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At 01 March 2019, after just over one year's medical leave,
Simon's law practice will re-open. Whoo-hoo ....!
- 12 February 2019

THE LATEST WORD

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Criminal

1. General
2. Mens Rea
3. Private Prosecutions

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1. General

I've never practiced criminal law, just a few private prosecutions when I was younger. So this is only a piecemeal study of interesting bits of criminal law as they are of general interest, or bear on private prosecutions as they offer another remedy to private disputes.

2. Mens Rea

. R v Tatton

In R v Tatton (SCC, 2015) the Supreme Court of Canada embarked on one of those general reviews of important law that they do sometimes. I couldn't resist this case focussing on mens rea (the mental element of criminal offences) in the context of specific and general intent and how these categorizations effect available defences (here self-induced intoxication to an arson charge):
V. Analysis

A. Is Arson Contrary to Section 434 a General or Specific Intent Offence?

(1) The Classification of General and Specific Intent Offences

[20] The classification of an offence as one involving general or specific intent has important consequences for the accused. The law does not allow offenders to rely on self-induced intoxication falling short of automatism as an excuse for general intent offences: R. v. Daviault, 1994 CanLII 61 (SCC), [1994] 3 S.C.R. 63, at p. 123; R. v. Bernard, 1988 CanLII 22 (SCC), [1988] 2 S.C.R. 833, at pp. 865 and 878-80.

[21] Although the labels “general intent” and “specific intent” are entrenched in Canadian law, they are not particularly helpful in describing the actual mental element required for a crime: Daviault, at p. 123; Bernard, at p. 854 (per Dickson C.J., dissenting). The mental element of specific intent crimes is no more “specific”, in the everyday sense of the word, than the mental element of general intent crimes. Rather, as we shall see, the distinction lies in the complexity of the thought and reasoning processes that make up the mental element of a particular offence, and the social policy underlying the offence.

[22] This Court’s decision in Daviault is the leading case on the distinction between general and specific intent crimes. Unfortunately, it has not resolved the confusion surrounding this issue. The general/specific intent dichotomy continues to perplex counsel and trial courts alike. It has been criticized as illogical and as leading to “arbitrary and inconsistent results from court to court, offence to offence and jurisdiction to jurisdiction”: G. Ferguson, “The Intoxication Defence: Constitutionally Impaired and in Need of Rehabilitation” (2012), 57 S.C.L.R. (2d) 111, at p. 123. See also T. Quigley, “Specific and General Nonsense?” (1987), 11 Dal. L.J. 75; D. Stuart, Canadian Criminal Law: A Treatise (5th ed. 2007), at pp. 437-39; M. Manning, Q.C., and P. Sankoff, Manning, Mewett & Sankoff: Criminal Law (4th ed. 2009), at p. 389; S. H. Berner, “The Defense of Drunkenness — A Reconsideration” (1971), 6 U.B.C. L. Rev. 309, at pp. 333-34.

[23] The confusion surrounding the general/specific intent distinction is part of a larger problem that has plagued the Canadian criminal law for decades. Regrettably, the Criminal Code often provides no clear direction about the required mental element for a given offence. It is therefore left to judges to attempt to divine the required mental element (also referred to as the degree of fault). As Professor Don Stuart states in Canadian Criminal Law, at p. vii:
Our adversary system, which requires cases to be fairly put to impartial judges or juries, and the presumption of innocence, cannot work with legitimacy where there is confusion as to the applicable tests on even basic matters such as the fault requirement . . . .
[24] Professor Stuart is not alone in this. He and other academics and law reform bodies have urged that the Criminal Code be amended to specify the mental element and fault requirement for each crime: see, e.g., Law Reform Commission of Canada, Report on Recodifying Criminal Law (1987), at pp. 17 and 21-25; Canadian Bar Association’s Criminal Recodification Task Force, Principles of Criminal Liability: Proposals for a New General Part of the Criminal Code of Canada (1992), at pp. 41-49; D. Stuart, “A Case for a General Part”, in D. Stuart, R. J. Delisle and A. Manson, eds., Towards a Clear and Just Criminal Law: A Criminal Reports Forum (1999), 95, at pp. 110-13.

