R. v. DeSousa, 1992 CanLII 80 (SCC), [1992] 2 SCR 944

R. v. DeSousa, 1992 CanLII 80 (SCC), [1992] 2 SCR 944

Joao (John) DeSousa Appellant

v.

Her Majesty The Queen Respondent

and

The Attorney General of Canada,

the Attorney General of Quebec and

the Attorney General for Alberta Interveners

Indexed as: R. v. DeSousa

File No.: 22231.

1991: December 13; 1992: September 24.

Present: Sopinka, Gonthier, Cory, McLachlin and Iacobucci JJ.

on appeal from the court of appeal for ontario

Constitutional law ‑‑ Charter of Rights ‑‑ Fundamental justice ‑‑ Mens rea ‑‑ Unlawfully causing bodily harm ‑‑ Bystander injured by piece of broken glass from bottle allegedly thrown by accused involved in a fight‑‑ Whether mental element of s. 269 of Criminal Code infringes s. 7 of Canadian Charter of Rights and Freedoms ‑‑ Criminal Code, R.S.C., 1985, c. C‑46, s. 269.

Criminal law ‑‑ Assault ‑‑ Unlawfully causing bodily harm ‑‑ Mens rea ‑‑ Bystander injured by piece of broken glass from bottle allegedly thrown by accused involved in a fight ‑‑ Whether mental element of s. 269 of Criminal Code infringes ss. 7 and 11(d) of Canadian Charter of Rights and Freedoms ‑‑ Criminal Code, R.S.C., 1985, c. C‑46, s. 269.

Criminal law ‑‑ Procedure ‑‑ Pre‑trial motion brought by accused contesting constitutionality of provision under which he was charged ‑‑ Trial judge granting motion before hearing evidence ‑‑ Whether trial judge followed appropriate procedure.

The accused was involved in a fight in which a bystander was injured on the arm when a bottle, allegedly thrown by the accused, broke against a wall and a glass fragment struck the bystander. As a result of this incident, the accused was charged with unlawfully causing bodily harm contrary to s. 269 of the Criminal Code. At the outset of the trial, the accused brought a motion to have s. 269 declared of no force or effect on the ground that it infringed s. 7 of the Canadian Charter of Rights and Freedoms. Before hearing any evidence, the trial judge granted the motion and quashed the indictment. She found that s. 269 created criminal responsibility for causing bodily harm by way of an unlawful act, which could include an offence of absolute liability and, since the section also allowed the possibility of imprisonment, it contravened s. 7 of the Charter and was not justified under s. 1. On appeal, the Court of Appeal overturned the motion judgment and set aside the order quashing the indictment. This appeal raises two issues: (1) whether the trial judge followed an appropriate procedure in dealing with the motion contesting the constitutionality of s. 269 of the Code prior to hearing any evidence; and (2) whether s. 269 violates ss. 7 and 11(d) of the Charter.

Held: The appeal should be dismissed. Section 269 does not violate s. 7 or s. 11(d) of the Charter.

A trial judge has jurisdiction to dispose of a motion to quash the indictment on the grounds of constitutional invalidity and such a motion may be brought at any time. The decision whether to rule on the application or to reserve until the end of the case is a discretionary one to be exercised having regard to two policy considerations. The first is that criminal proceedings should not be fragmented by interlocutory proceedings which take on a life of their own. The second, which relates to constitutional challenges, discourages adjudication of constitutional issues without a factual foundation. In exercising his discretion, the trial judge should not depart from these policies unless there is a strong reason for doing so. An apparently meritorious Charter challenge of the law under which the accused is charged, which is not dependent on facts to be elicited during the trial, may come within the exceptions to the general rule. Here, the trial judge did not err in disposing of the accused's motion before hearing evidence. No objection was taken at trial to the procedure adopted. The Charter challenge was not without merit and the evidence at trial would not have assisted in the resolution of the constitutional question given the nature of the accused's submissions. It was irrelevant whether the facts at trial would establish a mental element compatible with constitutional mens rea requirements, since this Court has not adopted the "constitutional as applied" approach.

To be brought within the ambit of s. 269 of the Code, an accused must have committed an underlying unlawful offence and have caused bodily harm to another person as a result of committing that offence. Unlike most offences, the mental element of s. 269 is composed of two separate requirements. First, the mental element of the underlying offence must be satisfied. The underlying offences covered by s. 269 include only federal and provincial offences. Excluded from this general category of offences are any offences which are based on absolute liability or which have constitutionally insufficient mental elements on their own. Second, the additional fault requirement of s. 269 must be satisfied. The term "unlawfully" in s. 269 requires that the underlying unlawful act ‑‑ criminal or non‑criminal ‑‑ be at least objectively dangerous in that a reasonable person would inevitably realize that the underlying unlawful act would subject another person to the risk of bodily harm. This latter requirement insures that all prosecutions under s. 269 contain at least a fault requirement based on an objective standard. Section 269 has neither the stigma nor the criminal sanction to require a more demanding mental element. Interpreted in this way, s. 269 complies with the requirements of s. 7 of the Charter. There is no constitutional requirement that intention, either on an objective or on a subjective basis, extend to the consequences of unlawful acts in general. There must be an element of personal fault in regard to a culpable aspect of the actus reus, but not necessarily in regard to each and every one of its elements. To require fault in regard to each consequence of an action in order to establish liability for causing that consequence would substantially restructure current notions of criminal responsibility. In punishing for unforeseen consequences the law is not punishing the morally innocent but those who cause injury through avoidable unlawful action. In the absence of a violation of s. 7, there is no violation of s. 11(d) of the Charter.

