggested factors include:[2]

  1. recency of theft
  2. driver fled once there was a collision
  3. actions, demeanour and utterances of passenger suggesting knowledge and control
  4. fleeing from the car with the driver and attempt to dispose of evidence
  5. the passenger's ability to see the damage to the ignition from starting without a key

A mould capable of manufacturing counterfeit coins found buried in the backyard, without any other evidence, cannot be used to infer possession by the resident.[3]

  1. R v Lincoln, 2012 ONCA 542 (CanLII), per curiam, at paras 2 to 3
  2. R v TAK, 2005 BCCA 293 (CanLII), per Low JA
  3. R v MacLeod (J.M.) et al., 2013 MBCA 48 (CanLII), per Cameron JA citing R v Haggarty, [1947] 3 DLR 335, 1946 CanLII 367 (BC CA), per Sloan CJ ("...the mere finding of an article buried in the garden of a householder does not, in itself, and in the absence of some evidence indicating his knowledge of its existence, or consent to its remaining in that place, or some other surrounding circumstances from which a reasonable inference could be drawn inculpating the householder, ...")

Case Digests

See Also

Mens Rea

Intention

General Principles

An unlawful cannot attract criminal liability without a sufficient level of awareness of the wrongfulness of the act. In legal terms the accused must have sufficient mens rea to be guilty of a crime. This manifests itself by either an intent on the part of the accused to choose to act in the unlawfulness or a knowledge of the circumstances under which they act to be held responsible for the offence.

However, it must be kept in mind that the latin maxim cogitationis poenam nemo patitur ("no one suffers punishment for mere intent") sets the principle that we not seek to punish people for their thoughts. So the awareness by itself cannot sustain a conviction without an action.

Mens rea.jpg

Intention

"Intent" refers to the mental state of the individual consisting of the desire or purpose to achieve a particular consequence, or where the consequences the person sees as certain, "substantially", or "practically" certain.[1]

There is a presumption that Parliament drafts an offence expecting to require a subjective fault element.[2]

"Purpose"

The use of phrase such as "for the purpose of" found in the Code will sometimes refer to the "desire" or "ultimate objective or goal" of the prohibited act.[3]

The "purpose" of an action is not necessarily the same as "motive". The "purpose" means the "object to be obtained, thing intended". The "motive" is the "what induces a person to act".[4]

"Wilful"

The presence of the word "wilfully" in an provision for an Criminal Code offence "generally signals a subjective mens rea requirement, but the appropriate meaning of the term ‘wilfully’ will depend on the context in which it is found."[5] In context of a probation order, "wilful" denotes "a legislative concern for a relatively high level of mens rea" that requires a intent to breach and have a purpose in doing so.[6]

  1. R v W(A), 2012 ONCJ 472 (CanLII), per Blacklock J includes a very detailed consideration of the history of intent
  2. R v Tatton, 2014 ONCA 273 (CanLII), per Pardu JA (2:1), at para 18
    R v ADH, 2013 SCC 28 (CanLII), 2013 SCC 28, 358 DLR (4th) 1, per Cromwell J, at para 23
  3. R v Berhe, 2011 ONSC 6815 (CanLII), per Code J, at para 32
  4. R v Darnley, 2020 ONCA 179 (CanLII), per Paciocco JA, at para 46
  5. R v ADH, 2011 SKCA 6 (CanLII), [2011] S.J. No. 5 (C.A.), per Ottenbreit JA (3:0), at para 27
  6. R v Docherty, 1989 CanLII 45 (SCC), [1989] 2 SCR 941, per Wilson J (7:0), at para 13

Specific and General Intent

A crime is only committed where the prohibited act or omission is committed while the accused is in possession of a requisite intent.[1]

Absent words to the contrary in the Code, the presumption is that the offence is one of general intent, whereby the accused must have intended the act or omission.[2]

Criminal law recognizes a distinction between offences that require specific and general intent as an essential element of proof. The difference concerns whether the intent applies "to the acts considered in relation to their purposes" (specific intent) or applies "to acts considered apart from their purpose" (general intent). General intent requires only intent as it "relates solely to the performance of the act in question", while specific intent involves "the performance of the actus reus, coupled with an intent or purpose going beyond the mere performance of the questioned act."[3]

There is some acceptance that the distinction may not always be "logically defensible" and may produce "illogical results".[4]

Most crimes where no mental element is mentioned in the definition of the offence will require proof of intent to or recklessness in bringing out the resulting offence.[5]

Offences with the wording of "wilfully" suggests that the mens rea is extended to a "specific intent". [6]

It has been pointed out that the distinction between general and specific intent is "not particularly helpful in describing the actual mental elements required for a crime”. The can however convey "the complexity of thought and reasoning" and the "social policy underlying the offence.”[7]

  1. R v Daviault, 1994 CanLII 61 (SCC), [1994] 3 SCR 63, per Cory J ("...as early as the twelfth century, in large part through the influence of the canon law, it was established that there must also be a mental element combined with the prohibited act to constitute a crime. That is to say that the accused must have meant or intended to commit the prohibited act.")
  2. Daviault
    e.g. R v Greenshields, 2014 ONCJ 35 (CanLII), per Duncan J, at paras 10 to 18
    R v MacDonald, 2014 SCC 3 (CanLII), per LeBel J
  3. R v Bernard, 1988 CanLII 22 (SCC), [1988] 2 SCR 833, at para 61
    R v George, 1960 CanLII 45 (SCC), [1960] SCR 871, at p. 877
    Daviault
  4. R v Tatton, 2014 ONCA 273 (CanLII), per Pardu JA (2:1), at para 34
    Bernard, supra, at pp. 879 to 880 [SCR]
    R v SJB, 2002 ABCA 143 (CanLII), per Berger JA (2:1)
  5. R v Buzzanga and Durocher, 1979 CanLII 1927 (ON CA), (1979), 25 O.R. (2d) 705, 101 DLR (3d) 488 (C.A.), per Martin JA, at p. 717
  6. The Queen v Rees, 1956 CanLII 60 (SCC), [1956] SCR 640
  7. R v Tatton, 2015 SCC 33 (CanLII), per Moldaver J , at para 35

Inferences

See also: Inferences

Intent is often proven by way of inference, including by use of circumstantial evidence, character evidence (e.g. motive or animosity),[1] post-offence conduct, statements made by the accused, or similar fact evidence.

Inferences are factual findings based on common sense.[2]

There is the long-standing inference that a person intends the natural consequences of one’s actions applies to many situations.[3] However, this principle is merely an inference and does not go as far as being a legal presumption.[4]

The inference will be made in most any circumstances except where there may be evidence to the contrary. Doubt may be raised as to the specific intent of the person where they suffer from mental illness or where intoxicated.[5]

Generally speaking, the inference requires the assumption that the accused has the capacity to form intent.[6]

Where circumstantial evidence is used to prove intent, there are three classes of circumstantial evidence:[7]

  1. prospectant (acts or omissions prior to offence);
  2. concomitant (acts or omissions at the time of offence); and/or
  3. retrospectant (after the fact acts or omissions).
  1. see R v Barbour, 1938 CanLII 29 (SCC), [1938] SCR 465, per Duff CJ
    R v Cloutier, 1979 CanLII 25 (SCC), [1979] 2 SCR 709, per Pratte J
    R v Lewis, 1979 CanLII 19 (SCC), [1979] 2 SCR 821, per Dickson J (9:0)
  2. see R v Daley, 2007 SCC 53 (CanLII), per Bastarache J (5:4), at paras 103 and 104
    R v EB, [2006] OJ No 1864 aff'd at 2011 ONCA 194 (CanLII), per curiam, at para 66 (context of murder)
  3. R v Missions, 2005 NSCA 82 (CanLII), per Rosecoe JA (3:0), at para 21
    R v Bergeron, 2015 BCCA 177 (CanLII), per Tysoe JA (3:0), at paras 21 to 22 ("It is well established that a trier of fact is entitled to draw the common sense inference that a sane and sober person intends the natural and probable consequences of their actions.")
    R v Starratt (1971), 1971 CanLII 541 (ON CA), 5 CCC (2d) 32 (ONCA), per Gale CJ, at para 3
    See R v Giannotti (1956), 1956 CanLII 160 (ON CA), 115 CCC 203 (Ont. C.A.), per Roach JA
    R v Hilson (1958), 1958 CanLII 134 (ON CA), 121 CCC 139 (Ont. C.A.), per Porter CJ
    R v Berger (1975), 27 CCC (2d) 357 (BCCA), 1975 CanLII 1250 (BC CA), per McIntyre JA and Robertson JA, leave to appeal to SCC refused [1975] SCR vii
    R v Borque, [1969] 4 CCC 358, 7 C.R.N.S. 189 (BCCA), 1969 CanLII 981 (BC CA), per Branca JA
    R v Theroux, [1993] S.C.J. No. 42, 1993 CanLII 134 (SCC), [1993] 2 SCR 5,79 CCC (3d) 449, per McLachlin J at 458
    R v Gill, 2012 ONCJ 326 (Ont. C.J.)(*no CanLII links) , per Ready J
  4. R v Spence, 2017 ONCA 619 (CanLII), per Trotter JA, at paras 44 to 46
  5. R v Robinson, 2010 BCSC 368 (CanLII), per Joyce J, at para 107 cited in R v Damin, 2011 BCSC 723 (CanLII), per Josephson J, at para 33
    R v McConnell, 2012 ABQB 263 (CanLII), per Crighton J
    R v Seymour, [1996] 2 SCR 252, 1996 CanLII 201 (SCC), per Cory J
  6. See R v Bird (1973), 13 CCC (2d) 73 (Sask C.A.), 1973 CanLII 1450 (SK CA), per Culliton CJ
  7. R v Radita, 2017 ABQB 128 (CanLII), per Horner J, at para 160
    R v Bottineau, 2006 CarswellOnt 8510 (ONSC)(*no CanLII links) , per Watt J, at para 62

Intending the Consequences of an Act

It has long been established that "a person who foresees that a consequence is certain or substantially certain to result from an act which he does in order to achieve some other purpose, intends that consequence."[1] This is an inference, not a presumption.[2] Its purpose is to determine intent in fact, and not to affix an intent based on reasonableness.[3]

Thus, the purpose of the accused's action does not have to be to achieve the consequences in order to "intend" those consequences.[4] The accused may very well not desire the consequences but still "intend" them where "he foresees that the consequence is certain or substantially certain to result from his conduct"[5]

An "ulterior motive" does not need to be directly related to the consequences.[6]

  1. R v Buzzanga and Durocher (1979), 1979 CanLII 1927 (ON CA), 49 CCC (2d) 369 (ONCA), per Martin JA, at p. 383-4 [CCC]
    R v MacKinlay, 1986 CanLII 111 (ON CA), per Martin JA
  2. e.g. R v Farrant, 1983 CanLII 118 (SCC), [1983] 1 SCR 124, per Dickson J
    R v Seymour, 1996 CanLII 201 (SCC), [1996] 2 SCR 252, per Cory J (5:0), at para 20
  3. MacKinlay, supra
  4. R v Iyanam, 2013 ONSC 1091 (CanLII), per Code J, at paras 23 to 27
  5. Iyanam, ibid., at paras 26, 27
  6. e.g. Iyanam, ibid., at para 22

Transferred Intent

The common law doctrine of transferred intent will impose a necessary mens rea for a conviction for an act with unintended consequences. Where "harm follows that is of the legal kind as that intended" the accused will have been deemed to have intended the act.[1]

Section 229(b) of the Criminal Code adopts transferred intent as a form of liability for murder.

Murder

229 Culpable homicide is murder...

(b) where a person, meaning to cause death to a human being or meaning to cause him bodily harm that he knows is likely to cause his death, and being reckless whether death ensues or not, by accident or mistake causes death to another human being, notwithstanding that he does not mean to cause death or bodily harm to that human being; or

...
R.S., 1985, c. C-46, s. 229; 2019, c. 25, s. 77.

CCC


Note up: 229

The doctrine of tranferred intent does not apply for attempted murder.[2]

  1. R v Gordon, 2009 ONCA 170 (CanLII), per Watt JA (3:0) , at para 42
  2. Gordon, ibid. , at para 78

Recklessness

Intoxication

See also: Intoxication

The inference of intending consequences of one's act must be considered after assessing "all of the evidence, including the evidence of intoxication".[1]

Intoxication is only relevant insofar as it affects "the accused's capacity to form the requisite intent" to commit the offence.[2]

Where evidence shows that the accused acted involuntary due to intoxication, negating intent on a general intent offence, proof of voluntary intoxication may in certain cases substitute for proof of voluntariness.[3] This "Leary rule" of substitution is typically available to offences of any general intent offence.[4] This was not considered applicable to assault based offence including sexual assault.[5] As a result s. 33.1 was enacted removing the intoxication defence from certain offences.

  1. R v Seymour, 1996 CanLII 201 (SCC), [1996] 2 SCR 252, per Cory J (5:0)
  2. R v Robinson, 1996 CanLII 233 (SCC), [1996] 1 SCR 683, per Lamer CJ
  3. R v Tatton, 2014 ONCA 273 (CanLII), per Pardu JA (2:1), at para 35
    R v Bernard, [1988] 2 SCR 833, 1988 CanLII 22 (SCC), at pp. 878-879 [SCR]
  4. Bernard, ibid., at para 73
  5. R v Daviault, 1994 CanLII 61 (SCC), [1994] 3 SCR 63, per Cory J

Knowledge

Examples of Intent

Intent to Kill

See also: Homicide (Offence)

In absence of any explanation, the only intent from firing a gun at a person is an intention to kill.[1]

  1. R v McArthur, 2013 SKCA 139 (CanLII), per Lane JA (3:0), at para 11

See Also

Knowledge and Wilful Blindness

General Principles

Knowledge is the awareness of a fact or circumstance. It is a state of mind, which is generally proven by inference from the surrounding circumstances.[1]

With respect to objects, it is not necessary that the accused have knowledge of the exact details of the "thing". Knowledge of its character is sufficient.[2]

Proof of knowledge is a "subjective inquiry" into what the accused actually knew and not "what ought he to have known".[3]

Knowledge of the character of an object can be proven by actual knowledge or by wilful blindness.[4]

  1. R v Aiello (1978), 38 CCC (2d) 485, 1978 CanLII 2374 (ON CA), per Martin JA - there is no requirement on the Crown to prove knowledge on direct evidence
  2. R v Buzzanga and Durocher (1979), 25 O.R. (2d) 705, 1979 CanLII 1927 (ON CA), 101 DLR (3d) 488 (C.A.), per Martin JA, at p. 717
  3. R v Tyrell, 2014 ONCA 617 (CanLII), per Doherty JA, at para 30
  4. R v Hanano, 2008 MBQB 121 (CanLII), per Spivak J, at para 16

Wilful Blindness

Wilful blindness refers to the accused's state of mind. The doctrine attributes "knowledge to a party whose strong suspicions have been aroused but who refrains from making inquiries to have those suspicions confirmed. The doctrine serves to override attempts to self-immunize against criminal liability by deliberately refusing to acquire actual knowledge."[1]

It does not "define the mens rea for particular offences". Instead, it is a "substitute for actual knowledge" where it is a component for the mens rea.[2]In effect, wilful blindness is the state of "deliberate ignorance" of a certain fact.[3]

It is not enough that there be a suspicion in the mind of the accused. Rather, the accused must have "virtually knew the critical fact, and intentionally declined to secure that knowledge."[4]

It is also not enough that there be merely a "failure to inquire". The ignorance must be "deliberate".[5]

The determination inquires into whether "the accused shut his ... eyes because he .. knew or strongly suspected that looking would fix him ... with knowledge?”[6]

The doctrine is not premised on "what a reasonable person would have done, but requires a finding that the accused, with actual suspicion, deliberately refrained from making inquiries because he or she did not want his or her suspicions confirmed."[7] To put it another way, it is not a form of "constructive knowledge" by way of a standard of reasonableness..[8]

Where wilful blindness is established, "the knowledge imputed is the equivalent of actual, subjective knowledge." [9] It is where the accused "shut[s] his eyes because he knew or strongly suspected that looking would fix him with knowledge" that woudl render his conduct culpable.[10] This is true even for an offence of murder.[11]

Before the doctrine applies, "there must be realisation that the fact in question is probable, or, at least, "possible above the average"[12] The accused must have "suspected the fact; he realised its probability; but he refrained from obtaining the final confirmation because he wanted in the event to be able to deny knowledge."[13]

In certain circumstances, "where an accused made some or basic inquiries, but still harboured suspicions, it remains open to the trier of fact to find wilful blindness".[14]

Wilful blindness has been imputed where the accused simply stated "Whatever you guys want to do just do it. Don’t do it around me. I don’t want to see anything."[15]

A court may want to make inquiries as follows:[16]

  1. Has the accused’s suspicion been aroused about a fact that would reveal a prohibited consequence or circumstance?
  2. Is the accused’s suspicion about the prohibited consequence or circumstance probable or at least “possible above the average”?
  3. Did the accused inquire about the suspicion?
  4. If the accused inquired about the suspicion did the accused harbour any real remaining suspicion after the inquiry?

If the accused harboured any real remaining suspicions after the inquiry, did the accused inquire further about the suspicion?

The finding of wilful blindness is tantamount to finding that he intended to "deny knowledge" of the fact and "intended to cheat the administration of justice".[17]

There must be a finding of subjective suspicion on the part of the accused.[18] The test is not objective. It does not matter whether the accused "should have", or "normally" would have, known the fact at issue.[19]

The determination of wilful blindness is contextual and must be made in "light of all the circumstances".[20]

Suspicion

The level of awareness must be a "real suspicion" in the mind of the accused "that causes the accused to see the need for inquiry".[21] Others have described the standard as requiring that the accused be shown to have "strongly suspected" that inquiry would have created actual knowledge.[22]

There is no need for the judge to describe that "level of suspicion beyond the finding that it was sufficient in the [accused's] mind" to require inquiry.[23]

"Some Inquiry" and reasonable steps

Where the Crown relies on wilful blindness and the evidence shows that "some inquiry" was made on the part of the accused, the question is then whether "the Crown has proved beyond a reasonable doubt that despite that inquiry the accused remained suspicious and refrained from making any further inquiry because she preferred to remain ignorant of the truth."[24]

Where the judge can find that the accused took "all reasonable steps to determine the truth", there can be no finding of wilful blindness.[25]


Inquiries

A person is not absolved of being willfully blind merely because an inquiry was made from which a negative answer was received.[26] The effort required in making inquiries seems to be af unction of the level of suspicion.[27]

Compared to Recklessness

Recklessness differs from wilful blindness as recklessness concerns the accused's "attitude" once they are aware of the risk of a particular result that their conduct could produce.[28]

The culpability of recklessness arises from "consciousness of risk" while in wilful blindness it arises from the accused responsiblity for "deliberaly fialing to inquire when he knows there is reasons to".[29]

  1. R v Briscoe, 2008 ABCA 327 (CanLII), per Martin JA, at para 19 aff'd at [2010] 1 SCR 411, 2010 SCC 13 (CanLII), per Charron J
    R v Jorgensen, 1995 CanLII 85 (SCC), [1995] 4 SCR 55, per Sopinka J, at pp. 157 - 158
    R v Sault Ste. Marie, [1978] 2 SCR 1299, 1978 CanLII 11 (SCC), per Dickson J, at p. 1309 ("Where the offence is criminal, the Crown must establish a mental element, namely, that the accused who committed the prohibited act did so intentionally or recklessly, with knowledge of the facts constituting the offence, or with wilful blindness toward them.") -- early instance of doctrine of wilful blindness
  2. Briscoe, supra (ABCA), at para 21
  3. Briscoe, supra (ABCA), at para 24
    R v Souter, [1997] A.J. No 330(*no CanLII links) , at paras 9 to 10
  4. Briscoe, supra (ABCA), at para 20
    cf. R v Lagace, 2003 CanLII 30886 (ON CA), (2003), 181 CCC (3d) 12 (Ont. C.A.), per Doherty JA, at paras 25 to 26 There must be “a real suspicion” causing the need for further inquiry
  5. R v Farmer, 2014 ONCA 823 (CanLII), per Sharpe JA, at para 24
  6. Jorgensen, supra, at para 103
  7. Briscoe, supra (ABCA), at para 21
  8. R v Callejas, 2011 ONCA 393 (CanLII), per curiam, at para 8
    R v Laronde, 2010 BCCA 430 (CanLII), per Bennett JA, at paras 28 to 35
    R v Smith, 2008 ONCA 101 (CanLII), per curiam, at paras 5 to 6
    R v Malfara, 2006 CanLII 17318 (ON CA), [2006] OJ No 2069 (C.A.), per curiam, at para 2 (“Where willful blindness is in issue, the question is not whether the accused should have been suspicious, but whether the accused was in fact suspicious”)
  9. Briscoe, supra (ABCA), at para 21
    R v Wolsey, 2008 BCCA 159 (CanLII), per Huddart JA, at para 28
  10. Wolsey, ibid., at para 28 (" It arises where an accused “shut his eyes because he knew or strongly suspected that looking would fix him with knowledge” of the facts rendering his conduct culpable")
    Jorgensen, supra, at para 103
  11. Briscoe, supra
  12. Jorgenson, supra, at pp. 158 to 159
  13. Jorgenson, supra, at p. 159
  14. R v Rashidi-Alvije, 2007 ONCA 712 (CanLII), per Gillese JA, at para 24
    R v Lagace, 2003 CanLII 30886 (ON CA), per Doherty JA, at paras 27-29{{{3}}}
    R v Niemi, 2006 CanLII 13949 (ON CA), per Juriansz JA, at para 77
  15. Briscoe, supra
  16. R v Bailey, 2014 ABPC 103 (CanLII), per Fradsham J, at para 396
  17. R v Sansregret (1985), 1985 CanLII 79 (SCC), 18 CCC (3d) 223, per McIntyre J
    R v Tejani, 1995 CanLII 786 (ON CA), per curiam
  18. R v Calder, 2011 NSSC 96 (CanLII), per Coady J, at para 57 citing Stuart (Canadian Criminal Law, 1982, The Carswell Company Ltd., p. 130 ("Our courts have generally insisted that the concept of wilful blindness is of narrow scope and involves no departure from the subjective focus on the workings of the accused's mind. It involves deliberate ignorance or an actual process of suppressing a suspicion. ")
  19. R v Barbeau, 1996 CanLII 6391 (QC CA), per Rothman JA ("The test was not whether appellant "should" have known or should "normally" have known from the suspicious circumstances that her husband was probably involved in a conspiracy to import cocaine. The question was whether the circumstances were such that she, herself, was, in fact, suspicious that this was the case but deliberately refrained from making inquiries so that she could remain in ignorance as to the truth.")
  20. Jorgensen, supra, at para 101
  21. R v Lagace, 2003 CanLII 30886 (ON CA), per Doherty JA, at para 26
  22. Briscoe, supra (ABCA), at para 103
  23. Lagace, ibid., at paras 24 and 25
  24. Lagace, ibid.
  25. Lagace, ibid.
  26. Souter, supra, at paras 17 to 18
  27. e.g. Souter, supra, at paras 17 to 18
  28. Wolsey, supra, at para 28
    R v Sansregret, [1985] 1 SCR 570, 1985 CanLII 79 (SCC), per McIntyre J, at para 22 ("Wilful blindness is distinct from recklessness because, while recklessness involves knowledge of a danger or risk and persistence in a course of conduct which creates a risk that the prohibited result will occur, wilful blindness arises where a person who has become aware of the need for some inquiry declines to make the inquiry because he does not wish to know the truth.")
  29. Sansregret, ibid., at para 22 ("The culpability in recklessness is justified by consciousness of the risk and by proceeding in the face of it, while in wilful blindness it is justified by the accused's fault in deliberately failing to inquire when he knows there is reason for inquiry")

See Also

Recklessness

General Principles

In criminal law, all prohibited acts, at minimum, must be done "intentionally or recklessly, with full knowledge of the facts constituting the offence or with willful blindness towards them".[1]

Reckless requires a subjective standard such that the accused is "aware that there is danger that his conduct could bring about the result prohibited by the criminal law, nevertheless persists, despite the risk."[2] That is, it is where the accused "sees the risk and ... takes the chance."[3]

It has been said to mean "careless" as to the consequences, heedless, or lacking in "prudence" or "caution".[4]

It is also greater than forgetfulness or absentmindedness.[5]

Thus, there are two elements, there must be (1) a consciousness of a risk or danger and (2) a choice to persist in the conduct that causes the risk. [6]

Recklessness assumes a knowledge of a likelihood of a prohibited consequences.[7]

Compared to Wilful Blindness

Recklessness is "something less than" wilful blindness.[8] Thus, reckless cannot satisfy an offence which requires knowledge as an essential element.[9]

In contrast to recklessness, wilful blindness requires that the accused become aware of a need for inquiry and deliberately declines to do so.[10]

Compared to Negligence

Recklessness should not be confused with negligence which is a purely objective standard.[11] Recklessness "must have an element of the subjective".[12]

  1. R v Sault Ste. Marie, [1978] 2 SCR 1299, 1978 CanLII 11 (SCC), per Dickson J
    UK: DPP v Morgan, [1976] AC 182, 61 Cr. App. R. 136, [1975] 2 All E.R. 347
  2. R v Sansregret, 1985 CanLII 79 (SCC), (1985), 18 CCC (3d) 223 (SCC), per McIntyre J at pp. 233 and 235
  3. Sansregret, ibid., at pp. 235, 502
    R v Cooper, 1993 CanLII 147 (SCC), [1993] 1 SCR 146, per Cory J, at p. 155
  4. R v Dickson, 2006 BCCA 490 (CanLII), per Rowles JA, at para 41
  5. R v Tatton, 2014 ONCA 273 (CanLII), per Pardu JA, at para 20
  6. R v Vinokurov, 2001 ABCA 113 (CanLII), per Berger JA (2:1) , at para 17
  7. Vinokurov, ibid., at para 18
  8. R v Sandhu, (1989), 50 CCC (3d) 492 (Ont. C.A.), 1989 CanLII 7102 (ON CA), per Finlayson JA, at p. 497
  9. Sandhu, ibid. ("In my opinion, it is now clear on the authority of Sansregret ... and R v Zundel ... that where an offence requires knowledge on the part of the accused, it is improper to instruct the jury that a finding of recklessness satisfies that requirement.")
    see comparison described in Knowledge and Wilful Blindness
  10. Vinokurov, supra
  11. Sansregret, supra at pp. 233 and 235
    Tatton, supra, at para 20
  12. Sansregret, supra

In Reference to Requirements of Offences Being "Wilful"

In many instances in the Code, the language may require that the prohibited act be "wilful". In some circumstances that will connote a standard of recklessness.[1]

The Code addresses the meaning of "willful" in s. 429 as it applies Part XI [Wilful and Forbidden Acts in Respect of Certain Property] of the Code:

Wilfully causing event to occur

429 (1) Every one who causes the occurrence of an event by doing an act or by omitting to do an act that it is his duty to do, knowing that the act or omission will probably cause the occurrence of the event and being reckless whether the event occurs or not, shall be deemed, for the purposes of this Part [Pt. XI – Wilful and Forbidden Acts in Respect of Certain Property (s. 428 to 447.1)], wilfully to have caused the occurrence of the event.

...
R.S., c. C-34, s. 386.
[annotation(s) added]

CCC


Note up: 429(1)

  1. R v Berhe, 2011 ONSC 6815 (CanLII), per Code J, at para 31

Offences with Identified Reckless Standards

Offences with a explicit reckless component of proof include:

Offences interpreted as including a standard of proof include:

See Also

Identity

General Principles

Identity of the accused person as the culprit is always a required element to be proven for a given offence. As with all essential elements, it must be proven on a standard of beyond a reasonable doubt.[1]

It can be proven by way of several methods, none of which are necessarily determinative. Those include:

  • first-hand eye-witness who observes the accused as person committing the offence
  • exclusive opportunity
  • security system photographs/video
  • voice identification
  • finger prints
  • foot prints
  • DNA

All of these methods amount to direct or circumstantial evidence that allow the trier-of-fact to be satisfied that the person who committed the offence was actually the accused person on trial.

Section 6.1 permits any witness to "give evidence as to the identity of an accused whom the witness is able to identify visually or in any other sensory manner."[2]

Charter Issues

There is some support for the possibility that identity evidence can be the subject of an order for exclusion of evidence under s. 24(2) of the Charter when a Charter violation is found.[3]

Appellate Review
See also: Standard of Appellate Review

The essential element of identity is a question of fact.[4] The judge must have had evidence that "could logically and reasonably draw the inference" of identity.[5]

  1. R v Evaglok, 2010 NWTCA 12 (CanLII), per Vertes JA, at para 21 ("...the issue of identification of the person before the court as the person who committed the offence. Unless admissions are made by the defence, this is an element requiring proof in every criminal trial.")
    R v Nicholson, 1984 ABCA 88 (CanLII), per Kerans JA, at para 4 ("The onus upon the Crown is to prove that the crime alleged has been committed and that the accused is the person who did it. This last, like any fact-in-issue, can be proved in many different ways.") and 27 ("I take no exception to the authorities offered for the appellant which repeat the fundamental proposition that, for guilt, the Crown must prove that the person named in the Information and before the Court is beyond any reasonable doubt the person who committed the offence.")
  2. see s. 6.1 of the Canada Evidence Act, RSC 1985, c C-5
  3. R v Lewis, 2011 ONCJ 105 (CanLII), per Reinhardt J
  4. R v Thompson, 2015 NSCA 51 (CanLII), per Farrar JA, at para 75
  5. Thompson, supra, at para 75
    R v Hoben, 2009 NSCA 27 (CanLII), per Roscoe JA, at paras 18 to 20

Eyewitness Identification

Other Methods of Proving Identity

Proving Identity of Online Communications

It rare that a person will identify themselves by their own name.[1] Accordingly, the identity of a person communicating online must be done by inference in most cases.

