R. v. Hamilton (R.L.), (2005) 371 A.R. 201 (SCC)

• Judge: McLachlin, C.J.C., Major, Bastarache, Binnie, LeBel, Deschamps, Fish, Abella and Charron, JJ.
• Court: Supreme Court (Canada)
• Case Date: July 29, 2005
• Jurisdiction: Canada (Federal)
• Citations: (2005), 371 A.R. 201 (SCC);2005 SCC 47;[2005] ACS no 48;JE 2005-1408;354 WAC 201;[2006] 2 WWR 583;EYB 2005-93219;135 CRR (2d) 228;198 CCC (3d) 1;371 AR 201;50 Alta LR (4th) 1;[2005] SCJ No 48 (QL);30 CR (6th) 243;[2005] CarswellAlta 1037;255 DLR (4th) 283;336 NR 302;[2005] 2 SCR 432

R. v. Hamilton (R.L.) (2005), 371 A.R. 201 (SCC);

    354 W.A.C. 201

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [2005] A.R. TBEd. JL.192

Her Majesty The Queen (appellant) v. René Luther Hamilton (respondent) and Attorney General of Ontario and Canadian Civil Liberties Association (intervenors)

(30021; 2005 SCC 47; 2005 CSC 47)

Indexed As: R. v. Hamilton (R.L.)

Supreme Court of Canada

McLachlin, C.J.C., Major, Bastarache, Binnie, LeBel, Deschamps, Fish, Abella and Charron, JJ.

July 29, 2005.

Summary:

The accused was charged under s. 464 of the Criminal Code with counselling four indictable offences which were not com­mitted: namely, making explosive substances with intent, doing anything with intent to cause an explosion, break and enter with intent, and fraud through dissemination of a credit card number generator.

The Alberta Court of Queen's Bench, in a judgment reported (2002), 309 A.R. 305, acquitted the accused on all charges on the ground that the requisite mens rea was not present. The Crown appealed.

The Alberta Court of Appeal, in a judg­ment reported (2003), 330 A.R. 328; 299 W.A.C. 328, dismissed the appeal. The Crown appealed.

The Supreme Court of Canada, Charron, Major and Abella, JJ., dissenting, allowed the appeal in part. The court affirmed the acquittals on all charges except counselling fraud through dissemination of a credit card number generator. A new trial was ordered re­specting that charge.

Criminal Law - Topic 2762

Attempts, conspiracies, accessories and parties - Counselling another to commit offence - Elements (incl. actus reus and mens rea) - The Supreme Court of Canada stated that "the actus reus of counselling will be established where the materials or statements made or transmitted by the ac­cused actively induce or advocate - and do not merely describe - the commission of an offence" - The court stated that "the actus reus for counselling is the deliberate en­couragement or active inducement of the com­mission of a criminal offence. And the mens rea consists in nothing less that an accompanying intent or conscious disregard of the substantial and unjustified risk in­herent in the counselling; that is, it must be shown that the accused either intended that the offence counselled be committed, or know­ingly counselled the commission of the offence while aware of the unjus­tified risk that the offence counselled was in fact likely to be committed as a result of the accused's conduct." - The court rejected the submission that only a subjec­tive intent that the counselled offence be committed would suffice - See paragraphs 15 to 29.

Criminal Law - Topic 2763

Attempts, conspiracies, accessories and parties - Counselling another to commit offence - What constitutes - The accused offered for sale, through the internet, access to a "credit card number generator" in terms that extolled its use for fraudulent purposes - The accused also offered for sale bomb "recipes" and information on how to commit burglaries - The accused was acquitted under s. 464 of the Criminal Code of counselling four indictable of­fences that were not committed: making ex­plosive substances with intent; doing anything with intent to cause an explosion; break and enter with intent; and fraud - The trial judge accepted that the accused did not read the files respecting bombs and burglaries and had no intention to induce anyone to build bombs or commit bur­gla­ries - The Supreme Court of Canada af­firmed the acquittals for the three coun­sel­ling charges respecting bombs and bur­gla­ries, as the accused lacked the requi­site mens rea - However, the court ordered a new trial on the counselling fraud charge - The accused actively promoted or en­cour­aged their use and subjectively knew that using false credit card numbers was illegal - The accused had himself gener­ated credit card numbers, although he never attempted to use them - The trial judge erred in finding that the accused lacked the requi­site mens rea because his "motivation" was monetary, not malevolent - The lack of a subjective intent that the counselled of­fence be committed did not end the inquiry - Recklessness or wilful blindness could suffice - The proper test was whether the accused "either intended that the offence counselled be committed, or knowingly coun­selled the commission of the offence while aware of the unjus­tified risk that the offence counselled was in fact likely to be committed as a result of the accused's conduct." - See paragraphs 34 to 45.

