Criminal Law Notebook

Intention

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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.

 

Level of Intent Not Defined

It is not uncommon that Parliament does not define the necessary mens rea for an offence. However, in all cases Parliament "d[oes] not intend to punish the unblameworthy".[1] Where the text is silent the presumption is that courts must "read in the words most appropriate to require mens rea". For subjective intent this will generally mean "knowledge, recklessness, or wilful blindness".[2]

  1. ↑ R v McSween, 2020 ONCA 343 (CanLII), per Trotter JA, at para 87
  2. ↑ McSween, ibid., at para 87
    Sweet v Parsley , [1969] 1 All. E.R. 347 (HL UK) (UK) at p. 349

Intention and Motive

"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]

"Purpose"/"Intent" vs "Motive"

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]

Intent and motive are conceptually distinct.[5] In its efforts to secure peace and order, society has little interest in the accused's motive behind the intended act.[6]

Motive in Murder Charges

Motive is not an essential element but may be relevant and material, especially in a circumstantial case to establish identity and state of mind of the culprit.[7] Motive is a prospectant evidence. Because a person had motive to do X, the person is more likely to have done X.[8] Motive may be proven by words or actions. Those actions may often amount to similar fact evidence.[9]

Motive of Witnesses

The motive of a witness may be used as a subject of cross-examination to show bias, interest or corruption.[10] A denial of motive opens the witness up to impeachment by other evidence as an exception to the collateral fact rule.[11]

Absence of Motive

There is a difference in law between an absence of evidence establishing motive and a proven absence of motive.[12]

Sufficiency of Evidence of Motive

To establish an animus between the accused and victim, it is not sufficient to simply identify some past conflict and then argue for an inference of animus.[13] Such evidence simply brings bad character evidence with little value.[14] This would include vague evidence of "financial distress".[15]

The court should have get "into a habit of admitting evidence which, reasonably viewed, cannot tend to prove motive or explain the acts charged merely because it discloses some incident in the history of the relations of the parties."[16]

By constast, evidnece that provides "Real insight" into the "background and relationship" between the accused and victim, is highly probative and can be used to establish motive.[17]

  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), 10 CR (7th) 108, per Pardu JA (2:1), at para 18
    R v ADH, 2013 SCC 28 (CanLII), [2013] 2 SCR 269, per Cromwell J, at para 23
  3. ↑ R v Berhe, 2011 ONSC 6815 (CanLII), OJ No 5142, per Code J, at para 32
  4. ↑ R v Darnley, 2020 ONCA 179 (CanLII), 387 CCC (3d) 200, per Paciocco JA, at para 46
  5. ↑ R v McSween, 2020 ONCA 343 (CanLII), per Trotter JA, at para 85
    Lewis v The Queen, 1979 CanLII 19 (SCC), [1979] 2 S.C.R. 821, per Dickson J at p. 831
  6. ↑ Dynar v United States, 1997 CanLII 359 (SCC), [1997] 2 SCR 462, per Cory and Iacobucci JJ at para 81 ("It does not matter to society, in its efforts to secure social peace and order, what an accused's motive was, but only what the accused intended to do. It is no consolation to one whose car has been stolen that the thief stole the car intending to sell it to purchase food for a food bank.")
    R v Hamilton, 2005 SCC 47, [2005] 2 S.C.R. 432, per Fish J, at paras 38 to 45
  7. ↑ R v McDonald, 2017 ONCA 568 (CanLII), 351 CCC (3d) 486, per Watt JA, at para 70(complete citation pending)
  8. ↑ McDonald, ibid., at para 72
  9. ↑ McDonald, ibid., at para 73
  10. ↑ R v Megill, 2021 ONCA 253 (CanLII), per Watt JA, at para 109
  11. ↑ Megill, ibid. at para 109
  12. ↑ R. v. Ali, 2021 ONCA 362 (CanLII), per Doherty JA, at para 121 ("There is a well recognized difference between the absence of evidence of motive and a proved absence of motive")
    R. v. Lewis, 1979 CanLII 19 (SCC), [1979] 2 S.C.R. 821, at para. 38(complete citation pending)
    R. v. Barton, 2019 SCC 33, at paras. 133-36
    R. v. White (1996), 1996 CanLII 3013 (ON CA), 29 O.R. (3d) 577 (C.A.), at para. 101, aff’d 1998 CanLII 789 (SCC), [1998] 2 S.C.R. 72, at para. 59
  13. ↑ R. v. Johnson, 2010 ONCA 646 (CanLII), at para 99(complete citation pending)
  14. ↑ Johnson, ibid. at para 100
  15. ↑ e.g. see R. v. Ali, 2021 ONCA 362 (CanLII), per Doherty JA, at para 120
  16. ↑ R v Barbour, 1938 CanLII 29 (SCC), [1938] S.C.R. 465, at p. 469(complete citation pending)
  17. ↑ Johnson, supra at para 101
    R. v. Moo (2009), 2009 ONCA 645 (CanLII), 247 C.C.C. (3d) 34 (Ont. C.A.), at paras. 70-109(complete citation pending)

