CRIMINAL LAW NOTES 2010-2011

GENERAL OVERVIEW AND PRELIMINARY MATTERS
1. SOURCES OF CRIMINAL LAW Overview With the exception of contempt of court, criminal offences are created in Canada by statute. Most criminal offences are created by Criminal Code. Drug trafficking, for example, is made a criminal offence by the Controlled Drugs and Substances Act. The common law cannot be used to create offences in Canada because of concerns related to the principle of legality, and the notion that criminal offences should be clear, certain, and should pre-exist the act being prosecuted. As will be seen below, many rules of criminal procedure are created in the Criminal Code, and many other rules of procedure are common law based. Frey v. Fedoruk, [1950] S.C.R. 51 See CC section 9

While common law offences are not allowed, common law defences are available under Canadian criminal law and can still be created by the courts. As will be seen below, the Supreme Court of Canada recognized a common law defence in Levis (City) v. Tetrault, [2006] 1 S.C.R. 420. Moreover, the common law can deeply influence the way that statutory criminal offences are interpreted. - See CC section 8 - See R. v. Jobidon, [1991] 2 S.C.R. 714, a case you will be asked to review again when considering the meaning of consent. ______________________________________________________________________________ Prior to s.9 of the 1953 revised CC, it was open to the Crown to prosecute individuals for a variety of common law offences like public mischief. S.9 abolished this concept with two exceptions: s.9 continues the common law offence of contempt of court; and s.8 (3) explicitly states that common law defences to a charge remain in force. Now, criminal offences may only be established by Parliament according to s.91 (27) of the Constitution Act, 1867, though the provinces may establish quasi-criminal or regulatory offences. Frey v. Fedoruk (1950; SCC) -this is a precursor to the 1953 CC revision. y y y y R: crimes must be set out by parliament Offence: ³Peeping Tom´ at common law Crown: from common law, the generic principle ³a breach of the King¶s Peace´ may be used as a standard for judging whether behaviour is criminal. This peace was breached because it provoked another to ³violent retributive action´. Court: This would introduce great uncertainty in Criminal Law; it is also much too broad. Only those crimes set out in statute and in previous cases should be
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considered criminal, and any additional criminal activities should be established by Parliament. Since being a ³Peeping Tom´ is not criminal by statute or common law, it is not a crime. CC Revision after Frey v. Fedoruk: Section 9 CC -Criminal offences in Canada must be created by statute, with the exception of contempt of court Rationale: Common law cannot be used to create offences b/c: o (1) principle of legality, and; o (2) the notion that criminal offences should be clear, certain, and should pre-exist the act being prosecuted Exception: Common Law Defences Section 8 CC -ss. 8(3): ³Rules and principles of the common law the renders any circumstance a justification or excuse for an act or a defence to a charge continues to be in force´

Levis (City) v. Tetrault [2006]: Example of where a defence was upheld in the common law. The common law is still capable of raising defences to crimes. Here, the defence of µofficially induced error¶ was upheld by the SCC. y y y y Facts: 2 parties charged w/ operating motor vehicles w/out paying registration fees. One party raised the defence of µofficially induced error.¶ Offence: Operating a motor vehicle w/out proper registration Ratio: µOfficially induced error¶ is an exception to the rule that ignorance of the law (s. 19 CC) is no defence. It is created by the common law and must meet a number of criteria for the court to apply it. Held: Ignorance of the law is no defence. However, Court acknowledged that the inflexibility of the rule did raise a concern where the error of accused arose out of an error of a government official or the State. Therefore, in affirming the decision in Jorgensen the court confirmed that the defence of µofficially induced error¶ was an exception to the rule that ignorance of the law is no defence (in strict liability offences). The defence itself only allows for a stay, not an acquittal and must be proved on a balance of probabilities. The Common law can deeply influence the way that statutory criminal offences are interpreted.

R v. Jobidon [1991] SCC -The common law has generated a body of law to interpret the meaning of consent and to place certain limitations on its legal effectiveness in the criminal law. It has also set limits on the types of harmful actions to which one can validly consent, and which can shelter an assailant from the sanctions of the criminal law -Although the majority and minority both came to the same decision, they got to the answer differently. -The CC must be construed subject to the same limitations imposed by the common law. Under the common law, the Crown does not have to prove the absence of consent in certain situations. The rationale being that it is unlawful to intentionally apply force that is so severe that it does or could inflict bodily harm or death. In these situations, consent is immaterial.

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Facts: Bar brawl. Two men fight inside and agree fight not over. Take fight outside where one is knocked unconscious and later dies. Offence: CC s. 222(5) (a) and 234² Manslaughter. Held: Accused guilty. Majority: Limits on consent to assault have long been recognised in English/Canadian jurisprudence. S. 265 vitiate consent between adults who intentionally apply force causing serious hurt or non-trivial bodily harm to one another. It will not affect the validity or effectiveness of freely given consent to rough sporting activities carried out according to the rules of the game, medical or surgical treatment, or dangerous exhibitions by qualified stuntmen. -The provisions in the CC have not ousted the common law limitations on consent. The history of Canadian law reveals that the limitations on consent based on public policy existed before the codification of Canada¶s criminal law and they have not been ousted by statutory revisions and amendments to the Code. Even if it was concluded that the Code negated the applicability of the common law rules, it would not follow that those amendments erased limitations based on public policy. If that had been Parliament¶s intent, it would have been stated. Minority: Parliament extended the principle that the absence of consent is necessary to all assaults, except murder, in order to make the criminal law more certain. Section 265 makes the absence of consent, a requirement in the offence and restricts the consent to situations where force has been intentionally applied and where the victim has clearly and effectively consented free of coercion and misrepresentation. It is for the judge to decide whether consent applied to the activity in question and what the social utility of that activity is. The victim would not have consented to the violence after he had been knocked unconscious; therefore the accused is guilty of manslaughter. Criticism: Why did the Court incorporate a µcommon law¶ concept into the clear statutory language of s. 265? It states that the offence of assault is limited to situations where force is applied to another without consent. In effect, the SC has created a new criminal offence of assault.

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2. THE POWER TO CREATE CRIMINAL OFFENCES AND RULES OF CRIMINAL PROCEDURE (a) Constitutional Division of Powers Introduced - Both the Federal Government and Provincial governments have jurisdiction to create non-criminal offences (regulatory offences) and to use jail to enforce those regulatory offences, but only the Federal Government can create ³criminal´ offences, or ³true crimes´, pursuant to its powers under s. 91 (27) of the Constitution Act, 1867. The principles that apply to true crimes differ from those that apply to regulatory offences. These principles will be examined below when regulatory offences are discussed. Curiously, while they cannot create criminal offences, Canadian provinces do have jurisdiction over the administration of justice within the province under s. 92 (14) of the Constitution Act, 1867. For example, the provinces have set up the lowest level of criminal court where the vast majority of cases are actually prosecuted (the provincial courts); it is the provincial Attorneys General who prosecute most offences, including serious offences; and the provinces have passed statutes setting out juror eligibility within the province. The procedure during criminal hearings, however, is governed by Federal rules and by the common law. For a summary of the criminal law power, see R. v. Malmo-Levine, 2003 SCC 74 at paras.73 79 (b) The Canadian Charter of Rights and Freedoms - The Canadian Charter of Rights and Freedoms (the ³Charter´) imposes limits on the jurisdiction of all governments, subject to s. 1, the ³reasonable limitations´ clause, and the seldom-used s. 32 ³notwithstanding clause.´ Since its passage in 1982, the Charter has had such a profound impact on criminal law and procedure that all criminal practitioners need to develop expertise in its operation. The Charter can be used by courts to invalidate offences that Parliament has created, and courts have done so on a number of occasions, but this is not common. It has also been used to strike down rules of criminal procedure, although this too is uncommon. - Read R. v. Heywood, [1994] 3 S.C.R. 761 as an illustration of a criminal offence being struck down. - Read R. v. Oakes, [1986] 1 S.C.R. 103 as an example of a rule of criminal procedure being struck down, and note the operation of section 1 as a limiting provision. The concepts identified in Oakes will be revisited below in discussing the burden of proof. The Charter can also be used as in important interpretive tool. Even when it is not used to strike down a provision, it is the practice of courts to permit constitutional values to influence the way statutes are interpreted. - Read R. v. Labaye, [2005] S.C.J. No. 83 as an illustration of how the Charter changed the criminal concept of indecency through a progression of cases described therein. You will see that this case provoked a strong dissenting judgment. Bear in mind that what dissenting judges say in opposition to the majority judges is not the law, but that obiter

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dictum explaining the law when no opposition is taken can be a valuable source for legal argument. The Charter¶s largest impact on criminal procedure has been in creating constitutional procedural Protections, as discussed later in the document. (c) Rules of Practice - Section 482 of the Criminal Code permits courts to create rules of practice to govern the administrative mechanics of practice in criminal courts. Although you will not be examined broadly on the Criminal Rules of Practice, Canadian criminal counsel must be intimately familiar with the rules that apply in their jurisdictions. - Read R. v. Gundy, [2008] O.J. No. 1410, as an illustration. - See, for example, the Rules of the Ontario Court of Justice in Criminal Proceedings (http://www.ontariocourts.on.ca/ocj/en/rules/) and the Criminal Proceedings Rules (Ontario Superior Court of Justice) (http://www.ontariocourts.on.ca/scj/en/about/criminal.htm) ______________________________________________________________________________ (a) Constitutional Division of Powers Introduced -Federal Jurisdiction: Both Fed¶l and Prov govt¶s have power to create non-criminal (regulatory offences), but ONLY Fed¶l gov¶t can create ³criminal´ offences or ³true´ crime offences, pursuant to their power under s. 92(27) Constitutional Act 1867. -Provincial Jurisdiction: Provinces however, have the jurisdiction over the µadministration of justice¶ within the province under s. 92(14) of the Constitution Act 1897 (e.g. vast majority of cases prosecuted in provincial courts, provincial AG¶s prosecute most offences, provinces pass statutes setting our juror eligibility, etc«) -Procedure: Procedure during criminal hearings however is governed by Federal Rules and by the Common Law R v. Malmo-Levine [2003] SCC -Summary of the Criminal law powers y Facts: Accused ran a µharm reduction club¶ attempting to reduce harm associated with marijuana. He was found in possessing of 300/grams of marijuana and charged with possession for the purpose of trafficking. They wanted to challenge the constitutionality of the criminalization of marijuana under the Narcotics Control Act. There argument focused on whether there should be a requirement of harm for criminal law. They argued that the constitutional power to enact criminal law under s. 91(27) was limited to conduct that causes harm. Offence: Possession with intent to traffic Held: Court rejected constitutional challenge of the criminalization of marijuana. The principle of harm was not required under s. 91(27). Parliament did not have to establish harm, only a µreasonable apprehension of harm¶. The criminal law power includes the protection of venerable groups. Therefore, the government is able to control activities for the protection of drug users and society. -³The criminalization of marihuana is a policy choice that falls within the broad legislative scope conferred upon Parliament. Equally it is open to Parliament to
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decriminalize or otherwise modify any aspect of the marihuana laws it no longer considers to be good public policy.´ - For a law to be classified as a valid criminal law, it must have a valid criminal purpose backed by a prohibition and a penalty. The purpose of the Narcotic Control Act falls within the criminal law power, which includes the protection of vulnerable groups. -Para 73-79: Federal criminal power has been broadly construed. -For a law to be classified as criminal it must possesses 3 prerequisites: (1) Must be a prohibition with a penalty (Re Firearms Act) (2) It must be designed to promote the peace, safety, order, health or have another legitimate public purpose. This legitimate public purpose must underlie the prohibition. (3) Lastly, Parliament should not use its authority improperly, i.e. colourably or to invade provincial competence. (b) The Canadian Charter of Rights and Freedoms -Charter imposes limits on the jurisdiction of all governments, subject to s. 1 µreasonable limits¶ and, seldom used s. 32 µnon-withstanding¶ clauses. -Since it¶s coming into effect the Charter has had a profound impact on criminal law and procedure -Charter can be used to invalidate offences that Parliament has created. Courts have done this on a number of occasions, but not common. R v. Heywood [1994] SCC -Example of where the Courts have struck down a µcriminal offence¶ y Facts: A man, who had previously been convicted of sexually assaulting children, was arrested for loitering µat or near a playground¶. This was an offence of vagrancy under s. 179(1) (b) CC. He had been spotted several times near the playground with a camera with a telephoto lens, which he took photos of children with. Heywood argued that the law violated his s. 7, 11(d), 12 and 15 Charter rights. Court found a violation of 7 and 11(d) which could not be justified under s. 1. Offence: s. 179(1)(b) crime of vagrancy Held: Section 179 was overboard and therefore violated s. 7 Charter and could not be saved by s. 1. The case turned on the interpretation of the word loiters. The court found that the interpretation of this word violated the principles of fundamental justice as it was more restrictive than necessary and was applied too broadly. This is because it applied without prior notice to the accused that it applies to too many places, to too many people, and for an indefinite period of time with no possibility of review. -Over breadth Analysis looks at the means chosen by the state in relation to its purpose. A court must consider whether those means are necessary to achieve the state objective. If the state is pursuing a legitimate objective by means that are broader then necessary to achieve that objective, the principles of fundamental justice will be violated because the individual's rights will have been limited for no reason. The effect of this principle is that some laws may be arbitrary or disproportionate. Courts must balance the interests of the state against the individual¶s rights.

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-The Court retired the µcommunity standards of tolerance test¶ and replaced it with the µundue exploitation of sex or harm¶ test. Labaye [2005] SCC . It could not be justified under s. even when it is not used to strike down a provision. for owning a club where people paid membership fees to engage in group sex. Here. Offence: Operation of a µcommon bawdy house¶ violation of s. Court had to decide whether the activities should be classified as µindecent¶. Charged with intention to traffic under s. which is an important element of an offence in question. Oakes challenged this. There was no rationale connection between basic possession and the presumption of trafficking. the acts were not indecent because the accused took steps to ensure that only willing people would be exposed to the sexual conduct. He claimed vials were for pain relief and the money found on him was from a worker¶s compensation cheque.R v. The Court reviewed an extensive amount of precedents. a violation under s. not a moral one.´-per. the Court said that the µthreshold is high¶ and that there will be many things that certain Canadians will not like that should be allowed to exist. No fees were paid for the acts. Bulter. only for membership. -³A provision which requires an accused to disprove on a balance of probabilities the existence of a presumed fact. Offence: Intention to traffic under s. Objective standards were concerned with whether any harm had been done. The Court reframed a new test for indecency in Canada. 11(d) Charter. On the issue of whether the actions where harmful. Held: SCC overturned decision. 210(1) CC. unless they are so serious that they threaten society. because bawdy houses by definition require prostitution or indecency. oral sex. 11(d) right. 210(1) CC. and masturbation. All of the activities were consensual. y Facts: (Swingers Club/Group Sex House) Accused was charged with operating a µcommon bawdy-house¶. The later test was constituted in R v. Appealed. The provision in the act provided for a shift in onus onto the accused to prove that he was not in possession for the purpose of trafficking. The case provoked a strong dissenting judgment. 11(d). claiming that the reverse onus created by the presumption of possession for purposes of trafficking violated his presumption of innocence under s. Accused found guilty at trial and fined. 4(2) of the Narcotics Control Act. y y y y Page | 7 .J. violates s. the Charter changed the criminal concept of µindecency¶ through a progression of cases described therein. The test was an objective assessment of the tolerance of Canadians. The Courts permit constitutional values to influence the way statutes are interpreted. Here.Example of how the Charter can be used as an interpretive tool. R v. Court said this had to be applied by an µobjective¶ standard. Oakes [1986] SCC -Example of a rule of criminal procedure being struck down by the Courts y Facts: Individual caught with vials of hash oil. 1. 4(2) Narcotics Control Act Held: Unanimous in holding that the shift in onus did violate s. Dickson C.

The dissenting opinion argued that the decision of the majority replaces the community standard of tolerance with a harm-based test. which focuses on a contextual analysis of the impugned acts and incorporates the concept of harm as a significant. Grundy [2008] ONCA -The Court can be flexible in their application of the rules of procedure (because they are administrative in nature) y Facts: Whether the accused counsel could object to the breathalyzer evidence presented at trial. Further. factor to consider in establishing the applicable level of tolerance. They said that in referring to the case LeBel law. 30 of the Rules of the Ontario Court in Criminal Proceedings. Canadian counsel must be familiar with the rules that apply in their jurisdiction [**However. there will be different considerations where the accused is unrepresented or unforeseen events occur at trial. they believed that screening out people who did not want to see the conduct was not rigorous enough and that the community did not tolerate acts of this nature in a place of business to which the public has easy access to. Although a certain degree of subjectivity is inherent because of the judge¶s role as interpreter of the community¶s minimum standards regarding sex. it did not say that the Courts must determine what the community tolerates by reference to the degree of harm caused by the action [alone]. Held: ³S. (c) Rules of Practice -Section 482 CC permits the Courts to create rules of practice to govern the administration mechanisms of practice in criminal courts. the complete disregard of Rule 30 does not serve the interests of justice. Here however. requires the accused to give notice of an application to exclude evidence under s. to determine whether acts are indecent. Rather. which according to the rules of procedure had to be done prior to commencing arguments in order to allow Crown to object/prepare opposition. will not be examined broadly on the Criminal Rules of Practice] R v. they advocated. 24(2) of the Charter. it is preferable to continue applying the original test for indecency. but not determinative.y y Dissent: per Bastarach & said majority¶s definition of indecency was neither desirable nor workable because it did not follow a certain precedent and they discarded the contextual analysis of the Canadian community standard of tolerance. after accused was convicted. The Courts must be flexible in their application of Rule 30 and a trial judge will consider all the circumstances where an accused seeks to bring a Charter application in the middle of trial. This was not done in this case. Wanted to bring a Charter challenge.´ y Page | 8 . the analysis remains objective as long as the judge ignores his or her personal convictions and instead tries to determine the nature of the social consensus. Instead.

s. "hung jury" results in mistrial VI.g. 553 of CC (e.g. All other indictable offences Hybrid offences ± state can decide whether to proceed by #1 or #2 Accused may elect to proceed by trial in provincial Ct. ______________________________________________________________________________ In Canada. but can claim abuse of process vii. UK I. or in superior Ct by J and jury after PI Considerations for electing to proceed by particular mode d. most do not Different types of trial 1. criminal offences are divided into 2 categories: (1) Indictable (2) Summary Offences can be µhybrid¶. all 12 have to agree v. 469 of CC (e. . in jail. including the mode of trial. including the mode of trial. and for the procedure that will be used. accused is discharged (not acquitted) If enough. sexual assault ± 18 mo. 33 ± 38 and the CC provisions cited therein. pp. Offences can be ³hybrid´ in the sense that the prosecutor has the right to elect whether to treat the offence as ³indictable´ or ³summary. in the sense that Prosecutors have the right to elect whether to treat the offence as an µindictable¶ or µsummary¶ offence. murder) Exclusive jurisdiction of superior court (BCSC) Usually preliminary inquiry (PI) to determine if there is sufficient evidence If not. The classification of the offence has important implications for the penalties that are possible and for the procedure that will be used.g. in superior Ct by J alone after PI. THE CLASSIFICATION OF OFFENCES Overview In Canada. No max # of trials. Kelly Elland (Reena Virk) ± trial # 4 viii. Seeking jury sympathy.000 fine Some exceptions: Super-Summary Offences e. in jail and $2.See Coughlan.´ The classification of offences has important implications for the penalties that are possible. no preliminary inquiry 2. Indictable Offences Generally more serious Can only be created by federal Parliament. May opt to avoid PI out of consideration for victim who has to testify twice. accused is committed to stand trial. Summary Conviction Offences Trial in provincial court without a jury and no preliminary inquiry Max penalty is 6 mo.000) Absolute jurisdiction of provincial court Judge alone. less costly j. Offences in s. Page | 9 .g. Majority of cases tried in Prov Ct b/c faster process. criminal offences are divided into two general categories: ³indictable offences´ and ³summary´ (or ³summary conviction´) offences. If cannot agree. Jury trials not used as commonly in Canada as in US. Information replaced by Indictment Before judge and jury unless both accused and Crown consent to trial by judge alone 3.3. theft under $5. hybrid offences will be considered indictable. simpler. E. found in CC and federal statutes Maximum penalty and mode of trial will vary Some have minimum sentences. Unless the prosecution decides otherwise.

while other offences. the accused can choose [referred to as an ³election´] where the trial will take place.Trials: There are 3 modes of trials: (1) In court of criminal jurisdiction (2) In the superior court of criminal jurisdiction and (3) In the superior court of criminal jurisdiction with a jury. which will then subsequently be used at the trial. Therefore. With indictable offences. This document is used throughout the proceedings. the Prosecution usually begins with a charge document called µinformation¶. This inquiry provides an opportunity for the parties to test the evidence on selected witnesses on specific issues. An example is that s. certain offences state how the trial must be heard. With summary offences. Choice of Trial: Summary convictions are always heard in the court of criminal jurisdiction. Page | 10 . Courts & Classification of Offences: Classification has a profound effect on the manner in which proceedings are conducted in court. the Prosecution can file a new document of charge. There is also a possibility with indictable offences that a µpreliminary¶ hearing will be held in front of a provincial court judge. Rationale is that some offences. while serious should be heard by provincial courts. They can have a trial by superior court judge and jury. Police & Classification of Offences: The scope of police powers is affected by the classification of offences. prior to it going to the superior courts. by superior court judge alone. or by a provincial court judge. Other exceptions include allowing the Crown to compel a jury where no such election has taken place. the classification has a controlling effect on the most elementary matters of jurisdiction. while a summary conviction offence allows a maximum of six months or a fine of $2k or both. while there are no limitations on indictable. Sentencing & Classification of Offences: Usually indictable offences are defined to allow a maximum term of imprisonment that exceeds two years. those with more than 2 years go to a federal penitentiary. and so on. With certain offences under the Code. the usual procedure is for the Prosecution to being with a preliminary inquiry on the information before a provincial court judge. However. There are exceptions to this ³election procedure´. 553 lists a number of offences that will be tried by a provincial court judge. Offenders sentenced to terms of less than two years go to provincial jails while. such as murder are more serious and the public interest demands a trial by jury. This is significant as it determines where someone will be incarcerated. with indictable offences. The power of arrest and the powers of search and seizure differ depending on whether an offence is a summary or indictable. while s. 469 lists a number of offences that must be tried by jury and judge. There is a statute of limitations for summary offences. called the indictment. unless prescribed by Parliament to be higher. and allowing an accused to re-elect having made one election. After this preliminary inquiry.

