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Criminal - Mens Rea (2)

. 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.


[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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Last modified: 03-01-24
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