Criminal Summary

Criminal Summary.................................................................................................................................. 1 The Creation of Criminal Law ................................................................................................... 1 Statutory Interpretation ............................................................................................................. 2 Limits of Criminal Law ................................................................................................................ 2 The Presumption of Innocence ................................................................................................ 3 Requirement of Proof Beyond Reasonable Doubt ............................................................ 3 Justifiable Reverse Onuses?....................................................................................................... 3 Actus Reus ............................................................................................................................................. 3 What is an Act? ............................................................................................................................... 3 Omissions and the duty to act .................................................................................................. 4 Voluntariness .................................................................................................................................. 4 The Role of Consent ...................................................................................................................... 5 De minimis non curat lex............................................................................................................ 5 Consequences: Causation ........................................................................................................... 5 Mens Rea ............................................................................................................................................... 6 Strict Liability and Constitutionality...................................................................................... 6 Subjective mens rea .......................................................................................................................... 6 Motive ................................................................................................................................................ 6 Intention ........................................................................................................................................... 7 Recklessness and Wilful Blindness......................................................................................... 7 Objective Fault..................................................................................................................................... 7 Criminal Negligence ..................................................................................................................... 7 Crimes Based on Predicate Offences...................................................................................... 8 Mistakes ................................................................................................................................................. 8 Mistakes of Fact.............................................................................................................................. 8 Mistakes of Law.............................................................................................................................. 9 Exculpatory Defences ....................................................................................................................... 9 Air of Reality .................................................................................................................................... 9 Self Defence ..................................................................................................................................... 9 Defence of Property (Dwelling) ............................................................................................ 10 Necessity ........................................................................................................................................ 10 OFFENCES ............................................................................................................................................... 11

The Creation of Criminal Law 1) No one can be convicted of a crime for engaging in conduct that is not already recognized under the authority of the Criminal Code or a previously reported case. (Frey v. Fedoruk1)
1

R. v. Fedoruk SCC 1950 voyeurism now s. 177 and s. 162

2) Obiter dicta does not have authority over lower courts but should be taken as a clarifying (R. v. Henry2) 3) No common law offences (ss. 8 and 9 Cr. C.) Statutory Interpretation 1) The doctrine of strict construction of criminal statutes requires that courts adopt the interpretation most favorable to the accused. (Ancient doctrine) 2) Courts may interpret legislation according to the presumed purpose of parliament (R. v. Pare3) 3) Where a crime is defined in ambiguous terms, fair notice is only given with respect to the conduct, which is captured by each of the meanings that are reasonably available upon a reading of the statute. (R. v. Mac4) 4) In interpreting the meaning of a word the court should consult the case law for distinguishing definitions and other ways the ambiguous word was used, particularly looking at: 1) ordinary sense of the words, 2) scheme of the act (development, definitions, adjacent provisions, ridiculous results) and 3) purpose (R. v. Clark5) Limits of Criminal Law 1) Legislation on criminal law is within the jurisdiction of the Federal Parliament s. 91(27) 2) Legislation may be classified as criminal law if it possesses three prerequisites: a) a valid criminal law purpose, b) a prohibition and c) a penalty (Reference Re. Firearms Act (Canada)6) 3) The harm principle is not a principle of fundamental justice. (R. v. Malmo Levine7) 4) Criminal indecency and obscenity must rest on actual harm or significant risk of harm test (R. v. Labaye and R. v. Kouri8) 5) The constitution should be interpreted with a broad perspective with an eye to societal change (Hunter v. Southam9)
2

R. v. Henry 2005 SCC The purpose of obiter is to clarify the law and to promote certainty and creativity. The common law develops by experience. 3 R. v. Pare What is the meaning of while committing found in section 231(5) and does it include something that occurred directly before the murder? SCC 1987 4 R. v. Mac The accused is charged with possession of various machines and materials adapted for and intended to be used for the creation of forged credit cards. SCC 2001 5 R. v. Clark The appellant was convicted for masturbating near the uncovered window of his illuminated living room as per s. 173(1)(a). SCC 2005 6 The province of Alberta is challenging the federal Parliaments power to pass the gun control law found in the Firearms Act. Appeal by the Province of Alberta 2000 7 R. v. Malmo-Levine 2003, appeal by the plaintiffs to the SCC. This is a challenge to the constitutionality of the prohibition of marihuana. The argument is that prohibitory laws of this kind are in violation of s. 7 of the Charter, which protects societys fundamental freedoms. 8 R. v. Lebaye + R. v. Kouri What is to be interpreted as the meaning of acts of indecency in the definition of bawdy house in s. 197(1)? SCC 2005 9 Hunter v. Southam 1984 SCC