[25] The shortcoming identified by Professor Stuart and other scholars is the source of the difficulty in determining whether an offence is one of general or specific intent. Legislative intervention is sorely needed to spell out the mental element of offences and to specify when intoxication short of automatism can be considered. However, until that day comes we are left with the existing regime. Therefore, before turning to the proper classification of the offence in s. 434 of the Criminal Code, I propose to review the analysis in Daviault in the hope of shedding a bit more light on the general/specific intent distinction.

(a) The Decision in R. v. Daviault

[26] In Daviault, this Court examined whether an accused who is in a state of extreme intoxication, akin to automatism, may rely on drunkenness as a defence to a general intent crime. In analysing this issue, the distinction between general and specific intent offences was discussed at some length by Sopinka J. (dissenting, but not on this point). He held that two factors help distinguish crimes of general intent from those of specific intent: first, “[t]he nature of the mental element and its relative importance” and second, “the social policy sought to be attained by criminalizing the particular conduct”: p. 122.

[27] Justice Sopinka specified that general intent crimes involve “the minimal intent to do the act which constitutes the actus reus”: Daviault, at p. 123. Because such crimes involve minimal thought and reasoning processes, even a high degree of intoxication short of automatism is unlikely to deprive the accused of the slight degree of mental acuity required to commit them (ibid.). In his view, this feature alone provided a sound policy basis for precluding reliance on the defence of intoxication (ibid.). Bearing in mind the common sense inference that a person intends the natural consequences of his or her actions, one can typically infer intent from the performance of the act. It is therefore logical that for crimes involving a minimal mental element, intoxication short of automatism will have no role to play. Moreover, as Sopinka J. observed, general intent crimes tend to be “offences that persons who are drunk are apt to commit” (ibid.). It followed, in his view, that allowing intoxication to operate as a defence would contradict the social policy underlying these crimes.

[28] In contrast, Sopinka J. held that specific intent crimes require a heightened mental element. For example, they often require “the formation of further ulterior motives and purposes”: Daviault, at p. 123, citing Bernard, at p. 880, per McIntyre J. Because such crimes require more complicated thought and reasoning processes, one can readily understand how intoxication short of automatism may negate the required mental element. As such, specific intent offences are less likely to be the type of offences that intoxicated people are apt to commit. For that reason, policy considerations that might otherwise militate against a defence of intoxication are less pressing.

[29] Justice Sopinka noted another policy reason for permitting the defence of intoxication in respect of specific intent offences, namely, specific intent offences often include lesser offences that only require general intent. In such cases, an intoxicated offender will not escape punishment altogether: Daviault, at p. 124.

(b) The Appropriate Approach to Classifying Specific and General Intent Offences

[30] The analysis of whether an offence is one of specific or general intent must start with a determination of the mental element of the offence in question. This is an exercise in statutory interpretation. Care should be taken not to turn it into a factual assessment based on the circumstances of the particular case.

[31] After the mental element of the provision has been determined, the next question is whether the crime is one of general or specific intent. The distinction between general and specific intent offences is not a precise science. Logic, intuition, and policy all play a part. The task has proved formidable to those who have been schooled in criminal law, and daunting to those who have not.

[32] Be that as it may, the place to begin in determining the appropriate classification of the offence is to look to existing jurisprudence. Where the jurisprudence has already determined the appropriate classification of the offence in a satisfactory manner, the task is straightforward. For example, this Court has established that sexual assault is a general intent offence, whereas robbery and murder are specific intent offences: see Leary v. The Queen, 1977 CanLII 2 (SCC), [1978] 1 S.C.R. 29, and R. v. Chase, 1987 CanLII 23 (SCC), [1987] 2 S.C.R. 293 (sexual assault); R. v. George, 1960 CanLII 45 (SCC), [1960] S.C.R. 871 (robbery); and R. v. Cooper, 1993 CanLII 147 (SCC), [1993] 1 S.C.R. 146 (murder). For these offences and for others that have been satisfactorily addressed by existing jurisprudence, there is no need to examine the question again. The framework that follows is meant to clarify, not change the law as set out in Daviault. However, if the jurisprudence is unclear, courts must examine the factors outlined in Daviault, as clarified below, to resolve the question.