Cases Cited

Referred to: Gralewicz v. The Queen, 1980 43 (SCC), [1980] 2 S.C.R. 493; R. v. Morgentaler, 1988 90 (SCC), [1988] 1 S.C.R. 30; R. v. Côté, 1977 1 (SCC), [1978] 1 S.C.R. 8; R. v. Villeneuve (1984), 1984 ABCA 232, 54 A.R. 265; R. v. Cook (1985), 1985 641 (BC CA), 20 C.C.C. (3d) 18; R. v. R.I.C. (1986), 1986 4666 (ON CA), 17 O.A.C. 354; R. v. Peremiczky (Zoly) (1973), 1973 1689 (BC SC), 25 C.R.N.S. 399; R. v. Denton (1990), 1990 13108 (NS SC), 100 N.S.R. (2d) 174; R. v. Tennen, 1959 140 (ON CA), [1959] O.R. 77 (C.A.), aff'd 1960 5 (SCC), [1960] S.C.R. 302; R. v. Sarson (1992), 73 C.C.C. (3d) 1; Canadian Broadcasting Corp. v. Attorney‑General for Ontario, 1959 2 (SCC), [1959] S.C.R. 188, rev'g 1957 125 (ON CA), [1958] O.R. 55 (C.A.), aff'd 1957 101 (ON SC), [1957] O.R. 466 (H.C.); Mills v. The Queen, 1986 17 (SCC), [1986] 1 S.C.R. 863; Moysa v. Alberta (Labour Relations Board), 1989 55 (SCC), [1989] 1 S.C.R. 1572; Danson v. Ontario (Attorney General), 1990 93 (SCC), [1990] 2 S.C.R. 1086; R. v. Rahey, 1987 52 (SCC), [1987] 1 S.C.R. 588; R. v. Gamble, 1988 15 (SCC), [1988] 2 S.C.R. 595; Manitoba (Attorney General) v. Metropolitan Stores Ltd., 1987 79 (SCC), [1987] 1 S.C.R. 110; R. v. Nova Scotia Pharmaceutical Society, 1992 72 (SCC), [1992] 2 S.C.R. 606; R. v. Smith, 1987 64 (SCC), [1987] 1 S.C.R. 1045; R. v. Wilmot (1940), 1940 235 (AB SCAD), 74 C.C.C. 1, rev'd on other grounds 1940 32 (SCC), [1941] S.C.R. 53; R. v. City of Sault Ste. Marie, 1978 11 (SCC), [1978] 2 S.C.R. 1299; Re B.C. Motor Vehicle Act, 1985 81 (SCC), [1985] 2 S.C.R. 486; R. v. Prue, 1979 227 (SCC), [1979] 2 S.C.R. 547; Beaver v. The Queen, 1957 14 (SCC), [1957] S.C.R. 531; R. v. Larkin (1942), 29 Cr. App. R. 18; R. v. Hall (1961), 45 Cr. App. R. 366; R. v. Church (1965), 49 Cr. App. R. 206; Director of Public Prosecutions v. Newbury (1976), 62 Cr. App. R. 291; Director of Public Prosecutions v. Daley (1978), 69 Cr. App. R. 39; R. v. Adkins (1987), 1987 2413 (BC CA), 39 C.C.C. (3d) 346; R. v. Lelievre (1962), 1962 238 (ON CA), 132 C.C.C. 288; R. v. Tennant (1975), 1975 605 (ON CA), 23 C.C.C. (2d) 80; R. v. Kitching (1976), 1976 1418 (MB CA), 32 C.C.C. (2d) 159; R. v. Cole (1981), 1981 1925 (ON CA), 64 C.C.C. (2d) 119 (Ont. C.A.), leave to appeal denied, [1982] 1 S.C.R. vii; R. v. Creighton (1991), 1991 11716 (ON CA), 66 C.C.C. (3d) 317 (Ont. C.A.), leave to appeal granted, [1991] 3 S.C.R. vii; R. v. Gosset (1991), 1991 2863 (QC CA), 6 C.R. (4th) 239; Smithers v. The Queen, 1977 7 (SCC), [1978] 1 S.C.R. 506; R. v. Martineau, 1990 80 (SCC), [1990] 2 S.C.R. 633; R. v. Metro News Ltd. (1986), 1986 148 (ON CA), 29 C.C.C. (3d) 35 (Ont. C.A.), leave to appeal refused, [1986] 2 S.C.R. viii; R. v. Docherty, 1989 45 (SCC), [1989] 2 S.C.R. 941; R. v. Rees, 1956 60 (SCC), [1956] S.C.R. 640; Pappajohn v. The Queen, 1980 13 (SCC), [1980] 2 S.C.R. 120; R. v. Hess, 1990 89 (SCC), [1990] 2 S.C.R. 906; R. v. Bernard, 1988 22 (SCC), [1988] 2 S.C.R. 833; R. v. Chase, 1987 23 (SCC), [1987] 2 S.C.R. 293.

Statutes and Regulations Cited

Canadian Charter of Rights and Freedoms, ss. 1, 7, 11(d).

Criminal Code, R.S.C. 1970, c. C‑34 [am. 1980‑81‑82‑83, c. 125, s. 19], ss. 245.1(2), 245.3.

Criminal Code, R.S.C., 1985, c. C‑46, ss. 220, 221, 222(5), 249(3) [rep. & sub. c. 27 (1st Supp.), s. 36], (4) [idem], 255(2) [idem], (3) [idem], 267(1)(b), (2), 268, 269, 272(c), 273, 430(2), 433(b) [rep. & sub. 1990, c. 15, s. 1], 601(1) [rep. & sub. c. 27 (1st Supp.), s. 123(1)].

Authors Cited

Blackstone, Sir William. Commentaries on the Laws of England, Book IV. Oxford: Clarendon Press, 1769.

Colvin, Eric. Principles of Criminal Law, 2nd ed. Calgary: Thomson Professional Publishing Canada, 1991.