Appeals & Classification of Offences: Summary conviction appeals are heard by superior courts of the province. Page | 11 . while indictable appeals are heard in the Court of Appeal. with provisions in the Code going up to the SCC.

For example: (a) Definitions .´ but also for what it says about the operation of the defence of corrective force. The Code is divided into Parts. See.. Canadian Foundation for Children.R. Each version is equally authoritative. [1987] 2 S. 83 above. 348(1) (i.J.C. You have observed this in R.See.R.G.4. (D.Historically. [2002] O. and ambiguities in one language can be clarified by the other.´ Examine this decision not only for what it shows about legal technique. there will be a definition section that applies solely to that Part. 76 where a Charter challenge encouraged the Court to read significant content into the concept of ³reasonable corrective force. R v J. for example. C. Labaye. . R. [2004] 1 S. INTERPRETING CRIMINAL PROVISIONS Overview Interpreting the Criminal Code and related enactments is not unlike interpreting other statutes. [2005] S.As indicated.A.C. There are special considerations that operate. .The Criminal Code has definitions for many of the terms used but they are not always easy to locate. In other words. No. Section 2 contains definitions that apply throughout the Code.348 (3) and 350. ss. . 4916 (Ont. v. Be on the lookout throughout the decisions included in this list for examples of purposive interpretations.C.Federal laws like the Criminal Code are passed in both of Canada¶s official languages. with the underlying purpose of the provision in mind so as to best accomplish its underlying purpose. always bearing in mind that the limit on purposive interpretation is that damage cannot be done to the language employed. the Charter can have an important influence on the way statutory provisions are interpreted because of the presumption that statutes were intended to be constitutionally valid. for example. and the rule of law doctrine of ³void for vagueness. and at the beginning of each Part. in which the language that is used in the provision being construed is interpreted harmoniously with the statute as a whole.). This principle continues to apply but has been heavily modified by the purposive interpretation.) (e) The Charter . Sometimes definitions are found in or around the relevant statutory provision to be interpreted. Pare is an example.See. No. Pare. Youth & the Law v Canada (A. however. ««««««««««««««««««««««««««««««««««««««« Page | 12 .). for example. criminal statutes were interpreted strictly in favour of the liberty of the accused.R. v.e.Canadian law makes liberal use of purposive interpretation. (d) French/English . 618 (b) Purposive Interpretation . which apply to offences in s. breaking and entering). the accused would get the benefit of the doubt or ambiguity in matters of interpretation. v.J. (b) Strict Construction .

the death is caused µwhile committing¶ an offence for the purpose of s. 214(5) do not require the murder and the underlying offence to take place simultaneously. breaking and entering). 214(5). criminal statutes have been interpreted strictly in favour of the liberty of the accused. First degree murder under CC is committed if it occurs µwhile committing a sexual assault against another male¶.. and stated that that result would create artificial barriers. The Justices disagreed. Pare [1987] SCC -example for purposive approach -SCC upholds the doctrine of strict construction.Interpreting the CC is not unlike interpreting other statutes. Examples: (a) Definitions: CC provides definition for many terms used. etc«) Section 350 defines the word µentrance¶ and µbroken and entered¶ (a person enters as soon as any part of his body or instrument is being entered«. rather than strict construction. The case revolved around whether the murder occurred while committing the indecent assault. Page | 13 . Where an act causes death and the act of indecent assault takes places in a continuous sequences of events forming a single transaction. The respondent argued for a strict (narrow) meaning of ³while committing´. On appeal the question became one of what was meant by the term µwhile committing¶ [an assault]. -Applying the Doctrine ± here.etc«) (b) Strict Construction: Historically. Each Part of the Code also provides its own definition section at the beginning of each Part. since it had been so narrowly interpreted before to avoid capital punishment. but has been heavily modified by the purposive approach: R v. which had been attached to a whole host of offences. and argued that the murder took place two minutes after. Sometimes definitions are found in or around the relevant statutory provision to be interpreted. This definition section applies only to that Part. Section 348(3) defines the word µplace¶ (dwelling-house. Section 2 contains definitions that apply throughout. special considerations that operate. it means µin the same circumstance¶. -³The Code does not go so far as to require that at the time I commit an indecent assault with my right hand I must be committing murder with my left. In this the Code is logical: When it says µat the same time¶ committed on the same occasion. See for example ss. There are however. but notes that modern courts need not be as strict as past courts in narrowly interpreting statutes in favour of the accused. The accused would get the benefit of the doubt or ambiguity in matters of interpretation. 214(5) (b) CC [now s. Offence: First degree murder s. the Justices agreed that the words ³while committing´ should be given a literal. building or structure of a house. 348(1) (i. which apply to offences in s. This principle continues to apply.e. Here the murder happened 2 minutes after the assault. Facts: concerned first degree murder charge. 348(3) and 350. 231(5)] Held: The words µwhile committing¶ in s. but not always easy to locate.

In fact. 82: Order of construction Page | 14 . in reference to Elmer Driedger's formulation This approach was endorsed by the SCC in Rizzo & Rizzo Shoes Ltd. See Roach p. Further. (c) Purposive Approach: Canadian law makes liberal use of the purposive interpretation. The acotexual meaning of the words could give the words µa meaning we assign them if we have no special information about the context of their use or the intentions of the author. Pare above. It is also possible to combine both definitions/meanings to capture the true meaning of the offence. and the intention of Parliament.) [2002] ONCA -illustration of interpreting a provision in the CC which may not be entirely accurately reflective in another µauthoritative version of the Code¶ Offence/Issues: Interpretation of the word µenter¶ for breaking and entering Held: The word enter is different from the word used in French. The Court says it is not debating whether the doctrine exists. The French version is closer to the truer historical roots of the provision. -Therefore. always bearing in mind that the limit on purposive interpretation is that damage cannot be done to the language employed. this meaning is not decisive. two other prominent common law interpretation theories. 214(5) Pare did not commit murder µwhile committing an indecent assault. Justice Iacobucci. speaking for the whole court. R v. prend possession. the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act. If someone pauses for a moment to think of murdering someone. See R v. J. (D. However. The purposive approach is the dominant approach applied through the country. The French version suggests the taking of some form of control over the property." (d) French/English: CC is passed in both French and English. but instead whether the doctrine is applicable in this case. with the underlying purpose of the provision in mind so as to best accomplish the underlying purpose. in which the language that is used in the provision being construed is interpreted harmoniously with the statute as a whole. Here. namely. it does not because it is illogical. wrote the following: ³Today there is only one principle or approach. It is also often referred to as the "modern approach" or "rule". while the French version requires some kind of µseizure¶. Purposive theory is a theory of statutory interpretation that holds that common law courts should interpret legislation in light of the purpose behind the legislation. Each version is equally authoritative and ambiguities in one language can be clarified by the other. The French version means more than committing a purely physical act.-On a literal meaning of s. it may make it more severe. 214(5) that runs contrary to common sense is not to be adopted if a reasonable alternative is available. An interpretation of s. it does not make the crime less severe. per Professor Dworkin. Purposive theory stands in contrast to textualism or statutory derogation. the English version of the Code makes it clear that the intention to take something from the property is irrelevant. the object of the Act. the words µwhile committing' could have different meanings -Re Strict Construction Argument: µthe court must adopt the interpretation that is most favourable to the accused¶.

or µis not intelligible¶. 43 CC which allowed for a defence for school teachers. This requires them to have the capacity to learn for the correction. They argued that this provision violated s. The child must also be capable of benefitting from the correction. If this provision was not added it would be assault to children and there would be a concern of ruining lives and breaking up families²a burden that in large part would be borne by children and outweigh any benefit derived from applying the criminal process. Children are still protected from outright abuse. therefore children under 2 cannot be smacked because they don¶t understand. so long as it does not exceed what is reasonable under the circumstances. -Re interpreting the term µreasonable corrective force¶: says that it does not permit adults to have outbursts on children. 15 (denies children the legal protection against assault that is accorded to adults) of the Charter. Therefore. Page | 15 . 7 (failure to give children procedural rights. See R v. A law must set an intelligible standard for both citizens and officials who must enforce it. It would be an oxymoron to suggest that µcorrective force cannot be both reasonable and an outrage to the standards of decency. µdoes not sufficiently delineate any area of risk¶. The court said it is not. and that it is overboard and vague).) [2004] SCC -A Charter challenge encouraged the Court to read significant content into the concept of µreasonable corrective force¶. therefore they are immune. Offence: S. s. 43 is used for µcorrective and educational purposes only¶. S.(e) The Charter: the Charter can have an important influence on the way statutory provisions are interpreted because of the presumption that statutes were intended to be constitutionally valid. This type of force does not violate a Child¶s charter right to unusual punishment because the force is only corrective. 43 CC providing a defence for assaulting children Issue: Whether this provision violated the Charter rights of children? Held: Re Vagueness: Argue the term µreasonable under the circumstances is too vague¶ to be a criminal provision. because legislators cannot foresee all situations that may arise. instead it is for the purpose of education or disciplining the child. Canadian Foundation for Children. s. A law is unconstitutionally vague if it µdoes not provide an adequate basis for legal debate¶ and µanalysis¶. Facts: ³Spanking Laws´ CFCY applied for a declaration to strike down s.G. Judicial decision may add precision to a statute. Children depend on parents and teachers to provide discipline and guidance in order to protect them from harm and to promote their healthy development in society. Also disabled kids could not learn. 43 is an attempt to accommodate both those needs. The force must also be µreasonable under the circumstances¶ -Re on the defence of corrective force: see argument above. Canada (A. does not act in their best interest. Labaye above. 12 (constitutes cruel and unusual punishment or treatment) and s. Youth and the Law v. parents or persons standing in the place of parents to be justified in using force by way of correction to a pupil or child under their care.

or recklessness. 348 (1) (a) unless he ³breaks´ and ³enters´ something that qualifies as a ³place´ according to the Criminal Code. to produce offences that have an objective mens rea. Indeed. Williams below).). v. but according to what a reasonable person in the position of the accused would have known or foreseen.) . for examples of the interpretation of acts and actus reus conditions: .R v J.The act must be one committed by the accused and must be the kind of act described in the relevant provision.A. however. As is the case internationally. Objective mens rea is determined not according to the state of mind of the accused (the subject). or planning and premeditation. and any consequence that must be caused by the act). For example. a true crime will be interpreted as requiring subjective mens rea unless it is clear that Parliament wished to impose objective liability. (D. with the relevant mens rea. Further.J.R v D¶Angelo. C. It is becoming increasingly common. and ‡ The mental or mens rea elements of the offence. all elements of the offence must be present at the same time. [2002] O. It is not possible or desirable to attempt here to ³teach´ the elements of every offence.A. or there will be no crime (see R. a man in the Page | 16 .) (reviewed above). See. turning on interpretation of the offence and familiarity with relevant precedents and principles. In Canadian law. some offences will be selected for their illustrative value in demonstrating the key actus reus and mens rea concepts. Instead. Applicants are expected to be able to demonstrate interpretive and application skills for all criminal offences. No.THE ELEMENTS OF A CRIMINAL OR REGULATORY OFFENCE Each criminal offence has ³elements´ that must be present before a conviction is possible. THE ACTUS REUS (a) Acts and Statutory Conditions . the act must be committed under the circumstances or conditions specified in the offence. 4916 (Ont. Identifying what the elements of an offence are is a challenging enterprise.). For example.J. or willful blindness. No.Federation of Law (b) Acts must be ³Voluntary´ or ³Willed´ ± The act described by the offence must be ³voluntary´ in the sense that it must be the willed act of the accused. an accused cannot be convicted of the offence of break and enter with intent to commit a criminal offence pursuant to s. or knowledge. it is convenient to think of the elements of an offence as: ‡ The physical elements or actus reus of the offence (the act that must be performed or omission that is proscribed. the circumstances or conditions in which the act must occur. C. such as negligence. As a general proposition of interpretation. 5. [2002] O. whether included in these reading materials or not. 4312 (Ont. the mental elements normally describe the actual or ³subjective´ state of mind of the accused (things such as intent.

of J. [1991] 2 S. Cuerrier. v. reduce or even eliminate civil liability.At times part of the actus reus for an offence has an inherent mental element to it. and it illustrates the legal causation principle of the ³thin skull.R.R. animated by statute and the common law.A. Pham. it would be no assault on his part even if his arm was to strike another without the other¶s consent. York (2005). S. [1983] 1 S. [1999] 1 S. beyond a reasonable doubt.C. v. v. [2005] O. . (d) Consent as an Element of the Actus Reus . discussed below.C.R.J. v.See CC section 4(3).See R.C. C. 149 (Alta. requiring ³factual causation´ and ³legal or imputable causation. it is not fair to call it an act of the accused person.C.´ This concept demonstrates that the divide between the actus reus and mens rea is not a solid one. the Crown prosecutor must prove that the accused caused the consequence to occur. What matters is that lawyers appreciate what the elements are.See R.) Page | 17 .R.) for the application of these concepts to possession of materials found in a residence. . 714 (reviewed above as in illustration of the common law influence on the reach of statutory provisions) .Ct. common to many offences.Often the question of absence of consent by the victim is an important actus reus condition that must be present for offences to occur.R.C. of ³possession. in civil cases.throes of a seizure does not ³will´ his movements.J. v.R. 371 (e) Causation . Consent is a complex idea. the accused cannot be convicted of an offence that requires his act to produce a prohibited consequence. 134 . regardless of how they are characterized. if causation is not proved.A.R.See R. C. in spite of arguments that might. 551 (Ont. [2003] 2 S. Marshall.C.) for the law of manual possession. This is the foundation for the automatism defence. No. Williams.C.Where the relevant offence prescribes a ³consequence´ that must occur before the offence is complete. as it does with the important element. Jobidon. . v. v. 193 C. (3d) 331 (B. 5127 (Ont. . 330 .C.) and R. (c) The ³Act´ of Possession .C. Menezies. It is easier to understand the concept of voluntariness together with automatism authorities. Menezies shows that causation is a two-stage analysis. . v. No.C. As Williams shows. 357 for the concept of constructive joint possession.R.R.´ Nette deals with the higher standard of responsibility of imputable cause that is required to secure a first-degree murder conviction.´ Both Nette and Menezies illustrate how most imputable causation principles explain why blame can be assigned in criminal cases. . Terrence. [1969] 3 C.C. v. so this discussion will be deferred until the voluntariness-based defences are discussed below. Controlled Drugs and Substances Act section 2 (which will be at the back of most published Criminal Code materials). [2002] O. [1998] 2 S. It would have been possible to deal with this kind of issue using the mens rea concept by suggesting that he did not intend to strike the other. but Canadian law has also accepted that unless a physical motion is willful.R.A. Ewanchuk.

(a) Acts and Statutory Conditions: Act must be an act of the accused and the kind of act described in the relevant provision.J. D¶Angelo [2002] ONCA -the µinterpretation of elements of an act¶ can be determinative in deciding whether an AR exists. leave to appeal refused ______________________________________________________________________________ Each criminal offence has elements that must be present prior to a conviction. C. v. a true crime will be interpreted as requiring a subjective MR.A. All elements must be present at the same time. the mental element normally describes the actual or µsubjective¶ state of mind of the accused (things like intent. . Williams). (i. No.R. It is increasingly common to produce offences that have an objective MR.C. 195 . v. 116 C. Two elements: actus reus [AR] & mens rea [MR]. v. Whether an offence can occur by ³omission´ is a question of construction. As a general proposition. 488 (f) Omissions . Offence: Breach of probation Page | 18 . Objective MR is determined according to the mind of a reasonable person in the position of the accused.R. definition of public swimming area is determinative of whether probation is breached). 348(1) (a)) unless he actually breaks and enters into a qualified µplace¶ under the Code. they can be committed by showing that the accused failed to act..C. In Canadian law. Example. [2001] 3 S. Peterson. and (3) the omission in question must be a failure to fulfill that legal duty. or omit to act.R.A. As part of his lease he was granted a membership to the pool automatically. To be guilty by omission (1) the offence must contemplate guilt for omissions. 4450 (Ont. Trial judge decides it is NOT a public area.R. The act must further be committed under the conditions prescribed or under certain circumstances. such as negligence. [1979] 1 S. Nette.). etc« Accused was a resident at an apartment complex where there was a public community swimming pool.). [2005] O.C. and leave to appeal refused. planning or premeditation. Accused was caught at the pool and arrested for breach of probation.Some offences do not require a positive act by the accused. Issue: Whether the pool constituted a µpublic¶ swimming area. or there will be no crime (R v. unless Parliament makes it clear that they wish to impose objective liability. Moore. (2) the accused must be placed under a legal duty to act either by the provision charging him or by some incorporated provision. not the accused themselves. a person cannot be committed of breaking and entering with intent to create a criminal offence (s.R v. (3d) 183 (Ont. Browne (1997). recklessness or knowledge or willful blindness). If not there was no AR. Rather.R.e.C. Facts: Accused was a convicted sex offender who had the following as a condition of his probation: µProhibited from attending (a) public parks and public swimming areas where person under the age of 14 can be present or can be reasonably expected to be present¶. R v. . C.

the purpose of the legislation. 161 of the Code as it was to s. I turn to a consideration of the purpose of s. at pp. R v.C. and indeed the importance. Facts that should be considered in determining if there is a right of access. The state should not be obliged to wait until children are victimized before it acts. (3d) 225 (Ont.C. said. 810.A. It is easier to understand the concept of voluntariness together with automatism authorities (see below). the court should have regard to the definition of a µpublic place¶ in s. It would not be assault on his part even if his arm was to strike another without the others consent. (c) The Act of Possession: Sometimes the AR of an offence has an inherent mental element to it.810. It would have been possible to deal with this kind of issue using the MR concept by suggesting that he did not intent to strike the other. v.810. Adopting a narrow definition of ³public swimming pool´.810.A. Many of the provisions in this part of the Code are designed to protect children from sick adults who prey on them for purposes of selfish sexual gratification. This concept demonstrates that the divide Page | 19 . but Canadian law has also accepted that unless a physical motion is willful. it is not fair to call it an act of the accused person. The societal interest in protecting children from sexual abuse supports Parliament¶s use of the preventive part of its criminal law power. (D) ONCA -See above (Re interpretation of µbreak + enter¶) (b) Acts Must be µVoluntary¶ or µWilled¶: The act described by the offence must be µvoluntary¶ in the sense that it must be the willed act of the accused. approximately 30 percent ± occur in public places. 161 of the Code. Finally. the ordinary meaning of the words. Children are among the most vulnerable groups in our society. [20] In R. C. the particular community.would be a disservice to a particularly vulnerable group in Canadian society. The sexual abuse of young children is a serious societal problem. one which excluded such large facilities as Wet and Wild Kingdom or Canada¶s Wonderland . J. ownership.1.).1. the very places specified in s. include the number of people with access. This is the foundation for the automatism defence. [.1 of the Criminal Code. Budreo (2000). of Parliament¶s objective in passing s... The offence of possession is one of these offences. sexual offences.for example. the conduct of owners and the manner in which the place is used. inter alia.] [19].Held: ONCA approach: In determining what constitutes a public swimming area. In my view. The expert evidence shows that recidivism rates for sexual abusers of children are high and that keeping high-risk offenders away from children is a sound preventive strategy. an important case dealing with another provision of the Criminal Code designed to protect children. 150 of the Code. .´ I agree with this forceful statement. it is as applicable to the interpretation of s. For example. 239-40: ³I accept the legitimacy. and the individual facts of the case.1. 142 C. A sizeable percentage of the sexual offences against children ± according to the record. a statement that needs no elaboration. Therefore appeal allowed and new trial ordered. Laskin J. Parliament thus cannot be faulted for its objective in enacting s. Section 161 is contained in Part V of the Code which deals with. a man in the thrones of a seizure does not µwill his movements¶. limitations or restrictions on access. either express or implied.

