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Criminal - Mens Rea (2). Canadian Pacific Railway Company v. Teamsters Canada Rail Conference
In Canadian Pacific Railway Company v. Teamsters Canada Rail Conference (Fed CA, 2024) the Federal Court of Appeal allowed an appeal from a finding of civil contempt, here in relation to a railway labour arbitration award.
Here the court distinguishes mens rea, and strict and abolute liability:Strict liability, absolute liability, and mens rea offences
[28] The point of departure for the analysis begins with an understanding of the differences between mens rea offences (or "“true criminal offences”"), strict liability offences, and absolute liability offences. The guiding authority on this remains: R. v. Sault Ste. Marie, [1978] 2 S.C.R. 1299, 1978 CanLII 11 (SCC) at 1325-1326 [Sault Ste. Marie]:(i) true criminal offences, "“in which mens rea, consisting of some positive state of mind such as intent, knowledge, or recklessness, must be proved by the prosecution”";
(ii) strict liability offences, "“in which there is no necessity for the prosecution to prove the existence of mens rea; the doing of the prohibited act prima facie imports the offence, leaving it open to the accused to avoid liability by proving that he took all reasonable care”";
(iii) absolute liability offences, in which "“it is not open to the accused to exculpate himself by showing that he was free of fault”". . R. v. Khan
In R. v. Khan (Ont CA, 2024) the Ontario Court of Appeal dismissed a criminal appeal, here on issues of mens rea respecting the "defence of honest belief in legal age" in a child sex offence:(1) Issue One: The trial judge did not err in her mens rea analysis
[23] Morrison [SS: R. v. Morrison, 2019 SCC 15,] teaches that, where the Crown establishes that an accused failed to take reasonable steps to ascertain age and is therefore barred from relying on a defence of honest belief in legal age, the trier of fact must still consider the whole of the evidence, “including the evidence relating to the accused’s failure to take reasonable steps”, to determine whether the Crown has proven beyond a reasonable doubt that the accused believed the other person was underage, or was wilfully blind as to whether the other person was underage: at paras. 129, 97. The Court further explained, in the context of a police sting operation, that there are circumstances in which, despite the accused having failed to take reasonable steps to ascertain age, the Crown may fail to prove beyond a reasonable doubt that the accused believed, or was wilfully blind to the fact, that the other person was underage: “for example, the trier of fact may determine that the accused was merely aware of a risk that the other person was underage (i.e. was reckless) or was merely negligent”: Morrison, at paras. 131, 83 and 101.
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[26] I agree with the Crown that the trial judge’s oral reasons, when read as a whole, in the context of the evidence and the submissions of trial counsel, make it clear that she articulated the correct test, and she applied it properly. The trial judge made factual findings that led her to reject the affirmative defence, but she did not conclude that because she rejected the defence, it therefore followed that the Crown had proven its case.
[27] First, the trial judge’s analysis was structured according to the three-step framework set out in Morrison: (1) does the defence of honest belief in legal age have an air of reality?; (2) if so, has the Crown disproven the defence beyond a reasonable doubt?; and (3) has the Crown proven beyond a reasonable doubt that the accused believed the other person was underage?: Morrison, at paras. 118‑33.
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[30] While striking down the s. 172.1(3) presumption of belief in age, the Supreme Court in Morrison pointed out that the normal process of inferential reasoning that judges and juries engage in routinely is available to prove the accused’s belief in the age represented to him, without the need for a statutory presumption of belief. As stated by Moldaver J., “[w]here the other person is represented to the accused as being underage, the trier of fact can, on the basis of evidence (including the record generated by the police), draw a logical, common sense inference that the accused believed that representation”: Morrison, at para. 69. This is what the trial judge did in the present case.
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The trial judge did not err in not considering whether the appellant was reckless
[35] At the hearing of the appeal the appellant’s counsel submitted that the appellant might have been reckless, by never turning his mind to the age of the person with whom he was communicating, and that the trial judge erred by not explicitly considering recklessness. He pointed to a passage in the trial judge’s reasons where she said that there was a complete failure on the part of the appellant to take reasonable steps, and “at the very least, he was wilfully blind to the fact he was communicating with a 14-year-old”. Counsel submitted that one interpretation of this passage is that the trial judge did not believe the appellant had taken any steps to verify age. If the appellant did not turn his mind at all to the question of age, then he was reckless, but not wilfully blind.