6) A law is over broad if it does not provide an adequate basis for legal debate and analysis or if it fails to delineate zones of risk for criminal sanction (Canadian Foundation for Children v. Canada10) 7) When considering over-breadth, courts will look at i) geographical scope, ii) temporal aspect and iii) the number of persons it encompasses (R. v. Heywood11) The Presumption of Innocence 1) The defendant is entitled to any doubt that arises from the case and there is no onus of proof on the defendant (Woolmington v. D. P. P. 12) 2) Ss. 11(d) of the Charter Innocent until proven guilty Requirement of Proof Beyond Reasonable Doubt 1) The idea of proof beyond reasonable doubt has a specific legal meaning that encompasses more than the everyday meaning of the words (R. v. Lifchus13) Justifiable Reverse Onuses? 1) In determining if a reverse onus (contrary to s. 11(d)) is justified under s. 1 a standard s. 1 analysis should occur (R. v. Oakes)

Actus Reus
What is an Act? 1) S.175 (1)(a) of the Criminal Code requires an externally manifested disturbance in or near a public place, consisting either in the act itself or in a secondary disturbance. (R. v. Lohnes14) 2) Notwithstanding certain specific exceptions, criminal legislation that requires no actus reus on the part of the accused is in violation of s.7 of the Charter. (R. v. Burt15) 3) In order to be considered consenting of drug use, there must be some power to control. (Marshall v. R16) 4) In order to be tried for vicarious possession, there must be a measure of knowledge and control on the part of the person deemed to be in possession by s.4(3)(b). (R. v. Terrence17)
10

Canadian Foundation for Children This case is regarding s. 43 Cr. C. which allows parents, teachers and persons standing in as parents to use corrective violence upon a child. The challenge is that it is overly vague. Holding: not overly vague SCC 2004 11 R. v. Heywood The accused was charged with two offences of committing vagrancy by being a person who had been convicted of a sexual offence, and found loitering at or near a school ground, playground, public park or bathing area as per s. 179(1)( b) [now s. 161]. Holding: overly broad SCC 1994 12 Wolmington was shown to have shot his wife, the trail judge instructed the jury that homicide was considered murder until being proven otherwise by the defence. Appeal to the HL, 1935 13 R. v. Lifchus appeal to the SCC issues of jury instruction on requirement of proof beyond RD 14 R. v. Lohnes 1992 SCC two neighbours in a yelling match, no one was disturbed 15 R. v. Burt constitutional challenge, s. 141, Burts car driven by another caused a disturbance, 1985 Sask QB 16 Marshall v. R. Vancouver Rd. trip, boy charged who had no part in using drugs, Alta CA 1969

5) Proof of a persons knowledge and control can be established by circumstantial evidence. (R. v. Pham18) 6) Possession for the purpose of destroying or submitting to authorities can be innocent possession. Innocent possession does not apply when the accused has knowledge and control over the item. (R. v. Chalk19) Omissions and the duty to act 1) For an assault to be committed, both the elements of actus reus and mens rea must be present at the same time. (Fagan20) 2) When a person has unknowingly done an act which sets in train events that, when he or she becomes aware of them, present an obvious risk to someone elses property, a failure to act is tantamount to the offence. (R. v. Miller21) 3) An undertaking as per s. 217, must be clearly made and with binding intent (R. v. Browne22) 4) The failure of a parent to act when they can foresee or should be able to foresee injury to his or her child constitutes wanton or reckless regard. (R. v. Popen23) 5) One example of a common law duty to act as per s. 180(2) is not to behave in a way that might reasonably be expected to harm another person. (Thorton v. R24) Voluntariness Voluntariness always must be present in every aspect of the actus reus of an offence. 1) A person who by an involuntary act for which he is not to blame gets onto the wrong side of the road is not guilty of an offence under the Vehicles Act. (R. v. Lucki25) 2) An action resulting from ones reflexes does not constitute voluntary action (R. v. Wolfe26) 3) When a person acquires knowledge of illegal activity, there must be some period of time for the person who has acquired that knowledge to deal with the situation before we know if the act is voluntary. (R. v. Swaby27) 4) A person cannot be made criminally responsible for an act or omission unless it was done or omitted in circumstances where there was some other course open to him. (Killbride v. Lake28)
17 18