[33] While Daviault made clear that there are two main considerations when determining if intoxication short of automatism can be considered — the “importance” of the mental element, and the social policy underlying the offence — it left certain questions unanswered. First, it provided no clear explanation of what is meant by the “importance” of the mental element. Second, it did not specify whether policy considerations should always play a role in the analysis or whether they should only come into play if an examination of the mental element left unclear how the offence should be characterized. I turn to these questions in the hope of bringing some added clarity to an area of the law that continues to perplex and confound.

(i) The “Importance” of the Mental Element

[34] Daviault specified that the nature of the mental element and its “relative importance” form the basis for the analysis. Although Sopinka J. did not explain what he meant by the “importance” of the mental element, it is clear that he was referring to the complexity of the thought and reasoning processes that make up the mental element of a particular offence. The thought and reasoning processes for general intent crimes are relatively straightforward. In contrast, specific intent crimes — those crimes with a more “important” mental element — require a more sophisticated reasoning process.

[35] For general intent crimes, the mental element simply relates to the performance of an illegal act. Such crimes do not require an intent to bring about certain consequences that are external to the actus reus: Bernard, at p. 863; George, at p. 877 (per Fauteux J.). Assault is a classic example. The accused must intentionally apply force; however, there is no requirement that he intend to cause injury. Likewise, crimes of general intent do not require actual knowledge of certain circumstances or consequences, to the extent that such knowledge is the product of complex thought and reasoning processes. In each instance, the mental element is straightforward and requires little mental acuity.

[36] To be clear, when I refer to a mental element that is “straightforward” and involving “little mental acuity”, I am not creating a new legal standard for general intent offences. Rather, I am using these phrases synonymously with the descriptors used in Daviault: “minimal intent” and “minimal degree of consciousness”: p. 123.

[37] In contrast, specific intent offences involve a heightened mental element. In Daviault, Sopinka J. limited his discussion of specific intent offences to crimes involving an ulterior purpose. For such crimes, the accused must not only intend to do the act that constitutes the actus reus, he must also act with an ulterior purpose in mind: Manning and Sankoff, at p. 386. For example, assault with intent to resist arrest is an offence containing an ulterior purpose. The accused must not only commit the assault, he must also act with the ulterior purpose of resisting arrest. It is irrelevant whether he actually succeeds in resisting arrest; the offence simply requires that he act with that purpose in mind.

[38] Although Sopinka J. restricted his discussion of specific intent offences to crimes involving an ulterior purpose, it would be a mistake to assume that an ulterior purpose is always required. To the contrary, a heightened mental element could take the form of a requirement that the accused intend and bring about certain consequences, if the formation of that intent involves more complex thought and reasoning processes. Murder provides a classic example. Equally, a heightened mental element could take the form of a requirement that the accused have actual knowledge of certain circumstances or consequences, where the knowledge is the product of more complex thought and reasoning processes: see, e.g., M. T. Thornton, “Making Sense of Majewski” (1981), 23 Crim. L.Q. 464, at p. 482. Possession of stolen property is one such crime. The accused must actually know or be willfully blind to the fact that the goods he or she possesses are stolen. Although this offence contains no ulterior purpose, the knowledge component renders the mental element more acute. Intoxication is therefore available as a defence for such crimes.

[39] To summarize, specific intent offences contain a heightened mental element. That element may take the form of an ulterior purpose or it may entail actual knowledge of certain circumstances or consequences, where the knowledge is the product of more complex thought and reasoning processes. Alternatively, it may involve intent to bring about certain consequences, if the formation of that intent involves more complex thought and reasoning processes. General intent offences, on the other hand, require very little mental acuity.

(ii) The Role of Policy

[40] The second question that Daviault left unanswered is the stage at which policy ought to be considered. Confusion remains about whether policy should be considered in every case or whether it should only come into play if an examination of the mental element leaves it unclear how the offence should be characterized.

[41] In my view, the most logical approach is to first examine the nature of the mental element. Only when this analysis fails to yield a clear answer should one turn to policy considerations. As Daviault explains, policy considerations are closely tied to the nature of the mental element. General intent crimes involve such minimal mental acuity that it is difficult to see how intoxication short of automatism could deprive the accused of the low level of intent required. This provides a strong policy reason for precluding reliance on intoxication for these offences: Daviault, at p. 123. It also explains why it is constitutionally permissible to render the intoxication defence unavailable for general intent offences: ibid., at pp. 99-100. In contrast, one can more readily understand how the more complex thought and reasoning processes required for specific intent crimes may be negated by an accused’s intoxication. For that reason, policy suggests that intoxication can be considered for specific intent crimes. The nature of the mental element is already intertwined with policy considerations. Thus, if an examination of the mental element clearly indicates how the offence should be characterized, there is little reason to resort to policy considerations.