between the AR and the MR is not a solid one.4(3)(a)(ii)) A person has anything in his possession when he knowingly has it in any place.4 (3) (b)) Controlled Drugs and Substances Act. Inferences are less than certain. or. But guilt can be based on an inference so long as it is the only inference that can be drawn (Hodges Case). Deductions are certain. 4(3): ³Possession´ for the purposes of this Act. Actual Possession (s. 2: ³Possession´ means possession within the meaning of subsection 4(3) of the CC. Joint Possession (s. Possession Start with the substantive offence. look at the facts. To determine whether an inference is the only reasonable one. for the use or benefit of himself or of another person. (a) A person has anything in ³possession´ when he has it in his personal possession or knowingly: (i) Has it in the actual possession or custody of another person. What matters is that lawyers appreciate what the mental elements are. and (b) Where one of two or more persons. The AR and MR in the µpossession¶ charge are intertwined. it shall be deemed to be in the custody and possession of each and all of them. whether or not that place belongs to or is occupied by him. Common Themes in Possession Cases Behaviour of suspect: Did the suspect cooperate with police? Access to the item: How many entryways? Were the doors locked? Did you talk to anyone else who had a key to the carport? When did the item appear? Who had access to the item? Drug Use: Did the suspect use drugs? What is their history of drug use? CC. regardless of how they are characterized. has anything in his custody or possession. Constructive Possession (s. whether or not that place belongs to or is occupied by him. s. because the AR is intertwined with the MR. s. inferences are not. (ii) Has it in any place. for the use or benefit of himself or of another person. then determine which category of possession to figure out what the Crown must prove BARD: Actual Possession > Constructive Possession > Joint Possession Direct Evidence . AR: Here the AR has an inherent MR element to it.4 (3) (a) (i)) A person has anything in his possession when he has it in his personal possession.evidence which requires an inference in order to prove a fact. with the knowledge and consent of the rest. MR: The same argument above applies here. because if the accused µknowingly' does something (MR)¶ they are also committing the AR of possession. Page | 20 .evidence which proves a fact directly without a further inference Circumstantial Evidence .

and (3) control. York [2005] BCCA -the law of manual possession Facts: Accused was working in a warehouse when a truck full of goods arrived. and where there is some evidence to show the accused person took custody of the object willingly with intent to deal with it in some prohibited manner. The trial judge found that Marshall demonstrated acquiescence by not leaving the car at the first given Page | 21 . however brief the physical contact may be. Accused called his boss to inquire about the goods. but suffice to say that he was not aware that there was marijuana in the car until well after they left Vancouver. there was no evidence that he had any intention to deprive the rightful owner of the stolen goods. the offence of possession is made out where there is a manual handling of an object co-existing with the knowledge of what the object is. York suspected them to be stolen. but found him guilty on the charges of possession of stolen property. Issue: On appeal. As well. (2) knowledge. it appears the judge found the appellant's explanations regarding his discovery of the goods to be reasonable.-see above R v. Marshall [1969] Alta. Because of this he drove the truck to an abandon area and left the goods. -Intent is an essential ingredient of both the offences of theft and possession of stolen property. -Personal possession is established where an accused person exercises physical control over a prohibited object with full knowledge of its character. He was charged for theft and possession of stolen property. His boss would not tell them where they came from. headed to Calgary. The trial judge dismissed the theft charges. However. He knew the goods were stolen. and both these element must co-exist with some act of control -Conduct may be characterized as criminal only where the Crown proves the existence of a blameworthy state of mind. The appellant testified. or by standing by while another closed and locked the doors to prevent their detection. -On appeal the court says at para. On the way back he was stopped by the police and arrested. Therefore. Terrence [1983] Facts: The accused was charged with possession of marijuana for the purpose of distributing. He also exercised physical control over the goods. 334(a) Theft of Stolen Property over $5. 10: ³In order to prove possession the Crown must establish the following: (1) manual or physical handling of the prohibited object. 354(1) Possession of Stolen Property over $5k & s. whether York was actually in possession? Offence: s. The facts of the case are long and detailed. R v. Held: At trial the judge said that York exercised control over the goods at the warehouse by leaving them there without contacting the police or the possible owners and by closing and locking the warehouse doors.CA ² constructive joint possession -read in conjunction w/ next case R v.

it shall be deemed to be in the custody and possession of each and all of them. Terrence was charged with unlawful possession of a car over $200. and thus. 5(2) of the CC (as it was at the time). It follows that knowledge and consent cannot exist without the co-existence of some measure of control over Page | 22 . amounted to consent and possession within the meanings defined in sec. and sec. the CA quashed the conviction stating that ³« but to say that a 16year-old boy faced with this alternative.´ The court did. 4(2) of the Narcotics Control Act. by choosing to continue his trip to Calgary has consented or agreed or acquiesced to the presence of marijuana in the car is not maintainable. Issue: The question for the SCC in this case related to the true meaning attached to the word ³possession´.´ Held: Terrance did not have control of the car. The thrust of their argument centered mainly on some form of control being exercised by the accused. the formula is ± knowledge + consent = requisite act Knowledge and consent can be further expanded. without which the need for their exercise could not arise or be invoked.opportunity. Given that he was not the owner of the car. 3(4) (b) of the CC is a measure of control on the part of the person deemed to be in possession by that provision of the CC. Section 21 of the CC defines the meaning of µparties¶ to an offence²it involves the question of µcommon intention¶. 3(4)(b) of the CC. however. with the knowledge and consent of the rest. They cited the example of ³control of destination´. Issue: Possession of Marijuana for purpose of distribution. R v. The Act states: ³«where one of two or more persons.´ A large part in Marshall¶s acquittal is that he neither did. where Terrence guided/suggested/ordered the driver to go to a certain place. I agree with the CA that a constituent and essential element of possession under s. especially when read in relation with possession. OPP detected the µstolen car¶ and a car chase ensued because they noticed stolen plates on the car. Terrence [1983] SCC ²joint possession -knowledge and consent is required for the requisite act of possession. If there is the power to consent there is equally the power to refuse and vice versa. In this decision.00. Was there consent and possession? Held: On appeal. there was no suggestion that the respondent took part in the actual theft of the car. and thus. has anything in his custody or possession. nor was there anything to support a finding of common intention in relation to the offence of µpossession¶. Thus. Question was whether he knowingly obtained a stolen vehicle which would make it an indictable offence. It follows that ³knowledge and consent´ cannot exist without the co-existence of some measure of control over the subject-matter. Marshall cannot be said to have exercised control in any fashion. Facts: Respondent was picked up by his friend in a car who told him that it was his brother-inlaw's car. there was no direct evidence in this case that showed that Terrence had any control over the vehicle At para 25. could not control what came in and out of the car. Justice Roach: µ³Knowledge and consent´ which is an integral element of joint possession in s. draw up a number of examples where they might find control in such a case. for the purposes of sec. They each signify the existence of some power or authority which is here called control. nor could have exercised control over the persons who were party to the idea of bringing the marijuana along. Here. 5(1)(b). They also cited the example of ³handing over stolen license plates´. the SCC affirmed the ONCA¶s finding that a measure of control over the illegal/stolen articles must be exercised in order to give rise to joint possession or constructive possession ± on the facts. however. 5(2) must be related to and read with the definition of ³possession´ in the previous s.

The occupant at the time was a live-in tenant named Nguyen. -³In order to constitute constructive possession. Sec. Pham [2005] ONCA²constructive possession Application of the principles in R v. 4(3) creates three types of possession. contradictory testimony from neighbors shows that. where similar circumstances had occurred. she was acquitted. the co-accused (girlfriend) was charged with joint-possession of crack cocaine when it was found in her apartment. as is the case. She had been absent during a police search of the apartment. 4(3)(a) (2) constructive possession at set out in sec. there must be knowledge which extends beyond mere quiescent knowledge and discloses some measure of control over the item to be possessed. Facts: Pham was the legal tenant of the apartment in question. Terrence (but to possession of materials found in a residence) Concept of µconstructive possession¶. where 9. (1) personal possession at outlined in sec. an inference of knowledge can be made if. were taking place before the arrival of Nguyen. narcotics are found in plain view. If there is power to consent.8 grams of crack cocaine were found. nor authorized Nguyen to sell crack from her apartment during her absence. (3) joint possession as defined by sec. and vice versa. which is sometimes referred to as attributed possession. R v. what looked to be like drug transactions. In Grey. However. 4(3(a) (i) and (ii) ± here there must be knowledge which extends beyond mere quiescent knowledge and discloses some measure of control over the item to be possessed. and the lack of direct evidence that could point to her knowledge of the drugs. Pham contends that she neither knew. 4(3) of the CC¶s definition of possession. and the accused is occupying the premises. Issue: Was Pham in possession of the drugs? Offence: Sec. consent and a measure of control on the party of the person deemed to be in possession Held: The finding of knowledge in a criminal trial need NOT be supported by direct evidence ± it may be found by the introduction of circumstantial evidence. Even further.´ Page | 23 . However. 4(3)(b) ± here there must be knowledge. (2) her boyfriend had been a co-tenant. she was acquitted based on the facts that: (1) the drugs were not found in plain view. -The Justices cited both the cases of Grey and Sparling. She was convicted at trial and appealed. On the evidence.the subject-matter. 2 of the Controlled Drugs and Substances Act 1996 adopts sec. Marshall & R v. Pham was arrested and charged. there is equally the power to refuse.

animated by statute and the common law. -³The following findings and evidence regarding both knowledge and control of the 9. (d) Consent as an Element of the AR (Roach p. . Nguyen jointly operated the trafficking scheme. Consent is a complex idea. and was the source of drug-related ³dime bags´ and cut up newspapers and grocery bags of the type used to wrap a 40 piece of crack cocaine. (d) there was no evidence of any man¶s toiletries in the bathroom. and participation in. a common area of the apartment. (2) is determined objectively and Page | 24 . consent.Concerns the defence of consent to sexual assault.271) Court (Major J +5): Held: The AR of sexual assault is indirectly defined by the provision on assault: (1) touching. (c) the cloth purse and the make-up bag are consistent with the personal toiletries of the appellant and were found amidst her personal toiletries and make-up. Ewanchuk [1999] SCC .-³In order to constitute joint possession pursuant to section 4(3)(b) of the Code there must be knowledge. as well as an element of control over them. Offence: Sexual Assault (s. (2) the sexual nature of the contact. 95ff): Often the question of absence of consent by the victim is an important AR condition that must be present for offences to occur. (e) the main bedroom was littered with woman¶s clothing. that the possession was for the purpose of trafficking.8 grams of crack cocaine by the accused support that conclusion: (a) the accused elected to use her home as a drug trafficking center. all that occurred in her home on the part of Ms. Pham¶s name. and (h) Mr. she said ³No´. contained documents (including a passport) in Ms. and then continued once again. (g) the role of the accused in the trafficking scheme strongly suggested power and authority over the disposal of the cocaine found. and an ability to withhold consent to the keeping of any drugs in her home. and demonstrated much more than a quiescent or passive knowledge of the drugs. This pattern was repeated several times. R v.there is no defence of implied consent for sexual assaults. -In my view the foregoing provided ample basis to found an inference of the requisite knowledge and supported the trial judge¶s finding that the appellant had sufficient knowledge and control to constitute constructive possession of the cocaine either personally or jointly with Nguyen. (f) the circumstantial evidence supported as the only logical inference a consistent awareness of. Pham. she continued to be the occupant of unit #4 and retained control of the apartment while she was away. Nguyen either filled Ms. He eventually let her go freely. It was agreed that if possession was established. and a measure of control on the part of the person deemed to be in possession´. and was a key figure in the trafficking scheme carried on out of that center. and he stopped. (b) both the black cloth purse containing the drugs and the pink make-up bag containing the money were found in full view in the bathroom. Pham¶s shoes as the primary distributor during her absence or she and Mr. (3) the absence of consent. Facts: the accused enticed the 17-year-old complainant into his trailer and began making sexual advances towards her.

only honest. . Two men fight inside and agree fight not over. Parliament extended this to all assaults save murder in the interests of making this aspect of the criminal law certain. Page | 25 . He argues instead that the absence of consent is not an element of the AR in cases where adults intentionally apply force causing serious hurt or non-trivial bodily harm to each other in the course of a fist fight or brawl. Majority: Gonthier J.e. the defense of mistake of fact is only available if the accused believed there was consent on the basis of the complainant¶s words and conduct. Where non-consent is given.1 (2). then the focus shifts to the mind of the accused. but this is up to the trier of fact to determine. Take fight outside where one is knocked unconscious and later dies. (2) Knowing of. the accused cannot rely on a lapse of time or silence as indicating consent.265(3) does not deal with consent in a comprehensive way. and therefore there was no unlawful act that could have been the cause of manslaughter. including fear of harm. there is a corresponding escalating obligation to take additional steps to ascertain consent. If that had been Parliament¶s intent. Moreover. policy reasons lead to the conclusion that consent is vitiated in fist fight situations: it is a socially useless activity that may lead to further brawls. s. . If the complainant confirms (3). Parliament meant for absence of consent to be a part of the AR. nor does it have to be communicated. willfully blind or tainted by any awareness of any of the factors enumerated in s.does not require subjective MR (consistent with Chase and V.222 (5) (a). 265(3)) Facts: Bar brawl. In sum. especially after someone has said ³No´.265 (3). a lack of consent on the part of the person touched.234) and the vitiation of consent as a defence (s. Even if it was concluded that the Code negated the applicability of the common law rules. Minority: Dissent (Sopinka J): this is an example of judge-made policy that is forbidden. . If the complainant is reliable. This still amounts to an honest belief in consent.B. the question is one of credibility. it would not follow that those amendments erased limitations based on public policy. no assault occurred. Offence: Unlawful act manslaughter (s. or being reckless of or willfully blind to. the court cannot change this. The sanctity of the human body militates against the validity of consent to bodily harm inflicted in a fight. Moreover. subjective absence of consent. This fear does not need to be reasonable. R v. thus. i.8 (3)) Held: Accused guilty.S. This rule does not apply to sporting activities and games. .Consent is vitiated by a number of factors found in s.There are two elements to the MR of sexual assault: (1) Intention to Touch. and the common law maintains authority on the issue of consent. since consent functions as a defence Thus. and it shows this in the text of the provision. Therefore.)). Jobidon [1991] SCC²Test: vitiation of consent (s. which usually have a significant social value. -The provisions in the CC have not ousted the common law limitations on consent.265 (3) and the common law (s. to be honest the accused¶s belief cannot be reckless.273. The accused¶s speculation is irrelevant. it would have been stated. therefore fight is consensual. The history of Canadian law reveals that the limitations on consent based on public policy existed before the codification of Canada¶s criminal law and they have not been ousted by statutory revisions and amendments to the Code. (K.Consent must be communicated by the complainant by words or conduct. (3) is only concerned with the subjective state of mind of the complainant. rejects the argument that since the deceased consented to the fight.

and which limits it only to those situations where a significant risk of serious bodily harm is evident. they listed dishonesty and deprivation or risk of deprivation as the necessary ingredients when assessing fraud. The greater the risk of potential deprivation. Justice L¶Heureux-Dube argued against the emphasis of the significant risk of serious harm. and it does not require that the complainants actually contracted HIV. The existence of fraud should NOT vitiate consent unless there is a significant risk of serious harm. Rather.´ (McLachlin +1): the fraud should involve dishonesty that goes to the nature and quality of the act. did not become HIV positive themselves.268 (1)) and vitiation of consent by fraud (s. This is premised on a view of the sanctity of the body ± there need not be risk of serious harm. they would not have engaged in the said act. unlike the other two views. Thus. Dishonesty consists of either deliberate deceit or non-disclosure of facts (though the second is only deceit when the risk of harm is great).R v. Held: Court (Cory J +3): fraud has two components: (1) Would the actions of the accused be seen as dishonest by the reasonable person? (2) Did the dishonesty result in significant risk of serious bodily harm? This broader view of fraud vitiating consent is justified by the deadly consequences of nondisclosure of HIV infection. However. the existence of fraud should NOT vitiate consent unless there is a significant risk of serious harm. limitations on the concept of fraud need to be placed. Facts: A man who was HIV positive engaged in sexual-intercourse with two women who. unlike the case above. the majority stated that. Upon hearing at the SCC. 265(3) (c)). It includes: Page | 26 . but argued that had they been made aware of the man¶s disease. Consent in this case must be consent to unprotected intercourse with an HIV-positive partner. An interpretation of fraud that focuses only on the sexual assault context. lest there be a floodgate of litigation against persons accused of engaging in fraudulent acts. luckily. (2) Whether the dishonesty induced the consent to the act in question. True consent cannot be given by the victim unless the accused has disclosed his status as HIV positive.265 (3) (c)). Cuerrier [1998] SCC -consent making an Act lawful -Test for Fraud that vitiates consent (s. He stated that ³The focus of the inquiry into whether fraud vitiated consent so as to make certain physical contact non-consensual should be on whether the nature and execution of the deceit deprived the complainant of the ability to exercise his or her will in relation to this or her physical integrity with respect to the activity in question. it was no longer necessary when dealing with assault or sexual assault cases to consider whether the fraud related to the ³nature and quality of the act´. regardless of the presence of risk of harm. Minority: (L¶Heureux-Dube): fraud should have two components: (1) Dishonesty according to Cory¶s objective test. This is a standard that is in accord with the common law tradition and it is an incremental rather than a radical change from the present law. is unjustifiably restrictive. the higher the duty of disclosure. The man was acquitted both at first instance and on appeal Offence: Aggravated assault (s.