R. v. Terrence, 1983 SCC boy caught in passenger seat of stolen car R. v. Pham, 2005 SCC drugs found in girls apartment in plain view 19 R. v. Chalk, Ont CA 2007 man admits to child porn on computer s. 163.1(4) 20 Fagan v. Commissioner of Metropolitan Police, English CA 1968 cops toe 21 R. v. Miller, SCC 1983, cigarette in bed ignites fire-omits to put it out 22 R. v. Browne, SCC 1997, girl swallows coke, undertook to get her to the hospital? 23 R. v. Popen parent should have known about spouse abusing child ss. 21, 219(1), 215(1)(a) 24 Thorton v. R 1991 Ont CA donating contaminated blood 25 R. v. Lucki, 1955 Sask The conditions of the road caused the defendant to swerve 26 R. v. Wolfe 1975 Ont. CA Hotel owner hits man with telephone receiver 27 R. v. Swaby Ont C.A. 2001 being in a car in which there is an unregistered weapon s. 91(3)

5) A fully conscious man who has put himself in a situation in which he has his finger on the trigger of a loaded rifle leveled at another man may not be able to argue involuntariness if he accidentally pulls the trigger. (R. v. Ryan)29 The Role of Consent 1) Ss. 265, 266, absence of consent is an element of the actus reus for assault 2) Consent does not serve as a defense between adults who intentionally apply force causing serious hurt or non-trivial bodily harm to each other in the course of a fist fight or brawl (R. v. Jobidon30) - The sanctity of the human body should militate against the validity of consent to bodily harm inflicted in a fight. -Exceptions should be made for sporting activities, we should examine the social utility of the activity 3) Consent that is not based on knowledge of significant relevant factors is not valid s. 265(3) fraud should only vitiate consent if there is risk of bodily harm there is a duty to disclose relevant factors, risk of injury duty (R. v. Cuerrier31) 4) Correspondence Principle: to constitute a crime, at some point the mens rea and the actus reus must coincide (R. v. Williams32) De minimis non curat lex -The law does not concern itself with trifles -De minimus may or may not be a defence in criminal law, (R. v. Kubassek33) Consequences: Causation 1) Manslaughter Thin skull rule: even if the unlawful act alone would not have caused the death, it is still a legal cause as long as it contributes in some way beyond de minimis to the death. (Smithers v. R.34) 2) 1st Degree Murder as per s. 231(5): acts must be an essential, substantial and integral cause of the death of the victim, noramally has to be physical. (R. v. Harbottle35) 3) Wording of Smithers test has been revised - substantial contributing factor for manslaughter and 2nd degree murder. (R. v. Nette36) 4) Criminal causation has a factual and legal component. Factual component satisfied using but for test. Legal component is satisfied if the act was a substantial contributing factor as per Nette. (R. v. Talbot37)
28

Killbride v. Lake New Zealand 1962 parked car no warrant, defence of due diligence would be available under Canadian law 29 R. v. Ryan Australia 1967 man shoots service station operator 30 R. v. Jobidon 1991 SCC fist fight 31 R. v. Cuerrier Crown appeal to the SCC 1998 infected blood aggravated assault s. 268 32 R. v. Williams 2003 SCC, HIV but may have infected her before he knew 33 R. v. Kubassek 2004 SCC, pushed pastor, wont pronounce themselves on the availability of de minimus as a defence 34 Smithers v. R 1978 SCC hockey players kick to stomach>vomiting>aspiration 35 R. v. Harbottle SCC 1993, man holds legs while woman strangled, s. 231(5) 36 R. v. Nette SCC 2001, man causes death of old woman by leaving her tied up 2 nd degree murder

Mens Rea
Strict Liability and Constitutionality 1) Mens rea is assumed to be a component of any offence unless there is a clear statutory provision to the contrary (Beaver v. R.38) 2) R. v. City of Sault Ste-Marie39 a. True crimes - mens rea imported into the definition of the offence unless it is specifically excluded by parliament (Beaver) b. Public welfare offences (strict liability) -No necessity for the Crown to prove mens rea leaves it open to the accused to prove that he or she took all reasonable care, defence of due diligence. (Reasonably believed in a certain set of facts or took all steps to avoid...) -Offences such as traffic violations, etc -Federal regulatory offences that are not true crimes fall into this category also c. Absolute liability - Mere commission of the act is enough, no mens rea required. 3) No imprisonment may be imposed for an absolute liability offence. The potential for imprisonment coupled with absolute liability offends the PFJs in s. 7 of the Charter (Reference re. s. 94(2) of the Motor Vehicle Act (B.C.)40) 4) It is a principle of fundamental justice and constitutionally required that a murder conviction cannot happen without at least objective foreseeability of death (Vallaincourt41) 5) Subjective foresight of death must be established for a murder or accusation to be sustained. (R. v. Martineau42) subjective dishonesty is required for theft