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]

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."[2]

General Intent

When considering general intent offences, the consideration is on the "intention as applied to acts considered apart from their purposes". It considers only the intent to the "commission of an act".[3] Phrased differently, it is the intention that is "applied to acts done to achieve an immediate end".[4] At this level, "intention" is distinguished from acts that are accidental or by honest mistake.[5]

General intent actions include those that are purely physical acts produced by "momentary passion".[6]

One implication of the difference between general and specific intent offenses is that defense of self-induced intoxication short of atomic tourism is not available for general tenant general intent offenses.[7]

General intent, at it's lowest, only requires "a conscious doing of the prohibited act".[8]

Specific Intent

Specific intent is sometimes referred to as "ulterior intent".[9] "Ulterior intent" is described as the "state of mind contemplating consequences beyond those defined in the actus reus". [10]

Specific intent actions are said to be a "product of preconception" and are "deliberate steps ... towards an illegal goal".[11]

Proof of specific intent requires a "state of mind contemplating consequences beyond those defined in the actus reus".[12] There is said to be a "focus on an objective further to the immediate one at hand".[13]

Distinguishing Between General and Specific

The question of intent for a particular offence is a matter of statutory interpretation. It should not be overly influenced by the facts of the particular case.[14]

A helpful guide is to look at previous jurisprudence.[15]

In can be difficult to identify when an offence requires specific or general intent. Considerations can include the connection actus reus and mens rea; social policy; and severity of penalty.[16]

There are two broad factors to consider: [17] 1) the "nature of the mental element and its relative importance" and 2) the "social policy sought to be attained by criminalizing the particular conduct"

Where specific intent could "unreasonably hamper" the enforcement of the process, public interest would lead to a general intent standard.[18]

Some judges have been critical, observing that there is some acceptance that the distinction may not always be "logically defensible" and may produce "illogical results".[19]

Importance of the Mental Element


Presumption of General Intent

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.[20]

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.[21]

When Specific Intent Applies

Offences with the wording of "wilfully" suggests that the mens rea is extended to a "specific intent". [22]

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.”[23]

Language Suggesting Specific Intent

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."[24] 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.[25]

Traditionally, words and phrases such as "with intent to", "for a fraudulent purpose", "corruptly", "wilfully" and "knowingly" are signs of a legislative intent to impose a specific intent standard.[26]