(a) a deception as to the sexual character of the act; (b) deception as to the identity of the perpetrator; or (c) deception as to the presence of a sexually transmitted disease giving rise to serious risk or probability of infecting the complainant. The Crown must prove that the victim subjectively would not have consented to the act without dishonesty. Justice McLachlin, however, advances an alternative approach. She believes that by expanding the criminal law, as it now stands in the CC, would be an unwarranted act by the courts. As Canadian law requires, criminal acts must be made clear so that a person know where their acts falls within the spectrum of legality and illegality. To interpret sec. 265 of the Code as stating that the accused fraudulently represented himself to the victim by NOT making them aware of his HIV-status would be to expand the meaning of that section to an unacceptable level, since nowhere in the Code is that stated. Rather, she advances the idea that failing to make the victim aware of one¶s HIV-status goes to the nature and quality of the act. She argues that the consent is given to sexual intercourse with a person whom, the victim believes, is disease-free. The risk of contracting a sexually transmitted diseases falls under the heading of the nature and quality of the act since it has obvious and serious ramifications on the person¶s physical wellbeing. She dismisses arguments which state that such advancement in the law would blur the lines between the instant facts-set and another where a man promises a woman a fur coat in exchange for sex. Such arguments, she states, do not make up the nature and quality of the act since they have no bearing on one¶s physical well-being. (e) Causation (Roach p. 101ff): Some offences include element of causation, such as causing death or bodily harm e.g. Dangerous driving offence complete where driving shows marked departure from requisite standard; Issue: What suffices to establish causal connection between conduct and prohibited consequence? Causation issues tend to arise where multiple parties, thin skull victims or intervening events (Nette) - Factual causation = inquiry about how the victim came to death (medical, mechanical, physical sense) and contribution of accused to that result: But-for test Legal causation (imputable causation, morally culpability) = whether accused should be held responsible in law for death: legal considerations, such as wording of section, principles of interpretation Requires proof that act of accused caused death MANSLAUGHTER - Crown must establish that D's act was contributing cause outside of de minimus range, thin skull rule applies (Smithers) (Cribbin held that Smithers was constitutionally valid) HOMICIDE ± Smithers test, but positive wording è µnot insignificant cause¶ is same as µsignificant contributing cause¶ (Nette) 1st DEGREE MURDER - actions must form essential, substantial & integral part of killing of victim - active role (Harbottle) Sometimes result that is prohibited is not concrete act, but risk (e.g. fraud). Intervening Causes: independent factors exist which might reasonably be said to sever link that ties accused to prohibited result (Menezies) If the original cause is no longer operating in the effect due to an intervening cause then it has broken the chain of causation and you are not legally responsible (Queen v. Smith; People v. Lewis; Regina v. Jordan). Mandel: the original cause is always operating in effect (breaking the chain is not a test. It is a result of court's asking: should the accused be held responsible in light of this intervening cause) e.g. victim assaulted,
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but subsequent CPR medical cause of death ± no actus reus (Reid & Stratton) e.g. Refusal by victim to take blood transfusion does not break chain of causation (Blaue) The courts have fluctuated regarding whether factual or legal causation is the main concern In Smithers, the court decided that factual causation was of main concern You were a cause if you were a cause ³beyond de minimus That the victim had a thin skull doesn¶t matter (Smithers v. The Queen¶s). In Nette the court decided that legal causation was of main concern You were the cause if you were a ³significant contributing cause´ Foresee ability of your actions causing harm a primary concern (R. v. Nette) In Reid & Stratton the courts seem to want to allow for both You were the cause if you were a significant contributing cause and there were no intervening causes breaking the chain of causation In Menezies and J.S.R. the court allows for causation to be satisfied by participating in an event or group activity (street race and gun battle respectively) ³thin skull´ rule: the principle that accused take their victims as they find them. Where the relevant offence prescribes a ³consequence´ that must occur before the offence is complete, the Crown prosecutor must prove that the accused caused the consequence to occur, beyond a reasonable doubt. As Williams shows, if causation is not proved, the accused cannot be convicted of an offence that requires his act to produce a prohibited consequence. Menezies shows that causation is a two-stage analysis, requiring ³factual causation´ and ³legal or imputable causation.´ Nette deals with the higher standard of responsibility of imputable cause that is required to secure a first-degree murder conviction, and it illustrates the legal causation principle of the ³thin skull.´ Both Nette and Menezies illustrate how most imputable causation principles explain why blame can be assigned in criminal cases, in spite of arguments that might, in civil cases, reduce or even eliminate civil liability. R v. Williams [2003] SCC²factual consent -to constitute a crime at some point the AR and MR or intent must coincide. Facts: Similar to Cuerrier above, but involved a minor. The one main difference in the cases was that here, the accused and the complainant had been engaging in unprotected sexual intercourse for five months before the accused found out that he was HIV positive. Held: The SCC held to constitute a crime ³at some point the AR and the MR or intent must coincide´. It was possible that the woman was infected prior to the accused knowing he was infected. May be authority that the accused will have the benefit of the doubt of factual causation. The courts agreed that this created reasonable doubt as to whether the accused knowingly infected the complainant, since it is entirely possible that the complainant could have been infected before the accused was made aware of his situation. Therefore, the necessary concurrence of intent and endangerment required to constitute the charge of aggravated assault, did not take place. Before the requisite date there was endangerment, but no intent. After the date, there was intent, but at the very least there was reasonable doubt as to the existence of any endangerment, since the complainant had probably already contracted the diseased The accused was still charged with attempted aggravated assault, since after the requisite date (the date in which he found out he was HIV positive) he took steps that were more than merely preparatory to endanger the complainant to the possibility of contracted the disease.

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R v. Nette [2001] SCC -brings moral responsibility back to the legal cause, while upholding the exception to the thin skull test. In addition to factual cause, there must be µimputable cause¶ which involves a value judgment to attribute moral responsibility. In determining legal cause you must consider whether the accuse knew that his actions were likely to cause the consequence (foresee ability) Facts: A 95-year-old widow who lived alone was robbed and left bound with electrical wire on her bed with a garment around her head and neck. Sometime during the next 48 hours, she died from asphyxiation. During an RCMP undercover operation, the accused told a police officer that he had been involved in the robbery and death. Offence: The accused was charged with first degree murder under s. 231(5) of the CC -- murder while committing the offence of unlawful confinement -- and tried before a judge and jury. Held: The thin-skull rule, which is a long-standing principle of tort law, provides that a wrongdoer must take his victim as he finds him« That principle applies equally in the criminal context and is reflected, in part, in ss. 222(5) (d) and 226 of the CC. As expressed by McLachlin J., as she then was, in Creighton, supra, at p. 52: The thin-skull rule is a good and useful principle. It requires aggressors, once embarked on their dangerous course of conduct which may foreseeably injure others, to take responsibility for the consequences that ensue, even to death. The potential harshness of the application of the thin-skull rule in the criminal context is mitigated by the requirement that the accused have the requisite MR for the offence charged, which consists of ³objective foreseeability of the risk of bodily harm which is neither trivial nor transitory, in the context of a dangerous act´ -Legal causation, which is also referred to as imputable causation, is concerned with the question of whether the accused person should be held responsible in law for the death that occurred. It is informed by legal considerations such as the wording of the section creating the offence and principles of interpretation. These legal considerations, in turn, reflect fundamental principles of criminal justice such as the principle that the morally innocent should not be punished -Justice Arbour, for the majority, noted that the Smithers causation test applies to all forms of homicide. However, the current "de minimis" test, defining the standard as "not a trivial cause" or "not insignificant", is not helpful and instead should be formulated positively such as "significant contributing cause". She went on to say that since causation is largely fact-driven the judge should have the discretion to rephrase the test as the facts warrant giving the example of Harbottle where, given the high degree of blameworthiness and stigma of the charge, the test was formulated as "a substantial cause". -The fact that the appellant action might not have caused death in a different person, or that the death might have taken longer to occur in the case of a younger victim, does not transform this case into one involving multiple causes. Were the accused actions a ³significant contributing cause´ to the death? R v. Menezies [2002] ON SCJ -reiterates and upholds the Nette principle of legal causation Facts: concerned car racing on the 401 Held: The Court focus on the moral responsibility by emphasizing the foreseeability of the consequences. The withdrawal from the race was an intervening cause such that the consequences from the victim¶s continuation to fast driving were no longer connected to the accused and they were not foreseeable.

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(f) Omissions (Roach p. 107 ff): Some offences do not require a positive act by the accused. Rather, they can be committed by a showing that the accused failed to act, or omitted to act. Whether an offence can occur by ³omission´ is a question of construction. To be guilty by omission: (1) the offence must contemplate guilt for omissions, (2) the accused must be placed under a legal duty to act either by the provision charging him or by some incorporated provision, and (3) the omission in question must be a failure to fulfill that legal duty. Sec. 215-218 of the CC provide scenarios when persons are under a legal duty to take action (Duties Tending to Preservation of Life) R v. Moore [1979] SCC Facts: the accused ran a stoplight with his bike and refused to stop and give his name to an officer. Offence: Obstructing a peace officer in the performance of his duty by failing to give his name when requested (s.129) Held: (Spence J): since a bicycle does not constitute a ³motor-vehicle´ under the Motor Vehicle Act, he did not breach the statute when he refused to stop and give his name to an officer. However, he did commit a traffic offence, which entitled the officer to arrest him. Since identification was necessary for an arrest, the accused obstructed the arrest and the officer¶s duty by failing to provide identification. Dissent: (Dickson J): Omission to act in a particular way will give rise to criminal liability only where a duty to act arises at common law or is imposed by statute. The right to remain silent and the privilege against self-incrimination underlie this principle. Though he agrees that an offence was committed and the officer had a right to arrest, he cannot agree that the accused should be convicted of the serious offence of obstructing a peace officer. He also rejects the argument of an implied duty arising out of the officer¶s duty to arrest. This oversteps the role of the criminal law, as it would essentially amend the Motor Vehicles Act. R v. Browne [1997] ONCA -Before someone is convicted of recklessly breaching a legal duty generated by his/her undertaking, that undertaking must have been clearly made, and with BINDING INTENT. Nothing short of binding commitment can give rise to the legal duty contemplated by sec. 217. Facts: Browne was charged and convicted at first instance for criminal negligence causing death, when his drug dealing partner, Audrey Greiner, swallowed crack cocaine in order to avoid police detection during a search. Sometime later, she began to feel ill from the ingestion, at which time Browne stated that he would take her to the hospital. He subsequently called for a cab, but when it arrived at the hospital, she was pronounced dead. Issue: Browne appeals his conviction on the basis that no legal duty arose from his assistance, contrary to the findings of the trial judge based on sec. 217 of the CC, which states: ³Everyone who undertakes, or has authority, to direct how another person does work or performs a task in

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under a legal duty to take reasonable steps to prevent bodily harm to that person, or any other person, arising from that work or task.´ Held: The Ontario CA disagreed with the trial judge in finding a legal duty based on Browne¶s actions. Because their relationship was such that it gave rise to NO preexisting legal duty, then one must start one¶s analysis by determining if there had been a sufficient degree of undertaking by Browne so as to give rise to sec. 217¶s meaning. -The word undertaking was scrutinized here by the court because they felt that because this criminal sanction carried a maximum term of life imprisonment that the word must be given an extremely high threshold. As such, they concluded that the ³mere expression of words indicating a willingness to do an act CANNOT trigger the legal duty.´ They went on to say that ³« the criminal standard must be, and is, different and higher than that of the civil standard. Before someone is convicted of recklessly breaching a legal duty generated by his/her undertaking, that undertaking must have been clearly made, and with BINDING INTENT. Nothing short of binding commitment can give rise to the legal duty contemplated by sec. 217.´ -In my view, the evidence does not disclose any undertaking of a binding nature. These were two drug dealers who were used to swallowing bags of drugs to avoid detection by the police. There was no evidence that the appellant knew that Audrey Greiner was in a life-threatening situation until 2:00 a.m., when he immediately phoned for a taxi. His words to her at that time: - "I'll take you to the hospital" - hardly constitutes an undertaking creating a legal duty under s. 217. Therefore, his appeal was allowed and conviction quashed. Acquitted. R v. Peterson [2005] ONCA Facts: This case centers on sec. 215(1) (c) of the CC, which imposes a duty on adult children to take care of their parents of whom they are in charge of. The facts of the case are long and complex; however, suffice to say that the father (Arnold) was in extremely bad shape, both physically, hygienically and mentally. This was in part due to his son¶s neglect (as evidenced by testimony of neighbors and police officers), as well as reluctance and stubbornness by Arnold himself. His son was charged and convicted under sec. 215(1) (c), which states: ³Everyone is under a legal duty« to provide necessaries of life to a person under his charge if that person«: (i) (ii) is unable, by reason of detention, age, illness, and mental disorder or other cause, to withdraw himself from that charge, and« is unable to provide himself with the necessaries of life.´

At first instance, and also during his appeal, the son attempted (unsuccessfully) to claim that his conviction and sentence should be vitiated on the grounds that his father was contributory negligent, in that he refused to allow anyone to care for him; in fact, doing the opposite of what was requested by his careers ± as evidenced by the testimony of the daughter. Held: The majority of the Court of Appeal, however, refused that argument stating that the son should have sought the assistance of a community agency that specifically deals with such cases.
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He had been made aware of such agencies by a police officer attending his home during one of their many visits. With respect to the appellant's second argument that he was not in charge of his father, since his father refused assistance almost habitually, the court responded by saying that evidence supported a finding that the father was mentally disabled (perhaps in the early stages of Alzheimer¶s dementia), and that this proved that Arnold was not capable for providing the necessaries of life for himself (a requirement under sec. 215). The duty arises when one person is under the other¶s charge, is unable to withdraw from that charge, and is unable to provide himself or herself with necessaries of life. The phrase ³necessaries of life´ includes not only food, shelter, care, and medical attention necessary to sustain life but also appears to include protection of the person from harm: R. v. Popen (1981), 60 C.C.C. (2d) 232 (Ont. C.A.) at 240. Thus, s. 215(1) (c) obligations are driven by the facts and the context of each case. The offence is made out by conduct showing a marked departure from the conduct of a reasonably prudent person having the charge of another in circumstances where it is objectively foreseeable that failure to provide necessaries of life would risk danger to life or permanent endangerment of the health of the person under the charge of the other. Dissent: In his dissenting judgment, however, Borins JA argued that while the appellants conduct was reprehensible, it did not change the fact that the law as it stands treats senior citizens as it does minors. The analogy, he argues, is based on stereotypes that, for the most part, are unjustified. Stereotypes such as seniors being brittle, being in need of constant surveillance, etc« The SCC in earlier cases voiced its discontent on any law which is passed primarily on stereotypes. The law as it stands gives no weight to the judgment of a senior ± whether or not they want to bathe, eat or drink. That should be up to them.

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Since what someone thinks or wants or knows is personal to him unless communicated. For his part Murray intended to hold the Bernardo tapes. subject to exception (see for example C.´ discussed below. He could have been charged with criminal negligence causing injury. with intent to kill a human being (albeit Page | 33 . In the cases included below. This is why ³assault´ contrary to section 265 requires ³intentional´ touching. A sexual assailant must intend to touch the complainant. Use the mens rea provided for in the relevant provision. but not to make contact with the victim. although the mens rea known as ³willful blindness´ can substitute for full knowledge.C. and not simply reckless touching. that knowledge will be assumed absent a mistake of fact defence being raised successfully). If an offence is explicit and specifies the relevant state of mind.1) where an offence sets out conditions or circumstances that have to exist. Buzanga and Durocher. then only that state of mind will suffice. There are many states of mind described by the various Criminal Code provisions. to be guilty of murder. the accused. He was therefore not guilty. one form of first degree murder requires proof of planning and deliberation (premeditation). His ³assault´ was not intended and he was not guilty. The accused must have the very intention required by the relevant provision. and know that she is not consenting (although as indicated. For example. s. subjective mens rea focuses on the actual state of mind of the subject of the prosecution. while second degree murder requires only that the accused intend to cause death. as construed according to relevant criminal law principles. including by using the common sense inference that persons usually tend to intend the natural consequences of their acts. requiring the Crown to prove actual intention to bring about the consequence). but the wrong charge was laid. is made out. the most common mental states are identified and illustrated: (a) Intention. Vandergraff intended to throw the object. For example. the accused must know that the living thing he is killing is a human being and intend to cause death to that human being. the accused must.6. subjective mens rea ordinarily must be gleaned circumstantially. it is implied that intention or ³recklessness´ in bringing out the consequence will suffice (that presumption was rebutted for the offence charged in R. For example. the law will assume that the accused knew of the elements of the offence unless the so-called ³defence of mistake of fact. Most offences require more than one mental state to exist. namely. SUBJECTIVE MENS REA-905-795-0100 As indicated.) intended to shoot into a crowd. as a general rule. If a true crime is silent as to the mental state and the offence requires a consequence. Many offences do not specify the relevant mental state. Again.(J.S. or intend to cause bodily harm that he knows is likely to cause death. but not for the purpose of obstructing justice. know that those conditions or circumstances exist before the offence can be committed. R. and Ulterior Mens Rea ± Intention is a complex idea. v. Since the state of ³knowledge´ is not often manifested circumstantially the way apparent intent is. 150. The close link between knowledge and mistake of fact makes it sensible to discuss the ³defence´ together with this mens rea concept. It is a close exercise of construction to see what mental states are required by a particular offence.

v.not the one killed). J. v.´ In the sexual offence context. Buzanga and Durocher (1979). 25 O.C. even if he does not believe that the contact is sexual in nature. and others are not.R. No. Theroux. 544Federation of Law Societies of Canada (b) Subjective Mens Rea with Objective Features . [1994] M. Some acts are dishonest.. above . Or an accused can commit sexual assault if he intends to touch another.J.A.) .R. but does not.R.C. Generally.) . 273.S. Vandergraff. It therefore differs from negligence which can apply even if the actor does not personally see the risk. unless the accused presents a ³mistake of fact defence. .N. it is unrealistic to expect the Crown to prove what the accused knows. v. provided a reasonable person would have.R.R.See R. .A. require some more limited kind of mens rea. depending on how the evidence comes out. the accused can commit fraud if he intends the relevant transaction. the prohibited consequence will be brought about. if she does not know the victim is a police officer. 5 . Theroux. v.See Criminal Code of Canada. and others are not. The fact that the accused may have felt the risk to be justifiable would be no answer. For example. For example. For example. some assaults are sexual in their nature. S.J. v. 265(4). No. as a matter of construction.Some criminal offences uses standards to define criminal conduct. so long as it is.J.2 Page | 34 . the mistake of fact defence is heavily limited for policy reasons. 503 (Man. v. [1999] 1 S. It is not sensible to require the accused to have a subjective appreciation that the relevant criminal standard has been met before a conviction can follow since that would permit the content of offences to vary from offender to offender. 330 . C.R. (2d) 705 (Ont. Still. ss.R. the accused must generally know that the conditions of the actus reus exist. so we presume the accused knows of the relevant conditions. Recklessness will apply where the provision creates a consequence. v. Ewanchuk.R. 2182 (Ont. an accused cannot be convicted of assaulting a police officer.R.R. opening the door to his possible murder conviction during his upcoming trial. [1987] 2 S. .) (d) Knowledge ± As indicated.´ If it were otherwise objective dishonest people would be held to lower standards than the rest of us.C. even if he does not appreciate that a transaction of that nature is ³dishonest. C. recklessness is a subjective mens rea with objective features because it exists only where it is objectively unjustifiable to take that risk the accused understood he was taking. bearing in mind what is said above about standards of criminality.C. v Murray.A. 293 (c) Recklessness ± Recklessness is a subjective state of mind that requires the accused to act in spite of actually and personally foreseeing the risk that if they do act. [1993] 2 S. [2000] O. .R. 2008 O.C.R. Chase.

..called ³defence of mistake of fact.. it is implied that intention or ³recklessness´ in bringing out the consequence will suffice (that presumption was rebutted for the offence charged in R..... It is a close exercise of construction to see what mental states are required by a particular offence... but then willfully avoids confirmation so as to be able to deny knowledge. Subjective MR focuses on the actual state of mind of the accused. The close link between knowledge and mistake of fact makes it sensible to discuss the ³defence´ together with this MR concept...... 273..C.... v.C. and not simply reckless touching... Most offences require more than one mental state to exist.. v....... Since the state of ³knowledge´ is not often manifested circumstantially the way apparent intent is..... For example. s.. If an offence is explicit and specifies the relevant state of mind.....««««««««««««.C. v. to be guilty of murder. Briscoe 2010 SCC 13 . that knowledge will be assumed absent a mistake of fact defence being raised successfully).....A.. or intend to cause bodily harm that he knows is likely to cause death.´ is made out... although courts (and Parliament in C........C. No..C.. the law will assume that the accused knew of the elements of the offence unless the so.... v.A.) . Many offences do not specify the relevant mental state..R.. Duong (1998)..... v. 24 C.. Page | 35 ...J.2) have an unfortunate habit of using ³willful blindness´ terminology as interchangeable with recklessness.. For example. requiring the Crown to prove actual intention to bring about the consequence). This is why ³assault´ contrary to section 265 requires ³intentional´ touching... This concept fits best when used as a substitute for knowledge..R.... one form of first degree murder requires proof of planning and deliberation (premeditation). If a true crime is silent as to the mental state and the offence requires a consequence. Since what someone thinks or wants or knows is personal to him unless communicated.. subjective MR ordinarily must be gleaned circumstantially.. 612 (Alta C. and know that she is not consenting (although as indicated. Vinikurov. Buzanga and Durocher below... (5th) 209 (Ont.. the accused must know that the living thing he is killing is a human being and intend to cause death to that human being........ If the two concepts were indeed interchangeable willful blindness would disappear because everyone who is willfully blind is necessarily reckless ± if you suspect that a fact exists but willfully avoid confirmation so as to be able to deny knowledge (and are willfully blind) then you must necessarily be seeing and taking an unjustifiable risk that the fact may exist (and are reckless).. ....R...R... 15 C... Currie (1975). (2d) 292 (Ont. A sexual assailant must intend to touch the complainant.R. The two concepts are not the same and should not be equated. [2001] A... It is a subjective state of mind. then only that state of mind will suffice... This leads to confusion.A.) ... while second degree murder requires only that the accused intend to cause death..(e) Willful Blindness ± Willful blindness is related to but distinct from recklessness... including by using the common sense inference that persons usually tend to intend the natural consequences of their acts.) .... There are many states of mind described by the various CC provisions. requiring that the accused personally sees the risk of a fact..

but not for the purpose of obstructing justice. although the MR known as ³willful blindness´ can substitute for full knowledge. things like ³knowledge. Intent.´ ³willfulness.´ etc. Recklessness 4.Again. Negligence: If you do not know/are not aware. R. the most common mental states are identified and illustrated: The degrees of subjective MR: 1. He could have been charged with criminal negligence causing injury. you need not know that you are depriving another). The Crown has to prove.) intended to shoot into a crowd. Intention and Knowledge Crown doesn¶t have to prove motive. Intention is equally. 150. e. the accused must. For example.1) where an offence sets out conditions or circumstances that have to exist. purpose or willfulness 2. but you ought to have known/been aware of the risk that your actions would bring about the prohibited AR then you have acted negligently. with intent to kill a human being (albeit not the one killed). you have done so recklessly (without intent/purpose).´ ³intent. opening the door to his possible murder conviction during his upcoming trial.g. as a general rule. Page | 36 . and if you perform the AR. subject to exception (see for example C. as construed according to relevant criminal law principles. The Chart Purpose/Intention: You either perform the AR with purpose/intention or without purpose/intention Knowledge: If you are minimally aware of the risk (1%) that your actions might bring about a prohibited consequence. Once Crown proves requisite fault (MR) that the accused was under duress does not negate that fault/MR (Hibbert) If MR requirement is ³willful. but the wrong charge was laid. purposely acting to bring about a consequence. in these instances. and acting with knowledge that consequence will result (Buzanga). then if you perform the AR you have done so with knowledge (the law equates this with intention or purpose). If you are fully aware (certain) that your actions will bring about the prohibited consequence. For his part Murray intended to hold the Bernardo tapes. but not to make contact with the victim. He was therefore not guilty. then you have turned your mind to that risk. Fraud requires you knowingly commit (intend to commit) the prohibited act. s. know that those conditions or circumstances exist before the offence can be committed. Transferred subjective MR (a)Intention and Ulterior MR: Intention is a complex idea. Vandergraff intended to throw the object. The accused must have the very intent required by the relevant provision. depending on how the evidence comes out.(J.S.C. Knowledge 3.´ Crown is proving intention to commit the AR (Buzanga).´ ³recklessness. The offence may call for a combination of ³knowledge´ and ³awareness´ (Theroux). In the cases included below. only the required MR (Lewis) Motive can be included as part of the offence if legislature makes explicit their intention (Nararajah).e. Subjective States of Fault These states of fault are concerned with what passes through the mind of the accused person at the relevant time. but only requires that you are aware that this act might result in the deprivation of the other (i. His ³assault´ was not intended and he was not guilty. Willful Blindness 5. Use the MR provided for in the relevant provision.