[36] I would not give effect to this argument.
[37] As a starting point, I observe that the impugned passage appears at step two of the trial judge’s Morrison framework analysis, where she considered whether the Crown disproved the appellant’s honest belief in legal age defence, in the alternative, in the event she was wrong in her step one findings. It was in rejecting the reasonableness of the steps the appellant said he had taken to verify the age of the person he was communicating with, that the trial judge observed that he was at the very least wilfully blind to the fact that he was communicating with a 14-year-old. However, by this point in her analysis, the trial judge had already made findings that supported her conclusion that the Crown had proved beyond a reasonable doubt that the appellant believed he was communicating with someone who was underage. Absent error in the trial judge’s findings at step one, of which I have found none, the question of recklessness was not a live issue.
[38] Second, and in any event, recklessness in the sense of not turning one’s mind to the question of age was not argued at trial. In fact, it is inconsistent with the defence closing submissions in which trial counsel argued that “[the appellant’s] behaviour overall, obviously he turned his mind to the issue [of age] based on the evidence that he gave in direct and cross-examination” (emphasis added). Defence counsel asserted that, if the steps taken were not reasonable, then his client was reckless or negligent, but he was not wilfully blind, because he at least took a step to ascertain age. The trial judge’s reasons were responsive to this argument. The trial judge rejected the argument that the appellant’s steps were reasonable, and she disagreed with defence counsel that the appellant’s conduct – that is, the steps he said that he had taken – did not constitute at least wilful blindness. The appellant had been told on two occasions he was communicating with a 14-year-old. In that context, it was open to the trial judge to accept the Crown’s submission that the appellant’s failure to take reasonable steps was indicative, at the very least, of wilful blindness.
[39] Third, there is no evidentiary support on this record for the recklessness scenario proposed by the appellant’s counsel. The appellant’s exculpatory explanation for his part in the text dialogue was that he did not believe the text message that the person he was communicating with was a 14-year-old, but believed instead that she was an adult woman role-playing as a 14-year-old and lying to him about her age. His position at trial was that he took reasonable steps to ascertain the person was an adult, by reviewing the information in the ad and the photos several times. Indeed, his counsel had urged the trial judge to accept that the appellant re-checked the ad and photos, and that this constituted a reasonable step. There was nothing on this record to suggest that the appellant was indifferent to the question of age.
[40] Nor would I accept the argument that the trial judge’s finding that it was not credible that the appellant “relied on” the ad and photos to ascertain age, meant that she rejected the appellant’s evidence that he went back to the ad and photos and reviewed them when he got the text messages about the other person being 14 years old. She acknowledged that “it was a step” but found that it was “not a reasonable one”. What the trial judge clearly rejected was that the appellant relied on the ad and photos to honestly believe that the person telling him she was 14 years old was actually an adult.
[41] Moreover, even if the trial judge did reject the appellant’s evidence that the appellant went back to the ad and photos, as I have said, given that the appellant had been told twice that he was communicating with a person who was underage, it was open to the trial judge to accept the Crown’s submission that the appellant’s failure to take reasonable steps was indicative, at the very least, of wilful blindness. . R. v. Stordy
In R. v. Stordy (Ont CA, 2024) the Court of Appeal considered the 'simultaneity principle', requiring coincidence between actus reus and mens rea:[48] More generally, in Canadian law, the classical approach to fault involves the identification of the act component(s) of the offence (or the actus reus), on one hand, and the corresponding mental element(s) (or the mens rea), on the other. As the Supreme Court held in R. v. Vaillancourt, 1987 CanLII 2 (SCC), [1987] 2 S.C.R. 636, at p. 653, this approach to culpability seeks to avoid punishing the morally innocent.
[49] This foundational principle also requires a temporal concurrency between the two elements. This is sometimes referred to as “the simultaneous principle”: see R. v. Cooper, 1993 CanLII 147 (SCC), [1993] 1 S.C.R. 146, at pp. 156-158; R. v. Williams, 2003 SCC 41, [2003] 2 S.C.R. 134, at p. 146; R. v. Brown, 2022 SCC 18, 412 C.C.C. (3d) 427, at paras. 106-107; and Don Stuart, Canadian Criminal Law: A Treatise, 8th ed. (Toronto: Thomson Reuters Canada Limited, 2020), at pp. 409-411.
