The Charter has had a limited effect on the ability of legislatures to define what conduct is illegal. A crime that prohibits some activity protected under the Charter, such as freedom of expression, must be justified under section 1 of the Charter. No crime should be so vague or overbroad that it fails to provide notice to the accused or limit law enforcement discretion.
The criminal law as enacted by Parliament sets a fairly wide net of criminal liability by defining criminal acts quite broadly. Courts will interpret prohibited acts in a purposive fashion, before resorting to the doctrine of strict construction of the criminal law that gives the accused the benefit of reasonable ambiguities. As examined in chapter 4, people can be held guilty as parties to an offence for a wide range of conduct, including aiding, abetting, or counselling a crime, or forming a common unlawful purpose with either subjective or objective foresight that the crime charged will occur.20Separate offences of conspiracy, counselling a crime that is not committed, and being an accessory after the fact also exist. Courts have defined the prohibited act of attempted crimes broadly, so that anything beyond preparation will suffice, even if it is not otherwise illegal or harmful. The accused may be guilty of an attempted crime even though it was impossible to commit the complete crime and his or her actions were quite remote from the complete crime.21At the same time, courts have stressed that the Crown must prove that the accused acted with the intent to commit the crime. Another alternative to inchoate crimes is to criminalize activities that are preparatory to the commission of crimes. Parliament has taken this approach with organized crime and terrorism offences that apply to financial transactions and participation in groups that may occur well in advance to the commission of any crime and to activity that might not attract inchoate or party liability.
Various sexual offences have been defined by Parliament broadly in an attempt to protect the sexual integrity of women and children. Parliament has defined consent for the purpose of sexual assault not to
include specific conduct22and the Supreme Court has held that consent as a matter of actus reus depends solely on the subjective intent of the complainant23and also cannot be given by an unconscious complainant.24In R. v. Jobidon,25the Supreme Court held that, for the purposes of assault, a person could not consent to the intentional infliction of serious hurt or non-trivial bodily harm. This has effectively expanded the law of assault to include consensual fights that result in injury. In Rodriguez v. British Columbia (A.G.),26the Court upheld a Criminal Code provision that a person could not consent to his or her death. There has also been some relaxation of the traditional requirement that the prohibited act and the fault element occur at the same time. There seems to be less reluctance to criminalize the omission to perform specific legal duties. In the future it appears likely that Parliament will continue to define many crimes broadly, and the manner in which crimes are defined will be an important policy component of the criminal law.
It appears that proof of subjective mens rea in relation to the prohibited result of a crime will be a constitutional requirement for only a few offences, such as murder, attempted murder, and war crimes. The Supreme Court has stressed that the penalties and stigma that accompany these offences require proof beyond a reasonable doubt of subjective mens rea in relation to the prohibited result. It has struck down the constructive (or felony) murder provisions in section 230 of the Criminal Code, because they allowed accused who caused death while committing serious crimes to be convicted of murder even if they did not have subjective foresight that death would occur. Liability for murder based on objective, as opposed to subjective, foresight of death contemplated in sections 229(c) and 21(2) has also been struck down.27
In a controversial decision, the Supreme Court held in R. v. Finta that section 7 of the Charter required proof of knowledge or at least wilful blindness in relation to the conditions that would make a war crime constitute a war crime. The Court has recently affirmed this approach but also indicated that recklessness may be a sufficient form of fault.28
Terrorism may, like war crimes, be found to be a stigma crime that requires subjective fault in relation to the prohibited act, but so far the courts have upheld the main terrorism offences including broad of-fences with qualified forms of subjective fault such as the facilitation of terrorism offence under section 83.19 of the Criminal Code. The Ontario Court of Appeal reversed a trial judge’s decision that the political or religious motive violated the Charter and stressed that the law was not responsible for any chill on religious or political freedoms.29For non-stigma offences, however, the Charter prohibits only imprisonment for absolute liability that follows from the commission of the prohibited act and without regard to either subjective or objective fault.
The Supreme Court has rejected, as a constitutional requirement, the principle that the fault element should relate to all aspects of the actus reus. Thus, the fault element of manslaughter relates not to the causing of death but the causing of non-trivial bodily harm. Many other crimes are based on the consequences of the accused’s actions even though the accused may not have had subjective or objective fault in relation to those consequences. The Court has upheld the constitutionality of objective standards of liability for serious crimes, including unlawful act manslaughter, unlawfully causing bodily harm, and dangerous driving. The courts have accepted the legitimacy of the use of objective fault standards in the criminal law while also holding that section 7 of the Charter requires more than simple negligence, but rather a marked departure from the standard of care expected from a reasonable person in the circumstances so that negligence as a form of criminal fault is adequately distinguished from mere civil negligence.30
The new section 22.1 of the Criminal Code, for example, requires that senior officer(s) of a corporation demonstrate a marked departure from the standard of care necessary to prevent representatives of the corporation from committing a criminal offence based on negligence. The marked departure standard, as well as the onus on the Crown to prove fault beyond a reasonable doubt, is an important distinction between criminal and regulatory offences.
In Creighton,31a 5:4 majority of the Supreme Court rejected attempts to tailor objective standards to a particular accused by endowing the reasonable person with personal characteristics such as the accused’s age and intelligence. The majority did keep open the possibility of considering the characteristics of individual accused but only if they meant
that the accused lacked the capacity to appreciate the prohibited risk. In most cases, however, the reasonable person used to...