Martin, Goldwin Arthur. "Criminal Law ‑‑ Voluntary and Involuntary Manslaughter ‑‑ Lawful and Unlawful Acts" (1943), 21 Can. Bar Rev. 503.

APPEAL from a judgment of the Ontario Court of Appeal (1990), 1990 6720 (ON CA), 1 O.R. (3d) 152, 62 C.C.C. (3d) 95, 42 O.A.C. 375, setting aside a judgment of Dymond Dist. Ct. J., declaring s. 269 of the Criminal Code unconstitutional and quashing the accused's indictment. Appeal dismissed.

Frank Addario and Maureen Forestell, for the appellant.

David Butt, for the respondent.

Bruce A. MacFarlane, Q.C., for the intervener the Attorney General of Canada.

Jacques Gauvin, for the intervener the Attorney General of Quebec.

No one appeared for the intervener the Attorney General for Alberta.

//Sopinka J.//

The judgment of the Court was delivered by

Sopinka J. -- This appeal concerns a constitutional challenge to s. 269 (unlawfully causing bodily harm) of the Criminal Code, R.S.C., 1985, c. C-46 (formerly s. 245.3). The appellant was involved in a fight in which a bystander was injured when a bottle allegedly thrown by the appellant broke against a wall and a glass fragment from the bottle struck the bystander.

Prior to trial, the appellant brought a motion to have s. 269 declared of no force or effect as contrary to s. 7 of the Canadian Charter of Rights and Freedoms. The appellant argued that the offence of unlawfully causing bodily harm was contrary to fundamental justice as it put an accused at risk of imprisonment without the requirement of a blameworthy state of mind. Additionally, the appellant argued that the provision allows a conviction despite an accused's lack of intent to cause the consequence of bodily harm. The motion succeeded and the indictment under which the appellant stood charged was quashed. On appeal, the motion judgment was overturned and the order quashing the indictment was set aside: (1990), 1990 6720 (ON CA), 1 O.R. (3d) 152, 62 C.C.C. (3d) 95, 42 O.A.C. 375.

The Facts

As no trial has yet been held in this matter, the facts have been taken from the evidence at the preliminary inquiry. The transcript of the preliminary inquiry was filed with the Court of Appeal and with this Court as the factual basis for the appeals.

On December 31, 1987, Teresa Santos attended a New Year's Eve party in Toronto. Shortly after midnight, a fight broke out at the party. As she was attempting to gather her belongings, which were located at a table in the vicinity of the fight, Ms. Santos was struck on the arm by a piece of glass. The glass fragment produced a large gash on her left forearm which required seven stitches to mend the underlying pronator muscle in her arm and a further seven stitches to mend the skin above the muscle. Eight months later, the feeling and movement in the victim's forearm was still restricted.

The victim's husband, Fernando Santos, was standing near his wife while the fight was in progress. He noticed that the appellant and a number of others were involved in the altercation. The appellant and the Santos were standing approximately eight feet away from a wall on opposite sides of the same table. Some of the men who were fighting began throwing bottles. Mr. Santos then noticed the appellant throw a bottle which hit the wall beside Ms. Santos and shattered. A piece of glass from the bottle thrown by the appellant ricocheted off the wall and struck the victim on the arm causing her injury. As a result of this incident, the appellant was charged with unlawfully causing bodily harm contrary to s. 245.3 of the Criminal Code, R.S.C. 1970, c. C-34 (now s. 269). He was committed for trial after a preliminary inquiry held on October 31, 1988.

At the outset of the trial and before any evidence was heard, the accused made a motion to have s. 269 declared of no force or effect on the ground that it contravened s. 7 of the Charter. The motion was granted and the indictment was quashed. On appeal to the Court of Appeal for Ontario, the motion judgment was overturned and the order quashing the indictment was set aside. This appeal comes before the Court as of right.

Points in Issue

The following constitutional questions were stated for this appeal:

1.Does s. 269 of the Criminal Code violate s. 7 or 11(d) of the Canadian Charter of Rights and Freedoms?

2.If the answer to question 1 is "yes", then is s. 269 of the Code a reasonable limit justified by s. 1 of the Charter?

The parties also raise a number of other issues, the most important of which is whether the trial judge followed an appropriate procedure in dealing with the constitutional questions prior to hearing any evidence.

Relevant Statutory Provisions

Criminal Code, R.S.C., 1985, c. C-46

267. ...

(2) For the purposes of this section and sections 269 and 272, "bodily harm" means any hurt or injury to the complainant that interferes with the health or comfort of the complainant and that is more than merely transient or trifling in nature.

269. Every one who unlawfully causes bodily harm to any person is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years.

(Formerly R.S.C. 1970, c. C-34, ss. 245.1(2) and 245.3 (added S.C. 1980-81-82-83, c. 125, s. 19).)

Judgments

A. Ontario District Court

The trial judge began by noting that in the case of Gralewicz v. The Queen, 1980 43 (SCC), [1980] 2 S.C.R. 493, this Court held that "unlawful", at least in the context of a conspiracy, meant the contravention of any statute of Parliament or of a provincial legislature. Based on this case, the judge concluded that s. 269 allowed for a conviction based on any action which violates a federal or provincial statute, including an absolute liability offence. She was unwilling to interpret "unlawful" as only applying to underlying offences containing a higher culpability requirement. As s. 269 also allowed the possibility of imprisonment, the potential combination of absolute liability and imprisonment rendered the provision contrary to s. 7 of the Charter. As the Crown does not appear to have attempted to justify the violation under s. 1, the trial judge declared the section to be of no force or effect and ordered that the indictment be quashed.