Considerations to Identify Type
  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. ↑ 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
  3. ↑ R v The Queen v George, 1960 CanLII 45 (SCC), [1960] SCR 871, per Fauteux J at p 877 (SCR) ("In considering the question of mens rea, a distinction is to be made between (i) intention as applied to acts considered in relation to their purposes and (ii) intention as applied to acts considered apart from their purposes. A general intent attending the commission of an act is, in some cases, the only intent required to constitute the crime ... .")
  4. ↑ George, ibid. at p. 890 (SCR)
  5. ↑ George, ibid. at p. 890 (SCR)
  6. ↑ George, ibid. at p. 890 (SCR) ("The former acts may be the purely physical products of momentary passion, whereas the latter involve the mental process of formulating a specific intent")
  7. ↑ Tatton 2015 at paragraph 20
    see also R v Daviault, 1994 CanLII 61 (SCC), [1994] 3 SCR 63, at p. 123
    R v Bernard, 1988 CanLII 22 (SCC), [1988] 2 SCR 833, at pp. 865 and 878-80
  8. ↑ R v Daley, 2007 SCC 53 (CanLII), [2007] 3 SCR 523, per Bastarache J, at para 35 Daviault, supra at p. 123 (It requires "the minimal intent to do the act which constitutes the actus reus")
    Tatton at para 27
  9. ↑ Daviault, supra at p. 123 to 124
  10. ↑ R v B.(S.J.), 2002 ABCA 143 (CanLII), 66 CCC (3d) 537, per Berger JA, at para 63
    see D.P.P. v Majewski , [1976] 2 All E.R. 142 (UK)
  11. ↑ George, supra at p 890 (SCR)
  12. ↑ Majewski, supra R v SJB, 2002 ABCA 143 (CanLII), 166 CCC (3d) 537, per Berger JA (2:1) at par 56
  13. ↑ Daley, supra at para 35 ("Specific intent offences require the mind to focus on an objective further to the immediate one at hand")
  14. ↑ Tatton at para 30
  15. ↑ tatton at para 32
  16. ↑ William A Webber, Answering the Burning Question: The Case for Arson as a Specific Intent Offence, 2014 26th Annual Criminal Law Conference 6I, 2014 CanLIIDocs 33364 at p 6 to 7
  17. ↑ Daviault, supra at p. 122
    Tatton at para 26 and 33
  18. ↑ R v Chase, 1987 CanLII 23 (SCC), [1987] 2 SCR 293 at p 303 (SCR)
  19. ↑ R v Tatton, 2014 ONCA 273 (CanLII), 10 CR (7th) 108, per Pardu JA (2:1), at para 34
    Bernard, supra, at pp. 879 to 880 [SCR]
    SJB, supra (2:1)
  20. ↑ 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), [2014] 1 SCR 37, per LeBel J
  21. ↑ R v Buzzanga and Durocher, 1979 CanLII 1927 (ONCA), 25 OR (2d) 705, 101 DLR (3d) 488 (CA), per Martin JA, at p. 717
  22. ↑ The Queen v Rees, 1956 CanLII 60 (SCC), [1956] SCR 640
  23. ↑ R v Tatton, 2015 SCC 33 (CanLII), [2015] 2 SCR 574, per Moldaver J, at para 21
  24. ↑ R v ADH, 2011 SKCA 6 (CanLII), [2011] S.J. No 5 (CA), per Ottenbreit JA (3:0), at para 27
  25. ↑ R v Docherty, 1989 CanLII 45 (SCC), [1989] 2 SCR 941, per Wilson J (7:0), at para 13
  26. ↑ Leary v The Queen, 1977 CanLII 2 (SCC), [1978] 1 SCR 29, per Dickson J (in dissent on other issue) at 40 to 41

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), [2007] 3 SCR 523, per Bastarache J (5:4), at paras 103 and 104
    R v EB, 2011 ONCA 194 (CanLII), [2006] OJ No 1864, per curiam, at para 66 (context of murder)
  3. ↑ R v Missions, 2005 NSCA 82 (CanLII), 196 CCC (3d) 253, per Rosecoe JA (3:0), at para 21
    R v Bergeron, 2015 BCCA 177 (CanLII), 322 CCC (3d) 544, 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 CanLII 541 (ONCA), 5 CCC (2d) 32 (ONCA), per Gale CJ, at para 3
    See R v Giannotti, 1956 CanLII 160 (ONCA), 115 CCC 203, per Roach JA
    R v Hilson, 1958 CanLII 134 (ONCA), 121 CCC 139, per Porter CJ
    R v Berger, 1975 CanLII 1250 (BCCA), 27 CCC (2d) 357 (BCCA), per McIntyre JA and Robertson JA, leave to appeal to SCC refused [1975] SCR vii
    R v Borque, 1969 CanLII 981 (BCCA), [1969] 4 CCC 358, 7 CRNS 189 (BCCA), per Branca JA
    R v Theroux, 1993 CanLII 134 (SCC), [1993] 2 SCR 5, 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), 353 CCC (3d) 446, 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), 538 AR 249, per Crighton J
    R v Seymour, 1996 CanLII 201 (SCC), [1996] 2 SCR 252, per Cory J
  6. ↑ See R v Bird, 1973 CanLII 1450 (SK CA), 13 CCC (2d) 73, 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 CanLII 1927 (ONCA), 49 CCC (2d) 369, per Martin JA, at p. 383-4 [CCC]
    R v MacKinlay, 1986 CanLII 111 (ON CA), 28 CCC (3d) 306, 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), 241 CCC (3d) 388, 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), 10 CR (7th) 108, per Pardu JA (2:1), at para 35
    R v Bernard, 1988 CanLII 22 (SCC), [1988] 2 SCR 833, 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), 427 Sask R 180, per Lane JA (3:0), at para 11

See Also

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