A sender of an email can be identified using evidence of accessibility to the sender's computer and accessibility to sender's account, including whether the accused's login information was used to send it.[2] This holds true for communication by social media as well.[3]

In certain cases, it is possible to identify the person behind a particular user account by considering the information provided in the account as well as the content of the communications.[4]

The presence of a wireless, by itself, cannot lead to the inference that another person may be responsible for the internet communication.[5]

Identity of Sender of Cell Phone Text Messages

Proving the identity of the sender and receiver of text messages is part of the authentication process to admit them.[6]

  1. e.g. R v Kwok [2008] O.J. No 2414 (*no CanLII links) , at para 7 -- "[the officer's] evidence indicated that 99% of users do not use their real names."
  2. e.g. R v Mirsayah, 2007 BCSC 1596 (CanLII), per Groberman J, at paras 79, 80
  3. e.g. R v Weavers, 2009 ONCJ 437 (CanLII), per West J, at para 86
  4. R v Harris, 2010 PESC 32 (CanLII), per Mitchell J -- determined ID for a facebook account based on content of conversations
  5. R v Brzezinski, 2009 CanLII 78360 (ON SC), per Bryant J, at para 46 - warrant upheld on basis that inference of a third party downloading child pornography not reasonable
  6. See more at Electronic Documents and Records#Authentication

Finger Prints

Fingerprint evidence should be accompanied by some form of evidence supporting a "temporal connection" it make out a circumstantial case.[1]

  1. R v Yonkman, 2005 BCCA 561 (CanLII) , 202 CCC (3d) 289, per Lowry JA, at to 11 paras 9 to 11{{{3}}}

DNA

Police Identification of Arrested Person

Adverse Inference

Where defence intend to argue that the person in court is not the person who was arrested, the judge may make a negative inference from the accused’s counsel failure to put the lack of evidence the arresting officer at trial.[1]

A refusal by the accused to let anyone look at his arm for identifying features can permit an adverse inference supporting proof of identity.[2]

  1. R v Ouellette, 2005 ABCA 282 (CanLII) , 200 CCC (3d) 353, per Cote JA, at para 42 (“The adverse inference seems to me doubly apt when the unusual suggestion that the man arrested and the man charged might differ, was not put to the arresting constable in cross-examination, nor argued at trial.”)
    R v Banish, 2014 ABCA 374 (CanLII), per Paperny JA
    R v Callaghan, 2020 ABPC 208 (CanLII), per Stirling J, at paras 102 to 104
  2. Ouellette, supra, at para 41 ("The Supreme Court of Canada has put restrictions on a trial judge’s right to note and rely upon the accused’s failure to testify. But I see no reason why the Court of Appeal cannot note this accused’s failure to let anyone look at his arm.")

Admissions by Counsel

The court may rely on the in-court utterances of counsel identifying the accused in the court by their name.[1]

  1. R v Callaghan, 2020 ABPC 208 (CanLII), per Stirling J, at paras 99 to 101
    R v Nicholson, 1984 ABCA 88 (CanLII), per Kerans JA, at para 19 ("The accused in this case was somebody described by the informant only as “John Robert Nicholson”. Be that as it may, there was a formal admission by counsel for the defence that a certain person in the courtroom was the accused. If there was some innocent person named John Robert Nicholson in this world who might somehow accidentally have got involved in this lawsuit, it did not happen. By his counsel, the man in the courtroom admitted that he was the accused, which means the person referred to by the informant in the Information. It was that person who was the accused and who now stands convicted. Unsurprisingly, he seems to answer to the name used in the Information.")

Court Records

A court is entitled to take judicial notice of all official documents on file.[1]

A promise to appear or appearance notice that includes the name and address of the accused can be used to establish identity if there is evidence that the accused was arrested and released on one of those two release mechanisms.[2]

  1. R v Ouellette, 2005 ABCA 282 (CanLII), per Cote JA, at para 23 ("In my view, a trial judge would be entitled to look at that court record and take judicial notice of its existence. Therefore, so can the Court of Appeal hearing an appeal from a trial judge.")
  2. R v Nicholson, 1984 ABCA 88 (CanLII), per Kerans JA, at paras 29 to 30
    R v Callaghan, 2020 ABPC 208 (CanLII), per Sterling J, at para 88 ("An Appearance Notice or a Promise to Appear can be used to establish identity if there is evidence the offender was arrested at the time of the offence and released with an Appearance Notice")

Voice Identification

See also: Eyewitness Identification and Lay Opinion Evidence

When determining if the voice on a wiretap matches that of the accused, the judge may consider the accused's voice during testimony and compare it with the voice recorded.[1]

While a non-expert may give testimony on identifying a voice, there are several factors that determine the weight that should be given:[2]

  1. Is there direct or circumstantial evidence that the speaker is, in fact, the appellant?
  2. Are the events following the conversations in which the appellant was identified consistent with the speaker being the appellant? For instance, in the case on appeal, a meeting was arranged but the appellant never carried through with it.
  3. Is there some peculiarity or distinctiveness to the appellant's voice that would make it more readily identifiable? Are there "internal patterns" or patterns of speech, distinctly associated with the appellant?
  4. Did the speaker disclose facts known by the appellant or, more compellingly, known only to the appellant?
  5. Are the "context and timing" of the conversation consistent with the theory that the speaker is the appellant? Or, on the other side of the coin, was the identity of the speaker tainted by the witness's expectation that he would be the appellant?
  6. Are there distinctive or distinguishing features of the voice?
  7. Did the party to the communication identify him or herself?
  8. Did the party to the communication provide information that would allow the listener to identify him or her?
  9. Was there evidence of physical surveillance at the same time as the private communication to allow the speaker to be identified?
  10. Did the witness hear the voices under the same conditions, or was the emotional state different in each situation?
  11. What is the length of time during which the witness was able to hear the voice?
  12. Was there any reason for the witness to focus on the voices?
  13. What was the condition of the witness when he or she heard the voices, alert or groggy?
  14. What was the length of time between the times the witness heard the voices?
  15. Were there any contradictions in the description given by the witness - did the witness testify that the accused spoke with an accent when he or she did not?
  16. Did anything compromise the identification process - was the witness assisted in identifying the voice, or was the witness' opinion tainted by the expectation that the voice was that of the accused?
  17. Is the witness' opinion contradicted?

The judge is entitled to use his own senses to evaluate the recorded voices to determine identity.[3]

It is not necessary to prove that the voice is that of the accused beyond a reasonable doubt as an essential element.[4]

Frailties

Similar to eye-witness identification, voice identification suffers from the frailty that the witness may misidentify the accused and should be treated with extreme caution. [5]

A jury should be cautioned about the frailties of voice identification particularly in matching voices.[6] Concerns include:

  • risk of relying on their own untrained ears, or those of a witness, none of whom had the benefit of equipment or training that would be available to an acoustic phonetician;
  • the fact that witness confidence in voice identification does not make the identification reliable;
  • the importance of considering the length and quality of the voice samples;
  • the availability of high quality non-distorting playback systems; and,
  • if applicable, the difficulties inherent in cross-racial voice identification
  1. R v Gyles, 2005 CanLII 47588 (ON CA), per curiam
  2. R v Williams, 1995 CanLII 695 (ON CA), per Finlayson JA
    R v Chan, 2001 BCSC 1180 (CanLII), per Dorgan J, at para 31
    R v Parsons, [1999] Y.J. No. 3 (Terr. Ct.)(*no CanLII links)
    R v Saddleback, 2013 ABCA 250 (CanLII), per curiam, at para 25
    R v Pinch, 2011 ONSC 5484 (CanLII), per Hill J
  3. R v Wu, 2010 ABCA 337 (CanLII), per curiam
  4. Chan, supra, at para 26 (the Crown "need not prove voice identification beyond a reasonable doubt. The evidence of voice identification is simply an individual item of evidence going to the identity of the accused and, accordingly, the standard of proof is by a preponderance of evidence")
  5. Chan, ibid., at para 22
    R v Clouthier, 2012 ONCA 636 (CanLII), per Sharpe JA, at para 19
  6. R v Pinch, 2011 ONSC 5484 (CanLII), per Hill J R v Masters, 2014 ONCA 556 (CanLII), per curiam - suggested not necessary, but preferred

Proof of Age

Any testimony by a person as to their own date of birth is sufficient evidence to prove their age.[1]Likewise, any testimony of a parent as to the age of their child will be admissible to establish that child.[2]

Otherwise, age can be proven by any number of means such as birth certificate, baptismal certificate, or material hospital record.[3]

Any other reliable evidence can also be considered.[4] Including the observations of the judge of the person's appearance.[5]

  1. see s. 658(1)
  2. see s. 658(2)
  3. see s. 658(3)
  4. s. 658(4)
  5. s. 658(5)

See Also

Time and Place

Introduction

The elements of place and time are traditionally considered essential elements of proof for all offences and must be proven by the Crown beyond a reasonable doubt. These elements establish that the Court has both geographic and temporal authority over the matter and that the evidence is specific enough to meet the described offence found in the charging document--the information or indictment.

Place

See also: Jurisdiction of the Courts

The charging document, be it an information or indictment, will state a geographic region in which the alleged offence is to said to have been committed. For the court to be convinced beyond a reasonable doubt that it has authority over the matter, there must be evidence establishing that the offence alleged "occurred" in a specific county/region and province.

In a simple case, this can be accomplished by having the eye-witness to the offence or the investigating officer testify to their presence in the county, region, and province at the time of their investigations or observations.

Burden of Proof

The Crown will normally have the burden of proving the place in which the offence occurred.[1]

Places Defined

s. 2
...
"environment" means the components of the Earth and includes

(a) air, land and water,
(b) all layers of the atmosphere,
(c) all organic and inorganic matter and living organisms, and
(d) the interacting natural systems that include components referred to in paragraphs (a) to (c); (environnement)

...
R.S., 1985, c. C-46, s. 2; R.S., 1985, c. 11 (1st Supp.), s. 2, c. 27 (1st Supp.), ss. 2, 203, c. 31 (1st Supp.), s. 61, c. 1 (2nd Supp.), s. 213, c. 27 (2nd Supp.), s. 10, c. 35 (2nd Supp.), s. 34, c. 32 (4th Supp.), s. 55, c. 40 (4th Supp.), s. 2; 1990, c. 17, s. 7; 1991, c. 1, s. 28, c. 40, s. 1, c. 43, ss. 1, 9; 1992, c. 20, s. 216, c. 51, s. 32; 1993, c. 28, s. 78, c. 34, s. 59; 1994, c. 44, s. 2; 1995, c. 29, ss. 39, 40, c. 39, s. 138; 1997, c. 23, s. 1; 1998, c. 30, s. 14; 1999, c. 3, s. 25, c. 5, s. 1, c. 25, s. 1(Preamble), c. 28, s. 155; 2000, c. 12, s. 91, c. 25, s. 1(F); 2001, c. 32, s. 1, c. 41, ss. 2, 131; 2002, c. 7, s. 137, c. 22, s. 324; 2003, c. 21, s. 1; 2004, c. 3, s. 1; 2005, c. 10, s. 34, c. 38, s. 58, c. 40, ss. 1, 7; 2006, c. 14, s. 1; 2007, c. 13, s. 1; 2012, c.1, s. 160, c. 19, s. 371; 2013, c. 13, s. 2; 2014, c. 17, s. 1, c. 23, s. 2, c. 25, s. 2; 2015, c. 3, s. 44, c. 13, s. 3, c. 20, s. 15; 2018, c. 21, s. 12; 2019, c. 13, s. 140; 2019, c. 25, s. 1.

CCC


Note up: 2

  1. Re The Queen and Smith (1974), 12 CCC (2d) 11 (N.B.C.A.)(*no CanLII links) , at p. 7 (Q.L.), per Hughes CJ ("At common law the place of an alleged offence was regarded as a matter of substance and hence an essential ingredient of all indictments. The burden of proving the place of the offence always lay upon the prosecutor and it was not upon an accused to disprove the place")

Time

The charging document will state a specific date or range of dates in which the offence is said to have occurred. For the court to be convinced beyond a reasonable doubt that the offence occurred within the specific date(s), there must be evidence establishing the date. Since the charging documents never get so specific as mentioning the actual time, in terms of hours and minutes, of the alleged offence, it is not required to be that specific. In a simple case, this can be accomplished by having the eye-witness to the offence or the investigating officer testify to the date and time of their investigations or observations.

The precision of time must only be to a point to ensure that the accused has the ability to make full answer and defence.[1]


Failure to Prove Time

A failure to establish the exact time when an offence occurred is not critical to proving a case unless it is an essential part of the offence charged and prejudice may arise from variation in the time.[2]

The date on which an offence occurred, such as assault, mischief or uttering threats, is not normally an essential element as it does not mislead the defence on what the case is to meet.[3]

The time is not essential in the proof of the offence of sexual interference.[4]

Variation of Time Between the Charging Document and the Evidence

Section 601(4.1) states:

601.
...

Variance not material

(4.1) A variance between the indictment or a count therein and the evidence taken is not material with respect to

(a) the time when the offence is alleged to have been committed, if it is proved that the indictment was preferred within the prescribed period of limitation, if any; or

...
R.S., 1985, c. C-46, s. 601; R.S., 1985, c. 27 (1st Supp.), s. 123; 1999, c. 5, s. 23(E); 2011, c. 16, s. 6; 2018, c. 29, s. 65.

CCC


Note up: 601(4.1)

  1. R v Dritsas, 2012 MBQB 339 (CanLII), per McKelvey J citing Douglas
  2. R v Douglas, 1991 CanLII 81 (SCC), [1991] 1 SCR 301, per Cory J
    R v Jacques, 2013 SKCA 99 (CanLII), per Richards CJ, at para 62 Justice Richards CJS cites Ewaschuk, Criminal Pleadings & Practice in Canada, 2nd ed. (Aurora: Canada Law Book, 1987) ("From time immemorial, a date specified in an indictment has never been held to be a material matter. Thus the Crown need not prove the alleged date unless time is an essential element of the offence or unless there is a specified prescription period...")
    See also Amendments to Charges#Amendment of Time, Date, or Location of Offence
  3. R v McGee, 2014 ONCA 358 (CanLII), per curiam
  4. R v KWG, 2014 ABCA 124 (CanLII), per curiam

Computation of Time

Section 2 of the Code defines "day" and "night" as:

2
...
"day" means the period between six o’clock in the forenoon and nine o’clock in the afternoon of the same day;
...
"night" means the period between nine o’clock in the afternoon and six o’clock in the forenoon of the following day;
...
R.S., 1985, c. C-46, s. 2; R.S., 1985, c. 11 (1st Supp.), s. 2, c. 27 (1st Supp.), ss. 2, 203, c. 31 (1st Supp.), s. 61, c. 1 (2nd Supp.), s. 213, c. 27 (2nd Supp.), s. 10, c. 35 (2nd Supp.), s. 34, c. 32 (4th Supp.), s. 55, c. 40 (4th Supp.), s. 2; 1990, c. 17, s. 7; 1991, c. 1, s. 28, c. 40, s. 1, c. 43, ss. 1, 9; 1992, c. 20, s. 216, c. 51, s. 32; 1993, c. 28, s. 78, c. 34, s. 59; 1994, c. 44, s. 2; 1995, c. 29, ss. 39, 40, c. 39, s. 138; 1997, c. 23, s. 1; 1998, c. 30, s. 14; 1999, c. 3, s. 25, c. 5, s. 1, c. 25, s. 1(Preamble), c. 28, s. 155; 2000, c. 12, s. 91, c. 25, s. 1(F); 2001, c. 32, s. 1, c. 41, ss. 2, 131; 2002, c. 7, s. 137, c. 22, s. 324; 2003, c. 21, s. 1; 2004, c. 3, s. 1; 2005, c. 10, s. 34, c. 38, s. 58, c. 40, ss. 1, 7; 2006, c. 14, s. 1; 2007, c. 13, s. 1; 2012, c.1, s. 160, c. 19, s. 371; 2013, c. 13, s. 2; 2014, c. 17, s. 1, c. 23, s. 2, c. 25, s. 2; 2015, c. 3, s. 44, c. 13, s. 3, c. 20, s. 15; 2018, c. 21, s. 12; 2019, c. 13, s. 140; 2019, c. 25, s. 1.

CCC


Note up: 2

Section 29 of the Interpretation Act sets any reference to "time of day" as meaning "standard time".

Sections 26 to 28 address the computation of time:

Time limits and holidays

26 Where the time limited for the doing of a thing expires or falls on a holiday, the thing may be done on the day next following that is not a holiday.
R.S., 1985, c. I-21, s. 26; 1999, c. 31, s. 147(F).

IA


Note up: 26

Clear days

27 (1) Where there is a reference to a number of clear days or “at least” a number of days between two events, in calculating that number of days the days on which the events happen are excluded.

Not clear days

(2) Where there is a reference to a number of days, not expressed to be clear days, between two events, in calculating that number of days the day on which the first event happens is excluded and the day on which the second event happens is included.

Beginning and ending of prescribed periods

(3) Where a time is expressed to begin or end at, on or with a specified day, or to continue to or until a specified day, the time includes that day.

After specified day

(4) Where a time is expressed to begin after or to be from a specified day, the time does not include that day.

Within a time

(5) Where anything is to be done within a time after, from, of or before a specified day, the time does not include that day.
R.S., c. I-23, s. 25.

IA


Note up: 27(1), (2), (3), (4), and (5)

Calculation of a period of months after or before a specified day

28 Where there is a reference to a period of time consisting of a number of months after or before a specified day, the period is calculated by

(a) counting forward or backward from the specified day the number of months, without including the month in which that day falls;
(b) excluding the specified day; and
(c) including in the last month counted under paragraph (a) the day that has the same calendar number as the specified day or, if that month has no day with that number, the last day of that month.

IA


Note up: 28

Calculating Notice Periods

NB: this time limit is subject to the "Holiday Rule" that moves the date to the next non-holiday day (see s. 26 of Interpretation Act)

Continuity

General Principles

The Crown must be shown that the items in evidence before the court in trial were the same items seized during the investigation.[1]

However, it has been said that generally speaking, "continuity of an exhibit goes to weight, not to admissibility."[2] A party who cannot "prove absolute continuous possession...would not preclude admissibility".[3]

There is no specific requirement for the crown lead continuity evidence. Nor does every person in the chain of possession need to testify.[4] The evidence of continuity should be lead where there is potential evidence before the court, by direct or circumstantial evidence or by inference, that may raise doubt as to the continuity. Even where gaps may raise a reasonable doubt about the item in court is the same seized initially by police, it may still be admissible and the doubt will simply go do weight. [5] For example, problems with continuity and integrity of recordings generally goes to their weight not the admissibility of the contents of the recordings.[6]

Where there is conflicting evidence of the source of an exhibit, it is up to the trier of fact to determine. It will therefore still be admitted into evidence.[7]

Cataloged Exhibits

The evidence seized by police will be cataloged and given identifying numbers. These numbers should remain consistent throughout the case. So whether the items are sent to a lab for analysis, they will always be identifiable as the same once they are presented in court. Any changes of the numbering system should be recorded and explained in court. Failure to properly track the exhibits by their identifying numbers may raise doubt as to their continuity.[8]

  1. R v Donald (1958), 121 CCC 304 (NBCA), 1958 CanLII 470 (NB CA), per Bridges JA
    R v Oracheski (1979), 1979 ALTASCAD 140 (CanLII), 48 CCC (2d) 217 (Alta SCAD), per McDermid JA
    R v De Graaf (1981), 1981 CanLII 343 (BC CA), 60 CCC (2d) 315, per Bull JA
    R v Andrade (1985), 18 CCC (3d) 41 (Ont CA), 1985 CanLII 3502 (ON CA), per Martin JA
  2. R v West, 2010 NSCA 16 (CanLII), per curiam, at para 130
    see also R v Krole, 1975 CarswellMan 119(*no CanLII links) , at para 27
  3. Krole, ibid., at para 27
  4. R v Adam, 2006 BCSC 1430 (CanLII), (2007) BCWLD 1987, per Romilly J, at p. 7
  5. Adam, ibid., at p. 7
    Andrade, supra
  6. R v Meer, [2010] AJ No 1123 (Q.B.), 2010 ABQB 617 (CanLII), per Burrows J, at para 16
  7. R v Penney, 2000 CanLII 28396 (NL SCTD), per Schwartz J, at para 45
    Ewaschuk, Criminal Pleadings and Practice in Canada the author states, at pp. 16-61
    Andrade, supra, at pp. 60-63
  8. e.g. R v Martin, 2008 ONCJ 601 (CanLII), per Bishop J, at para 16

Drug Cases

The Crown must prove that the drugs presented in court are the same that were seized at the scene of the investigation. Where the proof of the item is part of an essential element of the case, such as in a drug possession case, then it should be proven beyond a reasonable doubt. Gaps in continuity are not fatal unless they raise a reasonable doubt about the exhibit’s integrity.[1]

In drug cases, where evidence does not establish continuity before being sent to the lab, a doubt arises and must be resolved in favour of the accused.[2]

Under s. 53 of the CDSA, the continuity of exhibits can be proven by affidavit:

Continuity of possession

53 (1) In any proceeding under this Act or the regulations, continuity of possession of any exhibit tendered as evidence in that proceeding may be proved by the testimony of, or the affidavit or solemn declaration of, the person claiming to have had it in their possession.

Alternative method of proof

(2) Where an affidavit or solemn declaration is offered in proof of continuity of possession under subsection (1) , the court may require the affiant or declarant to appear before it for examination or cross-examination in respect of the issue of continuity of possession.

CDSA


Note up: 53(1) and (2)

  1. R v Oracheski, 1979 ALTASCAD 140 (CanLII), (1979) 48 CCC (2d) 217 (ABCA), per McDermid JA
    R v DeGraaf, 1981 CanLII 343 (BCCA), (1981), 60 CCC (2d) 315 (BCCA), per Bull JA
    cf. R v Murphy, 2011 NSCA 54 (CanLII), per Farrar JA, at para 41 citing R v Jeffrey [1993] AJ. 639(*no CanLII links)
  2. R v Larsen, 2001 BCSC 597 (CanLII), per Romilly J, at para 64

Exclusive Opportunity

See also: Circumstantial Evidence#Exclusive Opportunity

Establishing a fact by way of exclusive opportunity requires proof that can take the form of continuity. [1]

  1. e.g. R v Panrucker, 2013 BCCA 137 (CanLII), per D Smith JA - acquitted because no continuity evidence of access to the accused's cell where drugs were found.

Proof of Ownership

General Principles

Under s. 380, "property" does not relate to ownership. It concerns the lawful possession of some thing which is transferred by some deceitful act.[1]

  1. R v Vallillee (1974), 1974 CanLII 687 (ON CA), 15 CCC (2d) 409 (CA), per Martin JA - accused rented a car using stolen ID and Credit Card

Certificate of Ownership Under Section 491.2

Photographic evidence

491.2 (1) Before any property that would otherwise be required to be produced for the purposes of a preliminary inquiry, trial or other proceeding in respect of an offence under section 334 , 344 [robbery], 348 [break and enter], 354 [possession of stolen property], 355.2 [trafficking in property obtained by crime], 355.4 [possession of property obtained by crime — trafficking], 362 [false pretence or false statement] or 380 [fraud] is returned or ordered to be returned, forfeited or otherwise dealt with under section 489.1 [restitution of property or report by peace officer] or 490 [detention, access and disposal of things seized] or is otherwise returned, a peace officer or any person under the direction of a peace officer may take and retain a photograph of the property.

Certified photograph admissible in evidence

(2) Every photograph of property taken under subsection (1) [photographic evidence], accompanied by a certificate of a person containing the statements referred to in subsection (3) [statements made in certificate], shall be admissible in evidence and, in the absence of evidence to the contrary, shall have the same probative force as the property would have had if it had been proved in the ordinary way.

Statements made in certificate

(3) For the purposes of subsection (2) [certified photograph admissible in evidence], a certificate of a person stating that

(a) the person took the photograph under the authority of subsection (1) [photographic evidence],
(b) the person is a peace officer or took the photograph under the direction of a peace officer, and
(c) the photograph is a true photograph

shall be admissible in evidence and, in the absence of evidence to the contrary, is evidence of the statements contained in the certificate without proof of the signature of the person appearing to have signed the certificate.

Secondary evidence of peace officer

(4) An affidavit or solemn declaration of a peace officer or other person stating that the person has seized property and detained it or caused it to be detained from the time that person took possession of the property until a photograph of the property was taken under subsection (1) [photographic evidence] and that the property was not altered in any manner before the photograph was taken shall be admissible in evidence and, in the absence of evidence to the contrary, is evidence of the statements contained in the affidavit or solemn declaration without proof of the signature or official character of the person appearing to have signed the affidavit or solemn declaration.

Notice of intention to produce certified photograph

(5) Unless the court orders otherwise, no photograph, certificate, affidavit or solemn declaration shall be received in evidence at a trial or other proceeding pursuant to subsection (2) [certified photograph admissible in evidence], (3) [statements made in certificate] or (4) [secondary evidence of peace officer] unless the prosecutor has, before the trial or other proceeding, given to the accused a copy thereof and reasonable notice of intention to produce it in evidence.

Attendance for examination

(6) Notwithstanding subsection (3) [statements made in certificate] or (4) [secondary evidence of peace officer], the court may require the person who appears to have signed a certificate, an affidavit or a solemn declaration referred to in that subsection to appear before it for examination or cross-examination in respect of the issue of proof of any of the facts contained in the certificate, affidavit or solemn declaration.

Production of property in court

(7) A court may order any property seized and returned pursuant to section 489.1 [restitution of property or report by peace officer] or 490 [detention, access and disposal of things seized] to be produced in court or made available for examination by all parties to a proceeding at a reasonable time and place, notwithstanding that a photograph of the property has been received in evidence pursuant to subsection (2) [certified photograph admissible in evidence], where the court is satisfied that the interests of justice so require and that it is possible and practicable to do so in the circumstances.

Definition of photograph

(8) In this section, photograph includes a still photograph, a photographic film or plate, a microphotographic film, a photostatic negative, an X-ray film, a motion picture and a videotape.
R.S., 1985, c. 23 (4th Supp.), s. 2; 1992, c. 1, s. 58; 2010, c. 14, s. 10.
[annotation(s) added]

CCC


Note up: 491.2(1), (2), (3), (4), (5), (6), (7), and (8)

Notice

The Crown must give "reasonable notice of intention to produce it in evidence" before any photos can be admitted into evidence "unless the court orders otherwise". (491.2 (5))

Misc

The Court may require the attendance of the officers who gave the statements for examination. (491.2(6)) The court may also require the returned property be re-acquired to be brought to court for examination. (491.2(7))

Eligible Offences

Any property that is required for a preliminary inquiry or trial for an offence under section 334, 344, 348, 354, 355.2, 355.4, 362 or 380 that has been returned, may by photographed by police.[1]

Those offences consist of:

Photographs

Photograph "includes a still photograph, a photographic film or plate, a microphotographic film, a photostatic negative, and X-ray film, a motion picture and a videotape." (491.2 (8))

Photographs were taken under s. 491.2 that are accompanied by a certificate containing the statements are admissible with the same "probative force" as the property was proved the ordinary way absence evidence to the contrary. (491.2(2))

Elements of Certificate

Under s. 491.2(3), the certificate should contain a statement outlining that:

  1. the person took the photograph under the authority of 491.2(1)
  2. the person is a peace officer or took the photograph under the direction of a peace officer, and
  3. the photograph is a true photograph

There must also be an affidavit or solemn declaration that "the property was not altered in any manner before the photograph". (491.2(4))

Affidavit of Ownership

Under s. 657.1, evidence regarding the property, such as value and ownership, can be given by way of affidavit or solemn affirmation from the lawful owner absent evidence to the contrary.

Proof of ownership and value of property

657.1 (1) In any proceedings, an affidavit or a solemn declaration of a person who claims to be the lawful owner of, or the person lawfully entitled to possession of, property that was the subject-matter of the offence, or any other person who has specialized knowledge of the property or of that type of property, containing the statements referred to in subsection (2) [proof of ownership and value of property – content of affidavit], shall be admissible in evidence and, in the absence of evidence to the contrary, is evidence of the statements contained in the affidavit or solemn declaration without proof of the signature of the person appearing to have signed the affidavit or solemn declaration.

Statements to be made

(2) For the purposes of subsection (1) [proof of ownership and value of property], a person shall state in an affidavit or a solemn declaration

(a) that the person is the lawful owner of, or is lawfully entitled to possession of, the property, or otherwise has specialized knowledge of the property or of property of the same type as that property;
(b) the value of the property;
(c) in the case of a person who is the lawful owner of or is lawfully entitled to possession of the property, that the person has been deprived of the property by fraudulent means or otherwise without the lawful consent of the person;
(c.1) in the case of proceedings in respect of an offence under section 342 [theft and forgery of credit card], that the credit card had been revoked or cancelled, is a false document within the meaning of section 321 [offences against rights of property – definitions] or that no credit card that meets the exact description of that credit card was ever issued; and
(d) any facts within the personal knowledge of the person relied on to justify the statements referred to in paragraphs (a) to (c.1) [proof of ownership and value of property – content of affidavit].
Notice of intention to produce affidavit or solemn declaration

(3) Unless the court orders otherwise, no affidavit or solemn declaration shall be received in evidence pursuant to subsection (1) [proof of ownership and value of property] unless the prosecutor has, before the trial or other proceeding, given to the accused a copy of the affidavit or solemn declaration and reasonable notice of intention to produce it in evidence.