Subjective mens rea

1) The subjective test for mens rea asks if the accused subjectively appreciated the consequences of the actus reus as at least being a possibility (R. v. Theroux43) except in crimes where the actus reus is negligence or inadvertence and absolute liability offences, we read in subjective mens rea 2) It is a reasonable inference that a person intends the natural consequences of her actions, those consequences are not presumed to be her intention. (R. v. Ortt44) Motive 1) Motive is not an essential element of any offence (R. v. Lewis45)
R. v. Talbot Ont. CA 2007, clears up ambiguities left by Smithers and Nette in Ontario Beaver v. R, 1957 SCC two brothers, possession without knowledge 39 Sault Ste-Marie 1978 SCC, city negligently over-poluting, is there a knowledge element that should be read in? 40 Motor Vehicle Re. Is absolute liability coupled with imprisonment violative of the Charter 41 Vaillancourt v. R 1987 SCC, man certain gun was not loaded, accomplice kills man, charged under s. 213 42 R. v. Martineau 1990 SCC companion killed victims of robbery, accused wasnt expecting it 43 R. v. Theroux, 1993 SCC, discussion of the fault requirement for fraud 44 R. v. Ortt, 1968 Ont CA Crown bears the onus of proof for intent 45 R. v. Lewis, murder of son and daughter in law by mailbomb
37 38

2) Committing an offence with the intention to play a prank or with a joking spirit may mean the accused is not criminally liable. (R. v. Mathe46) Intention 1) The mental element necessary for intention is subjective foreseeability: that the accused knows the consequences will come about as a matter of certainty or substantial certainty (R. v. Buzzanga and Durocher47) If no MR specified, intention OR
recklessness suffices if willful you need intention expressly and recklessness is not enough

2) If knowledge is specified as a mens rea component of the offence, then just like in cases where intent or willful is specified, recklessness is not enough (R. v. Zundel48) Recklessness and Wilful Blindness 1) Willful blindness is when the accused suspected a fact, realized its probability, but refrained from obtaining the final confirmation because he wanted to be able to deny knowledge. (Sansregret v. R49) 2) Recklessness can give rise to criminal liability what a person is aware that there is danger that her conduct could bring about the result prohibited by the criminal law, and nevertheless persists. 3) If the accused does not suspect there to be a questionable fact than the doctrine of willful blindness does not apply. Subjective test! (R. v. Currie50) 4) In the case of wilful blindness if the accused chooses not to make no inquires, the result is irrelevant, wilful blindness is equated with knowledge in the eyes of the law (R. v Duong51)

Objective Fault
Criminal Negligence 1) Criminal negligence is proof of conduct that results in a marked and significant departure from the standard that can be expected from the reasonable person in the particular circumstances. (Hundal) 2) With criminal negligence causing death we have to assess the reasonable person as being in the shoes of the accused, with the information available to him or her. Mixed OBJ/SUB (R. v. Tutton & Tutton52) 3) Driving offences will employ a modified objective test: it will remain open to the accused to raise reasonable doubt that a reasonable person would have been aware of the risks in the accuseds conduct. (R. v. Hundal53) 4) Criminal negligence based crimes employ an objective standard test taking into account the nature of the activity and the circumstances surrounding the
R. v. Mathe 1973 BCCA man threatens teller Buzzanga 1979 Ont CA French schooling flyers, promoting hatred 319(2) 48 R. v. Zundel pamphlets denying the holocaust 49 Sansregret v. R 1985 SCC 50 R. v. Currie 1975 Ont. CA, Cashed fraudulent cheque for man who seemed legit s. 368(1) 51 R. v. Duong 1998 Ont. CA, S. 240 Accessory after the fact to murder hid, friend didnt enquire 52 R. v. Tutton and Tutton 1989 SCC, parents refuse treatment for son 53 R. v. Hundal 1993 SCC, dangerous driving s. 249
46 47

accuseds failure to take requisite care. (Creighton54) 5) Creighton is good law: we only consider the subjective mind set of the accused if it contributes to the reasonable standard analysis (Beatty) Crimes Based on Predicate Offences -Prove the actus reus and mens rea standards for the predicate offence -Prove the actus reus and mens rea of the second part of the offence 1) The fact that a predicate offence leads to an absolute liability offence does not render it unconstitutional, provided that the predicate offence involves an objectively dangerous act. (R. v. DeSousa55) Two requisite mental elements for an offence under s. 269: i) The mental element of the underlying unlawful act ii) The objective foresight of bodily harm that is more than trivial or transitory 2) The objective test for unlawful act manslaughter requires reasonable foresight of more than trivial bodily harm. (Creighton)