Khawaja II. Hibbert v.´ I: Whether inclusion of motive in offence infringes on accused¶s Charter right (s. Offered that he wasn¶t guilty. That proven with the AR the accused is guilty. Crown need only prove you had the requisite fault/MR. Nadarajah This is a reversal of the above decision. the accused acted willfully.a mistake. v. I: If the accused proves duress. By this. he had no motive. The Crown does not need to prove the accused had a motive. The Court finds that the inclusion of requisite motive in this terrorist legislation does not violate the accused¶s Charter right. or ideological purpose. R. that you were under duress can be raised as a defence.? Subjective Intent required for murder. v. I: If the accused proves duress. the motive is allowed to stay in. R. only the requisite fault to fulfill the MR requirement. I: For ³willfully. Page | 37 . does this negate a fulfilled MR requirement? Court found no. USA v. The Queen-Attempted murder via aiding and abetting F: Accused argued he aided and abetted in commission of attempted murder while under duress (principal offender threatened him).R. and thus. Buzanga and Durocher-Willfully promoting hatred against French F: Two accused printed anti-French pamphlets (with knowledge it would incite hatred against the French) but with the intention of helping/ rallying the French people. If Crown proves accused had the requisite MR then that MR requirement cannot be negated by the fact that the act was committed under duress. R. v. 2) The inclusion of motive in this statute violates the accused¶s Charter right. I: Does the Crown have to prove motive or simply that accused met requisite fault req.1 of CC F: This part requires accused have a particular motive: ³for political. religious. Lewis (Murder) F: Accused sent kettle bomb to victims.´ does the Crown have to prove Intention? Recklessness? Knowledge? ³Willfully´ = ³Intention´ ³Intention´ fulfilled where accused: a) Purposely bringing about consequence b) Acts with knowledge that the consequence will result. does this negate a fulfilled MR requirement? Court found here yes . This is reversed in next case. Steane-Performing acts likely to assist the enemy F: Accused argued he intended to do the act while under duress (wasn¶t motivated to assist the enemy). v.

Offence: Murray now faces this charge of attempt to obstruct justice by concealment of the videotapes.) -the Court must prove intention beyond a reasonable doubt. AR for fraud is that the accused must commit an act of deceit. Facts: Murray. there cannot be any assault Facts: Appeal by the accused from conviction for assault with a weapon. was it his honest belief he was entitled to do so? Answer to 1) Murray was going to use them at trial on cross against Holmoka. The accused had thrown a jar of peanut butter toward the ice surface of a hockey rink in frustration at the outcome of a game. at which time Murray was given leave to withdraw as counsel. R v. etc. Issue: The onus is on the Crown to prove beyond a reasonable doubt that it was Murray¶s intention to obstruct the course of justice. Held: Not Guilty-Appeal allowed and acquittal entered.The factual questions of intent are: 1. Answer to 2) If I make the assumption Murray intended to use the tapes in the defence. but it had struck the complainant and caused her injury. The accused's conduct was foolish. If the latter. Without disclosing their existence to the Crown. Murray. had subjective knowledge that s/he was undertaking a prohibited act 2. There was no proof of intention to apply force to a person. applied to the Law Society of Upper Canada for advice. maim. Vandergraff [1994] Man. the deprivation of another. through his counsel.J. Accepting that advice Murray appeared before the trial judge. new counsel for Bernardo.C. v. negligent and may have been criminal. I: What is the requisite MR for fraud? The Crown has to prove accused: 1. R v. Held: Not Guilty. did not apply here. Rosen turned the tapes over to the police and they were used by Crown counsel at the trial. falsehood. he retained the tapes for 17 months. Did Murray intend to conceal the tapes permanently or only up to the point of resolution discussions or trial? 2. The judge felt this to be feasible and therefore Murray did not intend to withhold the tapes permanently. I have no difficulty with the proposition that he may well have believed under the Page | 38 .CA²Intention is necessary for assault -If there is no intention to apply force to a person. Bernardo¶s solicitor went to Bernardo¶s house and removed videotapes. Further. had subjective knowledge that the prohibited act could have caused. Imputed intent to wound. disfigure or endanger life. which happened to be to the complainant. as a consequence. and convicted. Murray [2000] (ON S. in the case of aggravated assault where intent to apply force was already established. he was going to use them to negotiate a settlement. which depicted gross sexual abuse. Theroux Fraud F: Accused accepted deposits from investors having told them he had purchased deposit insurance when he had not. but did not constitute assault. Crown must also prove the impugned act is one a reasonable person would see as dishonest. Chief Justice LeSage who directed that the tapes go to John Rosen. The trial judge had found intent to apply force in a general sense. A jury found Bernardo guilty on all charges.R.

the unlawful object must be a different object than the assault upon the deceased that gives rise to the charge under s. discharging his firearm numerous times into a busy street teeming with people. R v. R (J. Offence: R (JS) is charged with second degree murder.. 48-49 as follows: (1) First. Gangs start shooting at each other from across the road.S. would amount to a serious crime.. but was exchanging fire with the other shooter. does anything that he knows or ought to know is likely to cause death. O¶Connor J.R. 229 CC Issue: Whether R (JS) had the men rea to commit murder in the second degree? Held: s. 229(c) is that the offender knows that the act or acts that are done for the purpose of the unlawful object are likely to cause death. previously known as JSR. for an unlawful object. It is well established that s. 229(c). Creba¶s death by engaging in a mutual gunfight.)²J. [2008] ONCA -ulterior motive can be intent for murder Facts: Gunfight on boxing day in Toronto.S. 229(c) contemplates some act or conduct by the offender done to bring about some further unlawful object other than the injury that causes the death. (c) where a person. In the exchange several people are shot and a 15-yr old girl dies. the acts of the offender that caused the death must have been done for the purpose of an ³unlawful object´. Page | 39 . he was sentenced as an adult to life in prison with no chance of parole for seven years. could be convicted of murder under that provision if a jury was satisfied that he: (1) Did anything ± willingly engaged in a frenzied shootout. Put another way. (2)The second MR requirement in s. Further. R (JS) is not the shooter of the 15 year older girl. (in R v Meiler) observed that the provision required two mental elements.R. if prosecuted fully. notwithstanding that he desires to affect his object without causing death or bodily harm to any human being. R (JS) is on the side of the street where the victim is.circumstances he had no legal duty to disclose the tapes until resolution discussions or trial. notwithstanding he desires to effect his object without causing death or bodily harm to any human being. We believe that J. s. Update: Jorrell Simpson-Rowe.S. Verdict: ordered to stand trial for second degree murder. Culpable homicide is murder . that is an indictable offence requiring MR. He identified the first of these elements at paras. This creates a requirement for the subjective foresight of death by the offender. 229. the unlawful object must be an object of conduct that. -Turning to the MR component.A. was convicted by a jury of murder in the second degree. (2) That he knew was likely to cause the death of a human being (other than his intended target) ± discharging his firearm numerous times into a street filled with people? (3) Caused the death of a human being ± substantially contributed to Ms. In April 2009. and thereby causes death to a human being.

interpreted the word ³fraudulent´ to require a subjective MR requirement for theft and fraud. ³willfully´. in the crimes of homicide. The lack of belief that the fraud will have dire consequences does not negate MR. in delivering the majority judgment in R v. and others are not. such as ³intentionally´. 298-300 of the CC. was responsible for the misrepresentations. -Typically. the project was not completed and the depositors lost their money. the accused can commit fraud if he intends the relevant transaction. Theroux [1993] SCC -Subjective MR with Objective Features: In the crime of fraud. Crimes Requiring Subjective Awareness ± Common Law Presumption: Where the Code definitions of an offence include a clear MR word. or ³knowingly´. Decisions reading in a subjective fault requirement for drug offences are still authoritative ± R v. In R v. and charged with fraud. even if he does not appreciate that a transaction of that nature is ³dishonest. He was involved in residential construction. and others are not. some assaults are sexual in their nature. as directing mind of the company. The accused knew at the time that the deposits were not guaranteed but nevertheless made misrepresentations to induce potential home purchasers to sign a contract and give a deposit. a brochure describing the program was distributed to most of the depositors. Lucas. It is not sensible to require the accused to have a subjective appreciation that the relevant criminal standard has been met before a conviction can follow since that would permit the content of offences to vary from offender to offender. The representation was made orally and backed up by a certificate of participation in the insurance program. Thus. covered by sec. Additionally. so long as it is. The insurance did not exist. the subjective knowledge of the risk of deprivation may be inferred from the µact of fraud¶ itself. required intent to defame. For example.´ If it were otherwise objective dishonest people would be held to lower standards than the rest of us. 380(1) (a) of the CC and the CA upheld the conviction. we speak of the consequences of the voluntary act ± intention to Page | 40 . For example. the crime of defamatory libel. Facts: The accused was the directing mind of a company. R v. The trial judge also found that the accused sincerely believed that the residential project would be completed and hence that the deposits would not be lost. Issue: The issue in this appeal is whether the fact that the accused honestly believed that the project would be completed negates the MR of the offence of fraud. MR is concerned with the consequences of the prohibited AR. even if he does not believe that the contact is sexual in nature. Some acts are dishonest. Beaver McLachlin CJ. Or an accused can commit sexual assault if he intends to touch another. The company entered into agreements with a number of individuals to purchase residences.(b) Subjective MR with Objective Features: Some criminal offences use standards to define criminal conduct. Offence: The accused was convicted of fraud pursuant to s. Theroux. and there is no language indicating the crime is to be interpreted as one of objective negligence. it should be interpreted as an offence of subjective MR. The company became insolvent. Parliament has made it choice of the subject test clear Where the definition of the crime contains no MR words. The trial judge found that the accused. The contracts were made on the basis of a false representation by the company that the deposits were insured.

Held: Sexual assault is an assault within any one of the definitions of that concept in s. the words and gestures accompanying the act. Page | 41 . falsehood or some other dishonest act. don't hit me. I know you want it.the subjective knowledge of the risk of deprivation may be inferred from the act itself. which is committed in circumstances of a sexual nature. the conviction at trial was set aside and a conviction for common assault substituted. will be relevant. He entered the home of the complainant. Where the conduct and knowledge required by these definitions are established. The proper focus in determining the MR of fraud is to ask whether the accused intentionally committed the prohibited acts (deceit. Implicit in this view of sexual assault is the notion that the offence is one requiring a general intent only. 244(1) of the CC. Facts: Respondent was convicted of sexual assault contrary to s. 246. R v. The MR is the subjective awareness that one was undertaking a prohibited act (the deceit. The accused's intent or purpose as well as his motive. led by Justice McLachlin. is the sexual or carnal context of the assault visible to a reasonable observer"." She testified at trial that he tried to grab her "private" but did not succeed. Issue: The only question arising in this appeal is that of the definition of the offence of sexual assault. The personal feelings of the accused about the morality or honesty of the act or its consequences is not relevant to the analysis. and all other circumstances surrounding the conduct. the nature of the contact. The prohibited consequence is the deprivation of another of what is or should be theirs (this includes merely placing the property of another at risk). including threats. When she fought back. . such that the sexual integrity of the victim is violated. barring some explanation casting doubt on such inference. including risk of deprivation). the CA expressed the view that the modifier "sexual" in the new offence of sexual assault should be taken to refer to parts of the body.246 (1) (a) CC)²The test to be applied in determining whether conduct is sexual. Because there was no contact with the complainant's genitals. if such motive is sexual gratification. particularly the genitalia. The part of the body touched. Therefore. The test to be applied in determining whether the impugned conduct has the requisite sexual nature is an objective one: "Viewed in the light of all the circumstances. On appeal. Chase [1987] SCC -Sexual assault (s. seized her around the shoulders and arms and grabbed her breasts. the situation in which it occurred. MR was found to exist. a 15-yr old girl. can also be a factor. -The SCC. falsehood or other dishonest act) knowing or desiring the consequences proscribed by the offence (deprivation. without invitation. falsehood or other dishonest act) which could cause deprivation in the sense of depriving another of property or putting that property at risk. he said: "Come on dear. which may or may not be accompanied by force.cause death. µviewed in light of all the circumstances of the assault to a µreasonable observer¶. or reckless and willfully blind persistence in conduct with one knows is likely to cause death. is an objective one.1(1) (a) of the CC. the accused is guilty whether he actually intended the deprivation or was reckless as to whether it would occur. began by defining the requisite elements of the crime of fraud: the AR is deceit. when considering whether the conduct is sexual.

they state. Recklessness requires only subjective awareness of the risk of the prohibited act. Theroux [1993] SCC -see above. In certain cases. as a matter of construction. which can apply even if the actor does not personally see the risk. purpose. but does not. It is a subjective state of mind that requires the accused to act in spite of actually and personally foreseeing the risk that if they do act. the prohibited consequence will be brought about. In the present case. willfulness or knowledge. presupposes knowledge of the likelihood of the prohibited consequences. there was ample evidence before the trial judge upon which he could find that sexual assault was committed. Viewed objectively in the light of all the circumstances. 264 (4) 4 Offences based on criminal negligence ± sec. damage to property and arson) (3) 3 Criminal harassment ± sec. with such knowledge. Still. The fact that the accused may have felt the risk to be justifiable would be no answer. commits acts which may bring about these prohibited consequences.-Implicit in this view of sexual assault is the notion that the offence is one requiring a general intent only. in misrepresenting deposit insurance a reasonable person would be of the view that this was reckless. Recklessness. 219 R v. There are occasions where the Code expressly relies on recklessness as fault: (1) Murder under sec. but still subjective mens rea. (c) Recklessness: Recklessness is lower form of mens rea than intent. require some more limited kind of MR. 429 for all of Part XI offences (mostly property offences such as mischief. recklessness is a subjective MR with objective features because it exists only where it is objectively unjustifiable to take that risk the accused understood he was taking. Held: Re: Recklessness-The SCC went on to say that there is no reason why recklessness should not attract criminal liability for fraud. Even though he did not foresee the risk that the homes would not be constructed. as opposed to knowledge of the likelihood of the prohibited act. the inference of subjective knowledge of the risk may be drawn from the facts as the accused believe them to be. Buzanga and Durocher [1979] ONCA Page | 42 . This does not mean that the Crown must provide the trier of fact with a mental snapshot proving exactly what was in the A¶s mind at the moment the dishonest act was committed. Re: Fraud for insurance on deposits for the construction of new homes. provided a reasonable person in the accused's circumstances would have recognized the risk. it is clear that the conduct of the respondent in grabbing the complainant's breasts constituted an assault of a sexual nature. It is established when it is shown that the accused. while being reckless as to whether or not they ensue. R v. Recklessness will apply where the provision creates a consequence. 229(a)(ii) (2) 2 Willful as defined in sec. It therefore differs from negligence.

an accused cannot be convicted of assaulting a police officer. In other words. if she does not know the victim is a police officer. where the trial judge erred in his charge was in holding that ³willfully´ means only ³intentional´ as opposed to ³accidental´. After extensive reference to previous case law. bearing in mind what is said above about standards of criminality. seeks to prevent´ The case primarily turned on how the word willfully was to be interpreted and defined. The appellants sought the leave of the ONCA. unless the accused presents a ³mistake of fact defence. 319(2) of the CC. Page | 43 . as distinct from its consequences. Ewanchuk [1999] SCC -See above: Re sexual assault of a girl. Claimed there was consent because she didn¶t say no. They defined willful as when a person intends a particular consequence not only when his conscious purpose is to bring it about. (d) Knowledge: Knowledge is a slightly lower form of subjective mens rea than intent or purpose. the trial judge focused on whether or not the appellants intended their acts (the act of drafting and printing the pamphlet). in creating the offense. but distributed it as means of achieving their purpose of obtaining the French language high school. or (b) they foresaw that the promotion of hatred against that group was certain or morally certain to result from the distribution of the pamphlet. The distinguishing factor is to be found in the language: namely. Their intention was that right-minded individuals would find such statements to be so repugnant that government intervention in the matter would almost certainly be likely. For example. the mistake of fact defence is heavily limited for policy reasons. what the CA did was distinguish actions which are willful from those which are reckless. According to the Court of Appeal. Generally.´ In the sexual offence context. R v. it does not have that meaning in the provisions under consideration here. Although ³willfully´ has sometimes been used to mean that the accused¶s act. This was distinguished from the reckless definition where. must be intended and not accidentally. a person is said to be reckless when foresight of death or serious bodily harm is a highly probable consequence of an act done for some other purpose. As indicated.´ In essence. so we presume the accused knows of the relevant conditions. and not on the consequences (the incitement of hatred toward French Canadians). as it applied to this section. the accused must generally know that the conditions of the AR exist. but also when he foresees that the consequence is certain or substantially certain to result from his conduct. They compiled a variety of statements made by locals who were against the building of a French school. Held: ³The general MR which is required and which suffices for most crimes where no mental element is mentioned in the definition of the crimes. This approach is known as the doctrine of specific intent. is either the intentional or reckless bringing about of the result which the law. it is unrealistic to expect the Crown to prove what the accused knows. was ³(a) the appellant¶s conscious purpose in distributing the document was to promote hatred against that group. The appellants were French Canadians themselves who published a pamphlet in an attempt to incite public outrage.Facts: The appellants were convicted at first instance for willfully promoting hatred against French Canadians contrary to sec. citing the words of Lord Diplock in Hyam. substantially certain and highly probable. the CA held that the proper meaning of willfully.