Attendance for examination

(4) Notwithstanding subsection (1) [proof of ownership and value of property], the court may require the person who appears to have signed an affidavit or solemn declaration referred to in that subsection to appear before it for examination or cross-examination in respect of the issue of proof of any of the statements contained in the affidavit or solemn declaration.
R.S., 1985, c. 23 (4th Supp.), s. 3; 1994, c. 44, s. 63; 1997, c. 18, s. 79.
[annotation(s) added]

CCC


Note up: 657.1(1), (2), (3), and (4)

The affidavit must state:

  1. that the person is the lawful owner of, or is lawfully entitled to possession of, the property, or otherwise has specialized knowledge of the property or of property of the same type as that property;
  2. the value of the property;
  3. in the case of a person who is the lawful owner of or is lawfully entitled to possession of the property, that the person has been deprived of the property by fraudulent means or otherwise without the lawful consent of the person;
  4. in the case of proceedings in respect of an offence under section 342, that the credit card had been revoked or cancelled, is a false document within the meaning of section 321 or that no credit card that meets the exact description of that credit card was ever issued; and
  5. any facts within the personal knowledge of the person relied on to justify the statements referred to in paragraphs (a) to (c.1).

When relating to theft of property it can be important for the affidavit to include details as to when, where and in what circumstance the items were stolen.[1]

Notice

Parties must be given "reasonable notice of intention to produce" this evidence by affidavit.(657.1(3)) The court may still order that the affiant attend court to be examined.

See also rules of civil procedure in proving exhibits.

Ownership

588. The real and personal property of which a person has, by law, the management, control or custody shall, for the purposes of an indictment or proceeding against any other person for an offence committed on or in respect of the property, be deemed to be the property of the person who has the management, control or custody of it.
R.S., c. C-34, s. 517.

CCC


Note up: 588

Proof of ownership in a charge of possession of stolen property only requires the Crown to prove that ownership exists in some person "other than the accused".[2]

  1. R v Shaw, 2020 ABCA 86 (CanLII), at para 16
  2. R v McDowell, 1970 CanLII 501 (ON CA), [1970] 5 CCC 374 (Ont. CA), per Schroeder JA, at p. 376
    a charge will be sufficient if it identifies "property of person or persons unknown at the present time" (see R v Halliday (1975), 25 CCC (2d) 131 (NSCA), 1975 CanLII 1427 (NS CA), per Cooper JA)

See Also

Criminal Organizations

General Principles

A criminal organization is defined in s. 467.1 of the Criminal Code:

467.1 (1)
...
"criminal organization" means a group, however organized, that

(a) is composed of three or more persons in or outside Canada; and
(b) has as one of its main purposes or main activities the facilitation or commission of one or more serious offences that, if committed, would likely result in the direct or indirect receipt of a material benefit, including a financial benefit, by the group or by any of the persons who constitute the group.

It does not include a group of persons that forms randomly for the immediate commission of a single offence.

...
[omitted (2), (3) and (4)]
1997, c. 23, s. 11; 2001, c. 32, s. 27; 2014, c. 17, s. 8.

CCC


Note up: 467.1(1)

Purpose of Legislation

The purpose of the criminal organization provisions is to "identify and undermine groups of three or more persons that pose an elevated threat to society due to the ongoing and organized association of their members".[1]

Sections 467.1 and 467.12 do not violate s. 7 of the Charter for being vague or overbroad.[2]

s. 2
...
"criminal organization" has the same meaning as in subsection 467.1(1) [definitions re criminal organizations];
...
R.S., 1985, c. C-46, s. 2; R.S., 1985, c. 11 (1st Supp.), s. 2, c. 27 (1st Supp.), ss. 2, 203, c. 31 (1st Supp.), s. 61, c. 1 (2nd Supp.), s. 213, c. 27 (2nd Supp.), s. 10, c. 35 (2nd Supp.), s. 34, c. 32 (4th Supp.), s. 55, c. 40 (4th Supp.), s. 2; 1990, c. 17, s. 7; 1991, c. 1, s. 28, c. 40, s. 1, c. 43, ss. 1, 9; 1992, c. 20, s. 216, c. 51, s. 32; 1993, c. 28, s. 78, c. 34, s. 59; 1994, c. 44, s. 2; 1995, c. 29, ss. 39, 40, c. 39, s. 138; 1997, c. 23, s. 1; 1998, c. 30, s. 14; 1999, c. 3, s. 25, c. 5, s. 1, c. 25, s. 1(Preamble), c. 28, s. 155; 2000, c. 12, s. 91, c. 25, s. 1(F); 2001, c. 32, s. 1, c. 41, ss. 2, 131; 2002, c. 7, s. 137, c. 22, s. 324; 2003, c. 21, s. 1; 2004, c. 3, s. 1; 2005, c. 10, s. 34, c. 38, s. 58, c. 40, ss. 1, 7; 2006, c. 14, s. 1; 2007, c. 13, s. 1; 2012, c.1, s. 160, c. 19, s. 371; 2013, c. 13, s. 2; 2014, c. 17, s. 1, c. 23, s. 2, c. 25, s. 2; 2015, c. 3, s. 44, c. 13, s. 3, c. 20, s. 15; 2018, c. 21, s. 12; 2019, c. 13, s. 140; 2019, c. 25, s. 1.
[annotation(s) added]

CCC


Note up: 2

Dangers of Criminal Organizations

Criminal organizations are dangerous as collective action "carries with it advantages to criminals". It allows them to "develo[p] specializations and dividing labour... fostering trust and loyalty ...sharing customers, financial resources, and insider knowledge... and, in some circumstances, develo[p] a reputation for violence".[3]

The organization benefits to offenders as they can "acquire a level of sophistication and expertise that poses an enhanced threat to the surrounding community".[4]

Criminal Organization Offence

s. 2
...
"criminal organization offence" means

(a) an offence under section 467.11 [participation in activities of criminal organization], 467.111 [recruitment of members by a criminal organization], 467.12 [commission of offence for criminal organization] or 467.13 [instructing commission of offence for criminal organization], or a serious offence committed for the benefit of, at the direction of, or in association with, a criminal organization, or
(b) a conspiracy or an attempt to commit, being an accessory after the fact in relation to, or any counselling in relation to, an offence referred to in paragraph (a);


...

[annotation(s) added] R.S., 1985, c. C-46, s. 2; R.S., 1985, c. 11 (1st Supp.), s. 2, c. 27 (1st Supp.), ss. 2, 203, c. 31 (1st Supp.), s. 61, c. 1 (2nd Supp.), s. 213, c. 27 (2nd Supp.), s. 10, c. 35 (2nd Supp.), s. 34, c. 32 (4th Supp.), s. 55, c. 40 (4th Supp.), s. 2; 1990, c. 17, s. 7; 1991, c. 1, s. 28, c. 40, s. 1, c. 43, ss. 1, 9; 1992, c. 20, s. 216, c. 51, s. 32; 1993, c. 28, s. 78, c. 34, s. 59; 1994, c. 44, s. 2; 1995, c. 29, ss. 39, 40, c. 39, s. 138; 1997, c. 23, s. 1; 1998, c. 30, s. 14; 1999, c. 3, s. 25, c. 5, s. 1, c. 25, s. 1(Preamble), c. 28, s. 155; 2000, c. 12, s. 91, c. 25, s. 1(F); 2001, c. 32, s. 1, c. 41, ss. 2, 131; 2002, c. 7, s. 137, c. 22, s. 324; 2003, c. 21, s. 1; 2004, c. 3, s. 1; 2005, c. 10, s. 34, c. 38, s. 58, c. 40, ss. 1, 7; 2006, c. 14, s. 1; 2007, c. 13, s. 1; 2012, c.1, s. 160, c. 19, s. 371; 2013, c. 13, s. 2; 2014, c. 17, s. 1, c. 23, s. 2, c. 25, s. 2; 2015, c. 3, s. 44, c. 13, s. 3, c. 20, s. 15; 2018, c. 21, s. 12; 2019, c. 13, s. 140; 2019, c. 25, s. 1.

CCC


Note up: 2

  1. R v Venneri, 2012 SCC 33 (CanLII), per Fish J, at para 40 ("It is preferable by far to focus on the goal of the legislation, which is to identify and undermine groups of three or more persons that pose an elevated threat to society due to the ongoing and organized association of their members. All evidence relevant to this determination must be considered in applying the definition of “criminal organization” adopted by Parliament. ")
  2. R v Lindsay, 2009 ONCA 532 (CanLII), per MacPherson JA
  3. Venneri, supra, at para 36
  4. Venneri, supra, at para 36

"serious offence"

s. 2
...
"serious offence" has the same meaning as in subsection 467.1(1) [definitions re criminal organizations];
...
R.S., 1985, c. C-46, s. 2; R.S., 1985, c. 11 (1st Supp.), s. 2, c. 27 (1st Supp.), ss. 2, 203, c. 31 (1st Supp.), s. 61, c. 1 (2nd Supp.), s. 213, c. 27 (2nd Supp.), s. 10, c. 35 (2nd Supp.), s. 34, c. 32 (4th Supp.), s. 55, c. 40 (4th Supp.), s. 2; 1990, c. 17, s. 7; 1991, c. 1, s. 28, c. 40, s. 1, c. 43, ss. 1, 9; 1992, c. 20, s. 216, c. 51, s. 32; 1993, c. 28, s. 78, c. 34, s. 59; 1994, c. 44, s. 2; 1995, c. 29, ss. 39, 40, c. 39, s. 138; 1997, c. 23, s. 1; 1998, c. 30, s. 14; 1999, c. 3, s. 25, c. 5, s. 1, c. 25, s. 1(Preamble), c. 28, s. 155; 2000, c. 12, s. 91, c. 25, s. 1(F); 2001, c. 32, s. 1, c. 41, ss. 2, 131; 2002, c. 7, s. 137, c. 22, s. 324; 2003, c. 21, s. 1; 2004, c. 3, s. 1; 2005, c. 10, s. 34, c. 38, s. 58, c. 40, ss. 1, 7; 2006, c. 14, s. 1; 2007, c. 13, s. 1; 2012, c.1, s. 160, c. 19, s. 371; 2013, c. 13, s. 2; 2014, c. 17, s. 1, c. 23, s. 2, c. 25, s. 2; 2015, c. 3, s. 44, c. 13, s. 3, c. 20, s. 15; 2018, c. 21, s. 12; 2019, c. 13, s. 140; 2019, c. 25, s. 1.
[annotation(s) added]

CCC


Note up: 2

Definitions

467.1 (1) The following definitions apply in this Act.
...
"serious offence" means an indictable offence under this or any other Act of Parliament for which the maximum punishment is imprisonment for five years or more, or another offence that is prescribed by regulation.
[omitted (2) and (3)]

Regulations

(4) The Governor in Council may make regulations prescribing offences that are included in the definition “serious offence” in subsection (1) [definitions re criminal organizations].
1997, c. 23, s. 11; 2001, c. 32, s. 27; 2014, c. 17, s. 8.
[annotation(s) added]

CCC


Note up: 467.1(1) and (4)

History

The provisions relating to criminal organizations was first brought in 1997. The definition proved too narrow and so were expanded in 2001.[1]

  1. R v Beauchamp, 2015 ONCA 260 (CanLII), per curiam, at para 145

Proof of Criminal Organization (Evidence)

Evidence must establish that the group is a criminal organization. It must be established on a case-by-case basis.[1]

Courts must take a flexible approach, considering that criminal organizations "have no incentive to conform to any formal structure".[2]

Indicia of Organization

Stereotypical features including territoriality, hierarchy, exclusive membership and violence are indicia but are not necessary.[3]

When considering structure of the organization, Courts should not be limited "to the stereotypical model of organized crime".[4]

Factors to consider whether the group is a criminal organization include: [5]

  1. rules between the men,
  2. defined roles and structure,
  3. communication between the participants,
  4. actual or pending material benefit to the parties,
  5. an organizational structure that promotes the commission of offences.
Continuity

Continuity will not exist where the criminal enterprise appears only to exist for the purpose of accomplishing a single scheme.[6]

Flexible Approach

The courts should not be rigid in applying the definition and must use a purposive approach. Criminal organizations have no incentive to have a formal structure and tend to be flexible. However, "some form of structure and degree of continuity are required".[7]

There must be at least some "structure", "degree of continuity" and "coordination".[8]

Disclosure

When a charge is alleging "criminal organizations" the accused is entitled to the particulars of the identity of the criminal organization and its members. The judge may order the Crown to set out the theory of its case detailing this.[9]

The definition can also apply to small drug operations where there is "division of labour, temporal continuity, and an intention to advance illegal goals through the organization.[10]

The meaning of "criminal organization" can also apply to conventional "street gangs".[11] The issue will depend on the degree of organizaiton.[12]

Types of Evidence

Crown is permitted to adduce evidence of a co-accused's guilty pleas to various criminal offences, except for "criminal organization" offences.[13]

Propensity Evidence

General propensity evidence that would otherwise be inadmissible would be admissible for the purpose of establishing a criminal organization.[14]

Dual Purpose Organizations

The purpose of the group does not have to have a primarily or exclusively criminal. There is little purpose is "measuring" the proportion of legitimate vs criminal activity since there is usually not good book-keeping for criminal activity.[15]

  1. R v Ciarniello, 2006 BCSC 1671 (CanLII), per Ehrcke J
    R v Kirton, 2007 MBCA 38 (CanLII), per Scott CJ
    See also R v Riley, 2009 CanLII 15450 (ON S.C.), per Dambrot J
  2. R v Venneri, 2012 SCC 33 (CanLII), per Fish J, at para 28
  3. Venneri, ibid., at paras 37 to 38
    R v Saikaley, 2017 ONCA 374 (CanLII), per curiam, at para 120
  4. Venneri, supra, at paras 41{{{3}}}
  5. R v Lindsay, 2005 CanLII 24240 (ON SC), per Furest J app'd in 2009 ONCA 532 (CanLII), per MacPherson JA
  6. e.g. see R v Kwok, 2015 BCCA 34 (CanLII), 320 CCC (3d) 212, per Bennett JA - group of 5 accuse conspired to import ketamine. Offence was an isolated scheme.
  7. Venneri, supra, at paras 27 to 29
  8. Venneri, supra, at paras 29 and 30
  9. R v Beauchamp, 2008 CanLII 51934 (ON SC), per R Smith J
  10. Saikaley, supra, at para 121
  11. R v Aurélius, 2007 QCCQ 227 (CanLII), per Bonin J
  12. Aurelius, ibid.
  13. R v Riley, 2009 CanLII 15450 (ON SC), per Dambrot J
    R v Poitras, [2002] J.Q. No. 1164 (S.C.) (*no CanLII links)
  14. R v Terezakis, 2007 BCCA 384 (CanLII), per Mackenzie JA, at para 46 ("Criminal organization offences make evidence of general propensity and bad character probative that would otherwise be excluded as prejudicial. No doubt such evidence will present challenges for jury instruction in trials of criminal organization offences.")
  15. R v Beauchamp, 2015 ONCA 260 (CanLII), per curiam

Effect

Several offences require there is a criminal organization:[1]

  1. Enhancing a criminal organization (s. 467.11)
  2. Committing for the benefit of a criminal organization (s.467.12)[2]
  3. Instruct the commission of an offence for a criminal organization (s.467.13)

Others are modified by the existence of a criminal organization:

  1. Conspiracy (s.465)
  2. Counselling (s.22)
  3. Accessory after the fact (s.23)
  4. Possessing explosives for a criminal organization (s.82(2))
  5. Intimidating the justice system and journalists (s.423.1)

Where an offence is found to be a criminal organization offence (s.2):

  • the penalties will be consecutive (s.467.14)
  • the wiretap powers are expanded[3]
  • there is a reverse onus on bail (s. 515(6)(a)(ii)
  • presumption of 1st degree murder in a murder charge (s.231(6.1))
  1. see s. 2 "criminal organization offences"
  2. R v Drecic, 2011 ONCA 118 (CanLII), per curiam
  3. longer authorization (s.186.1 and 196), no need for "investigative necessity" (s. 185(1.1) and 186(1.1))

Participating in Organized Crime

See Also

Eyewitness Identification

General Principles

Identification of accused

6.1 For greater certainty, a witness may give evidence as to the identity of an accused whom the witness is able to identify visually or in any other sensory manner.

1998, c. 9, s. 1

CEA


Note up: 6.1

Recognized Unreliability

Courts are very cautious and "weary" of eyewitness identification evidence as it is considered "inherently" and "notoriously" unreliable.[1] The trier of fact must take the frailties into consideration when looking at whether the accused was known to the witness, the circumstances of the identification, and the level of detail of the identification.[2]

Honest but Mistaken ID

It is essential that courts recognize the risk of honest but mistaken beliefs of an eyewitness.[3] It is “well-established” that the frailties of eyewitness identification has “lead to wrongful convictions, even in cases where multiple witnesses have identified the same accused”[4] Even honest and convincing witnesses may misidentify individuals.[5] A viewing of only a single image can have the effect of stamping the face of the accused on the memory of the true perpetrator. It is highly suggestable and contaminates identification.[6]

Consequently, identification evidence is treated differently than other evidence. Special care and caution should be taken. [7]

Special Caution Required

Judges are required to given special cautions when considering identification evidence.[8] This includes instructing himself and bearing in mind the guidelines when considering evidence of identification.[9]

There is a particular need for caution in cases "that involve fleeting glimpses of unfamiliar persons in stressful circumstances".[10]

Weight Depends on Circumstances

Weight put upon eyewitness testimony must vary based on the "circumstances of the individual case".[11]

The accuracy of the eyewitness should not be determined by or be "coextensive" with the confidence or honesty of the witness.[12]

The apparent reliability of eyewitness identification can be deceptive, and it is often honest and sincere.[13]

Establishing the credibility of an eyewitness is not sufficient to rely on their evidence as fact. It has been acknowledged that there is a "weak link between the confidence level of a witness and the accuracy of that witness".[14]

Eyewitness evidence is, in essence, a form of opinion evidence that "the basis of which can be very difficult to assess."[15]

Standard of Appellate Review

A court of appeal "will be subject findings [on identity] to closer scrutiny than is generally the case with findings of fact”. [16]

In certain cases, evidence from a single eye-witness can be sufficient to establish proof beyond a reasonable doubt.[17]

There is no requirement that an identifying witness be 100% certain. Some equivocation is permitted.[18]

Refusal to Identify the Accused

The judge cannot make a finding that the witnesses withheld identifying the accused due to fear on the basis of demeanour evidence alone.[19]

  1. R v Goran, 2008 ONCA 195 (CanLII), [2008] OJ No. 1069 (ONCA), per Blair JA, at para 19
    R v Miaponoose, 1996 CanLII 1268 (ONCA), (1996), 30 O.R. (3d) 419, per Charron JA, at p. 421
    R v Provo, 2001 NSSC 94 (CanLII), [2001] NSJ No. 247, per MacDonald ACJ, at para 21
    R v Bullock (1999), O.J. 3106(*no CanLII links) , per Hill J, at paras 49 to 54
    R v Gough, 2013 ONCA 137 (CanLII), per curiam, at paras 35 to 37 ("Being notoriously unreliable, eyewitness identification evidence calls for considerable caution by a trier of fact…It is generally the reliability, not the credibility, of the eyewitness’ identification that must be established. The danger is an honest but inaccurate identification...")
  2. Gough, supra, at paras 36 to 37 ("The trier of fact must take into account the frailties of eyewitness identification in considering such issues as whether the suspect was known to the witness, the circumstances of the contact during the commission of the crime (including whether the opportunity to see the suspect was lengthy or fleeting) and whether the circumstances surrounding the opportunity to observe the suspect were stressful… As well, the judge must carefully scrutinize the witnesses’ description of the assailant. Generic descriptions have been considered to be of little assistance. ")
  3. R v Alphonso, 2008 ONCA 238 (CanLII), [2008] OJ No 1248, per curiam, at para 5
    Goran, supra, at paras 26 to 27
    R v Burke, 1996 CanLII 229, [1996] S.C.J. No. 27, per Sopinka J, at para 52
  4. R v FA, 2004 CanLII 10491 (ONCA), per Cronk JA, at para 39
  5. R v Quercia, 1990 CanLII 2595 (ONCA), per Doherty JA at 389 R v Shermetta, [1995] NSJ No. 195 (C.A.), 1995 CanLII 4193 (NS CA), per Roscoe JA, at para 46
  6. R v Bao, 2019 ONCA 458 (CanLII), per Trotter JA, at para 27("The danger is that the witness may have the photo image stamped on his or her mind, rather than the face of the true perpetrator ... Presenting a single photograph is highly suggestible and contaminates the identification process in a manner that prejudices the accused person") see Rex v Goldhar; Rex v Smokler (1941), 1941 CanLII 311 (ON CA), per Robertson CJ, at p. 271
  7. e.g., R v Trochym, 2007 SCC 6 (CanLII), [2007] S.C.J. No. 6, per Deschamps J, at para 46
    Burke, supra, at para 52
    R v Spatola, 1970 CanLII 390 (ON CA), [1970] 3 O.R. 74 (C.A.), per Laskin JA at 82
    Miaponoose, supra, at pp. 450-1
    R v Tat and Long, 1997 CanLII 2234 (ON CA), (1997), 117 CCC (3d) 481 (Ont. C.A.), per Doherty JA, at p. 516
    R v FA, 2004 CanLII 10491 [2004] OJ No 1119, per Cronk JA, at para 39
    R v Nikolovski, 1996 CanLII 158 (SCC), [1996] 3 SCR 1197, per Cory J (7:2), at pp. 1209-10
    R v Bardales, 1996 CanLII 213 (SCC), [1996] 2 SCR 461, per Sopinka J (5:0), at pp. 461-62
    Shermetta, supra, at para 46 - judges must use caution, appreciate possibility of mistake and examine circumstances closely
  8. R v Hersi, 2000 CanLII 16911, [2000] OJ No 3995 (C.A.), per Sharpe JA, at para 14
    Tat, supra, at pp. 515-16
  9. R v Turnbull et al (1976), 63 Cr. App. R. 132
    see also:
    R v Sophonov (No.2), 1996 CanLII 104, (1986), 25 CCC (3d) 415 (Man. C.A.), per Twaddle JA
    Shermetta, supra
    R v Atwell (1983), 25 Alta. L.R. (2d) 97 (Alta. C.A.)(*no CanLII links)
    Nikolovski, supra
  10. R v Pelletier, 2012 ONCA 566 (CanLII), per Watt JA, at para 90
    Miaponoose, supra, at pp. 450 to 251
  11. Pelletier, supra, at para 91
    Miaponoose, supra, at p. 452
  12. Pelletier, supra, at para 92
    R v Izzard (1990), 54 CCC (3d) 252 (ONCA), 1990 CanLII 11055 (ON CA), per Morden JA, at p. 255
  13. R v Hibbert, 2002 SCC 39 (CanLII), [2002] 2 SCR 445, per Arbour J, at para 50 ("[T]he danger associated with eyewitness in-court identification is that it is deceptively credible, largely because it is honest and sincere. The dramatic impact of the identification taking place in court, before the jury, can aggravate the distorted value that the jury may place on it.”)
  14. Hibbert, ibid.
  15. Miaponoose, supra, at para 11
  16. R v Goran, 2008 ONCA 195 (CanLII), per Blair JA, at para 20
    R v Harvey, 2001 CanLII 24137 (ON CA), (2001), 160 CCC (3d) 52 (Ont. C.A.), per Doherty JA (2:1), at para 19
  17. see Pelletier v The Queen, 1996 CanLII 143 (SCC), [1996] 3 SCR 601, per Lamer CJ at 601
    Nikolovski, supra, at p. 413 ("It is clear that a trier of fact may, despite all the potential frailties, find an accused guilty beyond a reasonable doubt on the basis of the testimony of a single eyewitness")
  18. R v Kish, 2014 ONCA 181 (CanLII), per MacFarland JA, at paras 53 to 54
  19. R v Legault, 2009 ONCA 86 (CanLII), per curiam

Juries

Juries must be instructed to account for the "frailties of eyewitness identification" when considering issues such as:[1]

  • whether the suspect known to the witness?
  • whether the circumstances of the contact during the commission of the crime including whether the opportunity to see the suspect was lengthy or fleeting?[2]
  • whether the sighting by the witness in circumstances of stress?[3]

Juries must also be "instructed to carefully scrutinize the witnesses’ description of the assailant", considering whether it was "vague" and "generic" or "detailed" with "distinctive features".[4]

The judge should also caution on the limited value of in-court identification.[5]

Eye-witness evidence is dangerous as it has a "power effect on jurors".[6]

  1. R v Jack, 2013 ONCA 80 (CanLII), per Epstein JA (3:0), at paras 15 to 16
    See also Juries
  2. R v Carpenter, [1998] OJ No 1819 (C.A.)(*no CanLII links) , at para 1
  3. R v Nikolovski, 1996 CanLII 158 (SCC), [1996] 3 SCR 1197, per Cory J (7:2), at p. 1210
    R v Francis, 2002 CanLII 41495 (ON CA), (2002), 165 O.A.C. 131, per curiam, at 132
  4. Jack, supra, at para 16
    R v Ellis, 2008 ONCA 77 (CanLII), [2008] OJ No 361, per curiam{AtsL|1vmlk|5||}}, 8
    R v FA, 2004 CanLII 10491 (ON CA), (2004), 184 O.A.C. 324, per Cronk JA, at para 64
    R v Richards, 2004 CanLII 39047 (ON CA), (2004) 70 O.R. (3d) 737, per McCombs J, at para 9
    R v Boucher, 2007 ONCA 131 (CanLII), [2007] OJ No 722, per curiam, at para 21
  5. Jack, supra, at para 17
    R v Hibbert, 2002 SCC 39 (CanLII), [2002] 2 SCR 445, per Arbour J, at pp. 468-69
    R v Tebo, 2003 CanLII 43106 (ON CA), (2003), 172 O.A.C. 148, per Feldman JA, at para 19
  6. R v Hanemaayer, 2008 ONCA 580 (CanLII), per Rosenberg JA, at para 21

Weighing Identity Evidence

Bald assertions of identity by witnesses should be given little weight. The Court should consider the facts and foundation of the statement including the opportunity and ability to observe. [1]

One or more courts have recommended that cases resting entirely on eyewitness testimony should require the judge to do the following: [2]

  1. recognize the danger of convicting based on eyewitness identification only;
  2. note the significant factors which may have affected the identification; and
  3. address those factors.

It is "incumbent upon Crown counsel to ensure that all relevant circumstances surrounding pretrial eyewitness identification procedures be fully disclosed to the defence and be made available for scrutiny by the trier of fact."[3]

The fundamental factors affecting the weight of eyewitness evidence are: [4]

  1. opportunity to observe:
    1. light conditions
    2. the distance from the witness to the suspect
    3. the eyesight of the witness
    4. colour perception
  2. previous acquaintance with the accused[5]
  3. focus of attention or distraction
  4. presence or absence of distinctive features or appearance of the suspect/accused[6]
  5. the time since making the observations[7]

Extra caution should be taken where the witnesses had a limited opportunity to observe, and the confirmative opportunity occurred while the accused was under arrest.[8]

Absent supporting evidence, a judge cannot say that stress upon the witness is a neutral factor in the accuracy of observations.[9]

General or generic descriptors alone will be accorded only limited weight as there is "no detail that could distinguish the [culprit] from thousands of other people".[10]

A "fleeting glance" will generally be considered unsatisfactory opportunity to observe.[11]

Cross-Racial ID

It has been suggested that "cross-racial" identification evidence has a higher chance of being incorrect and so is even more challenging.[12]

  1. R v Tatham, 2002 MBQB 241 (CanLII), [2002] M. J. No. 370, 167 Man. R. (2d) 152, per Schurfield J at 9
    R v Browne and Angus (1951), 99 CCC 141 (BCCA), 1951 CanLII 393 (BC CA), per O'Halloran JA
    R v Harrison (1951), 100 CCC 143 (BCCA), 1951 CanLII 403 (BC CA), per O'Halloran JA
  2. R v Bigsky, 2006 SKCA 145 (CanLII), 217 CCC (3d) 441, per Jackson JA, at para 70
  3. R v Miaponoose, 1996 CanLII 1268 (ON CA), per Charron JA
  4. R v Wilband, 2011 ABPC 298 (CanLII), per Fraser J, at para 16
    Miaponoose, supra
    Mezzo v The Queen, 1986 CanLII 16 (SCC), [1986] 1 SCR 802, per McIntyre J, at para 24
    Browne and Angus
    Harrison
    R v Anderson, 2014 BCPC 71 (CanLII), per Skilnick J, at para 32 - citing McWilliams Canadian Criminal Evidence, 5th edition, at paragraph 32:40:10
    e.g. R v "X", 2013 NSPC 127 (CanLII), per Derrick J, at para 76 - in reference to recognition evidence
  5. R v Cachia (1953), 107 CCC 272 (Ont. C.A.), 1953 CanLII 455 (ON CA), per Pickup CJ
    R v Todish, (1985), 18 CCC (3d) 159 (ONCA), 1985 CanLII 3586 (ON CA), per Martin JA
    R v Leaney, 1987 ABCA 206 (CanLII), (1987), 38 CCC (3d) 263, per Dea J
  6. R v Cosgrove (No. 2) (1977), 34 CCC (2d) 100 (Ont. C.A.), 1977 CanLII 2085 (ON CA), per Brooke JA
    R v Corbett (1973), 11 CCC (2d) 137 (BCCA), 1973 CanLII 1368 (BC CA), per Branca JA
    R v Dunlop, Douglas and Sylvester (1976), 33 CCC (2d) 342 (Man. C.A.), 1976 CanLII 1415 (MB CA), per O'Sullivan JA (2:1)
  7. R v Louie (1960), 129 CCC 336 (BCCA), 1960 CanLII 463 (BC CA), per Coady JA
  8. R v Hume, 2011 ONCJ 535 (CanLII), per M Green J, at para 14
    R v Smierciak (1946), 87 CCC 175 (Ont. C.A.), 1946 CanLII 331 (ON CA), per Laidlaw JA
  9. R v Francis, 2002 CanLII 41495 (ON CA), per curiam
  10. R v Foster, 2008 CanLII 8419 (ON SC), per Hill J, at para 40 - generic factors of approximate age and race
    R v Ellis, 2008 ONCA 77 (CanLII), [2008] O.J. No 361 (C.A.), per curiam, at paras 5, 8
  11. R v Carpenter, [1998] OJ No 1819 (C.A.) (*no CanLII links) , per Abella JA, at para 1
  12. R v Bao, 2019 ONCA 458 (CanLII), per Trotter JA

Line-ups

The key rule in giving a photo line-up is that the procedure is fair.[1]

It was recommended in the Sophonow Inquiry that to avoid false identification through line-ups the procedure should include the following:[2]

  • The photo pack should contain at least 10 subjects.
  • The photos should resemble as closely as possible the eyewitnesses' description. If that is not possible, the photos should be as close as possible to the suspect.
  • Everything should be recorded on videotape, or failing that, audiotape. In addition, or as a minimum alternative, all comments of the witness should be recorded verbatim on the form accompanying the line-up and signed by both the officer and the witness.
  • The line-up should be presented by an officer who is not involved in the investigation and does not know who the suspect is.
  • The officer showing the line-up should advise the witness that he does not know who the suspect is or whether there is a suspect in the line-up. The officer should also tell the witness that it is just as important to clear the innocent as it is to identify the subject.
  • The photopack should be presented sequentially, not all together.[3]
  • Police officers should not speak to the witness after the line-up regarding his ability or inability to identify anyone.