B. Ontario Court of Appeal (1990), 1990 6720 (ON CA), 62 C.C.C. (3d) 95

The Court of Appeal held that it was possible to interpret s. 269 to comply with the Charter and thus the section should not be struck down. The court noted that many provisions in the Code do not provide for specific intent requirements pertaining to each and every ingredient of the actus reus. In these cases the mental element is implied so that it complies with constitutional requirements (at p. 96):

Properly interpreted in accordance with these principles, s. 269, which creates the offence of unlawfully causing bodily harm, must be interpreted as requiring an element of moral turpitude or blameworthiness which will be supplied by the mental element which accompanies the prohibited act.

The court considered it unnecessary to decide whether non-criminal unlawful acts could give rise to liability under s. 269 or whether the unlawful act required by s. 269 needed to be of the same nature as that required for unlawful act manslaughter.

The Court of Appeal indicated that if the facts as described in the preliminary inquiry were properly established at trial, it would be open to a trier of fact to find a culpable mental element. The court concluded that it was premature to investigate whether this level of culpability was constitutionally sufficient. The court concluded by noting that "[t]here is, however, nothing here to suggest that, properly interpreted and applied, s. 269 infringes s. 7 of the Charter" (p. 96).

Analysis

This appeal raises two issues. The first is the correct procedure to be followed by a judge in considering a pre-trial motion contesting the constitutionality of the provision under which an accused is charged. The second issue is whether s. 269 of the Code violates either or both of ss. 7 and 11(d) of the Charter. This latter issue has two branches, (i) the mental element required by s. 269 and whether this element is constitutionally sufficient and (ii) whether s. 7 of the Charter requires as a constitutional minimum, foresight of each or any of the consequences that comprise the actus reus of an offence.

A. The Pre-Trial Procedure

The respondent submits that the learned trial judge erred in ruling on the application by the appellant to declare that s. 269 of the Criminal Code was of no force or effect before hearing the evidence at trial. It is clear that as the liberty interest of the appellant is ultimately at risk in this appeal, the appellant has the right to question the constitutional validity of the provision under which he is charged. This is the case even though the unconstitutional effects may not be directed at the appellant per se (R. v. Morgentaler, 1988 90 (SCC), [1988] 1 S.C.R. 30, at p. 63). The appellant submits that this Court has the power and the duty to review the elements of criminal offences and this is not disputed by the Crown. As the elements of the offence necessarily affect adjudication under it, an accused has standing to contest the elements of any provision under which he or she is charged. While it is incumbent on a court to consider such issues at some point in its deliberations, it is less clear in what circumstances this review must or should be done prior to hearing evidence.

The general rule with respect to attacking an indictment by reason of a defect in law is that a motion to quash the indictment for a defect apparent on the face thereof must be made before pleading. This rule is subsumed in the provisions of s. 601(1) of the Code, which requires the motion to be made before the plea, and thereafter only with leave of the court. The main purpose of the rule, and of s. 601(1) to the extent that it embodies the rule, is to ensure that defects curable by amendment are attacked before pleading, since if not cured by amendment they may be waived by a plea. (See R. v. Côté, 1977 1 (SCC), [1978] 1 S.C.R. 8, at p. 15; R. v. Villeneuve (1984), 1984 ABCA 232, 54 A.R. 265 (C.A.), at p. 267; R. v. Cook (1985), 1985 641 (BC CA), 20 C.C.C. (3d) 18 (B.C.C.A.), at pp. 30-31 and 40; R. v. R.I.C. (1986), 1986 4666 (ON CA), 17 O.A.C. 354, at pp. 357-58; R. v. Peremiczky (Zoly) (1973), 1973 1689 (BC SC), 25 C.R.N.S. 399 (B.C.S.C.), at p. 400; and R. v. Denton (1990), 1990 13108 (NS SC), 100 N.S.R. (2d) 174 (Co. Ct.), at p. 176.)

The temporal requirement of moving before pleading has no application, however, to a motion to quash which questions the validity of the law under which the accused is charged. I expressly refrain from addressing the effect of a plea of guilty. (See R. v. Tennen, 1959 140 (ON CA), [1959] O.R. 77 (C.A.), aff'd 1960 5 (SCC), [1960] S.C.R. 302, at p. 83 O.R., and R. v. Sarson (1992), 73 C.C.C. (3d) 1 (Ont. Gen. Div.). Such a defect goes to the jurisdiction of the court to proceed with the charge and is not subject to the temporal restriction in s. 601(1). Such an application may be brought at any time. Indeed, where the trial court is a court of inferior jurisdiction, a motion may be brought before trial to prohibit the trial court from proceeding. See Canadian Broadcasting Corp. v. Attorney-General for Ontario, 1959 2 (SCC), [1959] S.C.R. 188, rev'g 1957 125 (ON CA), [1958] O.R. 55 (C.A.), which aff'd 1957 101 (ON SC), [1957] O.R. 466 (H.C.). There is no question, therefore, that the trial judge has jurisdiction to hear and dispose of a motion to quash the indictment on the grounds of constitutional invalidity. Whether he or she is bound to do so or whether as a matter of practice should do so is more problematic.