C. Page | 44 . The defence of mistake is simply a denial of MR. or (b) where the accused did not take reasonable steps in the circumstances to know that the accused at the time was not consenting. However. then the question which must be answered by the trier of fact is whether the accused honestly believed that the complainant had communicated consent. As an initial step the trial judge must determine whether any evidence exists to lend an air of reality to the defence. but then willfully avoids confirmation so as to be able to deny knowledge. Support for the defence may stem from any of the evidence before the Court.Application: The accused may challenge the Crown¶s evidence of MR by asserting an honest but mistaken belief in consent. including the Crown¶s case-in-chief and the testimony of the complainant. 272. -Moreover. Section 273. to be honest the accused¶s belief cannot be reckless. The culpability in recklessness is justified by consciousness of the risk and by proceeding in the face of it. requiring that the accused personally sees the risk of a fact. while in willful blindness it is justified by the accused's fault in deliberately failing to inquire when he knows there is a reason to inquire. then honesty of that belief must be considered.2) have an unfortunate habit of using ³willful blindness´ terminology as interchangeable with recklessness. although courts (and Parliament in C. the judge (and jury) should consider the presence or absence of reasonable grounds for that belief when evaluating the evidence against the accused. where (a) the accused was intoxicated or reckless or willfully blind. This leads to confusion. -If his belief is found to be mistaken. this defence will usually arise in the evidence called by the accused. This concept fits best when used as a substitute for knowledge. while recklessness involves knowledge of a danger or a risk and persistence in a course of conduct which creates a risk that the prohibited result will occur. It does not impose any burden of proof upon the accused. If so. SCC in Sansregret: Willful Blindness is distinct from recklessness because. or 273. 271. It is a subjective state of mind. 273. That the accused believed that the complainant consented to the activity. If the two concepts were indeed interchangeable willful blindness would disappear because everyone who is willfully blind is necessarily reckless ± if you suspect that a fact exists but willfully avoid confirmation so as to be able to deny knowledge (and are willfully blind) then you must necessarily be seeing and taking an unjustifiable risk that the fact may exist (and are reckless). willful blindness arises when 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. 273. He would prefer to remain ignorant. as a practical matter. Section 265(4) CC²Accused¶s belief to consent (Assault) -if the defendant believed that the other party consented to the contended action.2 CC²Where belief in consent is not defence (Sexual Assault) consent is not a defence to a charge under s.1(2) and 273.2. willfully blind or tainted by an awareness of any of the factors enumerated in ss. (e) Willful Blindness: is related to but distinct from recklessness. The accused need not testify in order to raise the issue. s. The two concepts are not the same and should not be equated.

but did not say to what extent he was involved. he is deemed to have knowledge. Both are subjective and both are sufficiently blameworthy to justify the imposition of criminal liability. combined with a conscious decision not to make inquiries which could confirm that suspicion. Held: The Ontario CA disagreed with the appellant¶s contention. At first instance. -The appellant¶s case was dismissed Page | 45 . R v. not whether it should have been aroused.R v. The appellant was approached by an unknown person. 23(1) of the CC. The main distinction between the two interpretations is that the trial judge¶s definition imports a more constructive knowledge approach to the doctrine. or that he was ³willfully blind´. which had the signature of the payee forged on the back. that the accused¶s suspicion was aroused. Duong [1998] [ONCA] Facts: The appellant was charged and convicted for being an accessory after the fact. beyond a reasonable doubt. He argues that he did not know the cheque was stolen. The appellant goes on to contend that he could have turned only to the suspect to verify his suspicions and that the record does not suggest the suspect would have admitted his culpability in the murders. Held: The majority of the Ontario CA disagreed with the trial judge¶s interpretation of the doctrine of willful blindness. the trial judge convicted on the basis that the appellant willfully shut his eyes and did not make inquiries which he ought to have made. In other words. The CA stated that there is no room for constructive knowledge in the criminal law. whether in the circumstances his suspicion should have been aroused. The accused contends (citing no specific cases) that willful blindness can only be relied on by the Crown if the Crown proves that an accused whose suspicions were aroused had the means available to verify the accuracy of those suspicions. and was told by the suspect that he was in trouble for murder. They adopted a different definition: The rule is that if a party had his suspicion aroused but then deliberately omits to make further enquiries. The trial judge found him willfully blind of the fact that the suspect was wanted for murder. They stated: Liability based on willful blindness is subjective. The suspect was later found guilty on two counts of second degree murder and two counts of attempted murder. or the signature forged. Actual suspicion. The CA¶s interpretation differs on the burden of proof ± namely. where a value judgment is passed on the actions of the accused ± namely. contrary to sec. is equated in the eyes of the criminal law with actual knowledge. The appellant housed a suspect wanted for three murders and two attempted murders. there is a suspicion which the defendant deliberately omits to turn into certain knowledge. Willful blindness refers to a state of mind which is aptly described as ³deliberate ignorance´. This is frequently expressed by saying that he ³shut his eyes´ to the fact. Currie [1975] ONCA Facts: The appellant was charged and convicted of trying to cash an endorsed stolen cheque. because he wishes to remain in ignorance. and thus should not be liable. that the Crown must prove. and was offered $5 to cash the cheque.

The culpability in recklessness is justified by consciousness of the risk and by proceeding in the face of it. as in this case. [1995] 4 S. it is. the reasonable person standard will not satisfy the MR requirement. The appellant cooperated with the police when they came to seize the stolen goods. 355(b) of the CC. accurate and succinct summary of the foregoing is found in R." If the trier of fact. 55 at p. Bucsko. there is a suspicion which the defendant deliberately omits to turn into certain knowledge. he is deemed to have knowledge. the Crown established beyond a reasonable doubt that the Appellant.111: "A finding of willful blindness involves an affirmative answer to the question: Did the accused shut his eyes because he knew or strongly suspected that looking would fix him with knowledge?" "Willful blindness is distinct from recklessness because. "[T]he rule is that if a party has his suspicion aroused but then deliberately omits to make further inquiries. while in willful blindness it is justified by the accused's fault in deliberately failing to inquire when he knows there is reason for inquiry. 354(1) Issue: The issue in this appeal is the application of the doctrines of recklessness and willful blindness to a charge of possession of stolen property Held: The onus is on the Crown to prove that the accused knew that the property was stolen. while recklessness involves knowledge of a danger or risk and persistence in the course of conduct which creates a risk that the prohibited result will occur. the appeal is allowed. with respect. or that he was 'willfully blind'.R. that willful blindness was not made out. on that basis. The Appellant declined to accept the watches without first telephoning his mother. appraised by the pawnshop on the basis of their scrap value Offence: Possession of stolen property s. willful blindness 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. The stolen merchandise was from a former inmate.CA) Facts: The Appellant was charged with seven counts of possession of stolen property contrary to s.C. The stolen property represented the proceeds of a series of break and entries committed by the individual who pawned the merchandise. Vinokurov [2001] (Alta. His mother authorized payment of $50 for the watches and $25 for the rings which were. At trial. inconsistent to find that the accused "was fully conscious of the risk." A fair. He would prefer to remain ignorant. For these reasons. This is frequently expressed by saying that he 'shut his eyes' to the fact. It is a general rule of statutory construction that when the term "knowingly" is used in a criminal statute. received stolen property from a customer. is not persuaded that the accused suspected something and thereby became aware of the need to inquire. the convictions quashed and a new trial ordered on all counts. It is well established in criminal law that willful blindness will fulfill a MR requirement. The uncontradicted evidence was that he completed all of the required paperwork and made inquiries of his mother who was the owner of the store to determine whether he ought to purchase certain of the merchandise. Jorgensen. The Appellant testified at trial and denied knowing that the items were stolen.R v. Page | 46 . the manager of a pawnshop. v. in accordance with usual practice. because he wishes to remain in ignorance." Having concluded. In other words. it was not open to the trial judge to find "recklessness".

the evidence cried out for an analysis on willful blindness. The trial judge found that the AR for being a party to the offences was proven. Held: The appeal should be dismissed. In this case. although he or she need not know precisely how it will be committed. but it need not be shared. Willful blindness imputes knowledge to an accused whose suspicion is aroused to the point where he or she sees the need for further inquiries. the Crown must prove that the accused intended to assist the principal in the commission of the offence. correctly delineated. B was acquitted. suggest that he had a strong. holding that the trial judge erred in law by failing to consider willful blindness. it can substitute for actual knowledge whenever knowledge is a component of the MR. The trial judge¶s failure to consider B¶s knowledge from that perspective constitutes a legal error which necessitates a new trial on all charges. Even B¶s own statements to the police. but deliberately chooses not to make those inquiries. Willful blindness does not define the MR required for particular offences. Briscoe [2010] SCC Facts: B was charged with murder for driving people who raped and murdered a 13-year old girl on a golf course. because L had expressed a desire to kill someone that day. B drove and witnessed the attack but did not participate. acts with the intention of assisting the principal in its commission. well-founded suspicion that someone would be killed at the golf course and that he may have been willfully blind to the kidnapping and prospect of sexual assault.R v. the principal¶s intention to commit the crime must be known to the aider or abettor. in order to have the intention to assist in the commission of an offence. It is not required that the accused desired that the offence be successfully committed. the aider must know that the principal intends to commit the crime. but not the MR because B did not have the requisite knowledge that L¶s intended to commit the crimes. The MR requirement reflected in the word ³purpose´ under s. is distinct from recklessness and involves no departure from the subjective inquiry into the accused¶s state of mind which must be undertaken to establish an aider or abettor¶s knowledge. His statements also show that he deliberately chose not to inquire about what the members of the group intended to do because he did not want to know. Page | 47 . Rather. and L and some of L & B¶s friend had chosen the 13-year old girl as the victim. The murder was planned by L who took place in the murder. It is sufficient that he or she armed with knowledge of the principal¶s intention to commit the crime. As for knowledge. For the intent component. Even in the case of murder. 21(1) (b) of the CC has two components: intent and knowledge. on which the trial judge relied heavily. The CA overturned the acquittals and ordered a new trial. The doctrine of willful blindness.

Issue: He appeals his conviction on the grounds that the aforementioned subsections are unconstitutional. as a matter of constitutional law.C. a ³predicate´ offence. and that include within their elements another complete but lesser offence. The appellant. and that include within their elements another complete but lesser offence. ³penal negligence´ . R. Beatty.C. with his accomplice. For crimes using objective fault as the MR. The appellant asserts that was not the plan. OBJECTIVE MENS REA AND TRUE CRIMES Negligence is judged objectively. 3 R. 5. For predicate offences the consequence need not be brought about by ³penal negligence. Page | 48 . and was considered a participant under sec. armed with a pellet pistol and a rifle broke into the trailer of the victims.´ those aggravated forms of offence that apply when serious consequences result. and that the aggravated consequence that has been thereby caused was objectively foreseeable. convictions must be based on subjective MR in the form of full scale intention. according to what a reasonable person would know or understand or how a reasonable person would act.is generally required. Or if not. according to what a reasonable person would know or understand or how a reasonable person would act. v.a more restricted form of negligence . R.´ It is enough if the accused commits the underlying or predicate offence. a ³predicate´ offence. 230(a) on its own is unconstitutional. although this has not happened for murder. [1990] 2 S. although this has not happened for murder. [1993] 3 S. v. 633 R. Gradually the law has come to accept objective fault. 944 Negligence is judged objectively. where. 21(1) and (2) of the CC. 230(a) of the CC. v.´ those aggravated forms of offence that apply when serious consequences result. and careless people may be dangerous but they are not evil.R. as a matter of constitutional law. The exception is with ³predicate offences. Gradually the law has come to accept objective fault.C. and that the aggravated consequence that has been thereby caused was objectively foreseeable. Martineau [1990] SCC Facts: The case included two participants to a crime. v. ______________________________________________________________________________ R v. For crimes using objective fault as the mens rea. Creighton.J. The criminal law has long been uncomfortable with objective fault. convictions must be based on subjective mens rea in the form of full scale intention.a more restricted form of negligence is generally required. Martineau.7. For predicate offences the consequence need not be brought about by ³penal negligence. [2008] S.C. as historically the criminal law responded to an ³evil´ mind. DeSousa. ³penal negligence´ .´ It is enough if the accused commits the underlying or predicate offence. The exception is with ³predicate offences.R. No. and careless people may be dangerous but they are not evil. [1992] 2 S. that sec. where. and that he was under the impression that they were engaging only in a break and enter. The criminal law has long been uncomfortable with objective fault. as historically the criminal law responded to an ³evil´ mind. Offence: He was charged under sec.R. where the accomplice shot and killed both victims.

She argues that while it may be illogical to characterize an unintentional killing as murder. other than the accused¶s degree of moral blameworthiness. and that Parliament should not have chosen the word murder for the subsection in question. In regards to sec. or the fundamental principle of a morally based system of law that those causing harm intentionally be punished more severely than those causing harm unintentionally. The essential role of requiring subjective foresight of death in the context of murder is to maintain proportionality between the stigma and punishment attached to a murder conviction and the moral blameworthiness of the offender. Dissent: Justice L¶Heureux-Dube cited a host of arguments for maintaining and utilizing the objectively foreseeability standard. 3. should be reserved for those who choose to intentionally cause death. no principle of fundamental justice is offended only because serious criminal conduct. All other homicide convictions would necessarily fall under the category of manslaughter. The fallacy of this approach is its denigration of the AR and its failure to include the result of the defendant¶s conduct as a determinant of just disposition. They held that only the MR of subjective foreseeability of death. Third. the correlation between the consequences of a criminal act and its retributive repercussions become obscured by a stringent and exclusive examination of the accused¶s own asserted intentions. the stigma and punishment attaching to the most serious of crimes. 230 is to violate the principle that punishment must be proportionate to the moral blameworthiness of the offender. The rationale underlying the principle that subjective foresight of death is required before a person is labeled and punished as a murderer is linked to the more 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 Justice Lamer asserts that in a free and democratic society that values the autonomy and free will of the individual. The question is one of policy to be determined by Parliament. Second. where it was concluded that objective foreseeability of death was the minimum threshold test before a conviction for murder could be sustained. the degree of perceived danger to the public and the prevalence of certain types of offences are only some of the other considerations which Parliament may properly consider. murder. that they punish persons engaging in bodily harm resulting in death more severely through harsher sentences after a manslaughter conviction. General deterrence. to deter persons from causing bodily harm to others in the commission of one of the proscribed offences: namely. First she cites that those who are critical of the ³felony-murder´ rule base their denunciation on the premise that MR is the exclusive determinant of the level of stigma that is properly applied to an offender. she cites that the principle complaint in the majority¶s argument is that the accused should not be labeled a murderer. she argues that many other factors. that there were and are less intrusive methods open to Parliament to utilize in its pursuit of the objective ± namely. 1 of the Charter. Justice Lamer believed.Held: Building on the decision in Vaillancourt. 2. involving the Page | 49 . or of bodily harm likely to cause death could lead to a murder conviction. the Justices decided to interpret the entire section more strictly. 1. This more flexible sentencing scheme under a conviction for manslaughter is in accord with the principle that punishment be meted out with regard to the level of moral blameworthiness of the offender. are considered by Parliament in establishing a sentencing scheme. Additionally. Justice Lamer stated the following reasons: the effect of sec. as he did in Vaillancourt.

proceed to #2 2. Requiring subjective foresight of death in the context of murder maintains proportionality between the stigma and punishment attached to a murder conviction and the moral blameworthiness of the offender. In other words. the Crown must demonstrate a marked departure from the standard of a reasonable person ± it is in the determination of what is reasonable that the skill and expertise of the accused may be considered. Minority: Justice Lamer. and conceded that this amounted to trafficking within the meaning of sec. 7 of the Charter since the reasonable person will be invested with any enhanced foresight the accused may have enjoyed by virtue of their membership in a group with special experience or knowledge related to the conduct giving rise to the offence. In doing so. then the third part comes into play. the focus of the investigation must shift to the question of whether a reasonable person in the position of the accused would have been capable of foreseeing such a risk. He admitted to injecting the victim with cocaine. contravened sec. It goes as follows: 1. Held: The SCC dismissed his appeal. the stigma and punishment attaching to murder should be reserved for those who choose intentionally to cause death or who choose to inflict bodily harm knowing that it is likely to cause death. The victim died as a result. Sopinka. If it is (b). Facts: Appellant was charged and convicted of unlawful act manslaughter.commission of a crime of violence resulting in the killing of a human being. Creighton [1993] SCC -test for the MR of unlawful act manslaughter [predicate offence] is objective foreseeability of the risk of bodily harm which is neither trivial nor transitory. once the Crown has established that this reasonable person in the context of the offence would have foreseen the risk of death created by their conduct. R v. Foreseeability of the risk of death is not required. and its objective standard application. Offence: He was charged under sec. Was the accused unaware (a) because they did not turn their mind to the consequences of the conduct and thus to the risk of the consequences? (b) because they lacked the capacity to turn their mind to the consequences of the conduct and thus to the risk of the result. 4(1) of the Narcotic Control Act. Issue: He sought leave from the SCC on the basis that unlawful act manslaughter. 7 of the Charter. is classified as murder and not in some other manner. 222(5) of the CC. The Justices then went on to create a two or three-fold test which the trier of fact must complete in applying the objective standard. a conviction must follow. -In a free and democratic society that values the autonomy and free will of the individual. Would a reasonable person in the same circumstances have been aware that the likely consequences of their unlawful conduct would create the offence charged? If yes. Iacobucci and Major were of this opinion: they did not feel that the objective test contravened sec. The Justices gave three groups of reasons. in the context of a dangerous act. The principles of fundamental justice require that a conviction for murder be based upon proof beyond a reasonable doubt of subjective foresight of death. due to human frailties? If the answer is (a). Page | 50 .

They agree with the above Justices position that the morally innocent should not be punished. because the reasonable person is expected to compensate for their frailties to the extent that they are conscious of them and able to do so. a person with cataracts may be expected to avoid activity in which that limitation will either create a risk or render them unable to manage the risk which is inherent in that activity (ex. This strict reasonable person standard was applied in: R v. however. ³Lack of education and psychological predispositions serve as no excuse for criminal conduct. dangerous driving¶s AR is defined as Page | 51 . which is that a determination of guilt is not made in a factual vacuum. It is. Majority: Justice McLachlin. As Justice McIntyre stated in Tutton. In the context of the particular offence. They also agreed that the constitutionality of negligence is subject to the caveat that acts of ordinary negligence may not suffice to justify imprisonment. The negligence must constitute a marked departure from the standard of the reasonable person. Thus. The Justices openly excluded intoxication through drugs or alcohol as an included human frailty. although they may be important factors to consider in sentencing. but the reasonable person is constructed to account for the accused¶s particular capacities and resulting inability to perceive and address certain risks. it is particularized in application by the nature of the activity and the circumstances surrounding the accused¶s failure to take the requisite care. L¶Heureux-Dube. only those human frailties which relate to the accused¶s capacity to appreciate the risk in question that may be considered in this inquiry. The difference between the approaches turns on the extent to which personal characteristics of the accused may affect liability under the objective test. For example. would the reasonable person with the capacities of the accused have made themselves aware of the likely consequences of the unlawful conduct and the result risk? The enquiry of the accused¶s behaviour is still measured against the reasonable person. The only characteristic that the Justices were willing to take into account is the incapacity to appreciate the nature of the risk which the activity in question entails. degree of negligence Facts: The facts of this case are not important.3.´ Having said that. Abella and Rothstein (the majority) were of this opinion: (1) Determining AR ± to determine the AR of the offence in issue one must refer to the wording of the relevant section in the legislation. Gonthier and Cory were of this opinion: they agreed with above Justices insofar as the constitutional validity of the objective standard test goes. For example. Held: Justices Charron. Bastarache. the answer to the question of whether the accused took reasonable care must be founded on a consideration of all the circumstances of the case. while the legal duty of the accused is not particularized by their personal characteristics (short of incapacity). Deschamps. Additionally. the Justices reiterated the position taken in Tutton. experiential and habitual factors personal to the accused which can be taken into account. The importance of this case stems from its guidance on how to properly assess both the AR and the MR of an offence to which the objective standard applies. only those frailties and characteristics which the accused could not control or otherwise manage in the circumstances will be included. Beatty [2008] SCC -assessing the AR and MR when the offence has an objective standard. Where they differ is in their designation of the sort of educational. Driving).