Mistakes
Mistakes of Fact 1) Defence of mistake of fact negates mens rea. When the standard of mens rea is objective, the mistake must be reasonable. When subjective, the mistake just has to be honest. (Pappajohn v. R56) 2) A finding of willfull blindness will override the defense of mistake of fact. Consent must be freely given and not procured by threats. (Sansregret v. R57) 3) Sexual Assault is now s. 271: R. v. Chase the SCC held that a sexual assault is an assault within any one of the definitions of s. 265(1) which is committed in circumstances of a sexual nature, such that the sexual integrity of the victim is violated. Objective reasonable person test. 4) The defence of implied consent does not exist in the context of sexual assault in Canada. (Ewanchuck58) The absence of consent is subjective and determined by reference to the complainants subjective internal state of mind at the time of the touching. 5) If the complainant states outright that she or he consented to the sexual activity, the accused may employ the mistake of facts defence - limits: s. 273.1(2) and 273.2 Cr. C. - R. v. M (M.L.): silence, passivity or ambiguous conduct does not constitute conduct R. v. Esau: continuing sexual touching after the complainant says no once constitutes at least recklessness

R. v. Creighton 1993 SCC unlawful act manslaughter, injection of drugs into the deceased constitutionality of s. 55 R. v. DeSousa, SCC 1992 constitutionality of s. 269 56 Papajohn v. R., 1980 SCC Real estate agent, man charged with rape which does not exist 57 Sansregret v. R, 1985 SCC abusive relationship, used sex to calm him down 58 R. v. Ewanchuck, 1999 SCC sexual assault issues of consent, trailer/job offer
54

Mistakes of Law 1) S. 19 Cr. C. Ignorance of the law by a person who commits an offence is not an excuse for committing the offence. (R. v. Campbell and Mlynarchuck59) 2) One exception in the context of property is -A colour of right - one who honestly (not reasonably) believes that they have a proprietary or possessory right to the thing which is the subject matter of the alleged theft or an honest belief in the state of facts which if actually existed would at law excuse the act done. (R. v. Dorosh60) 3) The strength of moral convictions cannot constitute a colour of right. There must be a mistake of law or fact. (R. v. Drainvile61) Subjective test. 4) The defense of officially induced error of law is an available if an appropriate official advised the accused wrongfully as to what the law is. It must be shown that the misunderstanding of the law would have been made by a reasonable person, and is not a subjective test. (Levis (City) v. Tetrault62)

Exculpatory Defences
Air of Reality 1) The air of reality test: is there evidence on the record upon which a properly instructed jury acting reasonably could acquit if it believed the evidence to be true? (R. v. Cinous63) 2) The air of reality test should not be used to raised the evidentiary threshold. In applying the air of reality test a trial judge should assume the defendants evidence to be true (R. v. Fontaine64) Self Defence 1) Cr. C. s. 34 2) Elements of s.34(1) i) An unlawful assault (Petel - reasonable perception of unlawful assault from the perspective of the offender mixed subjective/objective) ii) The assault was not provoked iii) Lack of intention to kill or cause bodily harm iv) The force used be reasonable and no more than is necessary for self-defence 3) Elements of s. 34(2) i) Unlawful assault Petel ii) An intention to cause death or bodily harm Implicitly per Baxter iii) Reasonable apprehension of death iv) Reasonable belief that one cannot otherwise save oneself
59

Campbell and Mlynarchuck Alta. Dist. Ct. 1972 mistake based on a lower court judgement about erotic dancing, was still a federal offence 60 R. v. Dorosh 2004, SCC man picks up the trailer he thought was his 61 R. v. Drainville, 1991 Ont. Priest part of protest, thought the natives had rights to the land 62 Levis, 2006 SCC, traffic infringements, passive about finding out what the law is 63 R. v. Cinous 2002 SCC, murder of an accomplice, rumours that the accomplice had wanted to kill the accused 64 R. v. Fontaine 2003 SCC,