With rare exceptions that do not apply here a trial judge is empowered to reserve on any application until the end of the case. He or she is not obliged, therefore, to rule on a motion to quash for invalidity of the indictment until the end of the case after the evidence has been heard. The decision whether to rule on the application or reserve until the end of the case is a discretionary one to be exercised having regard to two policy considerations. The first is that criminal proceedings should not be fragmented by interlocutory proceedings which take on a life of their own. This policy is the basis of the rule against interlocutory appeals in criminal matters. See Mills v. The Queen, 1986 17 (SCC), [1986] 1 S.C.R. 863. The second, which relates to constitutional challenges, discourages adjudication of constitutional issues without a factual foundation. See, for instance, Moysa v. Alberta (Labour Relations Board), 1989 55 (SCC), [1989] 1 S.C.R. 1572, and Danson v. Ontario (Attorney General), 1990 93 (SCC), [1990] 2 S.C.R. 1086. Both these policies favour disposition of applications at the end of the case. In exercising the discretion to which I have referred the trial judge should not depart from these policies unless there is a strong reason for so doing. In some cases the interests of justice necessitate an immediate decision. Examples of such necessitous circumstances include cases in which the trial court itself is implicated in a constitutional violation as in R. v. Rahey, 1987 52 (SCC), [1987] 1 S.C.R. 588, or where substantial on-going constitutional violations require immediate attention as in R. v. Gamble, 1988 15 (SCC), [1988] 2 S.C.R. 595. Moreover, in some cases it will save time to decide constitutional questions before proceeding to trial on the evidence. An apparently meritorious Charter challenge of the law under which the accused is charged which is not dependent on facts to be elicited during the trial may come within this exception to the general rule. (See Manitoba (Attorney General) v. Metropolitan Stores Ltd., 1987 79 (SCC), [1987] 1 S.C.R. 110, at p. 133.) This applies with added force when the trial is expected to be of considerable duration. See, for example, R. v. Nova Scotia Pharmaceutical Society, 1992 72 (SCC), [1992] 2 S.C.R. 606.

In this case no objection was taken at trial to the procedure adopted by the trial judge. The Charter challenge was not without merit notwithstanding its fate in this Court. I am satisfied that the evidence at trial would not have assisted in the resolution of the constitutional question given the nature of the appellant's submissions. The Court of Appeal stated that it was "purely speculative at this stage whether the facts at trial will establish a mental element compatible with criminal and constitutional requirements of blameworthiness for a finding of guilt under this section" (p. 96). The fact that the appellant's conduct would attract criminal responsibility because the mental element conforms to constitutional requirements would not resolve the issue if the section in its other applications criminalized conduct that did not meet constitutional standards. We have not adopted the "constitutional as applied" approach that is prevalent in the United States. See R. v. Smith, 1987 64 (SCC), [1987] 1 S.C.R. 1045, at p. 1078, per Lamer J. (as he then was), and p. 1113, per Le Dain J. Accordingly, I conclude that the trial judge did not err in disposing of the appellant's motion before hearing evidence.

B. Section 269 of the Criminal Code

To be brought within the ambit of s. 269, an accused must have committed an underlying unlawful offence (otherwise referred to as the predicate offence) and have caused bodily harm to another person as a result of committing that underlying offence. For liability to be imposed for unlawfully causing bodily harm, the harm caused must have sufficient causal connection to the underlying offence committed (see R. v. Wilmot (1940), 1940 235 (AB SCAD), 74 C.C.C. 1 (Alta. C.A.), at pp. 17 and 26-27, appeal dismissed for other reasons 1940 32 (SCC), [1941] S.C.R. 53). The requirement of an underlying "unlawful" offence includes at its most general, and subject to the restrictions discussed below, only offences prohibited by federal or provincial legislation. A similar conclusion in regard to criminal conspiracy to effect an "unlawful" purpose was reached earlier by this Court in Gralewicz, supra, at p. 509.

(1) The Mental Element Requirement of Section 269

The major issue raised in this appeal concerns the mental element required by s. 269 of the Code. After delineating the statutorily required mental element, the question of the constitutional sufficiency of this element will then be addressed to determine whether it passes constitutional muster.

It is axiomatic that in criminal law there should be no responsibility without personal fault. A fault requirement was asserted to be a fundamental aspect of our common law by this Court in R. v. City of Sault Ste. Marie, 1978 11 (SCC), [1978] 2 S.C.R. 1299, and as a matter of constitutional law under s. 7 of the Charter in Re B.C. Motor Vehicle Act, 1985 81 (SCC), [1985] 2 S.C.R. 486. As a matter of statutory interpretation, a provision should not be interpreted to lack any element of personal fault unless the statutory language mandates such an interpretation in clear and unambiguous terms. Unlike most offences, the mental element of s. 269 is composed of two separate requirements. The first requirement is that the mental element of the underlying offence of s. 269 be satisfied. The second requirement is that the additional fault requirement supplied by the wording of s. 269, discussed more fully infra, also be satisfied.

(a) The Mental Element of the Underlying Offence

To be convicted under s. 269, the prosecution must first satisfy the mental element requirement of the underlying offence. In interpreting the ambit of the underlying offences covered by s. 269 it is important to recognize the abhorrence of the criminal law for offences of absolute liability. While not all underlying offences will have a possibility of imprisonment and despite the fact that s. 269 has a fault requirement in addition to that supplied by the underlying offence, as a matter of statutory interpretation, underlying offences of absolute liability are excluded from forming the basis for a prosecution under s. 269. For the reasons given by this Court in Sault Ste. Marie, supra, and Re B.C. Motor Vehicle Act, supra, s. 269 should not be interpreted so as to bootstrap underlying offences of absolute liability into the criminal law. The criminal law is based on proof of personal fault and this concept is jealously guarded when a court is asked to interpret criminal provisions, especially those with potentially serious penal consequences. This statutory conclusion is mandated by the general presumption in the interpretation of criminal statutes against absolute liability and the absence of clear words to the contrary to rebut this presumption. Thus, the concept of "unlawful" as it is used in s. 269 does not include any underlying offence of absolute liability. The inclusion of such offences would be contrary to the general canons of criminal interpretation quite apart from any Charter considerations (see particularly R. v. Prue, 1979 227 (SCC), [1979] 2 S.C.R. 547, at p. 553, and Beaver v. The Queen, 1957 14 (SCC), [1957] S.C.R. 531, at pp. 537-38 and 542-43). Although not relying on constitutional requirements in foreclosing the possibility of absolute liability offences forming the predicate offences of s. 269, certainly principles of fundamental justice require no less.