´ As a result of the decision in F.). (2) Determining MR ± the presence of objective MR is determined by assessing the dangerous conduct (or whatever the conduct in question is) as against the standard expected of a reasonably prudent driver (or person in the circumstances). 7 of the Charter. including the nature. (J. then they are not blameworthy and should be acquitted. First. For example. alternatively. gave no thought to that risk. the Crown was bound to show that the respondent¶s omission represented a marked and substantial departure (as opposed to a marked departure) from the conduct of a reasonably prudent parent in the circumstances where the accused either recognized and ran an obvious and serious risk to the life of his child or. one can conclude that the section requires dangerous driving of some sort. In the course of that decision. and (2) if the accused had a reasonably held belief in an incorrect set of facts it may serve as a complete defense and they may be acquitted. The driving must be dangerous in and of itself. the offence will be made out. an epileptic shock during driving. This is a standard of simple negligence like that long applied for the tort of negligence. While the objective test is said to be based on negligence. 7. that should not distract from what the section in issue requires: dangerous driving. (J. Thus. Page | 52 . in a show of bravado. If the dangerous conduct constitutes a marked departure from that norm. the section in issue focuses on the conduct not the consequences. which they could not have mitigated. he has also drawn a distinction between a ³marked and substantial departure´ from the required level of care. What constitutes a ³marked departure´ from the standard expected of a reasonably prudent driver is a matter of degree. In other words. 222(5)(b) is based on objective fault. It may also be relevant in determining MR by considering any evidence of the accused¶s state-of-mind. and not through civil proceedings. it may be looked at as evidence of establishing that the accused¶s conduct constituted a marked departure from the standard expected of a reasonably prudent person. the driving does not become more dangerous simply because the consequence resulted in a death.³driving in a manner that is dangerous to the public. say. then his actual mental state may be used as evidence in establishing the requirement of ³marked departure´. Second. s. Two observations can be made from the latter requirement. µµOn the count alleging criminal negligence. The split verdict in Tutton has since seemingly been resolved by the court in F. having regard to all the circumstances. The lack of care must be serious enough to merit punishment through the criminal justice system. where a driver. there are now three degrees of objective fault requirements: 1. Thus. Justice Fish for a majority of the court stated that. While this may prima facie seem akin to the application of the subjective form of MR. speeds or engages in any other dangerous driving technique and admits that his intention was to ³show off´. It should be noted that that the modified objective test still applies. (3) The marked departure standard is required under s. not all negligent driving may be said to always be dangerous. condition and use of the place at which the motor vehicle is being operated and the amount of traffic that at the time is or might reasonably be expected to be at that place´. Therefore: (1) if the accused has suffered. Due diligence with the onus reversed for regulatory offences. one must play close attention to what is required by the legislation. as opposed to a mere ³marked departure´ from that standard required by the Charter.) Justice Fish has done more than decide that criminal negligence in sec. While dangerous driving may be said to always be negligent.

the SCC noted that word ³unlawful´ required some further analysis. They stated that the unlawful act. and the second being proof on an objective basis that the harm caused was objectively foreseeable ± then this passes the constitutional requirement that fault be assessed on at least an objective basis. 269 has a fault requirement in addition to that supplied by the predicate offence (to be discussed below). must be objectively dangerous. In assessing the required MR for the predicate offence. as a matter of statutory interpretation predicate offences of absolute liability are excluded from forming the basis for a prosecution under sec. In responding to arguments in favour of a subjective MR standard on the basis that the stigma and penalty attached to the conviction require it. Thus. Held: The SCC stated that while not all predicate offences will have a possibility of imprisonment and despite the fact that sec. A marked and substantial departure from the objective norm for offences based on criminal negligence (worse than gross negligence). This bodily harm must be more than merely trivial or transitory in nature. 269 required two separate aspects ± the first aspect being the mental element of the predicate offence. 269. the test is one of objective foresight of bodily harm for all underlying offences. Since the mental element of sec. A marked departure from the objective norm as a Charter standard for crimes with objective fault requirements (gross negligence) 3. in which the appellant is alleged to have thrown a bottle which subsequently broke and its remaining fragments struck a bystander. The act must be both unlawful. the SCC concluded that sec. R v.2. 269 has neither the stigma nor the criminal sanction to require a more demanding mental element that it already has ± that of the objective standard. Page | 53 . or (b) an offence punishable on summary conviction and liable to imprisonment for a term not exceeding eighteen months Issue: Therefore. 269. acquitted and reconvicted from an incident which occurred at a New Year¶s Eve party. DeSousa [1992] SCC²Crimes based on Predicate offences Facts: The appellant was charged. The predicate offence need not be criminal in nature. and one that is likely to subject another person to danger of harm or injury. and applies equally to both federal and provincial offences. Offence: He was charged under sec. 269 of the CC which states: Unlawfully causing bodily harm ± everyone who unlawfully causes bodily harm to any person is guilty of (a) an indictable offence and liable to imprisonment for a term not exceeding ten years. whether it be criminal or not. to be brought within the ambit of sec. an accused must have committed an underlying (predicate) offence and have caused bodily harm to another person as a result of committing that offence.

[1985] 2 S. Sault Ste.8. (3d) 188 (Ont.R.A.) 188 (Ont.A. provided this is clearly what the legislators intended when establishing the offence. (2010) O. 12 ______________________________________________________________________________ Regulatory offences can be created by any level of government.Reference re Section 94(2) of the Motor Vehicle Act (B.).C. Offences requiring MR ± true criminal offences 2. [2006] S. C.). Chapin. No. . v. Marie [1978] SCC -Sets out the three different types of offences: 1.C.C. (34. with the accused bearing the burden of proving an absence of negligence to avoid conviction). C. They are presumed to be ³strict liability´ offences (offences that can be committed by simple. v.R. Sault Ste. 1299 . [1978] 2 S.J. provided this is clearly what the legislators intended when establishing the offence. v.R. Some regulatory offences operate as absolute liability offences that will be committed whenever the relevant AR is proved. 121 .R.C.R.J. with the accused bearing the burden of proving an absence of negligence to avoid conviction). non-penal negligence. it is important to be able to distinguish true crimes from regulatory offences. Some regulatory offences operate as absolute liability offences that will be committed whenever the relevant actus reus is proved. v. Tetreault. it is important to be able to distinguish true crimes from regulatory offences. They are presumed to be ³strict liability´ offences (offences that can be committed by simple.Levis (City) v. 1091 . Given the different modes of interpretation used. Cancoil Thermal (1986). but a clear indication that mens rea is required is needed before regulatory offences will be interpreted as having mens rea elements. [1979] 2 S. Regulatory offences can be full MR offences just as true crimes are. non-penal negligence.what reasonable person would have done in circumstances) (3) Absolute Liability Offences (AR only). 253 C.C. Marie. but a clear indication that MR is required is needed before regulatory offences will be interpreted as having MR elements.).C. No. Strict liability offences ± due diligence defense applies 3. Pre-Charter (thus weary of Parliamentary Sovereignty) Three categories of offences: (1) True crimes (MR & AR) (2) Strict Liability Offences (AR and defence of due diligence on BOP. REGULATORY OFFENCES Regulatory offences can be created by any level of government. 486 . R v.R. Absolute liability offences ± as so clearly defined by the legislature ± where guilt would follow proof merely of the proscribed act.R. Page | 54 .C.. Raham (2010).R. Given the different modes of interpretation used. Regulatory offences can be full mens rea offences just as true crimes are. 52 C. .

Held: New trial ordered A: -Pre-Charter permits only statutory interpretation. Three categories of offences 1. hence Dickson J. Absolute liability offences require only proof that a person committed the AR of the offence. y y y y Prosecution must prove AR beyond a reasonable doubt. would render the act or omission innocent. knowledge. o o Criminal offences fall into this category Wilfully. Regulatory offences are to be interpreted as requiring strict liability unless the legislature clearly indicates that the offence is an absolute liability offence that would punish the accused who had acted reasonably and with due diligenc. which is almost impossible. . True Crimes: Offences in which MR. which had no knowledge of the inadequate performance of the company. There is no need to prove MR. or if he took all reasonable steps to avoid the particular event. Strict Liability Offences: Offences in which there is no necessity for the Crown to prove the existence of MR.strict liability offences. intentionally 2. if true. contrary to a public welfare act. leaving it open to the accused to avoid liability by proving that he took all reasonable care. is also liable. Court is considering whether the city. defendant must establish on BOP the defence of reasonable care This involves consideration of what a reasonable man would have done in the circumstances. Eng. must be proved by the prosecution either as an inference from the nature of the act committed.Dickson creates a new category of offences which lies in the middle within the spectrum of absolute liability offences and true crimes. or by additional evidence. no authority to review the way Parliament defined the offence. Strict Liability category is created to provide a balance between the harshness of absolute liability offences (harsh potential sentences) and the burden on the Crown of proving wrongful intention for regulatory offences. or recklessness. City of Sault Ste. The defence will be available if the accused reasonably believed in a mistaken set of facts which. Marie hires a company to dispose of waste. consisting of some positive state of mind such as intent.Facts: Public welfare offence regarding pollution. Company does a bad job of doing so and as a result some of the waste comes to lie in a body of water. the doing of the prohibited act prima facie imports the offence. as well as the legislatures of other provinces to support his reasoning** True crimes have a presumption that a person should not be held liable for intentional or reckless conduct without proof of requisite MR (negligent conduct is excluded). and Ont. with intent. Public Welfare offences fall into this category Page | 55 . knowingly. must defer to the rationale of case law in Aus.

Therefore. do not pollute) . This case reflects the assumption of Parliamentary Supremacy: the legislature has the authority to define the MR required. and Ontario cases to support his assertion of strict liability because this is pre-Charter and there is strong Parliamentary Supremacy. The city could control who it hired to carry out the garbage disposal operations.e. and it could supervise that activity. .Probably not important.´ Also note that the Court had to defer to rationale of other Parliaments in order to create this new category. but once they did act they were subject to certain duties (i. they had much control over the operation. The Motor Vehicle Reference found the legislature¶s definition of MR (or lack thereof) unconstitutional because it wanted a minimal level of moral blameworthiness to be proven before we deprive a person of their right to liberty by sending them to prison.Note that the case does not discuss the degrees of fault required in cases of ³true crimes. New trial ordered. but: Page | 56 . Notes: This is a pre-Charter MR case. . He tries to ground his reasoning in the rationale of Parliament. or at least make the two seem congruent. That changed after the advent of the Charter.The law did not give the city a duty to act. it was determined to be public welfare because it was enacted in the interest of public health Also. Primary considerations in determining whether the offence falls into this category: y y y The overall regulatory pattern adopted by the Legislature the subject matter of the legislation o the importance of the penalty and the precision of the language used So look at the statute first to see if it expressly provides for absolute liability ±> For strict liability offences-->Must first determine if it¶s a public welfare offence y For this case. The words ³knowingly´ or ³wilfully´ were not included. . Couldn¶t simply create a new threshold because there was no Constitution to ground their reasoning in.3) Absolute Liability Offences: It is not open to the accused to exculpate himself by showing that he was free of fault. it was provincial legislation and thus could not be a true crime. During the pre-Charter era. English. limiting the role of the judiciary to questions of statutory interpretation.One¶s liability under this offence seems to come down to their ability to control. y Dickson goes through Australian.Public Welfare offences can be either strict liability or absolute liability . the court did not have the authority to review the way Parliament defined the offence.

then goes about refuting the above four arguments: o There is no evidence that a higher standard of care from absolute liability. Hunting being a permitted sport. forfeiture of guns and equipment and fines and potential imprisonment. o These people still have to go into court and defend themselves. They are not severe. these acts provide an opportunity for the judge to consider whether the reasonable person would have avoided the prohibited conduct. does not require that s. he came upon ³a small pile of soy beans. Chapin [1979] SCC Facts: Chapin went duck-hunting. respectively. Held: The appeal should be dismissed. The officer had been in the area. If they are convicted there is still much stigma because of such a conviction o There are many other jurisdictions in Canada where non-absolute offences have been allowed but it has not brought Crown prosecutions to a screeching halt. five or six inches in width. The penalties are no longer non-severe. and two ducks. Some time. For the Manitoba and Alberta Traffic Acts. on property belonging to the Balmoral Hunt Club of which her husband was part-owner. She was accompanied by a friend. It was generally accepted that Mrs. Following the Sault Ste. On his way through the marsh. Administrative efficiency . While the offence is summary conviction in nature. some fifty yards from the respondent¶s blind. Marie case. Hunting of migratory birds is not prohibited. but controlled. it would be a practical impossibility for a hunter to search a Page | 57 . as expressed in the Convention. later. public welfare offences would prima facie fall in the category of strict liability. in the middle of the dyke road and at the edge of the pond. and they do not carry the same stigma as a "true crime" offence Dickson J. The public interest. We want the people performing public welfare services to use the highest level of care and if we have absolute liability offences then that will serve as a deterrent for them to not defer from the highest level of care 3. including loss of hunting privileges. had heard shots and had investigated. 14 of the Regulations be interpreted so that an innocent person should be convicted without fault. R v. The Migratory Birds Convention Act is a regulatory statute enacted for the general welfare of the Canadian public and its wildlife. placed over the water and leading to the blind from which the respondent intended to shoot. Mrs. weed seeds and wheat´. Chapin did not know the grain was there until it had been pointed out to her. Section 14(1) creates a ³public welfare offence´ and it is not subject to the presumption of full MR. They were talking a lot as they walked through the marsh. Offence: Section 14(1) of the Migratory Birds Regulations makes it unlawful to hunt for migratory birds within one-quarter mile of a place where bait has been laid. serious consequences follow from conviction. They walked along a dyke road and then along some ³duck-boards´. The offence created by s. The penalties are slight. Chapin was arrested by a conservation officer.easier for the Crown to prove the offence o To not do so would over burden the Crown and leave them unable to prosecute and thereby enforce the law at all 2. 14(1) of the Regulations cannot be characterized as a ³crime in the true sense´. and if not then the accused is not convicted.What is the rationale for having absolute offences? 1.

An accused may absolve himself on proof that he took all the care which a reasonable man might have been expected to take in all the circumstances or. liberty. 7 allows the Court to strike legislation down for want of a MR requirement. that he was in no way negligent.circular area having a diameter of half a mile for the presence of illegally deposited bait. before hunting.(An absolute liability offence will violate s. is in violation of s. which provides for legal baiting and posting of notices of legal baiting. . Analysis: A law that has imprisonment available as a penalty has the potential to violate a person¶s right to liberty in a manner not in accordance with the principles of fundamental justice contrary s. s. which has the possible punishment of imprisonment. Parliaments definition of offences must be in compliance with the principles of fundamental justice under s. 7 of the Charter. Reference re Section 94(2) of the Motor Vehicle Act (B. 7 and is not saved by s. found to be in violation of one¶s right to liberty (imprisonment). This view of subs. 7 of the Charter only if and to the extent that I has the potential of depriving life. On all of the evidence. 94 of the Motor Vehicle Act could convict a person and send them to prison even if they did not know that they were diving under a suspended license.This case did not decide what level MR was constitutionally required for each type of offence.After the Charter. -The offence created by s.) [1985] SCC -Post Charter. (4). 7 of the Charter Decision: s.C. 1.s. 14 is reinforced by a consideration of subs. Facts: S. 94 in violation of s. but inferentially decided that at least negligence was required. as shown in this case. 94. Marie case. and not saved by s. a classic example of the second category delineated in the Sault Ste.As noted in Vaillancourt. Marie--> note how s. . Notes: . Parliament could not have intended to afford a person hunting within a quarter mile of an illegally baited area any less protection than that afforded in relation to a legally baited area. (1) of s. 1 of the Charter (given the alternative of strict liability) -Summary: an absolute liability offence and possibility of imprisonment is unconstitutional because of absence of a MR requirement.Post-Charter case--> Compare with Sault Ste. it would have been unreasonable to convict the respondent and therefore a new trial ought not be directed.Can actually strike down legislation. this case elevated MR from a presumed element in Sault Ste Marie to a constitutionally required element. Held: s.-An absolute liability offence. in other words. . The offence is therefore not one of absolute liability. not in a manner in accordance with the principles of fundamental justice (no MR).1 of the Charter. 7 of the Charter. in that at least a Page | 58 . 7 of the Charter. 94 of the Motor Vehicle Act of BC. 14(1) is one of strict liability. It violates one¶s right to liberty (imprisonment) in a manner not in accordance with the principles of fundamental justice (no MR/fault requirement)² and is not saved by s. an offence that does not require proof of MR. or security of the person) . .

including Presser.We can't balance not punishing the morally innocent and practicality perfectly¢allowing fines for absolute liability offences is an example of this. you can get a fine under an absolute liability offence). MR requirement corresponding with the AR requirement. 7 of the Charter. This was criticized by many. . v. Cancoil Thermal [1986] ONCA: offences of absolute liability that are punishable by imprisonment violate sec. Marie. R v. ³Where the error in law of the accused arises out of an error of an authorized representative of the state´ while at the same time the state prosecutes the accused. She notes that the fine is still extremely intrusive and should not be pressed upon a person without a finding of fault.defence of due diligence must always be open to an accused who risks imprisonment upon conviction. that the SCC in Levis (City) v. .´ -Note how s. 7 right to liberty). however. noting that this meant that the accused could be convicted of a ³true crime´ without fault as long as there was no possibility of imprisonment.The principles of fundamental justice are to be found in the basic tenants of our legal system ss.Court said in the very early days of the inception of s. liberty and security of the person would be violated in a manner not in accordance with the principles of fundamental justice. The principle of fundamental justice that we are dealing with is that ³the morally innocent should not be punished. 1. . and offer the defence of due diligence. . 7 generally cannot be saved by s. Recognized a defense of officially induced error for criminal and regulatory offenses. It's a response to the practicality of having a purely principled approach. the SCC upheld a section of the Motor Vehicle Act that created an absolute liability offence resulting in the punishment of a fine (security of the person). Marie. The advice and the reliance on it must be reasonable. as ³it is not sufficient in such cases to conduct a purely subjective analysis of the reasonableness of the information´. the defense did not apply as the accused relied only on ³administrative practice´ that they would receive a renewal notice when their licenses Page | 59 . we don't do s. . and relied on that advice of the official in committing the act. Note. . In order not to violate it. . not security of the person (hence. 7 that a violation of s. In very extreme circumstances it can be saved by s. In the circumstances in the case. "reasonable care"--> hence you have to at least let them show due diligence before you send them to prison (violate their s. they must be treated as strict liability. Must establish the offense on a balance of probabilities and results in a stay of proceedings. What is the standard for fault requirement: Prof says its not explicitly stated but it would probably follow from Sault Ste. Dickson said that he was leaving the security of the person issue to another day. Pontes. 94 was clearly expressed as an absolute liability offence. 8-14 provide examples of instances where the right to life. obtained erroneous legal advice from an appropriate official. 1 analysis in this case)--> but they did do it in this case.1 analysis (therefore.Can't send someone to jail without having a fault requirement (ratio for Motor Vehicle Reference). Tetreault returned to the clear analytical framework of adopted in Sault Ste. Applies where the accused considers the legal consequences of their actions.We see the symmetry principle here.In R.The court is only protecting the one¶s right to liberty.

8. 128 of the Highway Traffic Act. H. 7 of the Charter. it was contrary to s. the charge would not have been available. That offence.expired and they did not obtain a specific legal opinion about the consequences of their actions or rely on that opinion. c. The officer could have charged the respondent with speeding. This court granted leave to appeal to determine the constitutionality of the charge laid in this case. He acquitted the respondent. I would allow the appeal. s. Moreover. Had the respondent been clocked at 2 km per hour less. Held: The appeal judge erred in holding that stunting driving as defined in s. 3(7) was an absolute liability offence. Rahman [2010] ONCA The respondent was clocked at 131 km per hour in an 80 km per hour zone. 7 of the Charter and unconstitutional. commonly referred to as stunt driving or racing is punishable by a fine. However. Although the trial judge proceeded on the basis that the offence was one of strict liability. the common law can deeply influence the way that statutory criminal offences are interpreted. Instead. the officer elected to charge the respondent with stunt driving. This same conduct also constitutes the offence of speeding contrary to s. On appeal. The police officer charged her with an offence under s. Burstein for his submissions. compared with the French version. At trial. as the offence was punishable by imprisonment. Marie analysis Page | 60 . Griffin of the Ontario Court of Justice held that the offence charged was an absolute liability offence. Reasons: First the ONCA held that.O. He went on to hold that. which is an absolute liability offence. who appeared as amicus. which was 51 km per hour over the speed limit. a term of imprisonment or both. Justice G. 172 as charged against the respondent under s. set aside the acquittal and order a new trial. See CC section 8 8(3) Every rule and principle of the common law that renders any circumstance a justification or excuse for an act or a defence to a charge continues in force and applies in respect of proceedings for an offence under this Act or any other Act of Parliament except in so far as they are altered by or are inconsistent with this Act or any other Act of Parliament R v. ‡ Driving a motor vehicle on a highway while performing a stunt. or full mens rea offences will depend on the outcome of the Sault Ste. and ‡ Driving a motor vehicle on a highway on a bet or wager.S. given the uncertainty at the time of the trial as to the availability of a due diligence defence and the contours of that defence if available. 1990. 3(7) of the Regulation consists of driving a motor vehicle on a highway at 50 km per hour or more over the speed limit. 172(1) of the Highway Traffic Act. The conduct component (actus reus) of the offence under s. her position was fully and effectively advanced by Mr. strict. the section violated her constitutional rights under s. Burstein. The court is indebted to Mr. 172 as creating three offences: ‡ Driving a motor vehicle on a highway in a race or contest. The respondent argued at trial that the offence with which she was charged was an absolute liability offence and that. based on the single radar reading of 131 km per hour. as she was seconds before. as imprisonment was a possible punishment. the Justice of the Peace interpreted the offence as one of strict liability. R.J. rejected the constitutional argument and convicted the respondent. The proper categorization of speed-based offences as absolute. The respondent did not take part in the appeal. fairness dictates that the respondent should have a new trial at which she will have the opportunity to advance a due diligence defence if so advised. His acquittal based on that finding must be set aside.

