The Criminal Code of Canada - Section 335 (1) & 335 (1.1)

Dylan Brown

CRIM 230 C100

September 21, 2014

The Canadian criminal justice system is founded upon the principle that any citizen of Canada,

whilst under investigation to have committed or have influenced or associated in any way to any

alleged criminal behaviour, is afforded the assumption of innocence until proven beyond a

reasonable doubt he or she committed a culpable act (actus reus) and constructed and maintained

a guilty mind (mens rea) (Verdun-Jones, 2011, p.23). In essence, these two elements coincide in

formulating the legal parameters for which the Crown must demonstrate upon the accused in

order to successfully achieve conviction; subsequentially, the absence of either the criminal act

or the intent of the accused to commit a crime may lead to the charges being dismissed.

Nonetheless, the interpretation of this formula is not without exception; as is evident throughout

past judicial decisions, in which a particular case may present an extraordinary set of

circumstance (Verdun-Jones, 2012, p.52).

Consider a case involving the theft of a motor vehicle. An individual (for this example named

Pinch), takes a vehicle without the owners consent, contrary to the provisions of s.322(1) and

s.311.1(1) of the Criminal Code (1985). In order to form actus reus, the Crown must prove there

was in fact a criminal act committed by founding the 3 elements of the actus reus: the conduct

(or voluntary act), the relevant circumstances of the offence, and the consequence of the conduct

(Verdun-Jones, 2011, p.29). If the evidence supplied by the Crown in attempt to associate the

criminal act to the accused is deemed to be valid, the Crown must then attempt to correlate the

conduct with that of an active criminal intent or awareness; once both the actus reus and mens

rea elements coincide, the Crown can assert that a crime has been committed (Verdun-Jones,

2011, p.24).

However, situational elements can warrant the consideration for a provision to be expanded. For

instance, suppose the individual discussed earlier (Pinch) who stole a vehicle were to approach

an acquaintance (for this example, named Dombey). Pinch then convinces Dombey to enter the

vehicle as a passenger. Upon entering the vehicle, Pinch drives off without informing Dombey

that the vehicle is stolen. After they start driving, the police begin pursuing the stolen vehicle. As

Pinch radically increases the vehicles speed, Dombey is informed by Pinch that the vehicle is

stolen. Dombey is now contrary to the provisions under Section 335(1) of the Criminal Code

(1985), which addresses the offence of being the occupant of a motor vehicle knowing that it was

taken without the owner's consent:

(1) every one who, without consent of the owner, takes a motor vehicle or vessel with intent to drive, use, navigate, or operate it or cause it be driven, used, navigated or operated, or is an occupant of a motor vehicle or vessel knowing that it was taken without the consent of the owner, is guilty of an offence punishable on summary conviction.

Significantly, in this instance the Crown does not have to address whether or not the occupant

was involved in the actus reus, or actual taking of the vehicle; rather, it must be proved that the

accused was found to be occupying the vehicle with a guilty mind (or knowledge of the criminal

act) at the time of the offence (Verdun-Jones, 2011, p.29).

There does exist, however, a subsection of s.335(1) that affords the now accused occupant

Dombey with a possible excuse or defence (Verdun-Jones, 2011, p.29). Section 335 (1.1) of the

Criminal Code (1985) states:

Subsection (1) does not apply to an occupant of a motor vehicle or vessel who, on becoming aware that it was taken without the consent of the owner, attempted to leave the motor vehicle or vessel, to the extent that it was feasible to do so, or actually left the motor vehicle or vessel.

Returning to the example, lets now consider the sequence of events following the moment the

accused becomes aware they are occupying a stolen vehicle. About two minutes after Pinch

dramatically increases his speed and informs Dombey the vehicle is "hot," Pinch crashes into a

tree, causing Dombey to become trapped in the damaged