In addition to satisfying the statutorily required mental element of the underlying offence, the mental element of the underlying offence must also be constitutionally sufficient in its own right. If the underlying offence contains a constitutionally insufficient mental element, it is of no force or effect and thus cannot form the basis for a prosecution under s. 269. The underlying offence must be valid in law on its own before it can be used to support a charge under s. 269.

(b) The Meaning of "Unlawful" in Section 269

In addition to the mental element required by the underlying offence, the wording of s. 269, and particularly the case law interpreting the term "unlawfully", imports an additional aspect to the mental element of s. 269. The case law interpreting the use of this term in similar provisions has focused on the offence most commonly known as unlawful act manslaughter. While manslaughter is not the offence at issue in this appeal, the case law which seeks to interpret the term "unlawful" in that context is instructive.

The leading English authority on the issue of the meaning of "unlawful" in this area is R. v. Larkin (1942), 29 Cr. App. R. 18, where the Court of Criminal Appeal held at p. 23 that:

Where the act which a person is engaged in performing is unlawful, then if at the same time it is a dangerous act, that is, an act which is likely to injure another person, and quite inadvertently the doer of the act causes the death of that other person by that act, then he is guilty of manslaughter.

English authority has consistently held that the underlying unlawful act required by its manslaughter offence requires proof that the unlawful act was "likely to injure another person" or in other words put the bodily integrity of others at risk (see also R. v. Hall (1961), 45 Cr. App. R. 366 (C.C.A.); R. v. Church (1965), 49 Cr. App. R. 206 (C.C.A.); Director of Public Prosecutions v. Newbury (1976), 62 Cr. App. R. 291 (H.L.), and Director of Public Prosecutions v. Daley (1978), 69 Cr. App. R. 39 (P.C.)). This position has also been adopted by most Canadian courts. In R. v. Adkins (1987), 1987 2413 (BC CA), 39 C.C.C. (3d) 346, Hutcheon J.A., speaking for the British Columbia Court of Appeal, indicated that the words "unlawful act" have never been taken literally in the law pertaining to manslaughter. He noted that it is not every unlawful act by which death is caused that can support a finding of culpable homicide. The act must be one which meets the test referred to in Larkin, supra. Other appellate courts have come to the same conclusion (see R. v. Lelievre (1962), 1962 238 (ON CA), 132 C.C.C. 288 (Ont. C.A.), at p. 295; R. v. Tennant (1975), 1975 605 (ON CA), 23 C.C.C. (2d) 80 (Ont. C.A.), at p. 96; R. v. Kitching (1976), 1976 1418 (MB CA), 32 C.C.C. (2d) 159 (Man. C.A.), at pp. 168-69; R. v. Cole (1981), 1981 1925 (ON CA), 64 C.C.C. (2d) 119 (Ont. C.A.), at p. 127, leave to appeal denied, [1982] 1 S.C.R. vii; R. v. Creighton (1991), 1991 11716 (ON CA), 66 C.C.C. (3d) 317 (Ont. C.A.), leave to appeal granted, [1991] 3 S.C.R. vii, and R. v. Gosset (1991), 1991 2863 (QC CA), 6 C.R. (4th) 239 (Que. C.A.), at p. 251 (appeal heard May 1, 1992, judgment currently reserved)).

Despite ample authority that the underlying act must be objectively dangerous in order to sustain a conviction under what is now s. 222(5)(a), the law in this area is not entirely free from doubt. In Smithers v. The Queen, 1977 7 (SCC), [1978] 1 S.C.R. 506, Dickson J. (as he then was) adopted certain comments made by G. Arthur Martin (later Martin J.A.) in a short case note on the English Larkin case. The adopted comments included the following:

There are many unlawful acts which are not dangerous in themselves and are not likely to cause injury which, nevertheless if they cause death, render the actor guilty of culpable homicide....

In the case of so-called intentional crimes where death is an unintended consequence the actor is always guilty of manslaughter at least.

("Criminal Law -- Voluntary and Involuntary Manslaughter -- Lawful and Unlawful Acts" (1943), 21 Can. Bar. Rev. 503, at pp. 504-5; cited in Smithers, supra, at p. 519.)

This passage appears to raise doubt as to whether the "unlawful act" must be inherently dangerous to sustain a manslaughter conviction. This issue was not addressed in Smithers, however, as the assault which occurred in that case was clearly an intentional, dangerous, act. As well, Smithers was a case concerned with the issue of causation and not the meaning to be given to the term "unlawful act". Finally, Smithers was not argued under the Charter. In the absence of a more definitive statement or a more extensive analysis of the issue, I am reluctant to freeze the meaning of "unlawful" for the purposes of s. 269 based on the 1943 comments of even as persuasive a source as G. Arthur Martin. More telling, and also more considered, authority was provided by Martin J.A. in Tennant, supra, which predates Smithers but was not discussed by Dickson J. in the latter decision. In Tennant, a Court of Appeal panel composed of Gale C.J.O. and Brooke and Martin JJ.A. rendered a per curiam judgment which concluded at p. 96 that:

When death is accidentally caused by the commission of an unlawful act which any reasonable person would inevitably realize must subject another person to, at least, the risk of some harm resulting therefrom, albeit not serious harm, that is manslaughter.

The court later noted that:

... if death was caused by the accidental discharge of the fire-arm in the commission of such unlawful act and if the jury were satisfied beyond a reasonable doubt that the unlawful act was such as any reasonable person would inevitably realize must subject another to the risk of, at least, some harm, albeit not serious harm, the death would amount to manslaughter. [Emphasis in original.]

The court thus substantially adopted the English position as articulated in Larkin.

In accordance with the English law and in furtherance of the developing Canadian case law, the most principled approach to the meaning of "unlawful" in the context of s. 269 is to require that the unlawful act be at least objectively dangerous. This conclusion is both supported by the meaning given to the words "unlawful act" by virtually all of the lower courts and also is in accord with the emerging jurisprudence of this Court in regard to personal fault.

