R. v. DeSousa [1992] 2 S.C.R. 944: -- Mens rea -- Unlawfully causing bodily harm -- Bystander injured by piece of broken glass from bottle allegedly thrown by accused involved in a fight

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.

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