Several cases have adopted these requirements or something similar.[4]

Generally, improper procedure taints identification evidence, it does not render the evidence inadmissible, it only goes to weight.[5]

Identification based on a single photograph rather than a proper lineup goes to weight and not admissibility. [6]

Other factors considered include:

  • evidence of distinguishing features linking the accused and the perpetrator identified by the line-up photograph. [7]
  • opportunity for the witnesses to see the perpetrator;
  • Familiarity with the accused prior to court;

The Sophonow guidelines for line-ups are not legally binding and so failure to follow them will not necessarily be fatal to the identification evidence.[8]

The prior familiarity of the witness to the accused is a factor that goes to weight.[9]

A live line-up after completing a photo line-up will add little weight to the witnesses evidence, but is still admissible.[10] When in reverse order the photo line-up is given little weight.[11]

A witness should never be shown a single photo of the accused.[12]

During a live line-up the police should never tell the witness that the suspect is among the line-up.[13]

The accused should not be put in a line-up among those who do not hold a resemblance to him.[14]

Evidence of a live line-up can be excluded where the accused's right to counsel under 10(b) was violated.[15]

The accused's refusal to take part in a lineup is not admissible to establish guilt.[16]

There is a weak link between a witnesses confidence and a witnesses accuracy in identifying a culprit.[17]

Line-ups of One

It is not appropriate for police to engage in the practice of presenting a newly arrested accused before the witness and then seeking confirmation from the person.[18]

  1. R v Shermetta (1995), 1995 CanLII 4193 (NS CA), 141 N.S.R. (2nd) 186, per Roscoe JA - leading case on procedure in NS
    R v Smierciak (1946), 87 CCC 175 (Ont. C.A.), 1946 CanLII 331 (ON CA), per Laidlaw JA
  2. Justice Peter de Cory, The Inquiry Regarding Thomas Sophonow: The Investigation, Prosecution and Entitlement to Compensation at pp. 31-34 (2001))
    see also New Jersey v Larry R Henderson New Jersy Supreme Court -- list of other considerations on a lineup
  3. R v Hanemaayer, 2008 ONCA 580 (CanLII), per Rosenberg JA, at para 21
  4. R v MacKenzie, 2003 NSPC 51 (CanLII), per CHF Williams J
  5. Gonsalves, supra, at para 46
  6. United States v Khuc, 2008 BCCA 425 (CanLII), per Chiasson JA, at paras 31 to 32
  7. e.g. R v Smith (1952), 103 CCC 58 (Ont. C.A.), 1952 CanLII 116 (ON CA), per MacKay JA
  8. R v Doyle, 2007 BCCA 587 (CanLII), per Hall JA, at paras 10 to 15
    R v Gonsalves, 2008 CanLII 17559 (ON SC), (2008), 56 C.R. (6th) 379, [2008] OJ No 2711 (Ont. Sup. Ct.), per Hill J, at to 45 paras 44 to 45{{{3}}} and 53
    R v Le, 2011 MBCA 83 (CanLII), 270 Man. R. (2d) 82, per Scott CJ, at paras 132 to 135
  9. See R v Cachia (1953), 107 CCC 272 (Ont. C.A.), 1953 CanLII 455 (ON CA), per Pickup CJ
    R v Todish, (1985), 18 CCC (3d) 159 (Ont. C.A.), 1985 CanLII 3586 (ON CA), per Martin JA
    R v Leaney, 1987 ABCA 206 (CanLII), (1987), 38 CCC (3d) 263, per Dea JA
    Hanemaayer, supra, at para 25
  10. R v Sutton, 1969 CanLII 497 (ON CA), [1970] 3 CCC 152 (ONCA), per Jessup JA
  11. R v Jarrett (1975), 12 NSR (2d) 270, 1975 CanLII 1401 (NS CA), per MacDonald JA
  12. Smierciak
    R v Watson, [1944] O.W.N. 258, 81 CCC 212, [1944] 2 DLR 801, 1944 CanLII 340 (ON CA), per Robertson CJ
  13. R v Armstrong (1959), 125 CCC 56 (BCCA), 1959 CanLII 456 (BC CA), per DesBrisay CJ
  14. Armstrong
    R v Atfield, 1983 ABCA 44 (CanLII), per Belzil JA
    R v Engel (1981), 9 Man. R. (2d) 279 (C.A.) (*no CanLII links)
  15. R v Ross, [1989] 1 SCR 3, 1989 CanLII 134 (SCC), per Lamer J
  16. R v Henry, 2010 BCCA 462 (CanLII), per Low JA
  17. R v Hebbert, 2002 SCC 39 (CanLII), per Arbour J, at para 52
  18. R v Canning, 1986 CanLII 4295 (SCC), [1986] S.C.J. No. 37, per curiam rev’g (1984), 65 N.S.R. (2d) 326 (C.A.)
    R v Sutton, 1969 CanLII 497 (ON CA), [1970] 3 CCC 152 (Ont. C.A.), per Jessup JA
    Proulx v Quebec (Attorney General), 2001 SCC 66 (CanLII), per Iacobucci and Binnie JJ
    R v Zurowski, 2004 SCC 72 (CanLII), per McLachlin CJ
    R v Dhillon, 2002 CanLII 41540 (ON CA), (2002), 166 CCC (3d) 262 (Ont. C.A.), per Laskin and Goudge JA
    R v Quercia, 1990 CanLII 2595 (ON CA), (1990), 60 CCC (3d) 380 (Ont. C.A.), per Doherty JA
    R v Mezzo, [1986] 1 SCR 802, 1986 CanLII 16 (SCC), per McIntyre J and Wilson J
    R v Biddle, 1993 CanLII 8506 (ON CA), (1993), 84 CCC (3d) 430 (Ont. C.A.), per Doherty JA

Video Identification

Where the video evidence is clear and convincing, the trier-of-fact may use it as the sole basis for the identification of the accused as the perpetrator.[1]

Quality of the video should be sufficient "to be able to recognize facial features such as nose, jaw line, and profile".[2]

A witness can testify to the contents of a video establishing the identity of the accused without showing the video. It is generally considered akin to actual observations. [3]

Threshold for Video Recognition Evidence

A person who is not familiar with the appearance of the accused cannot testify on identification of the accused in a video.[4]

A witness who is familiar with the appearance and idiosyncrasies of the accused that is not apparent to the trier of fact, may testify to identity where the witness can 1) state the particularities of the idiosyncrasies; and 2) can show where the idiosyncrasies are revealed on the video.[5] A voir dire must be held to determine whether the person, such as a police officer, can testify to the likeness of the video image to the suspect.[6]

  1. R v Nikolovski, 1996 CanLII 158 (SCC), [1996] 3 SCR 1197, per Cory J, at para 23
  2. R v Nilsson, 2011 BCSC 1654 (CanLII), per Walker J, at para 48
  3. Taylor v Chief Constable of Cheshire (1987) 84 Cr. App. R. 191
  4. R v Leaney, 1989 CanLII 28, [1989] 2 SCR 393, per McLachlin J
  5. R v Leaney, 1987 ABCA 206 (CanLII), (1987) 38 CCC 263 (ABCA), per Dea J (2:1)
  6. R v Briand, 2008 ONCJ 777 (CanLII), per Green J

Dock Identification

Identification of an accused in the dock is generally undesirable and unsatisfactory, and so adds very little weight to the proof of identity.[1]

It is a long-held myth that in-dock identification by the arresting officer of the accused in court is an essential part of the process.[2]

For purposes of comparison with the eyewitness' evidence, the judge is permitted to observe the accused in court and draw conclusions from similarities and dissimilarities.[3] A judge is also permitted to refuse to observe dissimilarities in appearance of the accused in court.[4]

  1. R v FA, 2004 CanLII 10491 (ONCA), per Cronk JA, at para 47
    R v Izzard, (1990), 54 CCC (3d) 252 (Ont. C.A.), 1990 CanLII 11055 (ON CA), per Morden JA, at pp. 255-6
    R v Zurowski, 2004 SCC 72 (CanLII), per McLachlin CJ
    R v Hibbert, 2002 SCC 39 (CanLII), per Arbour J, at para 50 ("...I think it is important to remember that the danger associated with eyewitness in-court identification is that it is deceptively credible, largely because it is honest and sincere. The dramatic impact of the identification taking place in court, before the jury, can aggravate the distorted value that the jury may place on it. ...")
    R v Sykes, 2014 NSSC 320 (CanLII), per MacAdam J, at paras 43 to 60
    R v Martin, 2007 NSCA 121 (CanLII), per Oland JA, at para 18
  2. R v Nicholson, 1984 ABCA 88 (CanLII), per Kerans JA, at para 4 ("The argument for the appellant before us proceeded on the assumption that a dock identification by an arresting officer is an integral part of the criminal process. This is a myth. That the Crown often relies upon such evidence should not permit us to think that a dock identification is a ritual as essential to a criminal trial as, say, the reading of the charge. The onus upon the Crown is to prove that the crime alleged has been committed and that the accused is the person who did it. This last, like any fact-in-issue, can be proved in many different ways.")
  3. R v Nikolovski, 1996 CanLII 158 (SCC), [1996] 3 SCR 1197, per Cory J (7:2)
    R v Campbell, 2017 ONCA 65 (CanLII), per curiam, at paras 14 and 15
  4. Campbell, ibid., at para 15
    R v Rae, 2013 ONCA 556 (CanLII), per curiam, at paras 5 to 6

Recognition

Recognition evidence is "merely a form of identification evidence". Accordingly, all of the 'same concerns apply and the same caution must be taken in considering its reliability as in dealing with any other identification evidence".[1] This includes all the relevant cautions regarding the frailties of identification.[2]

The "level of familiarity between the accused nad the witness may serve to enhance reliability of the evidence."[3]

Difference from Identity Evidence

Courts have still generally made a distinction between identity evidence and recognition evidence. The difference being that identity involves a witness matching a previously observed stranger with that of the accused. Recognition is where the observer knew the person being observed and the issue is not simply identifying a person by description, but rather recognizing the person through their acquaintanceship.[4]

Recognition evidence is "generally considered to be more reliable and to carry more weight than identification evidence."[5]

Recognition is not a distinct category from identification.[6] Rather they are at different points on a spectrum of reliability.[7] The "extent and quality" of the prior encounters is "but one factor to be considered in weighing the witness's evidence" for the purpose of identification.[8]

Threshold to Admit Recognition Evidence ("Leaney Hearing")

In admitting recognition evidence, there must be sufficient indicia for a threshold degree of familiarity which depends on:[9]

  1. the length of the prior relationship between the witness and the accused;
  2. the circumstances of the prior relationship between the witness and the accused; and,
  3. the recency of the contact between the witness and the accused prior to the event where the witness recognized the accused.

It has been observed that in "most cases" recognition evidence will pass the threshold of admissibility.[10]

These indicia go to the weight of the evidence along with "the cumulative effect of recognition evidence provided by more than one witness and the circumstances under which the witness recognized the accused."[11]

Before a person can claim to recognize a person they must establish that they had a prior opportunity to observe personally the accused and become acquaintanced with him.[12]

Recognition simply means that "the witness's evidence is based in part on his or her dealings with the accused before the crimes were committed"[13]

Recognition evidence is considered more reliable and has more weight than identification evidence.[14]

Resemblance without anything more is not sufficient to establish identification. Other inculpatory evidence is needed.[15]

It is significant whether the acquainted eye-witness had seen the accused shortly before observing the incident.[16]

No Lineup Needed

Where the witness asserts a prior familiarity with the culprit, it is not necessary for the police to conduct a full line-up array for the purpose of confirming the identity of the accused through a photo.[17]

  1. R v Olliffe, 2015 ONCA 242 (CanLII), per Hourigan JA, at para 39
    R v Campbell, 2017 ONCA 65 (CanLII), per curiam, at para 10
  2. R v Curran, 2004 CanLII 10434 (Ont. C.A.), per MacPherson JA, at para 26
    R v Miller, 1998 CanLII 5115 (ON CA), (1998), 131 CCC (3d) 141 (Ont. C.A.), per Charron JA, at pp. 150-151
    R v Brown, 2006 CanLII 42683 (ON CA), (2006), 215 CCC (3d) 330 (Ont. C.A.), per Rosenberg JA, , at para 42
  3. Olliffe, supra, at para 39
    Campbell, supra, at para 10
  4. e.g. R v “X”, 2013 NSPC 127 (CanLII), per Derrick J, at para 73
  5. R v Bob, 2008 BCCA 485 (CanLII), [2008] BCJ No. 2551 (C.A.), per Neilson JA, at para 13
  6. R v Smith, 2011 BCCA 362 (CanLII), per Neilson JA
  7. R v Mclsaac, [1991] BCJ No. 3617 (C.A.) (*no CanLII links)
  8. R v Smith, 2011 BCCA 362 (CanLII), [2011] BCJ no. 1655, per Neilson JA
  9. R v Anderson et al., 2005 BCSC 1346 (CanLII), per Smith J, at paras 20 and 25 to 26 (S.C.) R v Brown, 2006 CanLII 42683 (ON CA), (2006) 215 CCC (3d) 330 (Ont. C.A.), per Rosenberg JA
  10. Anderson, supra, at para 39
  11. Anderson, supra, at para 25
  12. R v PTC, 2000 BCSC 342 (CanLII), per Hood J, at paras 22, 67
  13. R v Smith, 2011 BCCA 362 (CanLII), per Neilson JA
  14. R v Bob (C.C.), 2008 BCCA 485 (CanLII), 263 BCAC 42, per Neilson JA, at para 13 ("While caution must still be taken to ensure that the evidence is sufficient to prove identity, recognition evidence is generally considered to be more reliable and to carry more weight than identification evidence.")
    R v Aburto (M.E.), 2008 BCCA 78 (CanLII), per Finch CJ, at para 22
    R v Affleck (A.), 2007 MBQB 107 (CanLII), per Simonsen J
    R v RRI, 2012 MBQB 59 (CanLII), per McCawley J
  15. R v Rybak, 2008 ONCA 354 (CanLII), per Watt JA, at para 121
  16. R v ORB, [2005] S.J. No. 794 (C.A.) (*no CanLII links) , at para 14
    see also "X", supra, at para 98
  17. R v Jimaleh, 2018 ONCA 841 (CanLII), per curiam

Doctrines of Constructive Liability

Parties

General Principles

A person can be criminally responsible as the principal actor in committing an offence or as a member of a party acting together in the commission of an offence. In terms of guilt, there is no difference between being an aider, abettor, or principal to an offence.[1] They are all equally culpable.[2]

By contrast, liability as an "accessory after the fact" or conspirator is separate from a party. These forms of offences concern "involvement falling short of personal commission".[3]

The operating section on parties states:

Parties to offence

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
(c) abets any person in committing it.
Common intention

(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.
R.S., c. C-34, s. 21.

CCC


Note up: 21(1) and (2)

Section 21 outlines four ways in which a person can be criminally liable for an act. A person can be a principal, an aider, an abettor, or have common intention to commit an offence.

The section is "designed to make the difference between aiding and abetting and personally committing an offence legally irrelevant."[4] As such it is unnecessary for the indictment to specify whether the accused is charged as a principal or as a party.[5]

At common law, there were four types of parties:[6]

  1. principles of the first degree;
  2. principles of the second degree;
  3. accessories before the fact; and
  4. accessories after the fact

Section 21 effectively codifies the common law distinction between principle liability and secondary liability.[7]

The trier-of-fact may find an accused liable as both a principal and secondary party at the same time. A jury does not need to be unanimous on the accused's role to find conviction.[8]

In any of the circumstances, a party to an offence must have both knowledge and intent.[9]

Where a person provides directions or instructions to a potential buyer to make a purchase of drugs from a seller, that can amount to aiding and abetting in trafficking arising from the eventual sale. [10]

Even where the other participants in the offence are not known and not charged, a jury should still be instructed on the types of party liability under s. 21.[11]

Constitutionality

Where s. 21 permits a person to be convicted as a party to first degree murder while the principal is only convicted of second degree murder does not violate s. 7 of the Charter.[12]

  1. R v Thatcher, 1987 CanLII 53 (SCC), [1987] 1 SCR 652, per Dickson CJ ("This provision [s. 21] is designed to make the difference between aiding and abetting and personally committing an offence legally irrelevant.")
    R v Briscoe, 2010 SCC 13 (CanLII), [2010] 1 SCR 411, per Charron J, at para 13
    R v Tomlinson, 2014 ONCA 158 (CanLII), per Watt JA, at para 143
  2. Sandham, 2009 CanLII 58605 (ON SC), per Heeney J, at para 121
  3. Thatcher, supra
  4. Thatcher, supra
    see also R v Maciel, 2007 ONCA 196 (CanLII), per Doherty JA, at para 85
  5. Thatcher, supra, at p. 689 (SCR) citing R v Harder, 1956 CanLII 58 (SCC), [1956] SCR 489, per Fauteux J
  6. R v Berryman, 1990 CanLII 286 (BC CA), (1990) 57 CCC (3d) 275 (BCCA), per curiam, at p. 382
    R v Mena, 1987 CanLII 2868 (ON CA), (1987) 34 CCC (3d) 304 (ONCA), per Martin JA
    R v Pickton, 2010 SCC 32 (CanLII), per LeBel J, at para 51 refers to principal liability and secondary liability
  7. Pickton, ibid., at para 51
  8. Thatcher, supra, at p. 694 (SCR)
  9. R v Briscoe, 2010 SCC 13 (CanLII), [2010] 1 SCR 411, per Charron J, at paras 14 to 16
  10. R v Frayne, 2011 ONCJ 557 (CanLII), per Villeneuve J
  11. R v Isaac, [1984] 1 SCR 74, 1984 CanLII 130 (SCC), per McIntyre J, at 81 (SCR)
  12. R v Huard, 2013 ONCA 650 (CanLII), per Watt JA leave refused

Section 21(1)(a): "Commits"

Section 21(1)(a) states that "Every one is a party to an offence who ... (a) actually commits it;"

A person "actually commits" an offence when he does some act "towards the commission of the offence" with requisite mens rea or uses an agent to commit it.

Co-Principal or Joint Perpetrator

Where there is multiple people all doing some act together towards the shared achievement of the offence, each is actually committing the offence as a "joint principle offender".[1]

It is not necessary for each joint perpetrator to perform every act that makes up the offence. Where acts are divided between the parties they are both liable as principals.[2]

There is no requirement for joint perpetrators under s. 21(1)(a) for there to be any "agreement to carry out a common purpose". There only needs to be a "common participation".[3]

Whether an accused person is considered a principal or a party will have an impact on whether a defence of duress under s. 17 can apply.

A person can be found guilty as a co-principal even if the other participants were acquitted.[4]

In an assault that causes death, there is no need for the Crown to prove who "struck the fatal blow or blows".[5]

  1. E. G. Ewaschuk in Criminal Pleadings & Practice in Canada, looseleaf, 2nd ed., Vol. 1 (Aurora: Canada Law Book, 2007) at 15:1010
  2. R v Ball, 2011 BCCA 11 (CanLII), per Ryan JA, at paras 23, 24
  3. Ball, ibid., at paras 24 to 25
  4. R v Hick, [1991] 3 SCR 383, 1991 CanLII 47 (SCC), per Stevenson J
  5. Ball, supra, at para 28

Separate Acts Create Joint Liability

Where "two people have acted in concert to commit" an criminal offence "as a joint enterprise" they can both be found liable as principals.[1]

A person can be a co-principal even where he has not personally performed every act that makes out the essential acts of the offence.[2] As long as the acts of all parties in sum make out the essential acts of the offence as part of a "common participation" will make out the offence. They do not need a "common purpose" or "common intention".[3] A contribution to "the actus reus with the requisit mens rea" will be suffficent.[4]

Two cars racing each other can be co-principals if one of the cars negligently causes death or bodily harm.[5]

  1. R v Iyanam, 2013 ONSC 1091 (CanLII), per Code J, at para 24
  2. R v Ball, 2011 BCCA 11 (CanLII), at para 24
  3. Ball, ibid., at para 25
  4. R v Hughes, 2011 BCCA 220 (CanLII), per Rowles JA, at para 77
  5. Hughes, ibid.

Connecting the Act to the Actor

Where it is proven that where it is proven that multiple people acted with an intention to commit murder, it is "legally irrelevant" to determine who pulled the trigger.[1]

Where several people participate and assist each other in the commission of an assault that would likely cause death and does so, then they are all parties to murder under s. 21(1)(a).[2] It is said that a "blow of one is, in law, the blow of all of them".[3]

In an assault context, it is not necessary to prove the degree of involvement of each perpetrator as it would be "impractical and at times impossible" to sort out the individual involvement.[4]

  1. R v Devon Trent Gerald Paskimin, 2012 SKCA 35 (CanLII), per Herauf JA, at para 23
    R v H(LI), 2003 MBCA 97 (CanLII), per Freedman JA, at para 20
  2. H(LI), ibid., at para 20
  3. R v Chow Bew, [1956] SCR 124, 1955 CanLII 47 (SCC), per Locke J
    R v Thatcher, 1987 CanLII 53 (SCC), [1987] 1 SCR 652, per Dickson CJ
    R v Ball, 2011 BCCA 11 (CanLII), per Ryan JA, at para 30
  4. R v JFD, 2005 BCCA 202 (CanLII), per Oppal JA, at paras 7, 14
    Ball, supra

Innocent Agency

The doctrine of innocent agency permits an offender to commit an offence as a principal through the direction of an innocent third-party.[1]

This requires the principal to commit an offence "by means of an instrument 'whose movements are regulated" by [the accused]".[2]

Typical scenarios include a courier who is transporting drugs on behalf of the principal.[3]

  1. R v Berryman (1990), 1990 CanLII 286 (BC CA), 57 CCC (3d) 375 (BCCA), per curiam
  2. Berryman, ibid. citing Williams, "Criminal Law"
  3. R v McFadden (1971), 5 CCC (2d) 204 (NBCA), 1971 CanLII 1260 (NB CA), per Hughes JA

Intention

The accused intents to be a party where they intend the consequences of the principal's actions. An accused "intends a particular consequence not only when his conscious purpose is to bring it about, but also when he foresees that the consequence is certain or substantially certain to result from his conduct".[1]

The accused does not need to have a ulterior motive to assist the principal in completing the offence. So warning a principal of the risk of police arriving during the commission will provide assistance as a party even where the act was motivated by a fear of being caught personally. [2]

  1. R v Iyanam, 2013 ONSC 1091 (CanLII), per Code J, at para 26 citing Buzzanga and Durocher, (1979), 49 CCC (2d) 369, 1979 CanLII 1927 (ON CA), per Martin JA
  2. Iyanam, supra, at para 26

Section 21(1)(b), (c): Aiding and Abetting

Section 21(1)(b) and (c) states that "Everyone is a party to an offence who ... (b) does or omits to do anything for the purpose of aiding any person to commit it; or (c) abets any person in committing it."

A person can be convicted as an aider or abettor even where the principal is not charged or even acquitted.[1]

  1. R v Johnson, 2017 NSCA 64 (CanLII), per Beveridge JA, at para 78

"Aiding" and "Abetting"

"Aid" is often defined as conduct that assists or helps the principal in the offence.[1]

"Abet" refers to "encouraging", "instigating", "promoting" or "procuring" the commission of the offence.[2] It also includes "encouraging" or "supporting" the principal party.[3]

  1. R v Greyeyes, 1997 CanLII 313 (SCC), [1997] 2 SCR 825, per L’Heureux‑Dubé J, at para 26
    R v Briscoe, 2010 SCC 13 (CanLII), [2010] 1 SCR 411, per Charron J
  2. Greyeyes, supra, at para 26
    Briscoe, ibid.
  3. R v Rochon, 2003 CanLII 9600 (ON CA), per MacPherson JA, at paras 54 to 61

Actus Reus

The actus reus of aiding or abetting is "doing (or, in some circumstances, omitting to do) something that assists or encourages the perpetrator to commit the offence.[1] While it is common to speak of aiding and abetting together, the two concepts are distinct, and liability can flow from either one. Broadly speaking, "[t]o aid under s. 21(1)(b) means to assist or help the actor... . To abet within the meaning of s. 21(1)(c) includes encouraging, instigating, promoting or procuring the crime to be committed"[2]

The actus reus and mens rea of aiding is distinct from those of the actual offence.[3]

To be liable as an aider or abettor, the Crown must prove:

  1. the specific offence in the indictment was committed
  2. the accused does some act that actually aids or abets in the commission of the offence; and
  3. the accused had the mens rea for the offence.

The accused's act must have some connection to the principal's acts.[4] It should have an effect of providing "actual assistance or encouragement". An act that does not contribute or effect the commission of the offence is not aiding or abetting.[5]

It is not necessary that the principal have any awareness that the aider or abettor is contributing to the offence.[6]

  1. See also R v Briscoe, 2010 SCC 13 (CanLII), per Charron J, at para 14
  2. Briscoe, supra, at para 14 - ("aiding or abetting is doing (or, in some circumstances, omitting to do) something that assists or encourages the perpetrator to commit the offence")
    R v Tomlinson, 2014 ONCA 158 (CanLII), per Watt JA, at para 144
  3. Briscoe, supra, at para 13
  4. R v Dooley, 2009 ONCA 910 (CanLII), per Doherty JA, at para 123
  5. Dooley, ibid., at para 123
  6. R v Greyeyes, 1997 CanLII 313 (SCC), [1997] 2 SCR 825, per L’Heureux‑Dubé J, at para 26
    R v Almarales, 2008 ONCA 692 (CanLII), per Watt JA, at paras 66, 67

Mens Rea

Aiding

The mens rea for aiding requires that the act be "for the purpose of aiding" the principal in the commission of the offence.[1] The accused then must (1) know that the principal is intending to commit the offence; and (2) intend to provide assistance to the principal in carrying out the act.[2] In total, the accused "must have knowledge of the facts that constitute [the unlawful objective]".[3]

There is no need for the accused to desire the offence to be "successfully committed".[4]

The knowledge element requires that the "aider knew the perpetrator intended to commit the crime although ... need not know precisely how the crime was to be committed."[5]

The knowledge component of the mens rea can be established by wilful blindness to the principals intent to commit the offence.[6]

Abetting

The mens rea for abetting is substantially the same as aiding, despite the difference in language.[7] The section should be treated as if it stated "for the purpose".[8]

Even where the index offence does not require specific intent and can be satisfied by recklessness, the Crown must still prove that the aider and abettor had specific intent to contribute to the index offence.[9]

  1. See s. 21(1)(b)
  2. R v Almarales, 2008 ONCA 692 (CanLII), per Watt JA, at para 67
    R v Briscoe, 2010 SCC 13 (CanLII), per Charron J, at paras 16, 17
    R v Taylor, 2013 ONCA 656 (CanLII), per Cronk JA United States v Fester, 2009 BCSC 1331 (CanLII), per Rice J, at para 44, ("evidence that the accused intended the consequences that ensued from his act in furtherance of the crime because he had actual knowledge of the offence intended by the principal actor or he was wilfully blind as to the proposed intentions of this person”)
  3. R v Helsdon, 2007 ONCA 54 (CanLII), per O'Connor ACJ, at para 28 (ONCA)
  4. R v Briscoe, 2010 SCC 13 (CanLII), per Charron J, at para 16
    R v Tomlinson, 2014 ONCA 158 (CanLII), per Watt JA, at para 144
  5. Tomlinson, ibid., at para 144
    Briscoe, supra, at para 17
  6. Briscoe, supra, at paras 21 to 25
    Taylor, supra
  7. Helsdon, supra, at paras 43 to 44
  8. Helsdon, supra
  9. R v Roach, 2004 CanLII 59974 (ON CA), (2004) 192 CCC (3d) 557 (ONCA), per Borins JA, at para 44

Specific Examples

Assault

A father, under a duty to protect his son, knew of ongoing assaults upon his child by the mother was found liable as an aider in the murder of his son for failing to intervene.[1]

Conspiracy

A person may aid or abet a conspiracy. However, will generally only apply to aiding or abetting (1) the formation of a new agreement or the joining of a new member to a pre-existing conspiracy. It is not made out by simply aiding or abetting any element of the conspiracy.[2] The accused will be a party to a conspiracy "where the accused aids or abets the actus reus of conspiracy, namely the act of agreeing."[3]

However, given that acts that further the unlawful object of a conspiracy are not an element of the offence of conspiracy, such acts aiding or abetting such acts does not aid or abet conspiracy.[4] Instead, acts or omissions that advance the unlawful object of the conspiracy, with the knowledge of the conspiracy and the consent of a member of the conspiracy, is evidence of direct membership in the conspiracy.[5]

Theft

A voluntary passenger in a stolen vehicle may be found to be an abettor as their presence may have the effect of encouraging the theft.[6]

Murder

An aider or abettor does not need to intend for the victim to be murdered to be liable, he need only have the knowledge of the principal's intent to murder.[7]

For an aider to be liable for first degree murder it is necessary to prove that the accused:[8]

  • did or omitted to do something that aided another person to unlawfully cause the victim’s death
  • did the impugned act for the purpose of aiding that other person to unlawfully cause the victim’s death
  • when he did the impugned act he either had the requisite intent for murder or knew that the principal offender had the requisite intent for murder
  • when he did the impugned act, he did so for the purpose of aiding the principal offender to commit a planned and deliberate murder
  • when he did the impugned act, he planned and deliberated the murder, or knew that the murder was planned and deliberate.