Objective foresight of bodily harm should be required for both criminal and non-criminal unlawful acts which underlie a s. 269 prosecution. I can see no reason why there should be a difference between the two categories of acts. There is no need to differentiate between criminal and non-criminal unlawful acts when one unifying concept is available. Thus the test is one of objective foresight of bodily harm for all underlying offences. The act must be both unlawful, as described above, and one that is likely to subject another person to danger of harm or injury. This bodily harm must be more than merely trivial or transitory in nature and will in most cases involve an act of violence done deliberately to another person. In interpreting what constitutes an objectively dangerous act, the courts should strive to avoid attaching penal sanctions to mere inadvertence. The contention that no dangerousness requirement is required if the unlawful act is criminal should be rejected. The premise on which this proposition is based is that most, if not all, criminal acts are inherently dangerous. This premise is an overstatement inasmuch as a large part of the criminal law is concerned with offences against property and other interests which are not inherently dangerous. But, even if this premise were accepted, the difference between the two positions would be simply one of semantics. To maintain the correct focus it is preferable to inquire whether a reasonable person would inevitably realize that the underlying unlawful act would subject another person to the risk of bodily harm rather than getting sidetracked on a question regarding the classification of the offence.

(2) Constitutional Sufficiency

The mental element of s. 269 has two separate aspects. The first aspect of the mental element is the requirement that an underlying offence with a constitutionally sufficient mental element has been committed. Additionally, s. 269 requires that the prosecution prove that the bodily harm caused by the underlying unlawful act was objectively foreseeable. This latter requirement insures that all prosecutions under s. 269 contain at least a fault requirement based on an objective standard. As this Court has not indicated that fundamental justice requires fault based on a subjective standard for all offences, the mental element required by s. 269 passes constitutional muster unless s. 269 is one of those few offences which due to its stigma and penalty require fault based on a subjective standard. I agree with the respondent and interveners that s. 269 has neither the stigma nor criminal sanction to require a more demanding mental element than it already has. The criminal sanction is flexible and thus can be tailored to suit the circumstances of the case. The stigma associated with conviction will generally reflect the degree of opprobrium which the underlying offence attracts. The stigma attached to the underlying offence will in turn influence the minimum mental requirement for that offence.

Unless a minimum mind state of subjective intention in regard to consequences is constitutionally required, the test discussed above satisfies the dictates of s. 7 of the Charter. I will now consider that issue.

C. Foresight of Consequences

Although I have concluded by means of statutory interpretation that s. 269 requires objective foresight of the consequences of an accused's unlawful act, the appellant argues that s. 7 of the Charter requires subjective foresight of all consequences which comprise part of the actus reus of an offence. The appellant notes that in R. v. Martineau, 1990 80 (SCC), [1990] 2 S.C.R. 633, Lamer C.J., speaking for the majority of the Court, discussed (at p. 645) a:

... general principle that criminal liability for a particular result is not justified except where the actor possesses a culpable mental state in respect of that result: ...

The appellant also relies on R. v. Metro News Ltd. (1986), 1986 148 (ON CA), 29 C.C.C. (3d) 35 (Ont. C.A.), leave to appeal refused, [1986] 2 S.C.R. viii, for a similar proposition that (at pp. 54-55):

... [t]he minimum and necessary mental element required for criminal liability for most crimes is knowledge of the circumstances which make up the actus reus of the crime and foresight or intention with respect to any consequence required to constitute the actus reus of the crime.

The appellant submits that this authority supports a requirement that the minimum mental element required by s. 7 of the Charter for s. 269 includes an intention to cause bodily harm. In isolation, it is true that the language used in some earlier decisions of this Court could be interpreted as suggested by the appellant. This proposition draws additional support from statements such as those of Wilson J. in R. v. Docherty, 1989 45 (SCC), [1989] 2 S.C.R. 941, where she infers that proof of intention is required in regard to each of the elements of the actus reus. Wilson J. states (at p. 958):

A full mens rea offence under the Criminal Code demands that the accused have an intent to perform the acts that constitute the actus reus of the offence.

As one of the elements of the actus reus in this appeal is that bodily harm be produced, it is arguable that the case law of this Court has implied that foresight of the consequences of an act must be proved when such consequences constitute an essential element of the offence. This argument, however, misconstrues and overgeneralizes the language used by this Court in these earlier judgments (see also R. v. Rees, 1956 60 (SCC), [1956] S.C.R. 640, and Pappajohn v. The Queen, 1980 13 (SCC), [1980] 2 S.C.R. 120, at p. 139). In the circumstances of Docherty, the offence definition itself required intention in regard to all aspects of the actus reus and thus this proposition was not meant to be set down as an overriding principle of criminal law. Equally, in Martineau it was only as a result of the stigma and penal consequences of a murder conviction that subjective foresight of death was required. Here again, it was not meant to be stated as a general principle of criminal law. As far back as Blackstone's Commentaries, it was recognized that criminal guilt did not always require foresight of the consequences of an unlawful act:

... if a man be doing any thing unlawful, and a consequence ensues which he did not foresee or intend, as the death of a man or the like, his want of foresight shall be no excuse; for, being guilty of one offence, in doing antecedently what is in itself unlawful, he is criminally guilty of whatever consequence may follow the first misbehaviour. [Emphasis in original.]

(Commentaries on the Laws of England (1769), Book IV, at p. 27.)

