L E C T U R E 4B

R v Theroux [1993]
Facts
! ! ! ! ! ! ! Theroux headed building company Received deposits for houses Claimed deposits were insured they werent Believed houses would be built; company went bankrupt Charged with fraud Theroux believed that the build would occur Does this belief negate Mens Rea of fraud under the Criminal Code s 380 (1)(a) 1. Everyone who, by deceit, falsehood or other fraudulent means, whether or not it is a false pretense within the meaning of this Act, defrauds the public or any person, whether ascertained or not, of any property, money or valuable security or any service a. Is guilty of an indictable offence and liable to a term of imprisonment not exceeding 14 years Appeal should be dismissed (Theroux lost) Subjective Mens Rea; willfully misguided clients = knowledge of act and consequences Mens Rea = must have subjective awareness of harm from Actus Reus ; belief is no defence

Issue

Decision Reason Relevance

! ! !

R v Sault Ste Marie [1978]

" " " " Pre-charter case Appellant: Crown Respondent: City of Sault Ste Marie On appeal from the Court of Appeal of Ontario ! Sault Ste Marie contracted a company for a landfill Facts

Issue

Decision Reason Relevance

! Site bordered on creek; led to pollution ! Charge: Breach of Ontario environmental regulation ! If Mens Rea must be established by Crown in a public welfare case (provincial regulation) ! strict liability: public welfare (negligence rather than Mens Rea) absolute Liability: criminal offences (true crime) ! Appeal was dismissed; new trial was ordered ! In serious public welfare offences, Mens Rea need not be established by crown, but defence of due diligence ! Mens Rea must be established by Crown only in true crime cases (not provincial regulations)

R v Beatty [2008]
" Appellant: Justin Ronald Beatty " Respondent: Crown " On appeal from the British Columbia court of appeal Facts
! Beattie was driving a pickup truck; crossed center line for no identifiable reason striking an oncoming car, killing all 3 passengers ! Charge: Dangerous driving causing death ! Momentary lapse enough to warrant criminal charge per Criminal Code s 249 (4) 1. Everyone commits an offence who operates a. A motor vehicle in a manner that is dangerous to the public, having regard to all the circumstances, including the nature, condition and use of the place at which the motor vehicle is being operated and the amount of traffic that at the time is or might reasonably be expected to be at that place ! Everyone who commits an offence under subsection 1 and thereby causes the death of any other person is guilty of an indictable offence and liable to imprisonment for life. ! Appeal allowed, acquittals restored ! Need to apply objective standard in contextual manner; no marked departure ! Modified objective approach ; wary of criminalizing every departure from norm

Issue

Decision Reason Relevance

R v Hibbert [1995]
" Appellant: Lawrence Hibbert " Respondent: Crown " On appeal from Ontario Court of Appeal Facts
! Hibberts friend Cohen was shot by Bailey ! Hibbert said Bailey forced him to call Cohen downstairs ! Charge: Attempted murder, reduced to aggravated assault ! If duress negates Mens Rea required for Criminal Code ss 21 (1) (b) and 21 (2) ! Parties to offence: 21 1. Everyone is a party to an offence who a. Does or omits to do anything for the purpose of aiding any person to commit it; 2. Where two or more persons form an intention in common to carry out an unlawful purpose and to assist each other therein and any one of them, in carrying out the common purpose, commits an offence, each of them who knew or ought to have known that the commission of the offence would be a probable consequence of carrying out the common purpose is a party to that offence ! Appeal allowed, new trial ordered ! Mens Rea cannot be negated, but duress defence is okay; ! Modified objective approach ! Duress defence does not apply if there is a safe out; ! Desire is not relevant to intent

Issue

Decision Reason Relevance

Revisit: R v Hibbert & Beatty

In both cases personal characteristics play a role