It is not necessary for the Crown to prove that the aid "caused" the death.[9] The conduct needs only to be connected through the provision of "actual assistance or encouragement".[10]

  1. R v Dooley, 2009 ONCA 910 (CanLII), per Doherty JA
  2. R v JF, 2013 SCC 12 (CanLII), per Moldaver J, at paras 25, 73
  3. JF, ibid., at para 72
    see also Conspiracy
  4. JF, ibid., at paras 60 to 63(describes distinction from the McNamara model of liability)
  5. {ibid1|JF}}, at para 73
  6. see Motor Vehicle Theft (Offence)
  7. R v Johnson, 2017 NSCA 64 (CanLII), per Beveridge JA, at para 79
  8. Johnson, ibid., at para 80
  9. Johnson, ibid., at para 92
    R v Dooley, 2009 ONCA 910 (CanLII), per Doherty JA, at paras 116 to 123
  10. Dooley, ibid., at para 123

Section 21(2): Common Intention

The doctrine of common intention, codified in s. 21(2), attributes criminal liability for acts done by a member of a group to the other members of the group. Section 21(2) states:

21.
...

Common intention

(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.
R.S., c. C-34, s. 21.

CCC


Note up: 21(2)

The effect of this provision is that a member of a group committing a criminal act can be liable for any incidental offences committed by its other members so long as the incidental offence was a "probable consequence" of carrying out the initial offence.

The purpose of s. 21(2) is to "deter joint criminal enterprises and to encourage persons who do participate to ensure that their accomplices do not commit offences beyond the planned unlawful purpose."[1]

To form intentions in common, there must be:

  1. two or more parties must form an intention in common to carry out an unlawful purpose
  2. the parties agree to carry out this unlawful purpose.

Actual assistance is not necessary.[2]

A common intention is whether two or more persons "have in mind the same unlawful purpose." The common intention may form "in the instant of the offence being committed, the mutual intention to pursue unlawful purpose and to assist each other therein being formed at the very moment of carrying it out." [3]

So for example, where a second party joins in on an assault by a primary party, there will be a common intention formed.

  1. R v Logan, [1990] 2 SCR 731, 1990 CanLII 84 (SCC), per Lamer J
  2. R v Moore (1984) 15 CCC (3d) 541 (ONCA), 1984 CanLII 3542 (ON CA), per Martin JA
  3. R v Vang, 1999 CanLII 2310 (ON CA), (1999), 132 CCC (3d) 32, per Morden ACJ, at para 24
    See Rose, Parties to an Offence (1982), at pp. 67 - 68

Exceptional Mens Rea Offences

Section 21(2) is constitutional.[1] This is because of the subjective standard require to prove that the accused intended to have a common intention to carry out the unlawful purpose. In addition, an objective standard is required as the incidental offence must be objectively foreseeable. The court however may take into account the personal characteristics and particular circumstances of the accused.[2]

Section 21(2) will operate differently on certain offences that have a greater "stigma" and potential punishments will constitutionally require a greater mens rea. For those offences, such as murder and attempted murder,[3] , the objective component does not apply and the Crown must prove subjective component only. In those cases the phrase "ought to have known" is of no force.[4]

  1. Logan, supra
  2. R v Vasil, [1981] 1 SCR 469, 1981 CanLII 46 (SCC), per Lamer J
  3. R v Vaillancourt, [1987] 2 SCR 636, 1987 CanLII 2 (SCC), per Lamer J
    R v Martineau, [1990] 2 SCR 633, 1990 CanLII 80 (SCC), per Lamer CJ
  4. Logan, supra

Intention in Common

Intention in common requires two or more persons with the "same unlawful purpose" or "goal" in mind. However, they do not need to share the same motive or desire to bring about the offence.[1]

The common unlawful purpose can be formed at the time the offence is committed rather than in advance.[2]

  1. R v Hibbert, [1995] 2 SCR 973, 1995 CanLII 110 (SCC), per Lamer CJ, at paras 40 to 44
    R v Cadeddu, 2013 ONCA 729 (CanLII), per Strathy JA
  2. Cadeddu, ibid.

Incidental Offence

The incidental offence must be a separate offence from the offence committed as part of the unlawful purpose. It must be some incidental offence not part of the initial unlawful purpose.[1]

  1. R v Babineau, [1987] NBJ No 1118 (CA)(*no CanLII links)
    R v Cormier, [1998] NBJ No 316(*no CanLII links)

Abandonment

See also: Abandonment (Defence)

An accused may argue that they have abandoned the common intention where it is shown that:[1]

  1. that there was an intention to abandon or withdraw from the unlawful purpose;
  2. that there was timely communication of this abandonment or withdrawal from the person in question to those who wished to continue;
  3. that the communication served unequivocal notice upon those who wished to continue; and
  4. that the accused took, in a manner proportional to his or her participation in the commission of the planned offence, reasonable steps in the circumstances either to neutralize or otherwise cancel out the effects of his or her participation or to prevent the commission of the offence.

The issue should only be put to the jury if the evidence is capable of supporting a finding that the accused was initially a party to the unlawful purpose and later "took reasonable steps in the circumstances to neutralize or otherwise cancel out the effects" of their participation or "to prevent the commission of the offence".[2]

  1. R v Gauthier, [2013] 2 SCR 403, 2013 SCC 32 (CanLII), per Wagner J, at para 50
  2. Gauthier, supra, at para 52 ("the defence of abandonment should be put to the jury only if there is evidence in the record that is capable of supporting a finding that a person who was initially a party to the carrying out of an unlawful purpose subsequently took reasonable steps in the circumstances either to neutralize the effects of his or her participation or to prevent the commission of the offence.")

Specific Examples

Murder

A girlfriend of the principal was an abettor of first degree murder under s. 21(1)(c) by standing by during the murder and yelled "kill him Georgie".[1]

The girlfriend of a principal was an abettor of manslaughter where she gave the principal a weapon for the purpose of attacking the victim. However, without the formed intent in giving the weapon, there will be no conviction.[2] Unless there is some duty to act, a bystander who is present and watches a murder cannot be found guilty of any offence connected to the murder.[3]

Robbery

Where one person steals and a companion makes a threat, they are both joint perpetrators of the offence of robbery.[4]

  1. R v Rochon, 2003 CanLII 9600 (ON CA), per MacPherson JA
  2. R v Quinn, 2009 BCCA 267 (CanLII), per Finch CJ
  3. R v Davy, 2000 CanLII 16859 (ONCA), per Rosenberg JA (2:1)
  4. R v Iyanam, 2013 ONSC 1091 (CanLII), per Code J, at para 24

Mere Bystanders

A person who is merely present at the scene or a crime cannot be evidence to prove culpability in participating in an offence.[1]

However, presence, coupled with other evidence such as a false explanation, the nature of the offence, and other circumstantial evidence may be sufficient.[2]

While the burden never shifts to the accused to explain their presence, in absence of testimony explaining the reason may permit the judge to make an inference on the surrounding evidence to find guilt.[3]

  1. R v Jackson, 2007 SCC 52 (CanLII), [2007] 3 SCR 514, per Fish J, at para 3
  2. Jackson, ibid., at para 3
  3. R v Pitcher, 2013 NLCA 22 (CanLII), per Welsh JA, at para 13

Organizations as Parties

History

Under the 1892 Criminal Code s. 61 stated:

61.
...
Every one is a party to and guilty of an offence who

(a) actually commits it; or
(b) does or omits an act for the purpose of aiding any person to commit the offence; or
(c) abets any persons in commission of the offence; or
(d) counsels or procures any person to commit the offence.

N/A

Case Digests

See Also

Accessory After the Fact

General Principles

See also: Attempts and Accessories After the Fact (Offence) and Accessory After the Fact to Murder (Offence)

Section 23 defines "accessory after the fact":

Accessory after the fact

23 (1) An accessory after the fact to an offence is one who, knowing that a person has been a party to the offence, receives, comforts or assists that person for the purpose of enabling that person to escape.
(2) [Repealed, 2000, c. 12, s. 92]
R.S., 1985, c. C-46, s. 23; 2000, c. 12, s. 92.

CCC


Note up: 23(1)

Where one party cannot be convicted

23.1 For greater certainty, sections 21 to 23 [provisions relating to parties] apply in respect of an accused notwithstanding the fact that the person whom the accused aids or abets, counsels or procures or receives, comforts or assists cannot be convicted of the offence.
R.S., 1985, c. 24 (2nd Supp.), s. 45.
[annotation(s) added]

CCC


Note up: 23.1

An accessory to an offence is not the same as a party to an offence. It is a separate offence that is committed subsequent to the initial offence.[1] An offender under s. 23(1) is an independent substantive offence.[2]

Mens Rea

The accused must know that that the person they are assisting was a principle or party to an offence, and the assistance must be for the purpose of enabling the person to escape. It is not sufficient that the accused merely do an act that enables the escape.[3]

The accused must have "an ulterior intention or desire to assist for the purpose of an escape".[4]

Evidence

All evidence that has been found admissible for the principle will be admissible against the accessory.[5]

The conviction of the principle is admissible to prove that the principal committed the offence.[6]

Examples

The following actions have been found to amount to the offence of accessory:

  1. assisting the principle by giving him information or aid.[7]
  2. hiding the principal offender[8]
  3. concealing evidence [9]
  4. giving false information to authorities including participating in a fake alibi [10]
Lesser Included Offences

Accessory after the fact to manslaughter is a lesser included offence to accessory after the fact to murder.[11]

  1. R v Vinette, 1974 CanLII 165 (SCC), [1975] 2 SCR 222, per Pigeon J
  2. R v Hibbert, 1995 CanLII 110 (SCC), [1995] 2 SCR 973, per Lamer CJ, at para 26
  3. R v McVay (1982) 66 CCC (2d) 512 (ONCA), 1982 CanLII 3684 (ON CA), per Martin JA
  4. R v Camponi, 1993 CanLII 1163 (BCCA), per Wood JA, at para 10
  5. Vinette, supra
  6. R v Duong, 1998 CanLII 7124 (ON CA), (1998) 124 CCC (3d) 392 (ONCA), per Dohterty JA see also s.657.1 relating to criminal records
  7. R v Young (1950) 10 CR 142 (QCCA), 1950 CanLII 380 (QC CA), per St Jacques JA
    R v Campbell, 2002 NSCA 35 (CanLII), per Bateman JA
  8. White, supra
  9. R v Knuff (1980) 52 CCC (2d) 523, 1980 ABCA 23 (CanLII), per Moir JA
  10. R v French (1977), 1977 CanLII 53 (ON CA), 37 CCC (2d) 201, per MacKinnon JA aff'd [1980] 1 SCR 148
  11. R v Webber, 1995 CanLII 333 (BC CA), per Legg JA, at para 27

Effect of the Principal or Party Verdict

Accessories after the fact

592 Any one who is charged with being an accessory after the fact to any offence may be indicted, whether or not the principal or any other party to the offence has been indicted or convicted or is or is not amenable to justice.
R.S., c. C-34, s. 521.

CCC


Note up: 463

657.2 ...

Accessory after the fact

(2) Where an accused is charged with being an accessory after the fact to the commission of an offence, evidence of the conviction or discharge of another person of the offence is admissible against the accused, and in the absence of evidence to the contrary is proof that the offence was committed.
1997, c. 18, s. 80.

CCC


Note up: 657.2(2)

Under the operation of s. 593, it is not necessary that the principal be convicted to sustain a conviction of accessory after the fact.[1]

It is not necessary for the principle or party to the main offence be charged or convicted for it for an accused to be convicted as an accessory.[2] But if the principle or party is acquitted, then the accused cannot be convicted.[3] However, R v S(FJ), 1998 CanLII 842 (SCC), [1998] 1 SCR 88, per Lamer CJ seems to go so far to say that the words "Whether or not the principal is convicted" can include an acquittal.[4]

  1. R v S(FJ), 1997 CanLII 14989 (NS CA), per Jones JA, at para 29
  2. Camponi, supra
    R v Anderson (1980), 1980 ABCA 276 (CanLII), 26 AR 172 (ABCA), per Moir JA
  3. Vinette, supra
  4. See FJS, supra

See Also

Recent Possession

General Principles

The doctrine of recent possession permits the court to make the inference that the possessor of the property had knowledge that the property was obtained in the commission of the offence, and in certain circumstances was also a party to the initial offence.[1]

Test for Recent Possession

To permit the inference, the Crown must establish 1) that the accused was found in possession of the item and 2) that the item was recently stolen. Where it can be said that the accused was found in recent possession without explanation to trier of fact may, but not necessarily, draw the inference regarding the accused's role in the theft or related offences.[2] When these elements exist, a prima facie case has been made out, which, absent any explanation, may permit the trier-of-fact to make a finding of guilt.[3]

It is not necessary to go beyond the test for recent possession and determine the accused's degree of participation. That is, whether the accused was a principle or accomplice.[4]

A jury must be instructed on the ability to make a finding of guilt on a prima facie case.[5]

Circumstantial Factors

When considering whether to make the inference of recent possession, the trier-of-fact must take into account all the circumstances.[6] This includes common sense factors such as the amount of time that passed between possession and the offence.[7]

Factors to consider whether the possession was "recent" includes:[8]

  1. the nature of the object;
  2. the rareness of the object;
  3. the readiness with which the object can, and is likely to, pass to another; and
  4. the ease of identification.
Timeliness of Possession

Recency is a matter of circumstances such as type and size of the items.[9] In certain cases recency can include periods longer than a month.[10]

  1. see R v Terrence, [1983] 1 SCR 357, 1983 CanLII 51 (SCC), per Ritchie J
    R v Kowlyk, [1988] 2 SCR 59, 1988 CanLII 50 (SCC), per McIntyre J
  2. R v Gagnon, 2006 MBCA 125 (CanLII), per Hamilton JA
  3. R v Newton, 1976 CanLII 157 (SCC), [1977] 1 SCR 399, per Dickson J, at p. 405 ("...where it has been established that the accused was in possession of recently stolen goods and where no explanation whatever has been advanced,... raises a prima facie case upon which [the trier is] entitled to bring in a verdict of guilty.")
  4. R v Thatcher, 1987 CanLII 53 (SCC), (1987), 57 C.R. (3d) 97, per Dickson CJ
  5. see Newton, supra, at p. 405
  6. R v Abernathy, 2002 BCCA 8 (CanLII), per Smith JA
  7. Gagnon, supra, at para 13
  8. Gagnon, supra
  9. R v Killam, [1973] 5 W.W.R. 3, 1973 CanLII 1347 (BC CA), per MacLean JA, at para 45
  10. e.g. R v Rimmer, 2011 BCCA 411 (CanLII), per Hall JA

Rebutting the Presumption

See also: Burden of Proof#"Might Reasonably Be True" Test

Where the doctrine has been invoked, the Defence can counter the presumption by way of a reasonable explanation.[1]

The presumption may be rebutted by an explanation (either in testimony or prior statement) that "might reasonably be true".[2]

The explanation can be an unsworn statement prior to trial where it is either successfully tendered by the Crown or admitted under res gestae.[3]

  1. R v Graham, [1974] SCR 206, 1972 CanLII 72, per Ritchie J
    R v Nickerson (1977) 37 CCC (2d) 337 (NSCA), 1977 CanLII 1914 (NS CA), per MacDonald JA
    R v Newton, [1977] 1 SCR 312 1976 CanLII 57, per Ritchie J
    R v L'Heureux, [1985] 2 SCR 159, 1985 CanLII 49, per Lamer J
    R v Kowlyk, [1988] 2 SCR 59, 1988 CanLII 50 (SCC), per McIntyre J
  2. R v McKenzie, 1972 CanLII 173 (SCC), [1974] SCR 233, per Ritchie J, at p. 234 (SCR)
    Kowlyk, supra, at para 12
  3. Graham, supra

Case Digests

Related

Lesser Included Offences

General Principles

A judge must consider, where the evidence does not make out a particular charged offence, whether the accepted evidence makes out an "included" offence. That is, a secondary offence which underlies the actual charge.

A lesser included offence must be "embraced" by the primary offence.[1]

This authority comes from s. 662(1):

Offence charged, part only proved

662 (1) A count in an indictment is divisible and where the commission of the offence charged, as described in the enactment creating it or as charged in the count, includes the commission of another offence, whether punishable by indictment or on summary conviction, the accused may be convicted

(a) of an offence so included that is proved, notwithstanding that the whole offence that is charged is not proved; or
(b) of an attempt to commit an offence so included.

...
R.S., 1985, c. C-46, s. 662; R.S., 1985, c. 27 (1st Supp.), s. 134; 2000, c. 2, s. 3; 2008, c. 6, s. 38; 2018, c. 21, s. 20.

CCC


Note up: 662(1)

There are three instances where an offence will be "included" within another offence:[2]

  1. offence included by statute, e.g., those offences specified in s.662(2) to (6), and attempt provided for in s.660;
  2. the offence’s elements are embraced in the offence charged as described in the enactment creating it, e.g., common assault in a charge of sexual assault; or
  3. the offence’s elements are embraced in the offence charged as described in the information or indictment. That is to say, the offences which become included by the addition of apt words of description in the principle charge.


Fair Notice required

For an offence to be included, the accused must have "fair notice" that the included offence exists by the definition of the primary offence.[3]

Test From Implied Inclusion

The primary test for whether an offence is “included” in another offence is "if its elements are embraced in the offence charged (as described in the enactment creating it or as charged in the count) or if it is expressly stated to be an included offence in the Criminal Code itself. The test is strict. It must “necessarily” be included..."[4]

The two considerations are that 1) the "main offence contains the essential elements of the offence to be included", and 2) "the description of the offence is sufficient to alert the accused to all of the included offences that may apply."[5] This section element requires that "the offence charged, either as described in the enactment creating the offence or as charged in the count, must be sufficient to inform the accused of the included offences which he must meet."[6]

All essential elements to the included offence must be found within the primary offence.[7]

Jury Instructions

The trial judge must instruct on the availability of a lesser included offence where there is an air of reality to it.[8] Conversely, offences that are not included offences cannot be left with a jury.[9]

  1. R v GR, 2005 SCC 45 (CanLII), per Binnie J, at para 25
  2. R v MN, 2017 ONCA 434 (CanLII), per Weiler JA, at para 31
    R v R(G), 2005 SCC 45 (CanLII), [2005] 2 SCR 371, per Binnie J, at paras 25 to 34
    R v Pelletier, 2012 ONCA 566 (CanLII), per Watt JA, at para 105
  3. MN, supra, at para 31
    R(G), supra, at paras 27{{{3}}}
  4. R v GR, 2005 SCC 45 (CanLII), per Binnie J, at para 25
  5. R v DeSousa, 2016 ONSC 2745 (CanLII), per Gilmore J, at para 85
  6. DeSousa, ibid., at para 86
    R v Simpson (1981), 20 C.R. (3d) 36, 58 CCC (2d) 122 (ON CA), 1981 CanLII 3284 (ON CA), per Martin JA, at para 27
    R v Beyo, 2000 CanLII 5683 (ON CA), 47 O.R. (3d) 712, per Rosenberg JA, at para 29
  7. R v Pelletier, 2012 ONCA 566 (CanLII), per Watt JA, at para 106
  8. R v Luciano, 2011 ONCA 89 (CanLII), per Watt JA, at para 75
    See also Air of Reality Test
  9. R v Romano, 2017 ONCA 837 (CanLII), per Paciocco JA, at para 16

Lesser Offence Examples

Aggravated Assault is a lesser included offence of attempted murder.[1]

Mischief and Break and Enter

Mischief is not included in break and enter[2]

  1. R v DeSousa, 2016 ONSC 2745 (CanLII), per Gilmore J, at para 87
    R v Norton, 1993 CanLII 8789 (SK QB), 110 Sask. R. 151, per Baynton J, overturned on other grounds, 1994 CanLII 4651 (SK CA), per Tallis JA
  2. R v Robitaille, 2012 ONCJ 155 (CanLII), per Paciocco J

Attempts

General Principles

Attempts refer to the category of offences that amount to an unfulfilled (or "inchoate") substantive offence. Section 24 defines the meaning of "attempt" within the Criminal Code:

Attempts

24 (1) Every one who, having an intent to commit an offence, does or omits to do anything for the purpose of carrying out the intention is guilty of an attempt to commit the offence whether or not it was possible under the circumstances to commit the offence.

Question of law

(2) The question whether an act or omission by a person who has an intent to commit an offence is or is not mere preparation to commit the offence, and too remote to constitute an attempt to commit the offence, is a question of law.

R.S., c. C-34, s. 24.

CCC


Note up: 24(1) and (2)

Certain offences have their own circumscribed meaning of attempt, such as bribery, obstructing justice, and attempt murder.[1]

Unavailable Defences

Both legal and factual impossibility is not a defence to an allegation of attempt.[2]

The defence of abandonment is generally not to be considered and instead is treated as failure to form the full intent for attempt.[3]

  1. e.g. see attempted murder, Obstructing justice
  2. United States of America v Dynar, 1997 CanLII 359 (SCC), [1997] 2 SCR 462, per Cory and Iacobucci JJ
    R v Bear, 2013 MBCA 96 (CanLII), per Steel JA
  3. See R v Sorrell and Bondett' (1978), 41 CCC (2d) 9 (Ont. C.A.), 1978 CanLII 2388 (ON CA), per curiam
    R v Frankland (1985), 23 CCC (3d) 385 (Ont. C.A.), 1985 CanLII 3561 (ON CA), per Dubin JA

Reconciling Offence Charged

An attempt is an included offence to most substantive offences.[1]

Full offence charged, attempt proved

660 Where the complete commission of an offence charged is not proved but the evidence establishes an attempt to commit the offence, the accused may be convicted of the attempt.
R.S., c. C-34, s. 587.

CCC


Note up: 660

Attempt charged, full offence proved

661 (1) Where an attempt to commit an offence is charged but the evidence establishes the commission of the complete offence, the accused is not entitled to be acquitted, but the jury may convict him of the attempt unless the judge presiding at the trial, in his discretion, discharges the jury from giving a verdict and directs that the accused be indicted for the complete offence.

Conviction a bar

(2) An accused who is convicted under this section is not liable to be tried again for the offence that he was charged with attempting to commit.
R.S., c. C-34, s. 588.

CCC


Note up: 661(1) and (2)

Attempting vs Preparing

A person attempting to commit an offence can be criminally liable for the attempt. For any attempt to be made out, the person's actions must be more than "mere preparation".[2]

It is understood that a crime begins with an idea, then a decision to do the act, a plan to commit the act, then steps of preparation begin to carry out the plan. The criminal attempt begins only once the preparation is complete. The accused will then perform a series of acts with the intention of committing the offence.[3]

There is no general criterion to distinguish between mere preparation and actual attempt.[4] It largely going to be left to the "common sense" of the judge.[5]

There is, however, a "qualitative" distinction that can be made:[6]

"...the distinction between preparation and attempt is essentially a qualitative one, involving the relationship between the nature and quality of the act in question and the nature of the complete offence, although consideration must necessarily be given, in making that qualitative distinction, to the relative proximity of the act in question to what would have been the completed offence, in terms of time, location and acts under the control of the accused remaining to be accomplished. I find that view to be compatible with what has been said about the actus reus of attempt in this Court and in other Canadian decisions that should be treated as authoritative on this question."

The trial judge should consider the "relative proximity of that conduct to the conduct required to amount to the completed substantive offence. Relevant factors would include time, location and acts under the control of the accused yet to be accomplished.”[7]

The issue is one of factual proximity to the offence.[8] An act that would otherwise be mere preparation can become an attempt where it is sufficiently proximate to the completion of the full actus reus.[9] However, a lack of temporal proximity will not prevent it from being an attempt.[10] Nor would the fact that there are several intermediate acts prevent the act from being an attempt.[11]

The act will be sufficient where the accused actions have "progressed a sufficient distance (beyond mere preparation) down the intended path".[12]

The act does not have to be a crime, a civil wrong or even a moral wrong.[13]

Standard of Appellate Review

The issue of whether an act is an attempt as opposed to preparation is a question of law and reviewable on a standard of correctness.[14]

  1. See s. 660, 662
    R v Webber [1995] BCJ No 2178 (BCCA), 1995 CanLII 333 (BC CA), per Legg J
  2. R v Sarrazin, 2010 ONCA 577 (CanLII), [2010] OJ No 3748 (C.A.), per Doherty JA, at para 54
  3. R v Cline (1956) 4 DLR (2d) 480, OJ No. 454 (ONCA), 1956 CanLII 150 (ON CA), per Laidlaw JA, at para 34
  4. R v Root, 2008 ONCA 869 (CanLII), (2008), 241 CCC (3d) 125, per Watt JA, at para 96 (“authorities have yet to develop a satisfactory general criterion to assist trial judges in making the crucial distinction between mere preparation, on the one hand, and an attempt on the other.”)
    R v Deutsch, 1986 CanLII 21 (SCC), per Le Dain J ("the application of this distinction to the facts of a particular case must be left to common sense judgment.")
  5. Root, supra, at para 96
  6. Deutsch, supra, at para 27
  7. Root, supra, at para 98
  8. Cline, supra, at para 34
  9. Root, supra, at para 99
  10. Root, supra, at para 99
  11. Root, supra, at paras 99, 100
  12. Root, supra, at para 100
  13. Root, supra, at para 95
  14. s. 24(2) states "(2) The question whether an act or omission by a person who has an intent to commit an offence is or is not mere preparation to commit the offence, and too remote to constitute an attempt to commit the offence, is a question of law." (R.S., c. C-34, s. 24.)

Mens Rea

There must be a specific intent to commit the act making up the offence.[1]

The mens rea for an attempt is the same as the mens rea as the offence itself. The only difference is that there is an incomplete actus reus.[2]

  1. R v Ancio, 1984 CanLII 69 (SCC), [1984] 1 SCR 225, per McIntyre J - attempt murder requires an "intention to commit the complete offence"
  2. R v Root, 2008 ONCA 869 (CanLII), per Watt JA, at para 94

Specific Examples

An accused who has gone through security at an airport with a ticket has attempted to breach his conditions to stay in the province.[1]

An accused who goes through the glove box of a car looking for keys to the car that he wishes to steal has attempted to commit theft.[2]

The act of making a plasticine impression of car keys with a view to stealing the car is mere preparation.[3]

An accused who ships fish, shows a sample and then solicits interest without any discussion of terms is attempting to sell.[4]

Pointing a loaded firearm at a person while making threats without touching the trigger can be an attempt murder.[5]

  1. R v Heafey, 2013 ABPC 133 (CanLII), per Fradsham J
  2. R v James (1971) 2 CCC (2d) 141 (ONCA), 1970 CanLII 1073 (ON CA), per Gale CJ
  3. R v Lobreau (1988) 67 CR (3d) 74 (ABCA), 1988 ABCA 304 (CanLII), per Irving JA
  4. R v Gladstone, 1996 CanLII 160 (SCC), [1996] 2 SCR 723, per Lamer CJ
  5. R v Boudreau, 2005 NSCA 40 (CanLII), per MacDonald CJ

See Also

Counselling

General Principles

Counselling is an inchoate offence concerning the preparation of a future offence. It can be made out regardless of if the index offence actually occurs or not.

An accused can be found guilty of counselling regardless of whether the principal is acquitted.[1]

  1. R v Hick, 1991 CanLII 47 (SCC) , [1991] 3 SCR 383, per Stevenson J

Where the Offence is Committed

Person counselling offence

22 (1) Where a person counsels another person to be a party to an offence and that other person is afterwards a party to that offence, the person who counselled is a party to that offence, notwithstanding that the offence was committed in a way different from that which was counselled.

Idem

(2) Every one who counsels another person to be a party to an offence is a party to every offence that the other commits in consequence of the counselling that the person who counselled knew or ought to have known was likely to be committed in consequence of the counselling.

Definition of “counsel”

(3) For the purposes of this Act, “counsel” includes procure, solicit or incite.
R.S., 1985, c. C-46, s. 22; R.S., 1985, c. 27 (1st Supp.), s. 7.

CCC


Note up: 22(1), (2) and (3)

Elements of the Offence

Counselling under s. 22 requires:[1]

  1. the act of persuading or inducing the commission of the offence
  2. the commission of the offence itself
  3. the commission must be the consequences of the counselling;
  4. the accused intended to counsel or knowingly counselled, aware of the risk that it would bring about the commission of the offence.
  1. R v Keepness, 2009 SKQB 466 (CanLII), per Dawson J, at para 131

Where Offence is Not Committed

Counselling is an "independent substantive offence"[1] defined in s. 464.

Counselling offence that is not committed

464. Except where otherwise expressly provided by law, the following provisions apply in respect of persons who counsel other persons to commit offences, namely,

(a) every one who counsels another person to commit an indictable offence is, if the offence is not committed, guilty of an indictable offence and liable to the same punishment to which a person who attempts to commit that offence is liable; and
(b) every one who counsels another person to commit an offence punishable on summary conviction is, if the offence is not committed, guilty of an offence punishable on summary conviction.
R.S., 1985, c. C-46, s. 464; R.S., 1985, c. 27 (1st Supp.), s. 60.

CCC


Note up: 464

Elements of the Offence

Counselling under s. 464 requires:

  1. the act of persuading or inducing the commission of the offence
  2. the intention that the offence be committed or
  3. an awareness that the unjustified risk that the offence would be committed as a result of the counselling.

