Canadian Criminal Law: Key Sections, Interpretation, and Actus Reus

Posted on Jan 20, 2025 in Criminology

Canadian Charter of Rights and Freedoms

  • S. 1 – Rights and freedoms in Canada
  • S. 2 – Fundamental freedoms
  • S. 7 – Life, liberty and security of the person
  • S. 8 – Search and seizure
  • S. 9 – Detention or imprisonment
  • S. 10 – Arrest or detention
  • S. 11 – Proceedings in criminal and penal matters
  • S. 12 – Treatment or punishment
  • S. 13 – Self-crimination
  • S. 14 – Interpreter
  • S. 15 – Equality before and under law and equal protection and benefit of law

Purposive Interpretation

Canadian law uses purposive interpretation, where language is interpreted with the statute’s overall purpose, ensuring it aligns with the provision’s intent. However, this interpretation cannot distort the language used.

R. v. Pare, S.C.C. (1987)

Interpretation of “while committing” in s.214(5) does not require murder, underlying offence to occur simultaneously

French/English

Federal laws, like the Criminal Code, are in both official languages. Each version is equally authoritative, and ambiguities in one language can be clarified by the other.

The Charter

The Charter significantly influences statutory interpretation, presuming statutes are intended to be constitutionally valid.

Actus Reus

Conduct, Physical (e.g., assault), Material (e.g., possession of drugs). Crime occurs where mens rea and actus reus meet.

  • The Crown must prove both the mens rea and actus reus of the offence.
  • No singular type of fault; each offence must be examined separately.

Acts and Statutory Conditions

The act must be the accused’s act, described in the relevant provision, and committed under specified conditions. For example, a break and enter requires “breaking” and “entering” a “place” with the relevant mens rea.

R. v. J. (D.), O.C.A. (2002) – forcible entry offence not committed where known person walks through front door, through residence and out back door, offence occurs only where entry interferes with peaceable possession of a person in actual possession of property

Voluntary or Willed Acts

The act must be voluntary, a willed act of the accused. For example, a person suffering a seizure who strikes another is not guilty of a willed act.

  • Unless physical motion is willful, it is not considered an act of the accused.

Act of Possession

  • S. 4(3) of the Criminal Code and s. 2 of Controlled Drugs and Substances Act
  • Possession defined in Code, s.4(3): where item in personal possession, (personal/actual/manual possession, s.4(3)(a)); or in actual possession or control of another person, or in place whether it belongs or occupied by person, for use or benefit of self or another person (constructive possession, s.4(3)(a)(i), (ii)); or where one of two or more persons, with knowledge and consent of rest, has anything in his/her custody or possession, deemed to be in custody and possession of each and all of them (joint possession, s.4(3)(b))
  • Controlled Drugs and Substances Act, s.2 definitions – “possession” means possession within meaning of s.4(3) Code

Act of Possession

  • Requires proof of both knowledge and control
  • R. v. Terrence, S.C.C. (1983)
  • Accused passenger in stolen car, held measure of control is essential element of possession under s.3(4)(b) Code; “knowledge and control” required cannot exist without some measure of control over subject matter

Consent as Element of Actus Reus

Absence of consent by the victim is often an important actus reus condition, e.g., assault, s.265(1)(a) defined as non-consensual application of force.

Consent is complex, defined by statute, e.g., s.265(3) definition of consent, s.265(4) accused’s belief as to consent, and common law.

  • R. v. Ewanchuk, S.C.C. (1999) – actus reus of sexual assault requires proof of touching, sexual nature of contact, absence of consent; no defence of implied consent to sexual assault exists in Canada – to be legally effective, consent must be freely given
  • R. v. Jobidon, S.C.C. (1991) – s.265 should be read in light of common law limitations on consent, Code provisions have not ousted common law limitations – victim’s consent to “fair fight” did not preclude commission of offence of assault

Causation

Causation requires finding that the accused caused the “consequence.”

Two-stage analysis: (1) factual causation; and (2) legal or imputable causation.

  • Factual causation: how the victim died, and the accused’s contribution. Was the conduct of the accused a significant contributing cause of the prohibited consequence?
  • Legal or imputable causation: whether the accused should be held criminally responsible—a moral judgment on moral responsibility.

Omission

A crime may be committed by an act or omission.

To be guilty by omission:

  1. The offence must contemplate guilt for omissions;
  2. The accused must be under a legal duty to do something; and
  3. The accused failed to fulfill that duty by his or her omissions;

Moore v. The Queen, S.C.C. (1979)

Accused ran red light on bicycle, refused to identify self to police officer who intended to issue him ticket – majority holds officer under duty to attempt to identify wrong-doer, accused’s failure to identify self constitutes offence of obstructing peace officer in execution of his/her duty, Code, s.129;

Second Degree Murder

(Code, s. 229(a))

“that the accused means to cause death to the victim; or means to cause the victim bodily harm that the accused knows is likely to cause his or her death, and is reckless where death ensues or not.”

Crown must prove:

  1. That the accused caused the victim’s death;
  2. That the accused caused the death unlawfully; and
  3. That the accused had the state of mind required for murder