[50] While this manner of organizing the principles of criminal liability has generally proved to be valuable, it has its limits. As Professor Stuart has observed: “The distinction between actus reus and mens rea is only an analytic device”: at p. 409. As the criminal law reaches into new areas of criminal behaviour – and, historically speaking, the offences created by s. 172.1 and 172.2 are relatively recent additions to the Criminal Code – this analytic device may not always be helpful in explaining what the Crown is required to prove in order to establish guilt.
[51] This point is illustrated in Legare, in the context of s. 172.1. Fish J. observed that it is “neither necessary nor particularly helpful for trial judges to recast every element of the offence in terms of its actus reus, or ‘act’ component, and its mens rea, or requisite mental element”: at para. 38. As he said, “[i]t seems to me preferrable, in setting out the elements of s. 172.1, to adopt ‘language which accurately conveys the effect of the law without in itself imposing an unnecessary burden of translation and explanation’”: at para. 40, quoting Howard’s Criminal Law, 5th ed. (1990), p. 11. . R. v. N.C.
In R. v. N.C. (Ont CA, 2024) the Ontario Court of Appeal found that a conviction could not be supported where "(a)t no point in his reasons did the trial judge make any finding that the Crown had proven mens rea beyond a reasonable doubt":[10] We also agree with the appellant’s second submission that the trial judge erred by failing to turn his mind to the mens rea requirement of the offence. At no point in his reasons did the trial judge make any finding that the Crown had proven mens rea beyond a reasonable doubt. Instead, the trial judge stated the following at the end of his reasons:In accordance with the law that I recited earlier, the court's acceptance of the complainant's testimony on this point, means that the actus reus of a sexual assault has been made out. The Crown has proven beyond a reasonable doubt that the accused, [N.C.], committed a sexual assault against [E.K.]. He is found guilty of the offence of sexual assault, contrary to section 271 of the Criminal Code. [Emphasis added.] [11] Having concluded that the actus reus of the offence had been committed, the trial judge was required to turn his mind to whether the necessary mental state – knowing of or being wilfully blind or reckless as to lack of consent – had been proven beyond a reasonable doubt. While we acknowledge that a trial judge is under no obligation, in reasons for judgment, to expound on basic criminal law principles, that does not mean that trial judges are relieved from their obligation to provide reasons that permit appellate review. We are of the view that these reasons do not meet that standard. As we read the record, although defence counsel acknowledged the case was about the complainant’s “consent”, he did not expressly concede that the appellant had knowledge of a lack of consent. Respectfully, the trial judge did not grapple with the entirety of the appellant’s evidence nor did he make an explicit finding that there was no air of reality to a mistake of fact defence. The reasons do not review important aspects of what the appellant stated he did to ascertain consent from the complainant, including asking her questions, nor do the reasons deal with the evidence of what the appellant testified was behaviour and communication that he perceived to be consent. . R. v. Firlotte
In R. v. Firlotte (Ont CA, 2023) the Court of Appeal considered an evidentiary 'common sense inference' argument, here in deciding the mens rea for murder:Issue Three: The Trial Judge Did Not Err in His Application of the “Common Sense Inference”
[51] In R. v. Magno (2006), 2006 CanLII 21758 (ON CA), 210 C.C.C. (3d) 500, Gillese J.A. explained how the common sense inference can be relevant in determining an accused’s state of mind, and in particular the intent for murder. She stated at para. 18:The Crown is often required to prove a culpable state of mind as an element of an offence. The culpable state of mind may be intention, foresight or something else, such as knowledge. Section 229(c) requires proof of foresight, that is, that an accused foresaw that the acts done for the unlawful object were likely to cause death. The inquiry is ultimately a subjective one. That does not mean, however, that a consideration of what the normal or reasonable person would have intended or foreseen is unhelpful or irrelevant. A person’s state of mind may be determined by what a person says and does. It may be deduced also by considering what the natural consequences of someone’s actions are and whether the person, by acting in the manner for which there would be natural consequences, foresaw that those natural consequences would occur. While there is no legal presumption that a person foresees or intends the natural consequences of his or her acts, it is a common sense proposition. [52] The common sense inference assumes that the act or acts in question have natural and probable consequences. It is helpful only if, as a matter of common human experience, there is a close causal connection between the act and the consequence which is material to the criminal charge. The more likely, as a matter of common human experience, the consequence is to flow from the action, the stronger is the inference that the person intended that consequence: R. v. Boone, 2019 ONCA 652, 56 C.R. (7th) 432, at paras. 88-89. It is for the trial judge to determine whether the facts are such that a common sense inference could arise. Its application is not automatic or determinative; the common sense inference, when properly used, is a “helpful tool to be used in assessing the evidence going to the accused’s state of mind”: Boone, at para. 89.