[42] However, if an examination of the mental element does not provide a clear answer, policy considerations may help resolve the question. In the main, the policy assessment will focus on whether alcohol consumption is habitually associated with the crime in question. If it is, then allowing an accused to rely on intoxication as a defence would seem counterintuitive. For example, intoxication is often associated with the crime of sexual assault. Allowing self-induced intoxication to provide an accused with a defence would be to endorse, if not promote, the very behaviour that has historically proved to be a root cause of the problem.[1] And while the law and common sense may not always coincide, we should not be looking for ways to send them scurrying in opposite directions. By the same token, where self-induced intoxication rarely, if ever, plays a role in the commission of a particular crime, preventing an accused from relying on it makes less sense from a policy perspective.

[43] As a general observation, and without setting out a general rule, alcohol habitually plays a role in crimes involving violent or unruly conduct: Bernard, at p. 880. It also tends to be prevalent in crimes involving damage to property. As such, it makes little sense from a policy perspective that it should provide a defence for crimes in which people or property are harmed or endangered: Daviault, at p. 123. Of course, there are well-established exceptions to this general proposition. Murder, for example, has long been considered a crime of specific intent for which the defence of intoxication is available. As Daviault explains, at p. 124, this is a function of the heightened thought and reasoning processes required, the gravity of the offence, the serious fixed punishment upon conviction, and the availability of the lesser included offence of manslaughter. It is therefore incorrect to state that intoxication may never be considered in crimes involving violence against people or damage to property. However, given the prevalence of alcohol in these crimes, there are likely to be strong policy reasons militating against an intoxication-based defence.

[44] Although the main focus of the policy inquiry will be on whether alcohol is habitually associated with the crime in question, there are other residual policy considerations that may also come into play. As noted in Daviault, the presence of a lesser included general intent offence in the main offence may be relevant. In such cases, an accused who successfully relies on intoxication to negate the heightened mental element of the main offence can still be convicted of the lesser included offence. Drunkenness will provide no defence to the lesser offence. For example, an accused who successfully raises intoxication as a defence to a charge of assault with intent to resist arrest may still be convicted of the lesser included offence of assault. In these situations, the intoxicated offender will not escape punishment altogether. Consequently, there is less impetus to preclude the accused from advancing intoxication as a defence to the main offence.

[45] In addition, the presence of judicial sentencing discretion may be a factor to consider. If the crime is one for which the accused will receive a heavy minimum sentence upon conviction, it may be unduly harsh to preclude consideration of intoxication. However, if the judge has discretion to tailor the sentence to the facts of the case and to consider the accused’s intoxication as part of that assessment, precluding the accused from advancing a defence of intoxication is less worrisome: Daviault, at p. 124.

3. Private Prosecutions

. R v Olumide

In R v Olumide (Ont CA, 2014) the Court of Appeal reiterated the criteria for setting aside a Crown stay of a private criminal prosecution:
[2] Section 579 of the Criminal Code gives the Attorney General the authority to direct a stay of proceedings at any time. The discretion to do so is reviewable only in the event of abuse of process. There is a presumption of prosecutorial good faith: see Krieger v. Law Society (Alberta) 2002 SCC 65 (CanLII) and R. v. Nixon 2011 SCC 34 (CanLII). The appellant has the onus of proving an abuse of process in the exercise of prosecutorial discretion.

[3] Mr. Olumide alleged that the Attorney General is in an inherent conflict of interest and this constitutes an abuse of process. The motion judge found that there was no evidence of abuse of process. Absent proof of an abuse, the discretion is not subject to review by the court: Campbell v. Ontario (A.G.) (1987), 1987 CanLII 4333 (ON CA), 35 C.C.C. (3d) 480 (Ont. C.A.), leave to appeal refused, [1987] S.C.C.A. No. 202. There is no evidence to point to an abuse of process.
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Sources


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