In R. v. Hess, 1990 89 (SCC), [1990] 2 S.C.R. 906, the Court concluded that a meaningful mental element was required in regard to a blameworthy element of the actus reus. Provided that there is a sufficiently blameworthy element in the actus reus to which a culpable mental state is attached, there is no additional requirement that any other element of the actus reus be linked to this mental state or a further culpable mental state. As inferred by Blackstone, supra, provided that the actor is already engaged in a culpable activity, foresight of consequences is not required in order to hold that actor responsible for the results of his or her unlawful activity. Lamer C.J. stated in Martineau that "[i]f Parliament wishes to deter persons from causing bodily harm during certain offences, then it should punish persons for causing the bodily harm" (p. 647). This is exactly what s. 269 attempts to do. In this particular provision the mental element requirement is composed of both the mental element of the underlying unlawful act and the additional requirement of objective foresight of bodily harm. There is, however, no constitutional requirement that intention, either on an objective or a subjective basis, extend to the consequences of unlawful acts in general.

The absence of a constitutional requirement that intention extend to all aspects of an unlawful act was discussed by Wilson J. in R. v. Bernard, 1988 22 (SCC), [1988] 2 S.C.R. 833, at pp. 888-89, where she concludes that the minimal element of the application of force is sufficient for a conviction for sexual assault causing bodily harm. She inferentially confirms that s. 7 of the Charter does not mandate intention in regard to all of the consequences required by the offence. The contrary position, that intention must extend to all of the required consequences of an offence, is not supported by the case law and should not be adopted as a constitutional requirement.

There are many provisions where one need not intend all of the consequences of an action. As was pointed out in Hess, supra, there must be an element of personal fault in regard to a culpable aspect of the actus reus, but not necessarily in regard to each and every element of the actus reus. The requirement of fault in regard to a meaningful aspect of the actus reus is necessary to prevent punishing the mentally, and morally, innocent and is in keeping with a long line of cases of this Court including Rees, supra, and Pappajohn, supra. In many offences, such as assault or dangerous driving, the offence is made out regardless of the consequences of the act but the consequences can be used to aggravate liability for the offence. For example, both assault and assault causing bodily harm have identical mens rea requirements and the element of causing bodily harm is merely used to classify the offence. No principle of fundamental justice prevents Parliament from treating crimes with certain consequences as more serious than crimes which lack those consequences.

A number of Criminal Code offences call for a more serious charge if certain consequences follow. To require intention in relation to each and every consequence would bring a large number of offences into question including manslaughter (s. 222(5)), criminal negligence causing bodily harm (s. 221), criminal negligence causing death (s. 220), dangerous operation causing bodily harm (s. 249(3)), dangerous operation causing death (s. 249(4)), impaired driving causing bodily harm (s. 255(2)), impaired driving causing death (s. 255(3)), assault causing bodily harm (s. 267(1)(b)), aggravated assault (s. 268), sexual assault causing bodily harm (s. 272(c)), aggravated sexual assault (s. 273), mischief causing danger to life (s. 430(2)) and arson causing bodily harm (s. 433(b)). As noted by Professor Colvin, "[i]t would, however, be an error to suppose that actus reus and mens rea always match in this neat way" (E. Colvin, Principles of Criminal Law (2nd ed. 1991), at p. 55).

Conduct may fortuitously result in more or less serious consequences depending on the circumstances in which the consequences arise. The same act of assault may injure one person but not another. The implicit rationale of the law in this area is that it is acceptable to distinguish between criminal responsibility for equally reprehensible acts on the basis of the harm that is actually caused. This is reflected in the creation of higher maximum penalties for offences with more serious consequences. Courts and legislators acknowledge the harm actually caused by concluding that in otherwise equal cases a more serious consequence will dictate a more serious response.

There appears to be a general principle in Canada and elsewhere that, in the absence of an express legislative direction, the mental element of an offence attaches only to the underlying offence and not to the aggravating circumstances (Colvin, supra, at p. 57). This has been confirmed by this Court in a number of cases including those which have held that sexual assault requires intention simply in relation to the assault and not any aggravating circumstance (see R. v. Chase, 1987 23 (SCC), [1987] 2 S.C.R. 293, and R. v. Bernard, supra, at pp. 888-89). To require fault in regard to each consequence of an action in order to establish liability for causing that consequence would substantially restructure current notions of criminal responsibility. Such a result cannot be founded on the constitutional aversion to punishing the morally innocent. One is not morally innocent simply because a particular consequence of an unlawful act was unforeseen by that actor. In punishing for unforeseen consequences the law is not punishing the morally innocent but those who cause injury through avoidable unlawful action. Neither basic principles of criminal law, nor the dictates of fundamental justice require, by necessity, intention in relation to the consequences of an otherwise blameworthy act.

Disposition

On a proper interpretation of s. 269 of the Code, the concept of an unlawful act as it is used in that section includes only federal and provincial offences. Excluded from this general category of offences are any offences which are based on absolute liability and which have constitutionally insufficient mental elements on their own. Additionally, the term "unlawfully", as it is used in this section requires an act which is at least objectively dangerous. Interpreted in this way s. 269 complies with the requirements of s. 7 of the Charter. In the absence of a violation of s. 7, there is no violation of s. 11(d). I would answer the constitutional questions as follows:

1.Does s. 269 of the Criminal Code violate s. 7 or 11(d) of the Canadian Charter of Rights and Freedoms?

Answer: No.

2.If the answer to question 1 is "yes", then is s. 269 of the Code a reasonable limit justified by s. 1 of the Charter?

Answer: It is not necessary to answer this question.

Accordingly, the appeal is dismissed. In view of the fact that a trial has not been held in this matter, the trial should proceed on an expedited basis.

Appeal dismissed.

Solicitors for the appellant: Ruby & Edwardh, Toronto.

Solicitor for the respondent: The Ministry of the Attorney General, Toronto.

Solicitor for the intervener the Attorney General of Canada: John C. Tait, Ottawa.

Solicitor for the intervener the Attorney General of Quebec: Jacques Gauvin, Ste‑Foy.

Solicitor for the intervener the Attorney General for Alberta: The Attorney General's Department, Edmonton.