[53] The appellant does not assert that the common sense inference had no role to play in this case. Rather, the appellant contends that there was an “over-reliance” by the trial judge on the common sense inference to make it determinative of guilt without linking the actions of the appellant to the victim’s death. The appellant asserts that, rather than using the common sense inference as a tool, the trial judge used it as a “short cut”. The trial judge did not explain how, in the context of additional factors that led to the victim’s death, such as hypothermia, the appellant’s actions had the natural consequence of death, rather than a mere risk of death.
[54] The appellant contends that this case is similar to Boone, where this court allowed an appeal of an attempted murder conviction in part based on the trial judge’s instruction to the jury on the common sense inference. The inference was not applicable because death was not the natural and probable consequence of the appellant’s actions. The appellant also refers to R. v. Hadfield, 2020 ONSC 5992, where, although the assault by the accused was a cause of the victim’s death, the trial judge declined to convict where there was a single kick and the victim hit his head on a curb. It was not sufficient to foresee the risk of death; there had to be a likelihood of death from the accused’s forceful blow. The appellant contends that, as in these cases, this court should find that there was a gap in the inferential chain because there were other factors that led to Mr. Bailey’s death.
[55] I would not give effect to this argument. The question on appeal is whether, having regard to the applicable evidence and common human experience, it was “reasonably open” to the trial judge, as the finder of fact, to draw upon the common sense inference: R. v. J.A., 2022 ONCA 445, at para. 14. The common sense inference had a role to play in this case as long as the likely death of the victim, by whatever mechanism, could reasonably be described as the natural and probable result of the appellant’s actions. The focus is not on whether specific actions of the appellant considered in isolation (such as the beatings) had natural and probable consequences, but on whether the collective body of evidence respecting the appellant’s conduct was such that the victim’s death was the natural, probable, or predictable consequence of such conduct.
[56] In this case it was open to the judge to conclude that the cumulative conduct of the appellant was such that death or bodily harm likely to cause death was the natural and probable consequence. The appellant and his accomplice embarked on a dangerous course of conduct. There was expert evidence about the injuries that spoke to the severity of the attack. There were significant and debilitating blows and sharp force injuries to the victim’s body and hands. His head was struck multiple times, injuring his brain and affecting his level of consciousness. The defence pathologist testified that the victim needed medical intervention. He was left in a field in the dark with his eyes swollen shut, without any reasonable prospect of rescue and without a car or a cell phone, wearing inadequate clothing at below freezing temperatures.
[57] The expert evidence in this case did not undermine, but supported, the use of the common sense inference. By contrast, in Boone, where the appellant had engaged in unprotected sex with various victims, intending to infect them with the HIV virus, based on the expert evidence, it could not be said that a close causal connection existed between the sexual activity engaged in by the appellant and the infection of his partners or between the infection of his partners and their ultimate death from AIDS. Neither infection as a result of the sexual activity, nor eventual death from infection could be accurately described as “natural and probable consequences” of the appellant’s actions. Nor is this case at all like Hadfield, where there was no mention of the common sense inference, and in any event, the trial judge concluded, on the evidence before him, that there was nothing to suggest that accused would have foreseen that the single blow to the victim would result in his death.
[58] In R. v. Robson, 2008 ONCA 153, an argument that the trial judge had erred in instructing the jury on the common sense inference was rejected by this court. The appellant had sexually assaulted the victim, in the course of which he had beaten her about the head. The pathologist listed aspiration of vomit as the sole cause of death. His evidence was that the head injuries caused her to vomit, although he acknowledged that revulsion and anxiety caused by the attack may also have contributed to the victim’s vomiting. This court stated that it did not accept that, because the appellant might not have been able to foresee specifically how the victim would die, her death could not be a likely consequence of his acts. It was an inference the jury could draw and accordingly the common sense inference was properly placed before them.