-2 + 3 come from the dissenting opinion in R. v. Kong65, but good summary of the law 4) To retreat before employing force is no longer to be treated as an independent and imperative condition if a plea of self-defence is to be made out. The failure to retreat is should be considered with as evidence to whether the defendant went farther than he was justified in doing what he did (R. v. Deegan66) 5) The jury must take into consideration the expert testimony in determining if a reasonable person in the situation would be under apprehension of death and see no other way as per ss. 34(2)(a) and (b) (subjective/objective test: objectively reasonable subjective belief) (R. v. Lavallee67) 6) The physical assault and the apprehension of death or grievous bodily harm do not necessarily need to coincide (Lavallee) 7) The test is objectively reasonable perception of unlawful assault from the perspective of the (de)/offender. The relevance of the past threats and assaults are important in determining the accuseds apprehension for the risk of death and her belief in the need to use deadly force. (R. v. Petel68) Defence of Property (Dwelling) 1) Cr. C. s. 41 2) Killing or causing serious bodily harm to a trespasser can only be justified under the normal principles of self defence. (R. v. Baxter69) 3) Elements of s. 41(1): (R. v. Gunning70) i) Be in possession of the dwelling house ii) Possession must have been peaceable iii) The deceased must have been a trespasser iv) The force used to eject the trespasser must have been reasonable in all the circumstances Necessity 1) There is no defence of necessity to the offence of murder in England (R. v. Dudley and Stephens71) 2) The defence if necessity is available in Canadian law when the action is morally involuntary - measured on the basis of societies expectations about normal resistance to pressure (objective test). (Perka v. R.72) i) Reasonable belief that the situation is urgent and the peril imminent (SUB/OB Latimer73)
R. v. Kong 2006 SCC, second degree murder following a stabbing death when two groups got into a late night fight 66 R. v. Deegan Albert C.A. 1979 67 R. v. Lavallee, 1990 SCC, battered woman kills husband charged with murder 68 R. v. Petel, 1994 SCC, Second degree murder kills daughters boyfriend, threats from prev. nights 69 R. v. Baxter, 1975 Ont. C.A. 70 R. v. Gunning, 2005 SCC, man kills unwanted guest, charged with murder (unlawful act = careless use of a fire arm s. 86) 71 R. v. Dudley, 1884 QB England men stranded, kill and eat one of their own 72 Perka v. R, 1984 SCC, ship carrying cannabis lands in Canada charged with trafficking and importing drugs 73 R. v. Latimer 2001 SCC, First degree murder of handicapped daughter
65

10

ii) Reasonable belief that there is no legal alternative (SUB/OB Latimer) iii) The harm inflicted must be less than the harm sought to avoid (OB Latimer) 3) The peril must be imminent and virtually certain to occur (Latimer)

OFFENCES
Assault s. 265 (a) Actus reus 1) Applies force, directly or indirectly to another person 2) The force is applied without the other persons consent Mens rea 1) Intent to apply force 2) Knowing/being willfully blind/being reckless to the fact that victim does not consent Aggravated Assault s. 268 Actus reus 1) Assault 2) Wounds, maims disfigures or endangers the life of the complainant Mens rea 1) Assault 2) Objective foresight of bodily harm (DeSousa) Assault causing bodily harm 267(b) Actus reus: 1) Applied direct or indirect force to another person 2) Without that persons consent; and 3) Caused bodily harm to that person. Mens rea: 1) Intended to apply direct or indirect force to that person 2) Knew, or was reckless or wilfully blind towards, the fact that the person was not consenting; AND 3) That a reasonable person would have foreseen that bodily harm of more than a trivial or transitory nature was a likely consequence of the force applied. (DeSousa) Sexual Assault s. 271 Actus reus 1) Applying force directly or indirectly 2) Objectively violates the sexual integrity of the person (RP test) 3) Without the consent of that person - The absence of consent is determined by reference to the complainants subjective internal state of mind at the time of the touching. (Ewanchuck) Mens rea 1) Intention to apply force 2) Knowledge of or recklessness or willful blindness towards the absence of consent Homicide s. 222(1) directly or indirectly causing the death of a human being Culpable Homicide: causing death by unlawful act, crim neg222(5) 11

Manslaughter Actus reus -Culpable Homicide -Directly or indirectly causes the death of a human being -Fault short of intention to kill either the committing of an unlawful act causing death or criminal negligence. Mens rea -Objective standard, marked departure from the standard of a reasonable person Murder Actus reus -Culpable homicide -Directly or indirectly causes the death of a human being Mens rea -Intention to kill OR -Intention to cause bodily harm knowing it is likely to cause death

12