Actus Reus

"Counsel" under this section is more that simply advising, it has the "meaning of actively inducing" [1]

The actus reus of counselling involves the "deliberate encouragement or active inducement of the commission of a criminal offence."[2]

Mens Rea

The mens rea of counselling involves "nothing less than an accompanying intent or conscious disregard of the substantial and unjustified risk inherent in the counselling."[1] The accused must either intend the offence or "knowingly counselled the commission of the offence while aware of the unjustified risk that the offence counselled was in fact likely to be committed" as a result of the counselling.[2]

The mens rea of counselling requires evidence that “an accused either intended that the offence counseled be committed, or knowingly counselled the commission of the offence while aware of the unjustified risk that the offence counseled was in fact likely to be committed as a result of the accused’s conduct" [3]

Where a threat allegedly counsels murder the test to be applied is whether 1) an ordinary person would view the statement objectively would take it as an invitation to kill and 2) the accused either intended or knowingly counselling the victim's murder while aware of the unjustified risk that murder would likely be committed.[4]

It is not necessary that the accused be the originator of the plan to procure or incite.[5]

The offence is complete when "the solicitation or incitement occurs" even where the incitee "rejects the solicitation or merely feigns his or her assent."[6]

  1. R v Hamilton, 2005 SCC 47 (CanLII), per Fish J, at para 29 (“ In short, the actus reus for counselling is the deliberate encouragement or active inducement of the commission of a criminal offence. And the mens rea consists in nothing less than an accompanying intent or conscious disregard of the substantial and unjustified risk inherent in the counselling: that is, it must be shown that the accused either intended that the offence counselled be committed, or knowingly counselled the commission of the offence while aware of the unjustified risk that the offence counselled was in fact likely to be committed as a result of the accused’s conduct.“ [italics removed])
    R v Root, 2008 ONCA 869 (CanLII) , [2008] OJ No 5214 (ONCA), per Watt JA, at para 84
  2. Hamilton, supra, at para 29
  3. R v Abou Al-Rashta and Pirouzi, 2012 ONSC 1957 (CanLII), per O'Marra J citing Hamilton, supra, at para 29
    Root, supra, at para 84
  4. see R v Jeffers, 2012 ONCA 1 (CanLII), per Laskin JA
  5. Root, supra, at para 85
  6. Root, supra, at para 86

See Also

Conspiracy (Offence)


Conspiracy
s. 465 of the Crim. Code
Election / Plea
Crown Election Indictment (465(1)(b) and (c))
Summary (465(1)(d))
summary proceedings must initiate within 12 months of the offence (786(2))
Jurisdiction s. 465(1)(b), (c):
Prov. Court

Sup. Court w/ Jury (*)
Sup. Court w/ Judge-alone (*)
* Must be indictable. Preliminary inquiry also available.
s. 465(1)(a):
Sup. Court w/ Jury (*)
Sup. Court w/ Judge-alone (*)

* Preliminary inquiry also available.
s.465(1)(d):
Prov. Court only
Summary Dispositions
Avail. Disp. Discharge (730)

Suspended Sentence (731(1)(a))
Fine (734)
Fine + Probation (731(1)(b))
Jail (718.3, 787)
Jail + Probation (731(1)(b))
Jail + Fine (734)

Conditional Sentence (742.1)
Minimum None
Maximum 2 years less a day jail and/or a $5,000 fine (from Sept 19, 2019)
Indictable Dispositions
Avail. Disp. Discharge (730)*

Suspended Sentence (731(1)(a))
Fine (734)
Fine + Probation (731(1)(b))
Jail (718.3, 787)
Jail + Probation (731(1)(b))
Jail + Fine (734)
Conditional Sentence (742.1)*

(* varies)
Minimum None
Maximum 5, 10 years incarceration or Life
Reference
Offence Elements
Sentence Digests

Overview

Offences relating to conspiracy are found in Part XIII of the Criminal Code relating to "Attempts — Conspiracies — Accessories".

Pleadings

Offences under s. 465(1)(a) [conspiracy to commit murder] are exclusive jurisdiction offences under s. 469 and so cannot be tried by a provincial court judge. It is presumptively tried by judge and jury.

Offences under s. 465(1)(b) and (c) are straight indictable. There is a Defence election of Court under s. 536(2).

Offences under s. 465(1)(d) [conspiracy to commit summary offence] are straight summary conviction offence. The trial must be held in provincial court.

Release
Offence(s) Appearance Notice
by Peace Officer

s. 497
Summons
by Judge or Justice

s. 508(1), 512(1), or 788
Release by
Peace Officer
on Undertaking

s. 498, 499, and 501
Release By
a Judge or Justice
on a Release Order

s. 515 to 519
Direct to Attend
for Fingerprints, etc.
Identification of Criminals Act

s. 2 ID Crim. Act
s. 465(1)(a), (b) X Mark Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png
s. 465(1)(d) [conspiracy to commit summary offence] OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png

When charged under s. 465(1)(a), (b), the accused can be given a judicial summons without arrest. If arrested, he can be released by the arresting officer under s. 498 or 499 on an undertaking with or without conditions. He can also be released by a justice under s. 515.

When charged under s. 465(1)(d) [conspiracy to commit summary offence] , the accused can be given an appearance notice without arrest under s. 497 or a summons. If arrested, he can be released by the arresting officer under s. 498 or 499 on an undertaking with or without conditions. He can also be released by a justice under s. 515.

Reverse Onus Bail

If police decide to bring the accused before a Justice pursuant to s. 503, there will be a presumption against bail (i.e. a reverse onus) if the offence, prosecuted by indictment, was committed:

  • while at large under s. 515 [bail release], 679 or 680 [release pending appeal or review of appeal] (s. 515(6)(a)(i));
  • "for the benefit of, at the direction of, or in association" with a criminal organization (s. 515(6)(a)(ii));
  • where the offence involved a firearm, cross-bow, prohibited weapon restricted weapon, prohibited device, ammunition, prohibited ammunition or explosive substance, while the accused was subject to a prohibition order preventing possession of these items (s. 515(6)(a)(viii)); or
  • where the accused is not "ordinarily a resident in Canada" (s. 515(6)(b)).
Publication Ban

For all criminal or regulatory prosecutions, there is a discretionary general publication ban available on application of the Crown, victim or witness to prohibit the publishing of "any information that could identify the victim or witness" under s. 486.5(1) where it is "necessary" for the "proper administration of justice". Other available publication bans include prohibitions for publishing evidence or other information arising from a bail hearing (s. 517), preliminary inquiry (s. 539) or jury trial (s. 648). There is a mandatory publication ban in all youth prosecutions on information tending to identify young accused under s. 110 of the YCJA or young victims under s. 111 of the YCJA.

Offence Designations
Offence(s) Wiretap
Eligible

s. 183
Dangerous Offender
Designated Offence

s. 752
Serious Personal
Injury Offence

s. 752
AG Consent Required Serious Criminality
Offence
s. 36 IRPA
s. 465(1)(a) [conspiracy to commit murder],
s. 465(1)(b)(i) [conspiracy to prosecute innocent person, 14 years or life],
s. 465(1)(b)(ii) [conspiracy to prosecute innocent person, less than 14 years],
s. 465(1)(c) [conspiracy to commit indictable offence],
s. 465(1)(d) [conspiracy to commit summary offence]
OK Symbol.png OK Symbol.png OK Symbol.png X Mark Symbol.png

See below in Ancillary Sentencing Orders for details on designations relating to sentencing orders.

Offence Wording

Conspiracy

465 (1) Except where otherwise expressly provided by law, the following provisions apply in respect of conspiracy:

(a) every one who conspires with any one to commit murder or to cause another person to be murdered, whether in Canada or not, is guilty of an indictable offence and liable to a maximum term of imprisonment for life;
(b) every one who conspires with any one to prosecute a person for an alleged offence, knowing that they did not commit that offence, is guilty of
(i) an indictable offence and liable to imprisonment for a term of not more than 10 years or an offence punishable on summary conviction, if the alleged offence is one for which, on conviction, that person would be liable to be sentenced to imprisonment for life or for a term of not more than 14 years, or
(ii) an indictable offence and liable to imprisonment for a term of not more than five years or an offence punishable on summary conviction, if the alleged offence is one for which, on conviction, that person would be liable to imprisonment for less than 14 years;
(c) every one who conspires with any one to commit an indictable offence not provided for in paragraph (a) or (b) is guilty of an indictable offence and liable to the same punishment as that to which an accused who is guilty of that offence would, on conviction, be liable; and
(d) every one who conspires with any one to commit an offence punishable on summary conviction is guilty of an offence punishable on summary conviction.

(2) [Repealed, 1985, c. 27 (1st Supp.), s. 61]
...
R.S., 1985, c. C-46, s. 465; R.S., 1985, c. 27 (1st Supp.), s. 61; 1998, c. 35, s. 121; 2018, c. 11, s. 28; 2019, c. 25, s. 183.

CCC


Note up: 465(1) and (2)

Conspiracy in restraint of trade

466 (1) A conspiracy in restraint of trade is an agreement between two or more persons to do or to procure to be done any unlawful act in restraint of trade.

Trade union, exception

(2) The purposes of a trade union are not, by reason only that they are in restraint of trade, unlawful within the meaning of subsection (1) [conspiracy in restraint of trade].
R.S., 1985, c. C-46, s. 466; 1992, c. 1, s. 60(F).
[annotation(s) added]

CCC


Note up: 466(1) and (2)

Draft Form of Charges

See also: Draft Form of Charges
Pre-ambles
"THAT [accused full name] stands charged that, between the <DATE> day of <MONTH>, <YEAR> and <DATE> day of <MONTH>, <YEAR>***, at or near <COMMUNITY/TOWN/CITY>, <PROVINCE>, he [or she]..." OR
"THAT [accused full name] stands charged that, on or about the <DATE> day of <MONTH>, <YEAR>, at or near <COMMUNITY/TOWN/CITY>, <PROVINCE>, he [or she]..." OR
"AND FURTHER at the same time and place aforesaid, he [or she]..."
Code Section Subject of Offence Draft Wording
465 "... contrary to section 465 of the Criminal Code."
466 "... contrary to section 466 of the Criminal Code."

Proof of the Offence

Proving conspiracy under s. 465 should include:[1]

  1. identity of accused as culprit
  2. date and time of incident
  3. jurisdiction (incl. region and province)
  4. the words communicated in the conspiracy
  5. there was an agreement made between the parties
  6. the parties had an intention to agree to put a "common design into effect" and did in fact agree
  7. the parties did not change their minds or intention to put common design into effect
  1. R v Root, 2008 ONCA 869 (CanLII), per Watt JA, at para 66

Interpretation

The purpose of criminalizing conspiracies is to "prevent an unlawful object" from being fulfilled and then "prevent[ing] serious harm from occurring". Parliament intended to intervene "earlier along the continuum of the increased danger represented by a cohort or wrongdoers acting in concert".[1]

A conspiracy is an agreement between two or more persons to do an unlawful act.[2]

There must be an "intention to agree, the completion of an agreement and a common design."[3] The Crown needs only prove that there was "a meeting of the minds with regard to a common design to do something unlawful".[4]

To prove conspiracy the facts must satisfy a three-part Carter test:[5]

  1. has the Crown proven beyond a reasonable doubt the existence of the conspiracy?
  2. has the Crown proven that the accused was on balance a member of the conspiracy?
  3. considering all of the evidence, including hearsay evidence, is the accused guilty beyond a reasonable doubt of being a member of the conspiracy?

trier of fact concludes on a balance of probabilities that the accused is a member of the conspiracy then [the trier] must go on and decide whether the Crown has established such membership beyond reasonable doubt. In this last step only, the trier of fact can apply the hearsay exception and consider evidence of acts and declarations of co-conspirators done in furtherance of the object of the conspiracy as evidence against the accused on the issue of his guilt.

A conspiracy must include (1) an agreement and (2) the unlawful objective or "common design".[6]

As well, the unlawful objective does not need to come about. It is the planning that is the criminal act.[7]

A conspiracy made over the telephone will occur within the jurisdiction of both calling parties.[8]

Both legal and factual impossibility are not defences to an allegation of conspiracy.[9]

It is not necessary to prove that the predicate offence was actually committed.[10]

The fact that the co-conspirators are unidentified does not result in a failure to prove the offence of conspiracy.[11]

  1. R v Dery, [2006] 2 SCR 669, 2006 SCC 53 (CanLII), per Fish J, at para 44
    R v Meyer, 2012 ONCJ 791 (CanLII), [2012] OJ No 6235, per Pacciocco J, at para 21("The law of conspiracy achieves this policy [of preventing serious harm from occurring] by allowing a pre-emptive strike where there is a true agreement to achieve a mutual criminal objective.")
  2. R v O'Brien, 1954 CanLII 42, [1954] SCR 666, per Taschereau J, at pp. 668-9
    See: R v Paradis, 1933 CanLII 75 (SCC), [1934] SCR 165, 61 CCC 184 (SCC), per Rinfret J, at p. 186 - defines as two or more persons agreeing to act in concert in pursuit of a common goal
  3. United States of America v Dynar, 1997 CanLII 359, [1997] 2 SCR 462, per Cory and Iacobucci JJ, at para 86
    R v Root, 2008 ONCA 869 (CanLII), [2008] OJ No 5214 (OCA), per Watt JA, at para 66
  4. Dynar, supra, at para 87
  5. R v Carter, 1982 CanLII 35, [1982] 1 SCR 938, per McIntyre J
  6. O'Brien, supra, at paras 2 to 3, ("It is of course, essential that the conspirators have the intention to agree, and this agreement must be complete ... there must exist an intention to put the common design into effect.")
    R v Root, 2008 ONCA 869 (CanLII), per Watt JA
  7. O'Brien, supra, at para 4 ("The law punishes conspiracy so that the unlawful object is not attained. It considers that several persons who agree together to commit an unlawful act, are a menace to society, and even if they do nothing in furtherance of their common design, the state intervenes to exercise a repressive action, so that the intention is not materialized, and does not become harmful to any one.")
  8. R v Doucette, 2003 PESCAD 7 (CanLII), per Mitchell CJ
  9. Dynar, supra, at para 105 (It is not relevant whether "from an objective point of view, commission of the offence may be impossible.")
  10. See R v Koufis, 1941 CanLII 55 (SCC), [1941] SCR 481, 76 CCC 161 (SCC), per Taschereau J
    R v Beaven, 2013 SKQB 7 (CanLII), per Rothery J, at para 73
  11. Root, supra, at para 69

Agreement

The agreement is the essence of the offence of conspiracy.[1]

An agreement can be implied or tacit. It requires a meeting of the minds to create a common intention to commit an offence. The parties must have knowledge of a common goal and agreement to achieve it.[2]

There must be a "consensus to effect an unlawful purpose".[3]

It is not enough that there be a common intention.[4] Nor is passive acquiescence to a criminal plan sufficient[5] , knowledge of the plan[6] , or nor wilful blindness.

It is not a "formal agreement" and may be implicit.[7]

Where there is a pre-existing conspiracy, the accused must have adopted it or consented to participate in achieving the goal.[8]

A conditional agreement can still be an agreement.[9]

The charge must identify the crime(s) planned.[10] And it should generally identify the co-conspirators.[11]

It is a valid defence to establish that the accused pretended to agree to the conspiracy.[12]

The trier of fact must find "that the accused intended to enter into the agreement".[13]

Conspiracy cannot be committed by way of an accused being reckless as to the object of the agreement.[14] However, the accused can be liable where he is reckless as to the method of execution of the agreement.[15]

Willful blindness can satisfy the mens rea requirement of conspiracy.[16]

A party to an offence, including conspiracy "must have some knowledge of the essential nature of the offence to be committed, but not necessarily knowledge of all the details".[17]

Evidence of "how" the agreement is to be carried out, specifically to over acts to be taken are elements to the agreement element of the offence.[18]

  1. R v Papalia, 1979 CanLII 38 (SCC), [1979] 2 SCR 256, per Dickson J ("The essence of criminal conspiracy is proof of agreement...")
  2. Atlantic Sugar Refineries Co. v Canada (Attorney General), 54 CCC (2d) 373, 1980 CanLII 226 (SCC), [1980] 2 SCR 644, per Pigeon J
  3. Papalia, supra (“two or more persons pursued the same unlawful object at the same time or in the same place; it is necessary to show a consensus to effect an unlawful purpose. ”)
  4. R v O'Brien, 1954 CanLII 42, [1954] SCR 666, per Taschereau J
  5. R v McNamara (1981), 56 CCC (2d) 193 at 452 (Ont. C.A.), 1981 CanLII 3120 (ON CA), per curiam ("Mere knowledge of, discussion of or passive acquiescence in a plan of criminal conduct is not, of itself, sufficient")
  6. Goode, Criminal Conspiracy in Canada (1975), p. 16
  7. Goode, Criminal Conspiracy in Canada (1975), p. 16
  8. R v Lamontagne, 1999 CanLII 13463 (QC CA), (1999), 142 CCC (3d) 561 (Que. C.A.), 1999 CanLII 13463 (QC CA), per curiam
  9. R v Root, 2008 ONCA 869 (CanLII), per Watt JA, at para 70
  10. R v Saunders, 1990 CanLII 1131 (SCC), [1990] 1 SCR 1020, per McLachlin J
  11. R v TLB (1989), 52 CCC (3d) 72 (NSCA), 1989 CanLII 7210 (NS CA), per Hart JA
    Root, supra, at para 69
  12. R v Delay (1976), 25 CCC (2d) 575 (Ont. C.A.), 1976 CanLII 1409 (ON CA), per Jessup JA
  13. R v Barbeau, 1996 CanLII 6391 (QC CA), at p. 568
  14. R v Lessard (1982), 10 CCC (3d) 61 (QCCA), 1982 CanLII 3814 (QC CA), per Bisson JA, at p. 86
    Lamontagne, supra, at p. 576 "one notes that the crime of conspiracy cannot be committed by mere recklessness as to the object of the agreement")
  15. Barbeau, supra
    R v Park, 2009 ABQB 470 (CanLII), per Ouellette J ("recklessness may only be applied with respect to the method of execution of the agreement")
    Lessard, supra
    Lamontagne, supra
  16. Barbeau, supra
    Park, supra ("The mens rea requirement for conspiracy may be satisfied where willful blindness is established")
  17. Park, supra, at pp. 569 to 571
  18. R v Douglas, [1991] 1 SCR 301, 1991 CanLII 81 (SCC), per Cory J, at para 28 ("How that agreement is to be carried out, that is to say, the steps taken in furtherance of the agreement (the overt acts) are simply elements going to the proof of the essential ingredient of the offence, namely the agreement.")

Common Design

There must be a "a common plan with a common objective".[1]

The Crown must establish that the accused had an intention to become a party to the common design with the knowledge of its implications.[2]

  1. R v Cotroni, (sub nom. Papalia), 1979 CanLII 38 (SCC), [1979] 2 SCR 256, per Dickson J
  2. Papalia, supra (“In addition to proof of common design, it was incumbent on the Crown to establish that each accused had the intention to become a party to that common design with knowledge of its implications.”)

Participation

It is not required that it be proven that every member of the conspiracy be involved in its execution or that they were involved throughout the entire time. It is enough if the evidence "demonstrates that the conspiracy proven included some of the accused; establishes that it occurred at some time within the time frame alleged in the indictment; and had as its object the type of crime alleged."[1]

A member of a conspiracy who refuses to execute the plan is still guilty.[2]

Involvement in only part of a whole plan will still be found guilty.[3]

An accused cannot be convicted for attempted conspiracy.[4]

  1. R v Douglas, [1991] 1 SCR 301, 1991 CanLII 81 (SCC), per Cory J, at para 41
    Papalia ("The essence of criminal conspiracy is proof of agreement...")
  2. R v O'Brien, 1954 CanLII 42, [1954] SCR 666, per Taschereau J, at para 4
  3. R v Shirose, 1999 CanLII 676 (SCC), [1999] 1 SCR 565, per Binnie J
  4. R v Dery, 2006 SCC 53 (CanLII), [2006] 2 SCR 669, per Fish J

Evidence

Words of the co-conspirator are admissible against the accused. They are not hearsay and are rather the actus reus.[1]

Further, the co-conspirators exception to hearsay makes statements admissible against the accused.[2]

Statements by the co-conspirator that are not related to the conspiracy are not admissible against the accused.[3]

  1. R v Cook (1984), 39 C.R. (3d) 300 (ONCA) aff'd in 1986 CanLII 47 (SCC), [1986] 1 SCR 144, per Dickson CJ
  2. R v Gassyt (1998), 127 CCC (3d) 546 (ONCA), 1998 CanLII 5976 (ON CA), per Charron JA
    R v Perciballi (2001), 154 CCC (3d) 481 (Ont. C.A.), 2001 CanLII 13394 (ON CA), per Charron JA aff'd in 2002 SCC 51 (CanLII), per McLachlin CJ
    R v Gagnon (2000), 147 CCC (3d) 193 (ONCA), 2000 CanLII 16863 (ON CA), per Weiler JA
  3. R v Henke, 1989 ABCA 263 (CanLII), (1989), 72 C.R. (3d) 395 (Alta C.A.), per curiam
    R v Maugey, 2000 CanLII 8488 (ON CA), (2000), 146 CCC (3d) 99 (Ont. C.A.), per Feldman JA

Aiding and Abetting

See also: Parties to an Offence

There has been a divided line of case law on whether a conviction can be made for being a party to a conspiracy.[1]

The members of a conspiracy do not need to all play an equal role in the endeavour, nor do they need to personally commit the offence they have agreed. Any degree of assistance can create membership.[2]

  1. R v Park, 2009 ABQB 470 (CanLII), per Ouellette J, at pp. 540 to 575
    R v Taylor (1984), 40 C.R. (3d) 222 (BCSC)(*no CanLII links)
  2. R v JF', [2013] 1 SCR 565, 2013 SCC 12 (CanLII), at para 54 (...it is not necessary that all members of a conspiracy play, or intend to play, equal roles in the ultimate commission of the unlawful object. Indeed, members in a conspiracy need not personally commit, or intend to commit, the offence which each has agreed should be committed:... Any degree of assistance in the furtherance of the unlawful object can lead to a finding of membership as long as agreement to a common plan can be inferred and the requisite mental state has been established.")

Jurisdiction

465.
...

Conspiracy to commit offences

(3) Every one who, while in Canada, conspires with any one to do anything referred to in subsection (1) [conspiracy – offence] in a place outside Canada that is an offence under the laws of that place shall be deemed to have conspired to do that thing in Canada.

Idem

(4) Every one who, while in a place outside Canada, conspires with any one to do anything referred to in subsection (1) [conspiracy – offence] in Canada shall be deemed to have conspired in Canada to do that thing.

Jurisdiction

(5) Where a person is alleged to have conspired to do anything that is an offence by virtue of subsection (3) [conspiracy deemed in Canada if captured by foreign criminal law] or (4) [deemed Canadian presence when other person in Canada], proceedings in respect of that offence may, whether or not that person is in Canada, be commenced in any territorial division in Canada, and the accused may be tried and punished in respect of that offence in the same manner as if the offence had been committed in that territorial division.

Appearance of accused at trial

(6) For greater certainty, the provisions of this Act relating to

(a) requirements that an accused appear at and be present during proceedings, and
(b) the exceptions to those requirements,

apply to proceedings commenced in any territorial division pursuant to subsection (5) [jurisdiction of conspiracy].

If previously tried outside Canada

(7) If a person is alleged to have conspired to do anything that is an offence by virtue of subsection (3) [conspiracy deemed in Canada if captured by foreign criminal law] or (4) [deemed Canadian presence when other person in Canada] and that person has been tried and dealt with outside Canada in respect of the offence in such a manner that, if the person had been tried and dealt with in Canada, they would be able to plead autrefois acquit, autrefois convict, pardon or an expungement order under the Expungement of Historically Unjust Convictions Act, the person shall be deemed to have been so tried and dealt with in Canada.

R.S., 1985, c. C-46, s. 465; R.S., 1985, c. 27 (1st Supp.), s. 61; 1998, c. 35, s. 121; 2018, c. 11, s. 28; 2019, c. 25, s. 183.
[annotation(s) added]

CCC


Note up: 465(3), (4), (5), (6), and (7)

Defences

Saving

467 (1) No person shall be convicted of the offence of conspiracy by reason only that he

(a) refuses to work with a workman or for an employer; or
(b) does any act or causes any act to be done for the purpose of a trade combination, unless that act is an offence expressly punishable by law.
Definition of trade combination

(2) In this section, trade combination means any combination between masters or workmen or other persons for the purpose of regulating or altering the relations between masters or workmen, or the conduct of a master or workman in or in respect of his business, employment or contract of employment or service.
R.S., c. C-34, s. 425.

CCC


Note up: 467(1) and (2)

Participation of Third Parties

See also: Role of the Victim and Third Parties and Testimonial Aids for Young, Disabled or Vulnerable Witnesses
Testimonial Aids

Certain persons who testify are entitled to make application for the use of testimonial aids: Exclusion of Public (s. 486), Use of a Testimonial Screen (s. 486), Access to Support Person While Testifying (s. 486.1), Close Proximity Video-link Testimony (s. 486.2), Self-Represented Cross-Examination Prohibition Order (s. 486.3), and Witness Security Order (s. 486.7).

A witness, victim or complainant may also request publication bans (s. 486.4, 486.5) and/or a Witness Identity Non-disclosure Order (s. 486.31). See also, Publication Bans, above.

On Finding of Guilt
Offence(s) Victim Notice
of Agreement
s. 606(4.1), (4.2)
Victim Notice
for Restitution
s. 738
Victim Notice
of Impact Statement
s. 722(2)
s. 465(1)(a) [conspiracy to commit murder],
s. 465(1)(b)(i) [conspiracy to prosecute innocent person, 14 years or life],
s. 465(1)(b)(ii) [conspiracy to prosecute innocent person, less than 14 years],
s. 465(1)(c) [conspiracy to commit indictable offence],
s. 465(1)(d) [conspiracy to commit summary offence]

Under s. 738, a judge must inquire from the Crown before sentencing whether "reasonable steps have been taken to provide the victims with an opportunity to indicate whether they are seeking restitution for their losses and damages".

Under s. 722(2), the judge must inquire "[a]s soon as feasible" before sentencing with the Crown "if reasonable steps have been taken to provide the victim with an opportunity to prepare" a victim impact statement. This will include any person "who has suffered, or is alleged to have suffered, physical or emotional harm, property damage or economic loss" as a result of the offence. Individuals representing a community impacted by the crime may file a statement under s. 722.2.

Sentencing Principles and Ranges

Maximum Penalties
Offence(s) Crown
Election
Maximum Penalty
s. 465(1)(a) [conspiracy to commit murder] N/A life incarceration
s. 465(1)(b)(i) [conspiracy to prosecute innocent person, 14 years or life] N/A 10 years incarceration
s. 465(1)(b)(ii) [conspiracy to prosecute innocent person, less than 14 years] N/A 5 years incarceration
s. 465(1)(d) [conspiracy to commit summary offence] N/A 2 years less a day jail and/or a $5,000 fine (from Sept 19, 2019)

Offences under s. 465(1)(a), (b), and (c) are straight indictable. The maximum penalty is life incarceration under s. 465(1)(a), '10 years incarceration under s. 465(1)(b)(i), and 5 years incarceration under s. 465(1)(b)(ii). Where prosecuted under s. 465(1)(c) the maximum penalty will match that of the index offence.

Offences under s. 465(1)(d) are straight summary conviction offences. The maximum penalty is 2 years less a day jail and/or a $5,000 fine (from Sept 19, 2019).

Minimum Penalties

These offences have no mandatory minimum penalties.

Available Dispositions
Offence(s) Crown
Election
Discharge
s. 730
Suspended
Sentence

s. 731(1)(a)
Stand-alone
Fine

s. 731(1)(b)
Custody
s. 718.3, 787
Custody and
Probation
s. 731(1)(b)
Custody and
Fine
s. 734
Conditional
Sentence
(CSO)
s. 742.1
s. 465(1)(a) [conspiracy to commit murder] N/A X Mark Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png X Mark Symbol.png
s. 465(1)(d) [conspiracy to commit summary offence] N/A OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png

If convicted under s. 465(1)(a) a discharge is not available under s. 730(1) as it is "an offence for which a minimum punishment is prescribed by law or an offence punishable by imprisonment for fourteen years or for life".

Offences under s. 465(1)(a) are ineligible for a conditional sentence order under s. 742.1(c), when prosecuted by indictment, as the maximum period of incarceration is 14 years or life.

Consecutive Sentences

There are no statutory requirements that the sentences be consecutive.

Ancillary Sentencing Orders

See also: Ancillary Orders
Offence-specific Orders
  • Varies based on index offence
Order Conviction Description
DNA Orders s. 465(1)(b)(i), (ii)
Delayed Parole Order s. 465(1)(a) [conspiracy to commit murder]
  • Periods of imprisonment of 2 years or more for convictions under s. 465(1)(a) [conspiracy to commit murder] are eligible for delayed parole order under s. 743.6(1) requiring the offender to serve at least "one half of the sentence or ten years, whichever is less", "where denunciation of the offence or the objective of specific or general deterrence so requires".
General Sentencing Orders
Order Conviction Description
Non-communication order while offender in custody (s. 743.21) any The judge has the discretion to order that the offender be prohibited "from communicating...with any victim, witness or other person" while in custody except where the judge "considers [it] necessary" to communicate with them.
Restitution Orders (s. 738) any A discretionary Order is available for things such as the replacement value of the property; the pecuniary damages incurred from harm, expenses fleeing a domestic partner; or certain expenses arising from the commission of an offence under s.402.2 or 403.
Victim Fine Surcharge (s. 737) any A discretionary surcharge under s. 737 of 30% of any fine order imposed, $100 per summary conviction or $200 per indictable conviction. If the offence occurs on or after October 23, 2013, the order has smaller minimum amounts (15%, $50, or $100).
General Forfeiture Orders
Forfeiture Conviction Description
Forfeiture of Proceeds of Crime (s. 462.37(1) or (2.01)) any Where there is a finding of guilt for an indictable offence under the Code or the CDSA in which property is "proceeds of crime" and offence was "committed in relation to that property", the property shall be forfeited to Her Majesty the Queen on application of the Crown.
Fine in Lieu of Forfeiture (s. 462.37(3)) any Where a Court is satisfied an order for the forfeiture of proceeds of crime under s. 462.37(1) or (2.01) can be made, but that property cannot be "made subject to an order", then the Court "may" order a fine in "an amount equal to the value of the property". Failure to pay the fine will result in a default judgement imposing a period of incarceration.
Forfeiture of Weapons or Firearms (s. 491) any Where there is finding of guilt for an offence where a "weapon, an imitation firearm, a prohibited device, any ammunition, any prohibited ammunition or an explosive substance was used in the commission of [the] offence and that thing has been seized and detained", or "that a person has committed an offence that involves, or the subject-matter of which is, a firearm, a cross-bow, a prohibited weapon, a restricted weapon, a prohibited device, ammunition, prohibited ammunition or an explosive substance has been seized and detained, that the item be an enumerated weapon or related item be connected to the offence", then there will be a mandatory forfeiture order. However, under s. 491(2), if the lawful owner "was not a party to the offence" and the judge has "no reasonable grounds to believe that the thing would or might be used in the commission of an offence", then it should be returned to the lawful owner.
Forfeiture of Offence-related Property (s. 490.1) any Where there is a finding of guilt for an indictable offence, "any property is offence-related property" where (a) by means or in respect of which an indictable offence under this Act or the Corruption of Foreign Public Officials Act is committed, (b) that is used in any manner in connection with the commission of such an offence, or (c) that is intended to be used for committing such an offence". Such property is to be forfeited to Her Majesty in right of the province.