[59] Similarly, in the present case, the fact that the appellant might not have been able to foresee how Mr. Bailey would die – that is whether other factors might have contributed to his death – did not preclude the availability of the common sense inference, provided the trial judge was satisfied that death would be a likely consequence of the appellant’s acts. There was a close causal connection between the appellant’s conduct and the victim’s death. The appellant’s acts included not only a serious and debilitating assault but the abandonment of an injured victim who required medical attention in sub-zero temperatures, without the prospect of aid. There is nothing in the evidence in this case that would preclude the operation of the common sense inference.
[60] I would not, therefore, give effect to the “common sense inference” ground of appeal. . R. v. Fox
In R. v. Fox (Ont CA, 2023) the Court of Appeal considers 'recklessness' (also 'wilful blindness') as a form of mens rea:[25] Recklessness is a form of subjective fault distinct from both negligence and wilful blindness. It refers to the state of mind of a person who, “aware that there is danger that his conduct could bring about the result prohibited by the criminal law, nevertheless persists, despite the risk”: Sansregret v. The Queen, 1985 CanLII 79 (SCC), [1985] 1 S.C.R. 570, at p. 582; Morrison, at para. 100; R. v. Beatty, 2008 SCC 5, [2008] 1 S.C.R. 49, at para. 47. In contrast, wilful blindness is a higher standard that “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. He would prefer to remain ignorant”: Sansregret, at p. 584; Morrison, at para. 100. Culpability through recklessness is justified by the accused proceeding despite consciousness of the risk, while culpability through wilful blindness is justified by the accused deliberately failing to inquire despite some knowledge that there is reason for inquiry. . R. v. Fox
In R. v. Fox (Ont CA, 2023) the Court of Appeal considers 'general mens rea' where it is not otherwise mentioned:[21] R. v. Buzzanga and Durocher (1979), 1979 CanLII 1927 (ON CA), 25 O.R. (2d) 705 (C.A.), at p. 717, provides that “[t]he general mens rea which is required and which suffices for most crimes where no mental element is mentioned in the definition of the crime, is either the intentional or reckless bringing about of the result which the law, in creating the offence, seeks to prevent”. While that is most often the case, determining the level of mens rea intended for a particular offence always requires attention to the text of the particular provision, its context, and purpose. . R. v. Fox
In R. v. Fox (Ont CA, 2023) the Court of Appeal considers the statutory interpretation principle of 'operative interpretive presumptions', here in a criminal mens rea context:[19] Determining the mens rea as to age applicable to s. 172.1(1)(a) of the Criminal Code is a matter of statutory interpretation. The orthodox method of statutory interpretation was summarized by the Supreme Court in R. v. Jarvis, [2002] 3 S.C.R. 757, 2002 SCC 73, at para. 77: “one is to seek the intent of Parliament by reading the words of the provision in context and according to their grammatical and ordinary sense, harmoniously with the scheme and object of the statute”. Distilled further, it is a matter of determining the intention of Parliament by reference to the “text, context, and purpose” of the statute: R. v. Basque, 2023 SCC 18, para. 63.
[20] In ascertaining the intention of Parliament, courts are assisted by reference to operative interpretive presumptions. One such presumption, applicable here, is that Parliament intends that true crimes have a subjective fault element, namely that criminal liability results only where an accused who committed a prohibited act did so intentionally or recklessly, with knowledge of the facts constituting the offence or with wilful blindness towards them. See R. v. A.D.H., 2013 SCC 28, [2013] S.C.R. 269, at para. 23, and the cases cited therein.
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[22] As explained below, consideration of the text, context, and purpose of s. 172.1(1)(a) establishes that recklessness as to age is sufficient mens rea for a conviction under the provision’s first mode of offence where the Crown can prove the accused communicated with an actual child. I would therefore allow the appeal. However, because the trial judge did not make the necessary findings as to whether the respondent subjectively intended to communicate with the complainants for the purpose of facilitating the commission of the secondary offences alleged, I would order a new trial.
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