Cases Noticed:

R. v. Brousseau (1917), 56 S.C.R. 22, refd to. [para. 14].

R. v. Sharpe (J.R.), [2001] 1 S.C.R. 45; 264 N.R. 201; 146 B.C.A.C. 161; 239 W.A.C. 161; 2001 SCC 2, refd to. [paras. 15, 72].

R. v. Janeteas (P.) (2003), 167 O.A.C. 370; 172 C.C.C.(3d) 97 (C.A.), refd to. [paras. 16, 77].

R. v. Gonzague (1983), 4 C.C.C.(3d) 505 (Ont. C.A.), refd to. [paras. 22, 74].

R. v. Leary, [1978] 1 S.C.R. 29; 13 N.R. 592, refd to. [para. 28].

R. v. Sansregret, [1985] 1 S.C.R. 570; 58 N.R. 123; 35 Man.R.(2d) 1, refd to. [para. 32].

R. v. Dionne (1987), 79 N.B.R.(2d) 297; 201 A.P.R. 297 (C.A.), refd to. [paras. 37, 70].

United States of America et al. v. Dynar, [1997] 2 S.C.R. 462; 213 N.R. 321; 101 O.A.C. 321, refd to. [para. 43].

R. v. Hibbert (L.), [1995] 2 S.C.R. 973; 184 N.R. 165; 84 O.A.C. 161, refd to. [para. 43].

R. v. Keegstra, [1990] 3 S.C.R. 697; 117 N.R. 1; 114 A.R. 81, refd to. [para. 73].

R. v. Walia (1975), 9 C.R.(3d) 293 (B.C.C.A.), refd to. [para. 74].

R. v. Glubisz (1979), 47 C.C.C.(2d) 232 (B.C.C.A.), refd to. [para. 74].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 21(1), sect. 22(1), sect. 22(2), sect. 22(3) [para. 63]; sect. 464 [paras. 14, 63].

Authors and Works Noticed:

Alexander, Larry, and Kessler, Kimberley D., Mens Rea and Inchoate Crimes (1997), 87 J. Crim. L. & Criminology 1138, p. 1175 [para. 27].

Ashworth, Andrew, Principles of Criminal Law (4th Ed. 2003), p. 466 [para. 82].

Canada, Law Reform Commission, Sec­ondary Liability: Participation in Crime and Inchoate Offences (1985), Working Paper No. 45, pp. 5 [paras. 24, 25, 65]; 6 [paras. 25, 65].

Colvin, Eric, Principles of Criminal Law (2nd Ed. 1991), p. 377 [para. 82].

Dressler, Joshua, Understanding Criminal Law (3rd Ed. 2001), pp. 415, 416 [para. 82].

Friedland, Martin Lawrence, and Roach, Kent, Criminal Law and Procedure: Cases and Materials (8th Ed. 1997), pp. 508, 510, 511 [para. 28].

LaFave, Wayne R., Substantive Criminal Law (2nd Ed. 2003), vol. 2, pp. 194, 195 [para. 82].

Roach, Kent, Criminal Law (3rd Ed. 2004), pp. 125, 126 [para. 82].

Smith, John Cyril, and Hogan, Brian, Criminal Law (9th Ed. 1999), p. 271 [para. 82].

Stuart, Donald, Canadian Criminal Law: A Treatise (4th Ed. 2001), pp. 225, 226 [para. 32]; 227, 703 [para. 82].

Williams, Glanville, Textbook of Criminal Law (2nd Ed. 1983), p. 442 [para. 82].

Counsel:

James C. Robb, Q.C., and Steven M. Bilo­deau, for the appellant;

F. Kirk MacDonald, for the respondent;

Christopher Webb, for the intervenor, At­torney General of Ontario;

Andrew K. Lokan, for the intervenor, Cana­dian Civil Liberties Association.

Solicitors of Record:

Attorney General of Alberta, Edmonton, Alberta, for the appellant;

Pringle & Associates, Edmonton, Alberta, for the respondent;

Ministry of the Attorney General of On­tario, Toronto, Ontario, for the in­ter­venor, Attorney General of Ontario;

Palaire Roland Rosenberg Rothstein LLP, Toronto, Ontario, for the intervenor, Canadian Civil Liberties Association.

This appeal was heard on January 14, 2005, before McLachlin, C.J.C., Major, Bastarache, Binnie, LeBel, Deschamps, Fish, Abella and Charron, JJ., of the Supreme Court of Canada.

On July 29, 2005, the judgment of the Court was delivered in both official languages and the following opinions were filed:

Fish, J. (McLachlin, C.J.C., Bastarache, Binnie, LeBel and Deschamps, JJ., concurring) - see paragraphs 1 to 46;

Charron, J. (Major and Abella, JJ., con­curring), dissenting - see paragraphs 47 to 87.