Record Suspensions and Pardons

Convictions under s. 465 are eligible for record suspensions pursuant to s. 3 and 4 of the Criminal Records Act after 5 years after the expiration of sentence for summary conviction offences and 10 years after the expiration of sentence for all other offences. The offender may not have the record suspended where the offender was (1) convicted of 3 or more offences with a maximum penalty of life, and (2) for each 3 offences he "was sentenced to imprisonment for two years or more".

See Also

Lesser Included Offences

General Principles

A judge must consider, where the evidence does not make out a particular charged offence, whether the accepted evidence makes out an "included" offence. That is, a secondary offence which underlies the actual charge.

A lesser included offence must be "embraced" by the primary offence.[1]

This authority comes from s. 662(1):

Offence charged, part only proved

662 (1) A count in an indictment is divisible and where the commission of the offence charged, as described in the enactment creating it or as charged in the count, includes the commission of another offence, whether punishable by indictment or on summary conviction, the accused may be convicted

(a) of an offence so included that is proved, notwithstanding that the whole offence that is charged is not proved; or
(b) of an attempt to commit an offence so included.

...
R.S., 1985, c. C-46, s. 662; R.S., 1985, c. 27 (1st Supp.), s. 134; 2000, c. 2, s. 3; 2008, c. 6, s. 38; 2018, c. 21, s. 20.

CCC


Note up: 662(1)

There are three instances where an offence will be "included" within another offence:[2]

  1. offence included by statute, e.g., those offences specified in s.662(2) to (6), and attempt provided for in s.660;
  2. the offence’s elements are embraced in the offence charged as described in the enactment creating it, e.g., common assault in a charge of sexual assault; or
  3. the offence’s elements are embraced in the offence charged as described in the information or indictment. That is to say, the offences which become included by the addition of apt words of description in the principle charge.


Fair Notice required

For an offence to be included, the accused must have "fair notice" that the included offence exists by the definition of the primary offence.[3]

Test From Implied Inclusion

The primary test for whether an offence is “included” in another offence is "if its elements are embraced in the offence charged (as described in the enactment creating it or as charged in the count) or if it is expressly stated to be an included offence in the Criminal Code itself. The test is strict. It must “necessarily” be included..."[4]

The two considerations are that 1) the "main offence contains the essential elements of the offence to be included", and 2) "the description of the offence is sufficient to alert the accused to all of the included offences that may apply."[5] This section element requires that "the offence charged, either as described in the enactment creating the offence or as charged in the count, must be sufficient to inform the accused of the included offences which he must meet."[6]

All essential elements to the included offence must be found within the primary offence.[7]

Jury Instructions

The trial judge must instruct on the availability of a lesser included offence where there is an air of reality to it.[8] Conversely, offences that are not included offences cannot be left with a jury.[9]

  1. R v GR, 2005 SCC 45 (CanLII), per Binnie J, at para 25
  2. R v MN, 2017 ONCA 434 (CanLII), per Weiler JA, at para 31
    R v R(G), 2005 SCC 45 (CanLII), [2005] 2 SCR 371, per Binnie J, at paras 25 to 34
    R v Pelletier, 2012 ONCA 566 (CanLII), per Watt JA, at para 105
  3. MN, supra, at para 31
    R(G), supra, at paras 27{{{3}}}
  4. R v GR, 2005 SCC 45 (CanLII), per Binnie J, at para 25
  5. R v DeSousa, 2016 ONSC 2745 (CanLII), per Gilmore J, at para 85
  6. DeSousa, ibid., at para 86
    R v Simpson (1981), 20 C.R. (3d) 36, 58 CCC (2d) 122 (ON CA), 1981 CanLII 3284 (ON CA), per Martin JA, at para 27
    R v Beyo, 2000 CanLII 5683 (ON CA), 47 O.R. (3d) 712, per Rosenberg JA, at para 29
  7. R v Pelletier, 2012 ONCA 566 (CanLII), per Watt JA, at para 106
  8. R v Luciano, 2011 ONCA 89 (CanLII), per Watt JA, at para 75
    See also Air of Reality Test
  9. R v Romano, 2017 ONCA 837 (CanLII), per Paciocco JA, at para 16

Lesser Offence Examples

Aggravated Assault is a lesser included offence of attempted murder.[1]

Mischief and Break and Enter

Mischief is not included in break and enter[2]

  1. R v DeSousa, 2016 ONSC 2745 (CanLII), per Gilmore J, at para 87
    R v Norton, 1993 CanLII 8789 (SK QB), 110 Sask. R. 151, per Baynton J, overturned on other grounds, 1994 CanLII 4651 (SK CA), per Tallis JA
  2. R v Robitaille, 2012 ONCJ 155 (CanLII), per Paciocco J

Reasonable Person Test

General Principles

The "reasonable person test" is standard to be applied when considering a number of offences:

A reasonable person is one who is:

  • "reasonable, informed, practical and realistic" who "consider the matter in some detail"[1]
  • the person is not a "very sensitive or scrupulous" person, but is "right-minded"[2]
  • dispassionate and fully apprised of the case[3]
  1. R v RDS, 1997 CanLII 324 (SCC) , [1997] 3 SCR 484 (SCC), per Cory J
  2. RDS, ibid.
  3. R v Collins, 1987 CanLII 84 (SCC) , [1987] 1 SCR 265 (SCC), per Lamer J, at p. 282
    R v Burlingham, 1995 CanLII 88 (SCC) , [1995] 2 SCR 206 (SCC), per Iacobucci J, at para 71

Context-Based Reasonableness

There is a difference between "contextualizing" an objective standard and individualizing the standard to suit the accused.[1]

Diminished Intelligence

A diminished level of intelligence or diminished mental capacity can be taking into account in "the application of the reasonableness standard in criminal cases".[2]

See Also

Liability of Organizations

General Principles

Section 217.1 imposes an obligation on employers:

Duty of persons directing work

217.1 Every one who undertakes, or has the authority, to direct how another person does work or performs a task is under a legal duty to take reasonable steps to prevent bodily harm to that person, or any other person, arising from that work or task.
2003, c. 21, s. 3.

CCC


Note up: 217.1

Appearance by attorney

620 Every organization against which an indictment is filed shall appear and plead by counsel or agent.
R.S., 1985, c. C-46, s. 620; 1997, c. 18, s. 70; 2003, c. 21, s. 11.

CCC


Note up: 620

Notice to organization:

Notice to organization

621 (1) The clerk of the court or the prosecutor may, where an indictment is filed against an organization, cause a notice of the indictment to be served on the organization.

Contents of notice

(2) A notice of an indictment referred to in subsection (1) [notice to organization] shall set out the nature and purport of the indictment and advise that, unless the organization appears on the date set out in the notice or the date fixed under subsection 548(2.1) [setting preliminary inquiry date], and enters a plea, a plea of not guilty will be entered for the accused by the court, and that the trial of the indictment will be proceeded with as though the organization had appeared and pleaded.
R.S., 1985, c. C-46, s. 621; 1997, c. 18, s. 71; 2003, c. 21, s. 11.
[annotation(s) added]

CCC


Note up: 621(1) and (2)

Procedure on default of appearance

622 Where an organization does not appear in accordance with the notice referred to in section 621 [notice to organization], the presiding judge may, on proof of service of the notice, order the clerk of the court to enter a plea of not guilty on behalf of the organization, and the plea has the same force and effect as if the organization had appeared by its counsel or agent and pleaded that plea.
R.S., 1985, c. C-46, s. 622; 1997, c. 18, s. 72; 2003, c. 21, s. 11.
[annotation(s) added]

CCC


Note up: 622

Trial of organization

623 Where an organization appears and pleads to an indictment or a plea of not guilty is entered by order of the court under section 622 [procedure on default of appearance], the court shall proceed with the trial of the indictment and, where the organization is convicted, section 735 [fines for organizations] applies.
R.S., 1985, c. C-46, s. 623; 1995, c. 22, s. 10; 2003, c. 21, s. 11.
[annotation(s) added]

CCC


Note up: 623

Dissolved Corporations

A company that has been dissolved for more than a fixed number years cannot be prosecuted unless it is revived in the interim.[1]

  1. R v George, 2018 ABPC 20, per Malin J - 5 years after dissolution in Alberta

Liability as Parties

Offences of negligence — organizations

22.1 In respect of an offence that requires the prosecution to prove negligence, an organization is a party to the offence if

(a) acting within the scope of their authority
(i) one of its representatives is a party to the offence, or
(ii) two or more of its representatives engage in conduct, whether by act or omission, such that, if it had been the conduct of only one representative, that representative would have been a party to the offence; and
(b) the senior officer who is responsible for the aspect of the organization’s activities that is relevant to the offence departs — or the senior officers, collectively, depart — markedly from the standard of care that, in the circumstances, could reasonably be expected to prevent a representative of the organization from being a party to the offence.


2003, c. 21, s. 2.

CCC


Note up: 22.1

Other offences — organizations

22.2 In respect of an offence that requires the prosecution to prove fault — other than negligence — an organization is a party to the offence if, with the intent at least in part to benefit the organization, one of its senior officers

(a) acting within the scope of their authority, is a party to the offence;
(b) having the mental state required to be a party to the offence and acting within the scope of their authority, directs the work of other representatives of the organization so that they do the act or make the omission specified in the offence; or
(c) knowing that a representative of the organization is or is about to be a party to the offence, does not take all reasonable measures to stop them from being a party to the offence.


2003, c. 21, s. 2.

CCC


Note up: 22.2

Procedure

An accused organization shall appear by way of counsel or agent.[1] Where counsel or agent for an organzation has failed to appear upon being given proper notice the court may enter a plea of not guilty.[2]

  1. s. 620 "Every organization against which an indictment is filed shall appear and plead by counsel or agent."
  2. s. 622

Appearances

Organization

556 (1) An accused organization shall appear by counsel or agent.

Non-appearance

(2) Where an accused organization does not appear pursuant to a summons and service of the summons on the organization is proved, the provincial court judge or, in Nunavut, the judge of the Nunavut Court of Justice

(a) may, if the charge is one over which the judge has absolute jurisdiction, proceed with the trial of the charge in the absence of the accused organization; and
(b) shall, if the charge is not one over which the judge has absolute jurisdiction, fix the date for the trial or the date on which the accused organization must appear in the trial court to have that date fixed.


Preliminary inquiry not requested

(3) If an accused organization appears and a preliminary inquiry is not requested under subsection 536(4) [request for preliminary inquiry], the provincial court judge shall fix the date for the trial or the date on which the organization must appear in the trial court to have that date fixed.

Preliminary inquiry not requested — Nunavut

(4) If an accused organization appears and a preliminary inquiry is not requested under subsection 536.1(3) [request for preliminary inquiry – Nunavut], the justice of the peace or the judge of the Nunavut Court of Justice shall fix the date for the trial or the date on which the organization must appear in the trial court to have that date fixed.
R.S., 1985, c. C-46, s. 556; R.S., 1985, c. 27 (1st Supp.), s. 107; 1999, c. 3, s. 40; 2002, c. 13, s. 34; 2003, c. 21, ss. 9, 22.
[annotation(s) added]

CCC


Note up: 556(1), (2), (3), and (4)

See Also

Principles of Interpretation

General Principles

The purpose of statutory interpretation is to "ascertain legislative intent".[1]

Original vs Purposive Meaning

The wording in a statute "must be construed as they would have been the day after the statute was passed".[2] This is because the words required context to understand and that context must be what existed at the time of the enactment.[3]

Where the wording is "scientific or technical" then broad interpretation would "do violence" to the intent of Parliament.[4]

However, not all terms in statutes are "confined to their original meanings" and may be "capable of growth and development to meet changing circumstances". "Statutory categories" will include things that are not known at the time of passing the law. Similarly, language that is "broad or open-textured" will also be capable of such changes.[5]

There are limitations to "purposive interpretation". Courts cannot choose to do what was not enacted. Bad or outdated policy is properly remedied by Parliament not the courts.[6]

Legislative Purpose

The objectives of an enactment are not permitted to shift over time and new objects cannot be introduced by courts after-the-fact.[7]

Regardless of whether the law is ambiguous, the court must always consider the law's purpose and relevant context.[8] But this is particularly important when the provision is reasonably capable of multiple interpretations.[9]

The plain meaning of a word or phrase is not determinative as "[w]ords that appear clear and unambiguous may in fact prove to be ambiguous once placed in their context".[10]

Judicial Restraint

Judges are not entitled to "meddle" or refuse to enforce law absent Charter violation. They cannot use back-doors or skew reasons to get outcomes they want or promote policies they prefer.[11]

  1. R v Dineley, 2012 SCC 58 (CanLII) , [2012] 3 SCR 272, per Deschamps J (4:3), at para 44 ("Statutory interpretation aims to ascertain legislative intent, which is a shorthand reference to the intention which the court reasonably imputes to Parliament in respect of the language used... . The courts ascertain legislative intent by reading legislative language in context and in its grammatical and ordinary sense, harmoniously with the scheme and purpose of the legislation at issue:..." [quotation marks and citations omitted])
  2. R v Perka, 1984 CanLII 23 (SCC) , [1984] 2 SCR 232, per Dickson J, at pp. 264 to 265 ("The doctrine of contemporanea expositio is well established in our law. “The words of a statute must be construed as they would have been the day after the statute was passed…")
    cf. R v Brady, 1998 ABCA 7 (CanLII), per Cote JA, at para 7 ("Courts should interpret legislation purposively and contextually. The court should look at their context, overall wording, apparent legislative scheme, and the evil aimed at (where the latter is admissible). For example, what if the wording of a statute is reasonably open to two interpretations, only one of which will advance the general legislative scheme, is workable, and will not cause any injustice? The court will probably choose the workable and fair interpretation.")
  3. Perka, ibid., at pp. 264 to 265 ("Since a statute must be considered in the light of all circumstances existing at the time of its enactment it follows logically that words must be given the meanings they had at the time of enactment, and the courts have so held")
    R v DWL, 2016 SCC 22 (CanLII) , [2016] 1 SCR 402, per Cromwell J
  4. DWL, ibid., at para 61
  5. DWML, ibid., at para 61 ("The Court noted that not all terms in all statutes must always be confined to their original meanings. Broad statutory categories are often held to include things unknown when the statute was enacted and words in constitutional documents must be capable of growth and development to meet changing circumstances. However, that interpretative approach is most often taken when the statutory language is broad or open-textured. ")
  6. Krayzel Corp. v Equitable Trust Co., 2016 SCC 18 (CanLII) , [2016] 1 SCR 273, per Brown J (6:3), at para 32 ("[Courts] cannot “do by ‘interpretation’ what Parliament chose not to do by enactment”: ... . But the converse is also true: courts may not undo by “interpretation” what Parliament chose to do by enactment. If s. 8 reflects bad or outdated public policy, the remedy lies with Parliament, not with the courts.")
    Paragon Capital Corporation Ltd v Starke Dominion Ltd, 2020 ABCA 216 (CanLII), per Antonio JA (dissenting), at para 101
  7. Canada (Attorney General) v Bedford, 2013 SCC 72 (CanLII) , [2013] 3 SCR 1101, per McLachlin CJ, at para 132
    This is referred to as the "doctrine against shifting objectives"
  8. Geophysical Service Incorporated v EnCana Corporation, 2017 ABCA 125 (CanLII), per Schutz JA, at para 78, leave to appeal to SCC refused
    R v Vaillancourt, 2019 ABCA 317 (CanLII), at para 19
  9. Vaillancourt, ibid.
    Canada 3000 Inc., Re; Inter-Canadian (1991) Inc. (Trustee of), 2006 SCC 24 (CanLII), at para 44
    Bell ExpressVu Limited Partnership v Rex, 2002 SCC 42 (CanLII), at paras 29to 30
  10. Vaillancourt, ibid.
    Montréal (City) v 2952-1366 Québec Inc., 2005 SCC 62 (CanLII), at para 10
    R v Alex, 2017 SCC 37 (CanLII), at para 31
  11. Canada (Attorney General) v. Utah, 2020 FCA 224 (CanLII) per Stratas JA ("Harsh the policy might be. But judges--even the most experienced ones we have--cannot meddle with it or refuse to enforce it unless the legislation enacting it is unconstitutional. Nor can judges go through the back door and skew their reasons to get the outcomes they want or cite non-binding sources promoting policies they prefer: ... . Judges are only unelected lawyers who happen to hold a judicial commission. They have no right to smuggle into the task of statutory interpretation their personal views of what is best and then boost their views to the level of law that binds all. Under our constitutional arrangements, that is alone for our legislators, the people for whom we vote.")

Fundamental Principle

The fundamental principle of statutory interpretation is that "the words of a statute be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of the legislature"[1]

This fundamental rule has been treated as effectively an amalgam of three "classic rules of interpretation":[2]

  1. the "Mischief Rule" that considers legislative intent;
  2. the "Literal Rule" that considers the "textual meaning"; and
  3. the "Golden Rule" that considers the "entire context" including established legal norms.

It is understood that legislators choose to adopt “language which accurately conveys the effect of the law without in itself imposing an unnecessary burden of translation and explanation”.[3]

Whenever possible, every part of a provision should be assigned meaning.[4]

The "modern" approach to statutory interpretation can be divided into a separate inquiry of "(a) the statute's textual meaning; (b) the legislative intent; and (c) the entire context including the consideration of established heal norms"[5]

"Ordinary meaning" refers "to the reader’s first impression meaning, the understanding that spontaneously comes to mind when words are read in their immediate context".[6] It is the "natural meaning which appears when the provision is simply read through".[7]

Legislative intent is not to be considered "frozen in time". Its meaning will "respon[d] to the inevitability of changing circumstances".[8]

  1. Rizzo & Rizzo Shoes Ltd. (Re), 1998 CanLII 837 (SCC), [1998] 1 SCR 27, per Iacobucci J, at para 21
    R v Bell Expressive Limited Partnership v Rex, 2002 SCC 42 (CanLII) , [2002] 2 SCR 559, per Iacobucci J, at para 26
    Application under s. 83.28 of the Criminal Code (Re), 2004 SCC 42 (CanLII) , [2004] 2 SCR 248, per Iacobucci and Arbour JJ, at para 34 ("The modern principle of statutory interpretation requires that the words of the legislation be read “in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament”: [citation omitted]. This is the prevailing and preferred approach to statutory interpretation: [citation omitted] The modern approach recognizes the multi‑faceted nature of statutory interpretation. Textual considerations must be read in concert with legislative intent and established legal norms. ") R v Brode, 2012 ONCA 140 (CanLII), per Epstien JA, (“direct that the words of a statute be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of the legislature.”)
    British Columbia v Henfrey Samson Belair Ltd, 1989 CanLII 43 (SCC) , [1989] 2 SCR 24, per McLachlin J, at p. 31 ("the provisions of an enactment relevant to a particular case are to be read in the following way:... The Act as a whole is to be read in its entire context so as to ascertain the intention of Parliament (the law as expressly or impliedly enacted by the words), the object of the Act (the ends sought to be achieved), and the scheme of the Act (the relation between the individual provisions of the Act).... The words of the individual provisions to be applied to the particular case under consideration are then to be read in their grammatical and ordinary sense in the light of the intention of Parliament embodied in the Act as a whole, the object of the Act and the scheme of the Act, and if they are clear and unambiguous and in harmony with that intention, object and scheme and with the general body of the law, that is the end.")
    R v Rioux, 1969 CanLII 83 (CSC) , [1969] SCR 599, 8 C.R.N.S. 21, [1970] 3 CCC 149, 10 DLR (3d) 196, per Hall J, at p. 26 ("First, in criminal matters, the phraseology used by Parliament must be given its ordinary meaning; this is a fundamental rule of interpretation.")
    R v Barton, 2019 SCC 33 (CanLII)}, per Moldaver J, at paras 70 to 71
    R v Myers, 2019 SCC 18 (CanLII), per Wagner CJ, at para 19
    R v Jarvis, 2019 SCC 10 (CanLII), per Wagner CJ, at para 24
    R v Carson, 2018 SCC 12 (CanLII), per Karakatsanis J, at para 32
    R v Canadian Broadcasting Corporation, 2018 ABCA 391 (CanLII), per Rowbotham JA, at para 18
    R v Paterson, 2017 SCC 15 (CanLII), per Brown J, at para 31
  2. Cape Breton (Regional Municipality) v Nova Scotia (Attorney General), 2009 NSCA 44 (CanLII), per Macdonald CJ, at paras 36 to 41
  3. Howard’s Criminal Law (5th ed. 1990), at p. 11
  4. R v AA, 2015 ONCA 558 (CanLII), per Watt JA, at para 67
    R v Hutchinson, 2014 SCC 19 (CanLII), per McLachlin CJ and Cromwell J, at para 16
    Ruth Sullivan, Sullivan on the Construction of Statutes, 5th ed. (LexisNexis, 2008), at p. 210
  5. Capre Breton (Regional Municipality) v Nova Scotia (Attorney General), supra, at paras 36 to 38
  6. Pharmascience Inc. v Binet, 2006 SCC 48 (CanLII) , [2006] 2 SCR 513, per LeBel J, at para 30
    R v Wookey, 2016 ONCA 611 (CanLII), per Tulloch JA, at para 25
  7. Canadian Pacific Air Lines Ltd. v Canadian Air Line Pilots Assn., 1993 CanLII 31 (SCC), [1993] 3 SCR 724, per Gonthier J, at p. 735
    Pharmascience Inc v Binet, supra, at para 30
    Wookey, supra, at para 25
  8. R v 974649 Ontario Inc, 2001 SCC 81 (CanLII), per McLachlin CJ, at para 38 (" The intention of Parliament or the legislatures is not frozen for all time at the moment of a statute’s enactment, such that a court interpreting the statute is forever confined to the meanings and circumstances that governed on that day. Such an approach risks frustrating the very purpose of the legislation by rendering it incapable of responding to the inevitability of changing circumstances. Instead, we recognize that the law speaks continually once adopted")

Ambiguity

Where there is no ambiguity the fundamental principle of interpretation is the only principle that applies. The other principles only apply where there is "ambiguity".[1]

Ambiguity exists where the provision is "reasonably capable of more than one meaning".[2] The ambiguity must be "real".[3] Two or more interpretations must be "each equally in accordance with the intentions of the statute".[4]

Ambiguity does not exist merely where courts or other writers disagree on interpretation.[5]

Ambiguity in the wording of one language may be resolved by considering whether the other language wording provides clarity before considering other principles of interpretation.[6]

Where the meaning of the English and French versions diverge, the proper interpretation should be the lowest common denominator.[7]

  1. Bell ExpressVu Limited Partnership v Rex, 2002 SCC 42 (CanLII) , [2002] 2 SCR 559, per Iacobucci J, at paras 26 to 28
  2. Bell ExpressVu, supra, at para 29 ("What, then, in law is an ambiguity? To answer, an ambiguity must be “real” [citation omitted]. The words of the provision must be “reasonably capable of more than one meaning” [citation omitted]. By necessity, however, one must consider the “entire context” of a provision before one can determine if it is reasonably capable of multiple interpretations. In this regard, Major J.’s statement in CanadianOxy Chemicals Ltd. v. Canada (Attorney General) [citation omitted], is apposite: “It is only when genuine ambiguity arises between two or more plausible readings, each equally in accordance with the intentions of the statute, that the courts need to resort to external interpretive aids” (emphasis added), to which I would add, “including other principles of interpretation”.")
  3. Bell ExpressVu, supra, at para 29
  4. Bell ExpressVu, supra, at para 29
  5. Bell ExpressVu, supra, at para 30
  6. R v Mac, 2002 SCC 24 (CanLII) , [2002] 1 SCR 856, per Bastarache J, at paras 26 to 31
  7. R v Daoust, 2004 SCC 6 (CanLII) , [2004] 1 SCR 217, per Bastarache J (7:0), at para 2

Other Principles

Error or Omissions

The court has no authority to correct any errors or omissions in legislation where it is a "clearly drafted enactment".[1]

Principle of legality

The principle of legality requires that legislation provide a degree of certainty, and should reflect “the overall need to use the criminal law with restraint”[2]

No surplusage and presumption against tautology

No provision in an act "should be interpreted so as to render it mere surplusage.”[3] Stated differently there is a presumption against legislative bodies using "superfluous or meaningless words".[4]

It is a principle that "Parliament does not speak in vain".[5]

Parliament is presumed to have a purpose for each provision and avoids superfluous and meaningless language.[6]

There is a presumption against legislative drafters being redundant.[7]

Remedial Purpose

Under s. 12 of the Interpretation Act, "[e]very enactment is deemed remedial, and shall be given such fair, large and liberal construction and interpretation as best ensures the attainment of its objects."[8] This requires that the court examine what the problem the act is attempting to solve and interpret the meaning in that light.[9]

Constitutional Interpretation and Charter values

Where multiple interpretations exist the court should only consider those interpretations that are constitutional.[10]

A provision should be interpreted to conform with "Charter values".[11]

This principle only applies where there is ambiguity.[12]

International Law

It is presumed that all laws of Canada are to accord with international law.[13] Parliament is free to make laws that conflict, but it should do so "clearly and expressly".[14]

Presumption of Consistent or Uniform Expression (same words, same meaning)

Unless it appears otherwise, the same words used by the legislature have the same meaning within a statute, and different words have different meanings.[15]

"[A]bsent express language to the contrary, the same words in two subsections of the same provision should be treated alike... Giving the same words the same meaning throughout a statute is a basic principle of statutory interpretation".[16]

The principle of "uniformity of expression" states that a word or phrase should have one and only one meaning across the statute and enabled regulation. The opposite is also true, the use of different wording implies a different meaning.[17] The principles of uniformity of expression are not infallible.[18]

Amending the common law

There is a presumption against interpreting statutes as changing the common law, except where they "clearly and unambiguously" intend to do so.[19]

Avoiding absurdities

Where the language of a statue has multiple meanings, it must be interpreted to exclude absurd results. [20]

General wording

General wording of a statute is to provide the court with the responsibility to interpret in a prescriptive manner.[21]

Associated words rule

Terms associated with each other in the form of an enumeration linked by "and" or "or" are to "serve an analogous grammatical and logical function within a provision". The terms are to "draw colour" from each other through their commonality and differences. This is to be used to resolve ambiguity or limit the scope of the terms.[22]

Last Antecedents

When legislation lists a series of clauses, a "comma before a qualifying word ordinarily indicates that they are meant to apply to all antecedents while the absence of a comma indicates that they are meant to apply to the last antecedent alone."[23]

Relative words "must ordinarily be referred to the last antecedent" to give the words full meaning.[24] This rule should yield where the result "makes nonsense".[25]

Deference to Parliament

Deference must be given to the manner chosen to achieve its objectives.[26]

Legislative History

The history of legislation can be an important part of "the context" for statutory interpretation.[27] The history can sometimes provide insight into how to interpret the provision.[28]

House of Commons debates that indicate the object of the bill can regularly be relied upon as evidence for the legislative purpose.[29]

Legislative Headers and Marginal Notes

Marginal notes are of limited value.[30] However, they can be "relevant to interpreting the provisions arranged under it".[31]

  1. R v Daoust, 2004 SCC 6 (CanLII) , [2004] 1 SCR 217, per Bastarache J (7:0), at para 45
  2. see D. Stuart, Criminal Law: A Treatise (5th ed. 2007), at p. 86
  3. R v Proulx, 2000 SCC 61 (CanLII), per Lamer CJ, at para 25
  4. R v Ali, 2019 ONCA 1006 (CanLII), per Watt JA, at para 67 ("We presume that legislative bodies avoid superfluous or meaningless words. Every word and phrase used in a statute has a meaning and a function. Thus, we eschew interpretations that render any portion of a statute meaningless, pointless, or redundant")
    Winters v. Legal Services Society, 1999 CanLII 656 (SCC) , [1999] 3 SCR 160, per Binnie J, at para 48
    R v Katigbak, 2011 SCC 48 (CanLII) , [2011] 3 SCR 326, per McLachlin C.J. and Charron J, at para 59
  5. Attorney General of Quebec v Carrières Ste-Thérèse Ltée, 1985 CanLII 35 (SCC) , [1985] 1 SCR 831, per curiam, at p. 838
  6. Medovarski v Canada, 2005 SCC 51 (CanLII) , [2005] 2 SCR 539, [2005] S.C.J. No. 31 (QL), per McLachlin CJ, at paras 31 to 38
    R v Plummer, 2006 CanLII 38165 (ON CA) , (2006), 214 CCC (3d) 84, [2006] OJ No 4530 (ONCA), per Rosenberg JA, at para 19
    R v Joncas, 2007 NBCA 28 (CanLII) , [2007] NBJ No. 152, per Drapeau CJ, at para 17
  7. R v Shand, 2011 ONCA 5 (CanLII), per Rouleau JA, at para 107
    National Automobile, Aerospace Transportation and General Workers Union of Canada (CAW - Canada) Local No. 27 v. London Machinery Inc., 2006 CanLII 8711 (ON CA) , 79 O.R. (3d) 444 (C.A.), per Cronk JA, at para 7
  8. R.S., c. I-23, s. 11.
  9. R v Gladue, 1999 CanLII 679 (SCC) , [1999] 1 SCR 688, per Cory and Iacobucci JJ, at paras 31 to 34
    Canada 3000 Inc., Re; Inter‑Canadian (1991) Inc. (Trustee of), 2006 SCC 24 (CanLII) , [2006] 1 SCR 865, per Binnie J, at para 36 ("the notion that a statute is to be interpreted in light of the problem it was intended to address is as old at least as the 16th century”)
  10. Slaight Communications v Davidson, 1989 CanLII 92 (SCC) , [1989] 1 SCR 1038, per Dickson CJ
    R v Canadian Pacific Ltd., 1995 CanLII 112 (SCC) , [1995] 2 SCR 1031, per Gonthier J, at para 12
    R v Nickel City Transport (Sudbury) Ltd., Nickel City Transport (Sudbury) Ltd., 1993 CanLII 8483 (ON CA)
    R v Rube, 1992 CanLII 34 (SCC) , [1992] 3 SCR 159, per Lamer CJ
  11. Bell ExpressVu, supra
    Hills v Canada (Attorney General), 1988 CanLII 67 (SCC) , [1988] 1 SCR 513, per L'Heureux‑Dubé J, at para 93 ("Appellant ... urged that preference be given to Charter values in the interpretation of a statute, ... I agree that the values embodied in the Charter must be given preference over an interpretation which would run contrary to them... ")
    R v Nova Scotia Pharmaceutical Society, 1992 CanLII 72 (SCC), per Gonthier J ("It must be remembered that if there are two possible interpretations of a statutory provision, one of which embodies the Charter values and the other does not, that which embodies the Charter values should be adopted.")
  12. Bell ExpressVu, supra
  13. R v Hape, 2007 SCC 26 (CanLII) , [2007] 2 SCR 292, per LeBel J , at para 53
  14. R v Chowdhury, 2014 ONSC 2635 (CanLII), per Nordheimer J , at para 20
  15. R v AA, 2015 ONCA 558 (CanLII), per Watt JA (3:0), at para 68
    R v Ali, 2019 ONCA 1006 (CanLII), per Watt JA, at para 68 ("We also presume the legislative body uses language in a careful and consistent manner. Thus, within a statute, the same words and phrases have the same meaning and different words and phrases have different meanings. Unless the context clearly indicates otherwise, words and phrases should be assigned the same meaning wherever they appear in a statute")
    Ruth Sullivan, Sullivan on the Construction of Statutes, 5th ed. (LexisNexis, 2008), at 214 to 215
    R v Zeolkowski, 1989 CanLII 72 (SCC) , [1989] 1 SCR 1378, per Sopinka J (5:0), at p. 1387
    R v Bansal, 2017 BCCA 93 (CanLII), per Frankel JA (3:0), at para 41 (the principles "presumes that, unless the contrary appears, the same words will have the same meaning in a statute, particularly when they are used in close proximity")
  16. R v Charette, 2009 ONCA 310 (CanLII), per Moldaver JA (3:0), at para 38 citing Zeolkowski, supra, at p. 1387
  17. see Maurice v Priel, 1987 CanLII 207 (SK CA), per Bayda CJ, at pp. 20-21
  18. R v Trang, 2001 ABQB 106 (CanLII), per Binder J, at para 21
  19. R v Goleski, 2014 BCCA 80 (CanLII), per Frankel JA (3:0), at para 77
    Slaight Communications Inc. v Davidson, 1989 CanLII 92 (SCC) , [1989] 1 SCR 1038, per Dickson CJ, at p. 1077
    Parry Sound (District) Social Services Administration Board v. O.P.S.E.U., Local 324, 2003 SCC 42 (CanLII), [2003] 2 SCR 157, per Iacobucci J, at para 39
    Heritage Capital Corp. v. Equitable Trust Co., 2016 SCC 19 (CanLII), [2016] 1 SCR 306, per Gascon and Côté JJ (9:0), at paras 29 to 30
  20. R v Canadian Pacific Ltd., 1995 CanLII 112 (SCC) , (1995), 99 CCC (3d) 97 (SCC), per Gonthier J, at para 65
    R v Hinchey, 1996 CanLII 157 (SCC), per L’Heureux-Dubé J
    Rizzo, supra, at para 27
    Ali, supra, at para 71 ("An interpretation that leads to an absurdity may be rejected in favour of a plausible alternative that avoids the absurdity.")
    R v McIntosh, 1995 CanLII 124 (SCC) , [1995] 1 SCR 686, per Lamer CJ, at p. 722 (SCR)
    Morgentaler v. The Queen, 1975 CanLII 8 (SCC), [1976] 1 S.C.R. 616, per Pigeon J, at p. 676
  21. R v Beauchamp, 2009 CanLII 37720 (ON SC), per Smith J, at paras 40 to 41
  22. R v Ali, 2019 ONCA 1006 (CanLII), per Watt JA, at para 69 ("The associated words rule may be invoked when two or more terms, linked by “and” or “or”, serve an analogous grammatical and logical function within a provision. The terms draw their colour from each other. We look to a common feature among the terms and rely on that common feature to resolve ambiguity or limit the scope of the terms")
    R v Goulis, 1981 CanLII 1642 (ON CA), 60 CCC (2d) 348 (Ont. C.A.), per Martin JA, at pp. 352-353
    See also, Ontario v Canadian Pacific Ltd., 1995 CanLII 112 (SCC), [1995] 2 SCR 1031, per Gonthier J, at para 64
    R v Daoust, 2004 SCC 6 (CanLII) , [2004] 1 SCR 217, per Bastarache J, at paras 49 to 51
    Opitz v Wrzesnewskvj, 2012 SCC 55 (CanLII), [2012] 3 SCR 76, per Rothstein and Moldaver JJ, at paras 40 to 43
  23. R v CL, 2005 NSFC 21 (CanLII), per Comeau J, at para 7 citing Dreidger, "Construction of Statutes (3rd Ed.), at p. 277
  24. Re Hinton Avenue, Ottawa, 1920 CanLII 443 (ON CA), per Sutherland JA
  25. R v Frank, [1978] 1 SCR 95, 1977 CanLII 152 (SCC), per Dickson J (9:0)
  26. Beauchamp, ibid., at paras 42 to 44
  27. R v ADH, 2013 SCC 28 (CanLII), per Cromwell J, at para 30
    Canada (Canadian Human Rights Commission) v Canada (Attorney General), 2011 SCC 53 (CanLII), [2011] 3 SCR 471, per LeBel and Cromwell JJ, at para 43
  28. Goleski, ibid., at para 31
    R v Ulybel Enterprises Ltd., 2001 SCC 56 (CanLII), per Iacobucci J (7:0), at para 33
    Chieu v Canada (Minister of Citizenship and Immigration), 2002 SCC 3 (CanLII), per Iacobucci J, at para 34
    Montréal (City) v 2952-1366 Québec Inc., 2005 SCC 62 (CanLII), per McLachlin CJ and Deschamps J, at para 17
    McDiarmid Lumber Ltd. v God’s Lake First Nation, 2006 SCC 58 (CanLII), per McLachlin CJ, at para 46
  29. see e.g. Canadian National Railway Co v Canada (A.G.), 2014 SCC 40 (CanLII), [2014] 2 SCR 135, per Rothstein J (7:0), at para 47
  30. Interpretation Act, s. 14
    Imperial Oil Ltd. v Canada; Inco Ltd. v Canada, 2006 SCC 46 (CanLII), [2006] 2 SCR 447, per LeBel J (4:3), at para 57
    R v Wigglesworth, 1987 CanLII 41 (SCC), [1987] 2 SCR 541, [1987] S.C.J. No. 71 (QL), per Wilson J, at paras 18 to 19
    Skapinker v Law Society of Upper Canada, 1984 CanLII 3 (SCC), [1984] 1 SCR 357, [1984] S.C.J. No. 18 (QL), per Estey J, at para 25 - Charter interpretation, (“These headings in Part I appear to be integral to the Charter provisions and hence of more significance than the marginal notes and chapter headings sometimes appearing in the statutes.”)
  31. Ambrosi v. British Columbia (Attorney General), 2014 BCCA 123 (CanLII), per Bennett JA (3:0), at para 54
    Law Society of Upper Canada v Skapinker, supra

Interpreting the Criminal Code

The common law rules and principles can be used to explain the outlines and boundaries of a defence.[1]

Under s. 8(2) provides that the English criminal law as it existed immediately before April 1, 1955, are still applicable to Canada. This does not include the common law or statutory offences from Great Britain.[2]

If a penal provision is ambiguous as it has two reasonably capable interpretations, "that interpretation which is the more favourable to the accused must be adopted".[3]

Interpreting Terms Not Otherwise Defined

Where statute has not defined a term within the Criminal Code it is open to the judge to consult a dictionary to assist in defining its meaning.[4]

Cross-References

Interpretation of cross-referencing is addressed in s. 3 of the Interpretation Act:

Descriptive cross-references

3. Where, in any provision of this Act, a reference to another provision of this Act or a provision of any other Act is followed by words in parenthesis that are or purport to be descriptive of the subject-matter of the provision referred to, the words in parenthesis form no part of the provision in which they occur but shall be deemed to have been inserted for convenience of reference only.
1976-77, c. 53, s. 2.

CCC


Note up: 3

Cross-references are not binding on interpretation and are effectively illustrative.[5]

Any parenthetical notes found in the criminal code are not operative and are inserted "only for ease of reference".[6]


  1. R v Jobidon, 1991 CanLII 77 (SCC), [1991] 2 SCR 714, per Gonthier J ("courts to look to preexisting common law rules and principles to give meaning to, and explain the outlines and boundaries of an existing defence or justification, indicating where they will not be recognized as legally effective -- provided of course that there is no clear language in the Code which indicates that the Code has displaced the common law.")
  2. see s. 9
  3. Regina v Goulis, 1981 CanLII 1642 (ON CA), per Martin JA
    United States of America v Dynar, [1997] 2 SCR 462, 1997 CanLII 359 (SCC), per Cory and Iacobucci JJ, at p. 503
  4. R v St. Pierre, 1974 CanLII 874 (ON CA), per Dubin JA
  5. eg. see R v JJR, 2003 CanLII 32169 (ON CA), per MacPherson JA
  6. R v Pritchard, [2008] 3 SCR 195, 2008 SCC 59 (CanLII), per Binnie J (7:0), at para 25

Specific Wording

"means" vs "includes"

The word "means" when defining terms is means to be "explanatory and restrictive" in nature. While "includes" is "extensive" in nature.[1] "Means" "indicates that the definition is exhaustive".[2] An "exhaustive" term is one where the definition "completely displace[s] whatever meanings the defined term might otherwise bear in ordinary or technical usage".[3]

"appropriately"

The word "appropriately" connotes that the application judge retains "some degree of discretion considering and weighing relevant factors, not the mechanical application of a narrow jurisdictional test".[4]

Evidence to the Contrary

See Presumptions

Appellate Review

Interpretation of a section of the Criminal Code is a question of law and is reviewable on a standard of correctness.[5]

  1. R v Sheets, 1971 CanLII 130 (SCC) , [1971] SCR 614, per Fauteux CJ, at pp. 619 to 620
  2. R v Wookey, 2016 ONCA 611 (CanLII), per Tulloch JA, at para 34
  3. Wookey, ibid., at para 34
    R v ADH, 2013 SCC 28 (CanLII) , [2013] 2 SCR 269, per Cromwell J, at para 43
    Yellow Cab Ltd v Alberta (Industrial Relations Board), 1980 CanLII 228 (SCC) , [1980] 2 SCR 761, per Ritchie J, at pp. 768-69
  4. Icecorp International v Nicolaus, 2007 BCCA 97 (CanLII), per Levine JA, at para 23
    see also R v Penney-Flynn, 2018 CanLII 116040 (NL PC), at paras 26 to 28
  5. R v Goulet, 2011 ABCA 230 (CanLII), per Slatter JA, at para 7
    R v Hubek, 2011 ABCA 254 (CanLII) , 513 AR 194, per curiam, at para 6
    R v McColl, 2008 ABCA 287 (CanLII), per Hunt JA, at para 8

Interpreting Criminal Offences

There are recognized limits on the ability of criminal law to fulfill its objectives. The criminal law must be restrained and avoid over-criminalizing peoples' activities. There must be a distinction made between true-crime deserving of "harsh sanctions" and conduct that is merely undesirable or unethical but "lacks the reprehensible character of criminal acts"[1]

The criminal nature of an offence is a key feature to the statutory construction analysis.[2]

The criminal law must provide "fair notice of what is prohibited and clear standards of enforcement".[3]

The "most direct and authoritative evidence" of a provision's legislative purpose is in the enacting legislation, including "the beginning of a statute, in the section in which a provision is found, or in sections providing interpretive guidelines".[4]

Offences should be interpreted purposively in a manner consistent with the philosophy and rationale of the legislative objectives.[5]

Offences should not be interpreted as penalizing trivial act.[6]

strict construction

The rule of strict construction does not apply when the Offence definition is resolved and not ambiguous.[7]

There must be "express" wording that indicates that penalties include incarceration. Incarceration by implication is not sufficient.[8]

wording across different acts

Also, under s. 4(4):

4.
[omitted (1), (2) and (3)]

Expressions taken from other Acts

(4) Where an offence that is dealt with in this Act relates to a subject that is dealt with in another Act, the words and expressions used in this Act with respect to that offence have, subject to this Act, the meaning assigned to them in that other Act.
[omitted (5), (6), (6.1), (7) and (8)]
R.S., 1985, c. C-46, s. 4; R.S., 1985, c. 27 (1st Supp.), s. 3; 1994, c. 44, s. 3; 1997, c. 18, s. 2; 2008, c. 18, s. 1.

CCC


Note up: 4(4)

  1. R v Hutchinson, 2014 SCC 19 (CanLII), per McLachlin CJ and Cromwell JJ, at para 18
  2. R v Canadian Broadcasting Corporation, 2018 ABCA 391 (CanLII), per Rowbotham JA, at para 3 (the criminal nature is a "key feature to the statutory construction analysis which follows. Under the rule of law, prosecution for criminal conduct should never be on an uncertain legal footing."
  3. Hutchinson, ibid., at para 18
  4. R v Appulonappa, 2015 SCC 59 (CanLII), per McLachlin CJ, at para 49
  5. R v Fong, 1994 ABCA 267 (CanLII) , (1994), 92 CCC (3d) 171 (C.A.), per curiam, leave denied (1995), 94 CCC (3d) vii - in context of s. 152
  6. R v Beauchamp, 2009 CanLII 37720 (ON SC), per R Smith J, at paras 38 to 39
  7. R v Mac, 2002 SCC 24 (CanLII) , [2002] 1 SCR 856, per Bastarache J, at para 4
    R v Hasselwander, 1993 CanLII 90 (SCC) , [1993] 2 SCR 398, per Cory J, at paras 27 to 31
    Canadian Broadcasting Corporation, supra, at paras 19 to 21
  8. Marcotte v Canada (Deputy Attorney General), 1974 CanLII 1 (SCC) , [1976] 1 SCR 108, per Dickson J

Rules of Evidence

Parliament must be explicit if it seeks to remove the common law requirements for the qualification of experts.[1]

  1. R v Bingley, [2017] 1 SCR 170, 2017 SCC 12 (CanLII), per McLachlin CJ

Charter Interpretation

The goal of Charter interpretation to secure for all people "the full benefit of the Charter's protection".[1]

Purposive Interpretation

This requires a judge to interpret a Charter right using a "purposive approach"[2] (or sometimes called "purposive analysis").[3] This mean that a right is to be understood "in light of the interests it was meant to protect".[4] It should be interpreted in "a manner that best ensures the attainment of its objects".[5]

It is important that the right be "generous" and not "a legalistic one", while at the same time not to "overshoot" the "actual purpose" of the right.[6] The effect of a purposive interpretation should "normally ... be to narrow the scope of the right".[7]

Similarly the interpretation of any Charter right must not "second-guess" and instead should "respect proper choice[s]" of the government.[8]

The right must be "placed in its proper linguistic, philosophic and historical contexts".[9]

In interpreting the Charter judges must avoid "adjudicati[ng] the merits of public policy".[10]

Living Tree Doctrine

The Charter is to be interpreted using the "living tree" doctrine, which requires the meaning of the text to be capable of "growth and expansion".[11]

"Historical materials" such as legislative history should not be used to "stunt [the Charter's] growth".[12]

Legislative History

Speeches and statements of public servants and minutes of the parliamentary committees who assisted in drafting the Constitution are of limited weight for reasons including that it would freeze the rights as they were at the time of drafting.[13]

Remedies

When applying purposive interpretation it requires that remedies be interpreted in a way to provide "a full effective and meaningful remedy for Charter violations".[14] A Charter remedy must crafted to be responsive and effective.[15]

United States

In the US constitutional interpretation of the Eighth Amendment (similar to our s. 8 of the Charter) the provision "must draw its meaning from the evolving standards of decency that mark the progress of a maturing society."[16]

  1. R v Morgentaler, 1988 CanLII 90 (SCC), per Dickson CJ, at p. 51
    R v Big M Drug Mart Ltd, 1985 CanLII 69 (SCC), [1985] 1 SCR 295, per Dickson J, at p. 344
  2. R v Brydges, 1990 CanLII 123 (SCC), [1990] 1 SCR 190, per Lamer J
  3. Hunter v Southam Inc., 1984 CanLII 33 (SCC), [1984] 2 SCR 145, per Dickson J
    R v Big M Drug Mart Ltd., 1985 CanLII 69 (SCC), [1985] 1 SCR 295, per Dickson J
    R v KRJ, 2016 SCC 31 (CanLII), per Karakatsanis J, at para 29 - re s. 11(i)
    R v Rodgers, 2006 SCC 15 (CanLII), [2006] 1 SCR 554, per Charron J, at paras 61 and 63 - re s. 11(i)
  4. Big M Drug Mart, supra, at p. 344
    Morgentaler, supra, at p. 52
    Hunter v Southam, supra
    R v Therens, 1985 CanLII 29 (SCC), [1985] 1 SCR 613
  5. R v 974649 Ontario Inc, 2001 SCC 81 (CanLII), per McLachlin CJ (9:0), at para 18
  6. Big M Drug Mart, supra, at p. 117
  7. R v Stillman, 2019 SCC 40 (CanLII), per Moldaver and Brown JJ, at para 21
    Hogg, Peter W., Constitutional Law of Canada, 5th ed. Supp. Scarborough, Ont.: Thomson/Carswell, 2007 (updated 2017, release 1) ("In the case of most rights ... the widest possible reading of the right, which is the most generous interpretation, will “overshoot” the purpose of the right, by including behaviour that is outside the purpose and unworthy of constitutional protection. The effect of a purposive approach is normally going to be to narrow the scope of the right. Generosity is a helpful idea as long as it is subordinate to purpose.")
  8. Vriend v Alberta, 1998 CanLII 816 (SCC), [1998] 1 SCR 493, per Cory and Iacobucci JJ, at para 136
  9. Big M Drug Mart, supra, at p. 117
  10. Re BC Motor Vehicles, ibid., at p. 499
    Morgentaler, supra, at p. 53
  11. Re B.C. Motor Vehicle Act, [1985] 2 SCR 486, 1985 CanLII 81 (SCC), per Lamer CJ, at para 53
    Law society of Upper Canada v Skapinker, [1984] 1 SCR 357, 1984 CanLII 3 (SCC), per Estey J
  12. Re B.C. Motor Vehicle Act, ibid., at para 53
  13. Re B.C. Motor Vehicle Act, ibid., at para {{{2}}}
  14. Doucet-Boudreau v Nova Scotia (Minister of Education), 2003 SCC 62 (CanLII), [2003] 3 SCR 3, per Iacobucci and Arbour JJ, at para 25
  15. Doucet-Boudreau, ibid., at para 25
  16. Trop v. Dulles 356 U.S. 86 (1958) [1]

Legislative Amendments

Stare Decisis

Interpreting Court Orders

Interpreting an order is a "question of law" and no deference is owed on review. It is an objective assessment on a standard of correctness.[1]

There is an exception where a judge's interpretation of his own orders is "entitled to considerable deference".[2]

Where record of the decision is available, it will be necessary to conform the order to the decision.[3]

In interpreting an order "a Court will use accepted principles of statutory and contractual interpretation to ascertain the intent of the ordering judge".[4]Those principles of statutory and contractual interpretation are "analogous" to the principles to be applied to looking at the "intent of the ordering judge"[5]

The "contextual approach to interpreting statutes ...with necessary modification, apply to the interpretation of orders."[6]

  1. Royal Bank of Canada v Robertson, 2016 NSSC 176 (CanLII), per Moir J, at para 11
  2. Boily v Carleton Condo. Corp., 2014 ONCA 574 (CanLII), per Epstein JA (2:1), at para 71
  3. Robertson, supra, at para 13
  4. Canadian National Railway v Holmes, 2015 ONSC 3038 (CanLII), per McEwan J, at para 18
    Robertson, supra, at para 14
  5. Robertson, supra, at para 15
    L’Homme v Pliskevicius Estate, 2011 ONSC 6102 (CanLII), per Crane J, at para 22
  6. Robertson, supra, at para 19

See Also

Interpreting Legislative Amendments

General Principles

Presumption of Intention

Amendments are presumed to be made for an "intelligent purpose" such as "clarifying or correcting a mistake in the enactment or change in the law".[1]

Retroactive and Retrospective Laws

A "retroactive" law is an amendment that changes the interpretation of the law as it would have been applied prior to the existence of the amendment.[2] A "retrospective" law is an amendment that applies only from the date of enactment but changes the legal effect of events occurring prior to the enactment.[3]

  1. R v AA, 2015 ONCA 558 (CanLII), per Watt JA, at para 69 ("when a statute is amended by the legislature, we presume that the amendment was made for an intelligible purpose, such as clarifying or correcting a mistake in the enactment or change in the law: ... . Section 45(2) of the Interpretation Act, ... makes it clear that an amendment is not deemed to involve a declaration that the pre-amendment law was or was considered by Parliament to be different from the post-amendment law.")
    Ruth Sullivan, Sullivan on the Construction of Statutes, 5th ed. (LexisNexis, 2008), at p. 579
    see also s. 45(2) of the Interpretation Act
  2. e.g. R v RS, 2019 ONCA 906 (CanLII), per Doherty JA, at paras 21 and 25 ("Retroactive laws refer to legislation that deems the law to have been something different than it actually was as of a date that precedes the enactment of the law. Truly retroactive laws are rare and commonly target a specific situation with language aimed at addressing a very specific problem.")
  3. RS, ibid., at paras 23, 26 ("Retrospective laws operate only from the date of enactment, but change the legal effects, on a going forward basis, of events that occurred before the enactment.")

Application of Previous Laws

Amendments generally only have retrospective effect in exceptional circumstances. As there is a presumption against retrospectivity where a vested or substantive right is affected.[1]

Presumption of Prospectivity

Where an amendment interferes with substantive rights, there is a rebuttable presumption that it applies prospectively only.[2]

Constitutional rights

Where an amendment to legislation affects a constitutional right, it generally means that the legislation will not be retrospective.[3] This is preferred over the older method of looking at whether the legislation is "procedural" or "substantive".[4]

Substantive Law Amendments

Where there has been an amendment to substantive law, only the law as it existed on the dates of the offence will govern at a trial occurring after the date of the amendment.[5]

Procedural Amendments

New legislation that is "designed to govern only the manner in which rights are asserted or enforced" is procedural and "does not affect the substance of those rights." The act then would apply to both "pending and future cases".[6]

Effect of Amendment on Available Defences

An amendment that has an effect on the content or existence of an available defence suggests is an indicator that it affects substantive rights, and so is not retrospective.[7]

Such an amendment of a substantive right will be retrospective only where there is "clear legislative intent" that the new provision applies retrospectively.[8]

  1. R v Dineley, 2012 SCC 58 (CanLII)
  2. R v RS, 2019 ONCA 906 (CanLII), per Doherty JA, at para 27
  3. Dineley, ibid.
  4. Dineley, ibid.
  5. R v Zhu, 2019 ABPC 74 (CanLII), per Cummings J
    R v KRJ, 2016 SCC 31 (CanLII), per Karakatsanis J
    R v Clarke, 2014 SCC 28 (CanLII), per Abella J
    Dinely, supra
  6. Dineley, ibid., at para 10
  7. Dineley, ibid. - removal of Carter defence creates presumption against retrospectivity
  8. R v Singh, 2016 ONSC 3739 (CanLII), at para 44
    Dineley, supra, at para 10

Effect of Increased Penalties

An increase in a maximum penalty is a "clear indication to sentencing courts of the seriousness which the criminal conduct addressed by the changes is viewed by contemporary society."[1] The increase should be respected by sentencing judges by imposing higher sentences than before.[2]

There is some concern that the increase of minimum penalties should not be read into "too much".[3]

  1. R v Richardson, [2006] EWCA Crim 3186(*no CanLII links) , at para 4
  2. R v Friesen, 2020 SCC 9 (CanLII), per J, at para 100 ("To respect Parliament’s decision to increase maximum sentences, courts should generally impose higher sentences than the sentences imposed in cases that preceded the increases in maximum sentences. ... Parliament’s view of the increased gravity of the offence as reflected in the increase in maximum sentences should be reflected in [translation] “toughened sanctions” ... Sentencing judges and appellate courts need to give effect to Parliament’s clear and repeated signals to increase sentences imposed for these offences.")
  3. R v WE, 2010 NLCA 4 (2010) 251 CCC (3d) 213 (NLCA)
    see also Maximum and Minimum Sentences

Effect on Previous Ongoing Proceedings

Where the law is changed in a manner that is procedural in nature, it applies to all matters regardless of the offence date. A change in the law that removes or adds a right will only apply to offences that post-date the amendment.[1]

It is "not generally in the public interest to delay trials simply on the basis that a pending action in the higher courts might have some effect on the trial".[2]

  1. R v Wildman, 1984 CanLII 82 (SCC) , [1984] 2 SCR 311
    See also: R v Bickford, 1989 CanLII 7238 (ON CA) , (1989), 51 CCC (3d) 181 (ONCA)
  2. R v Baker, 1994 CanLII 4153 (NS CA) , [1994] NSJ 135 (NSCA)

Effect of Repealing Law

Effect of repeal

43. Where an enactment is repealed in whole or in part, the repeal does not

(a) revive any enactment or anything not in force or existing at the time when the repeal takes effect,
(b) affect the previous operation of the enactment so repealed or anything duly done or suffered thereunder,
(c) affect any right, privilege, obligation or liability acquired, accrued, accruing or incurred under the enactment so repealed,
(d) affect any offence committed against or contravention of the provisions of the enactment so repealed, or any punishment, penalty or forfeiture incurred under the enactment so repealed, or
(e) affect any investigation, legal proceeding or remedy in respect of any right, privilege, obligation or liability referred to in paragraph (c) or in respect of any punishment, penalty or forfeiture referred to in paragraph (d),

and an investigation, legal proceeding or remedy as described in paragraph (e) may be instituted, continued or enforced, and the punishment, penalty or forfeiture may be imposed as if the enactment had not been so repealed.
R.S., c. I-23, s. 35.

IA


Note up: 43

Repeal and substitution

44. Where an enactment, in this section called the “former enactment”, is repealed and another enactment, in this section called the “new enactment”, is substituted therefor,

(a) every person acting under the former enactment shall continue to act, as if appointed under the new enactment, until another person is appointed in the stead of that person;
(b) every bond and security given by a person appointed under the former enactment remains in force, and all books, papers, forms and things made or used under the former enactment shall continue to be used as before the repeal in so far as they are consistent with the new enactment;
(c) every proceeding taken under the former enactment shall be taken up and continued under and in conformity with the new enactment in so far as it may be done consistently with the new enactment;
(d) the procedure established by the new enactment shall be followed as far as it can be adapted thereto
(i) in the recovery or enforcement of fines, penalties and forfeitures imposed under the former enactment,
(ii) in the enforcement of rights, existing or accruing under the former enactment, and
(iii) in a proceeding in relation to matters that have happened before the repeal;
(e) when any punishment, penalty or forfeiture is reduced or mitigated by the new enactment, the punishment, penalty or forfeiture if imposed or adjudged after the repeal shall be reduced or mitigated accordingly;
(f) except to the extent that the provisions of the new enactment are not in substance the same as those of the former enactment, the new enactment shall not be held to operate as new law, but shall be construed and have effect as a consolidation and as declaratory of the law as contained in the former enactment;
(g) all regulations made under the repealed enactment remain in force and are deemed to have been made under the new enactment, in so far as they are not inconsistent with the new enactment, until they are repealed or others made in their stead; and
(h) any reference in an unrepealed enactment to the former enactment shall, with respect to a subsequent transaction, matter or thing, be read and construed as a reference to the provisions of the new enactment relating to the same subject-matter as the former enactment, but where there are no provisions in the new enactment relating to the same subject-matter, the former enactment shall be read as unrepealed in so far as is necessary to maintain or give effect to the unrepealed enactment.

R.S., c. I-23, s. 36.

IA


Note up: 44

The reference to "incurred" has the same meaning as "to render oneself liable to", "to bring upon oneself", or to be "subject to".[1]

Repeal of Offences

It appears that there is an ability to continue a prosecution for an offence that was repealed in law, so long as the conduct making up the offence was completed before the amendment and the time limitations have been complied with.[2]

  1. R v Allan,