Marie sets out four ³primary considerations´ to be used when determining the proper categorization of an offence: ‡ the overall regulatory pattern of which the offence is a part. 20-26.A.R. I agree that within the Sault Ste. 172. 1 of the Charter. 14 O.C. when interpreting legislation. It does dictate. The Act. Some parts of the Regulation used words suggesting an absolute liability classification and others used language inconsistent with such a classification. taken together. ³Rules of the Road´. Arbour J.). 4 O. 138.). v. On the authority of Sault Ste. v. that if legislation can be reasonably interpreted in a manner that preserves its constitutionality that interpretation must be preferred over one which would render the legislation unconstitutional. [1995] 1 S. 159. at para. (3d) 115 (C. Marie analysis does not preclude a consideration of whether the language used to create the offence can reasonably admit of a due diligence defence. R. in the post-Charter era. are designed to regulate and control conduct on the roads. In this case. at p. (3d) 732 (C. it will take very clear language to create an absolute liability offence that is potentially punishable by incarceration. including s. [1992] 3 S. these offences. and in particular Part X. Rube. and ‡ the precision of the language used. the availability of incarceration suggests strict liability. Courts. Marie analysis.R. Marie analysis. subject to an argument based on s. Nickel City Transport (Sudbury) Ltd. This presumption does not entitle a court to rewrite legislation to avoid a finding of unconstitutionality. 88 O. However. Marie. (1993). I think that Page | 61 .R.R. Re significance of the penalty provision that provided for potential incarceration: Trial judge held that the risk of incarceration supported a classification of the offence as one of strict liability. ‡ the subject matter of the legislation. In my view the Sault Ste.A.C. The subject matter of the offence ± speeding ± suggested a classification as an absolute liability offence. 160. v. The language used throughout the Regulation did not point clearly in the direction of either absolute or strict liability. Thus this factor can be described as ³neutral´ in the Sault Ste. The offences are properly regarded as public welfare offences: see R. Because of the presumption of constitutionality.. (2008). it must be so interpreted even if it could also reasonably be interpreted as an absolute liability offence. will presume that the Legislature acted within the limits of its constitutional powers and not in violation of the Charter: R.A. Marie factor ± the precision of the language used. Those offences.R. ‡ the importance of the penalty. at paras. v. The fourth and final Sault Ste. the potential for incarceration is much more than simply one of the factors to be considered in categorizing an offence. An absolute liability offence that provides for incarceration as a potential penalty is unconstitutional and of no force and effect.A. The language does not clearly point to a categorization of the offence as either strict or absolute liability. are prima facie strict liability offences. R. 29. Kurtzman (1991). The analytical template described in Sault Ste. 254. v. the presumption in favor of a constitutional interpretation means that if the offence charged against the respondent can reasonably be interpreted as a strict liability offence. however. 172. The overall regulatory pattern of the Highway Traffic Act did not assist in classifying the offence as either strict or absolute liability: see Kanda. creates a wide variety of offences. (3d) 417 (C.). R. Bernshaw. including the offence in s. at p.The Highway Traffic Act is public welfare legislation designed to protect those who use the roads of the province. Kanda 2008 ONCA 22 (CanLII).

98-100. I do. while I agree with Crown counsel that the appeal judge should not have treated the potential availability of a due diligence defence as a freestanding method of categorizing the offence in question. regardless of how much over the speed limit. This involves consideration of what a reasonable man would have done in the circumstances. 1326: [T]he doing of the prohibited act prima facie imports the offence. With respect to the careful reasons of the appeal judge. A due diligence defence to a strict liability charge amounts to a claim that the defendant took all reasonable care to avoid committing the offence with which he or she is charged. Viewed in this way. one of the four factors identified in Sault Ste. however. it is not necessarily lost by virtue of actions surrounding the prohibited act. I think the appeal judge was right to examine the potential availability of a due diligence defence as part of a consideration of the language used to create the offence. The due diligence defence relates to the doing of the prohibited act with which the defendant is charged and not to the defendant¶s conduct in a larger sense. that examination is part and parcel of the Sault Ste. at para. excludes the operation of the due diligence defence will necessarily compel the conclusion that the offence is one of absolute liability: see Kanda. in committing the prohibited act. If that driver were to go more than 50 km per hour over the speed limit for the two or three seconds needed to get around traffic so Page | 62 . That driver may find that he has no reasonable choice but to accelerate in order to avoid being hit by a vehicle that is approaching from behind. 37: ³The due diligence defence must relate to the commission of the prohibited act. The point is well made in Kurtzman. The defendant must show he took reasonable steps to avoid committing the offence charged. may be proceeding somewhat over the speed limit in the passing lane of a multi-lane highway. Where the accused contends that he or she operated under a reasonable misapprehension of the relevant facts.this consideration is simply one way of examining ³the precision of the language used´. acting reasonably. Consequently. unless those actions establish that the defendant. The appeal judge reached this conclusion because he believed that an accused could avail him. a driver. leaving it open to the accused to avoid liability by proving that he took all reasonable care. the due diligence defence takes the form of a reasonable mistake of fact claim. will necessarily preclude a finding that an individual took all reasonable steps to avoid driving at 50 km per hour or more over the reasonable limit. not some broader notion of acting reasonably´ (emphasis in original). at p. disagree with the appeal judge¶s finding that stunt driving as defined in s. or by clear implication. As explained in Sault Ste. Marie. Regulatory Offences in Canada: Liability & Defences (Toronto: Carswell. Language that expressly.or herself of a due diligence defence only if the accused believed he or she was not travelling over the speed limit at all. For example. 40. not that he or she was acting lawfully in a broader sense: see John Swaigen. legal or illegal. Just as a due diligence defence is not made out by acting generally in a reasonable way. Marie analysis. Marie. at para. failed to take all reasonable care. at pp. 3(7) of the Regulation could not possibly admit of a due diligence defence. I agree with the Crown (both at trial and in this court) that the due diligence defence is not limited to persons who believed they were not speeding. I do not think that it can be said that driving over the speed limit. 1992).

I would add that even where a due diligence defence is available to a charge of stunt driving contrary to s. would permit. unknown to the driver. In summary. 128 of the Highway Traffic Act. 31. the use of strict liability is ³a serious commitment to the enforcement of the law´. a conviction on the lesser but included offence of speeding contrary to s. P33.that he could pull out of the passing lane and out of the way of the oncoming vehicle. at paras. was malfunctioning. 172 nor that of s. c. 1990. I do not suggest that the due diligence defence is limited to those or similar scenarios. a conviction for speeding will often be imposed. It is true that the prohibited conduct is identical to the conduct prohibited by the offence of speeding created by s. 128. 3(7) of the Regulation. Neither is likely to play any role in the vast majority of prosecutions under s. in the absence of clear language excluding the defence. I would interpret the offence of stunt driving by speeding as defined in s. Page | 63 .A. 1 of the Charter. imprison without fault. to up the penal stakes for speeding at 50 km per hour or more over the speed limit by including the risk of incarceration. The Legislature has chosen. 128 of the Highway Traffic Act: see R. 3(7) of the Regulation as creating a strict liability offence. 2009 ONCJ 566. These include a $2. No one has argued on this appeal that the Legislature could not simply have imposed those added sanctions by amending the penalty provisions referable to speeding under s. This distinction is constitutionally significant. R. In doing so. to have accepted the availability of the due diligence defence. v.S. observed in Kanda. 29-34. Section 55 of the Provincial Offences Act. I also do not imply that the due diligence defence will be readily available to this charge. Similarly. 3(7) of the Regulation has that effect. which indicated a rate of speed well below 50 km per hour over the speed limit. This appeal has necessarily focused on the availability of a due diligence defence and the possibility of incarceration. a driver who testified that he or she relied on a speedometer. I see nothing illogical in treating one as a strict liability offence and the other as an absolute liability offence. in most situations. Benson. I close these reasons with an observation.O.000 minimum fine. Neither the language of s. The stunt driving provision provides for the potential of incarceration. 172 of the Highway Traffic Act. The Legislature cannot. 172. Strict liability sets the lowest standard of fault available. In outlining the above scenarios. The real difference between being charged with speeding and being charged with stunt driving by going 50 km per hour or more over the speed limit lies in the other sanctions that flow from being charged with or convicted of the latter. absent reliance on s. an immediate administrative license suspension and an immediate seizure of the driver¶s vehicle. the speeding provision does not. through s. the Legislature must be taken. I think a Trier of fact could conclude that the driver was exercising all reasonable care to avoid driving at 50 km per hour or more over the speed limit. might succeed on a due diligence defence if there was evidence that the speedometer. As MacPherson J. at para.

T did no more than state that he expected to receive a renewal notice for his licence and that he had confused the licence expiry date with the due date for paying the fees required to keep the licence valid. acquitted the company and T. Absent a clear indication of the legislature's intent.1 (registration) and 93. and the Court of Appeal dismissed the city's applications for leave to appeal. Two fundamental conditions that must be met for this defence to be available were therefore missing: the company could not have considered the legal consequences of its conduct on the basis of advice from the official in question. nor could it have acted in reliance on that opinion.1 (driver's licence) of the Highway Safety Code create strict liability offences and. A strict liability scheme responds adequately to the concern to ensure that vehicle operators are aware of their legal obligations and. since no information regarding the nature and effects of the relevant legal obligations had been requested or obtained. which is charged with operating a motor vehicle for which the fees relating to its registration had not been paid. he raised the defence of due diligence. as it is worded. create an absolute liability offence. As for the defence of officially induced error.1. in particular.1 does not place the burden of proving mens rea on the prosecution and includes no expression of the legislature's intent to create an absolute liability offence. and they justify the availability of a due diligence defence. the SAAQ sent the notice to the company with an incomplete address and the postal service returned it to the sender. The Superior Court upheld the acquittals. Page | 64 . As for the respondent T. The same factors apply as in the case of the obligation to have a valid driver's licence when operating a motor vehicle. the company has not established that the conditions under which it is available have been met. alleging that a representative of the Société de l'assurance automobile du Québec ("SAAQ") had had it pay registration fees corresponding to a 15-month period and had told it that a renewal notice would be sent to it before the period expired. the offence must be categorized as one of strict liability. although it is available in Canadian criminal law. Reasons: The alleged offences belong to the category of strict liability offences. who is charged with driving a motor vehicle without a valid driver's licence. Because of an error. which seeks to ensure that the requirements of the regulation of highway safety are met by monitoring drivers' licences without it being necessary to deprive an accused of a due diligence defence. The due diligence defence raised by the company and by T has not been made out. Nor can such an intent be inferred from the scheme of this provision. Tetreault [2006] SCC Facts: The respondent company.Levis (City) v. Section 93. raised the defences of due diligence and officially induced error. not to the legal obligation to pay the fees by the prescribed date. stating that he was unaware that the date appearing on his licence was the date the licence expired rather than a payment due date. 31. 31. of their duty to do what is necessary to ensure that their licences remain valid and to drive only while they are valid. Passive ignorance is not a valid defence in criminal law. Held: The appeals should be allowed. The issues the company raised with the SAAQ's representative related at most to administrative practices. which did nothing even though it was aware of the date when the fees relating to the registration of its vehicle would be due. In his case. The same is true of the company. Nor does s. accepting their due diligence defence. The concept of diligence is based on the acceptance of a citizen's civic duty to take action to find out what his or her obligations are. The Municipal Court of the city of Lévis found that ss. He proved no action or attempt to obtain information.

731 R. It is not necessary for the Crown to specify whether a person is guilty as the principal offender or as an aider or abettor of the offence. or (c) abets any person in committing it.C. [1990] 2 S. 21 R. A person who either aids or abets an offence is a party to that offence and guilty of the same offence as the person who actually commits the offence. provided that offence is a foreseeable outcome of the offence they did intend to aid or abet. Briscoe 2010 SCC 13 (reviewed above) It is not only the person who actually performs the AR (the ³principal´ offender) who can be convicted of the offence. (b) does or omits to do anything for the purpose of aiding any person to commit it. [1979] 2 S. See CC s. commits an offence.C. Logan. So too can those who aid (physically support) or abet (encourage) the accused to commit the offence. v. often known as the principal. 881 R.R. be convicted of offences they did not intend to aid or abet. Dunlop and Sylvester. Page | 65 .EXTENSIONS OF CRIMINAL LIABILITY 9. each of them who knew or ought to have known that the commission of the offence would be a probable consequence of carrying out the common purpose is a party to that offence. be convicted of offences they did not intend to aid or abet. in some circumstances. Common intention (2) Where two or more persons form an intention in common to carry out an unlawful purpose and to assist each other therein and any one of them. persons who aid and abet one offence can. v. in carrying out the common purpose. Section 21. (1) Every one is a party to an offence who: (a) actually commits it. v. in some circumstances. So too can those who aid (physically support) or abet (encourage) the accused to commit the offence. CC²Parties to an Offence 21. provided that offence is a foreseeable outcome of the offence they did intend to aid or abet. persons who aid and abet one offence can.R. Indeed. Indeed. AIDING AND ABETTING It is not only the person who actually performs the actus reus (the ³principal´ offender) who can be convicted of the offence.

however. A gang rape of the complainant occurred late at night in an isolated area. the Court did not agree with the CA for Manitoba that the error by the trial judge could be saved under sec. After three minutes he and his co-accused left. 613(1)(b)(iii). It was alleged that they unlawfully had sexual intercourse with the complainant without her consent. Still later. such as prior knowledge of the principle offender¶s intention to commit the offence or attendance for the purpose of encouragement« A person cannot properly be convicted of aiding or abetting in the commission of acts which he does not know may be or are intended. that the verdict would have been the same even in the absence of the error by the trial judge The majority of the SCC disagreed. The accused denied the charge. 613(1)(b)(iii). the court found an error in the trial judge¶s charge to the jury when he instructed them on the meaning of sec. Their definition of what amounted to aiding or abetting is summarized in the following way: ³« Presence at the commission of an offence can be evidence of aiding and abetting if accompanied by other factors. to instruct the jury upon parties to an offence under s. She identified the accused as two of the men who attacked her. They were sentenced to serve six years in penitentiary. The judge chose. 21(1)(b) of the CC. but he believed the person to be a member of the motorcycle club. and they denied it. the site of a former dump. In an appeal taken following the second trial. Dunlop and Sylvester [1979] SCC Facts: The appellants were twice tried and convicted on a charge of rape. As such. They testified that they had attended a meeting of the club at the dump earlier in the evening in question. Issue: The issue for the jury was a simple one²did the two accused have intercourse with the complainant? She said that they had. Held: On appeal to the Manitoba Court of Appeal. Page | 66 . the Manitoba CA found error on the part of the trial judge. and it was in this respect that the convictions were challenged. 613(1)(b)(iii) of the Code. where members of a motorcycle club were having a party.R v. that if it had been done. the accused delivered a quantity of beer at the dump. The trail judges read the following charge in response to a question by the jury: ³Intentionally omitting to do something for the purpose of aiding another to commit an offence. with whom. From that judgment an appeal was taken to this Court. the SCC found no evidence on which a properly instructed jury could have found beyond a reasonable doubt that the appellants were guilty of aiding or abetting the rape. One must be able to infer that the accused had prior knowledge that an offence of the type committed was planned´ That is a person is not guilty of aiding or abetting a rape merely because he is present at the scene of the crime and does nothing to prevent it. Some eighteen men had intercourse with the complainant while she was being held by two members of the group. 21 of the Code. he could not say. Thus. the CA applied sec. and later were present in a beverage room where the complainant and a friend were spending some time. but by a three to two majority sustained the conviction by applying s. Dunlop saw a female having intercourse. would have prevented or hindered the person from committing an offence amounts to aiding and abetting´ However.

7 of the Charter . 7 and/or 11(d) of the Charter. which is the case for attempted murder. During a robbery -. 21(2) would allow for the conviction of a party to the offence of attempted murder on the basis of objective foreseeability. in the decision of Vaillancourt the SCC held that for few offences the principles of fundamental justice require that a conviction cannot stand unless there is proof beyond a reasonable doubt of a minimum degree of MR. 21(2) of the CC infringed ss. the stigma renders the infringement too serious and outweighs the legislative objective which. He was convicted under sec. However. the remaining section requires. The trial judge instructed the jury that the Crown had to establish beyond a reasonable doubt that the accused knew or ought to have known that someone would probably shoot with the intention of killing. therefore. 1. whether of the principal directly or of a party pursuant to s. Once these words are deleted. Facts: Respondents were convicted of attempted murder. admitted to being one of the robbers but stated that he had no intention to shoot and that there had been no discussion concerning the use of guns. Earlier Appeal: The CA allowed appeals with respect to the convictions for attempted murder and substituted convictions for robbery. Logan [1990] SCC When the principles of fundamental justice require subjective foresight in order to convict a principal of attempted murder. that the party to the common venture know that it is probable that his accomplice would do something with the intent to kill in carrying out the common purpose. if so. however.a person was shot and severely injured. but did not fire the weapon. The test imposes an objective standard of foreseeability on the joint-venturer (the non-principal). its operation restricts s. the objective component of s. whether it was justified under s. they instituted a two-step test to assess whether a party to the offence had the requisite MR to found a conviction pursuant to sec. 21(2). with respect to the few offences for which the Constitution requires subjective intent. Neither respondent did the shooting. and (2). Held: SCC started off by saying that they cannot completely exclude the possibility that for certain crimes Parliament could not set different degree requirements of MR for the principle and the party. that decision established that for crimes of murder. which seriously wounded the victim. Respondent Logan had boasted of being involved in planning the robberies. 21(2) can be justified with respect to most offences. The appellant was convicted of attempted murder during the course of a robbery in which he was a party. However. in the context of attempted murder. Page | 67 . Therefore. Note that this case is of limited application: Because of the importance of the legislative purpose. The words "or ought to have known" are inoperative when considering under s. In other words. Any conviction for attempted murder. Issue: The appellant sought the leave of the SCC for his conviction of attempted murder on the basis that the requisite degree of MR required for the principle for a charge of attempted murder was higher than that required for a party to the offence. 1.R v. which imposes criminal liability on joint-venturers who form a common unlawful purpose (in this case. 21(2) of the CC. 21(2). To the extent that s.one of a series -. 21(2) whether a person is a party to any offence where it is a constitutional requirement for a conviction that foresight of the consequences be subjective. At issue here was (1) whether s. Respondent Johnson. the robbery) and later a collateral crime results from one or more of their actions. a subjective assessment of intent is required. that same minimum degree of mens rea is constitutionally required to convict a party to the offence of attempted murder. will carry enough stigma to trigger the constitutional requirement. cannot be justified under s.

and give Ms. giving him a wretch. Briscoe¶s actions. Both are equally morally blameworthy. Did he intend to assist Mr. 7. His participation included driving the group to and from the crime scene. raped and murdered. in this case. where it was held that subjective foresight of death was the minimum MR requirement for murder ± not attempted murder. Briscoe did not testify at trial. and threatening Ms. R v. K. Briscoe [2010] SCC Facts: See above. held that the only difference between a murderer and an attempted murderer is ³consequence´ component of the AR. Briscoe¶s acts of assistance. 1 of the Charter. On an attempt to save the section as it applies to attempted murder via sec. Trial judge accepted this theory. In reconciling the two decisions relating to two different charges. The Crown argued that Mr.i. Briscoe had actual knowledge of or was wilfully blind to the plan. the Crown introduced statements he had made to the police following his Page | 68 . ii. he would have to have known of Mr. In responding to the perceived disparity. the sentencing range available to the Judge is not conclusive of the level of MR constitutionally required. Briscoe did not have the requisite knowledge. telling victim to be quite and standing by. his presence coupled with his knowledge of the plan made him an abettor. The crucial question then became whether he had such knowledge. then that minimum degree is constitutionally required to convict a party to that offence. The Crown submitted that Mr. the underlying penal consequences for the two offences are dissimilar ± attempted murder having a lower minimum sentence than that of murder. However. providing and transporting weapons. discourage rescue. Laboucan in the commission of the crimes? In order to have such intention. The requisite MR required for a conviction of attempted murder was established in the case of Ancio ± that of specific intent to kill. Although Mr. Re: 13-yr old girl brought to golf course. the SCC held that it does not satisfy the proportionality test in Oakes because it unduly impairs an accused¶s rights under sec. As such. choosing a secluded location. the SCC. carried out with knowledge of Mr. His presence could lend courage to the attackers. not the sentence. and taking ³an active role´ by holding Ms. In other words. Briscoe had the requisite MR for any of the offences. Charter considerations were at the fore of that case. In R v. Is there a minimum degree of MR required by the principles of fundamental justice before one can be convicted as a principal for the offence in question? If the principles of fundamental justice do require a minimum degree of MR. Courtepatte ³one more reason to feel helpless and lost and futile´. The AR of the Act was proven by driving. that case did not deal with Charter arguments relating to sec. the social stigma associated with a conviction is the most important consideration. Courtepatte and telling her to shut up. Laboucan¶s intention to commit each of the crimes. The trial judge concluded that Mr. Laboucan¶s plan.B. made him a party to the offences. Issue: The trial judge then examined whether Mr. 7. while both are equally morally blameworthy. Martineau. The Crown also submitted that. However. the SCC held that as a basis for a constitutionally required minimum degree of MR. 7 of the Charter since it imposes an objective standard on the party and a subjective standard on the principal. even apart from Mr. SCC concluded that the inclusion of the objective standard test for parties to an offence of attempted murder would violate sec.

The Court emphasized that ³purpose´ should not be interpreted as incorporating the notion of ³desire´ into the fault requirement for party liability. 26. To abet within the meaning of s.arrest. Hibbert. promoting or procuring the crime to be committed´: R. . in some circumstances. The trial judge¶s finding that Mr. Greyeyes. the person must have rendered the assistance for the purpose of aiding the principal offender to commit the crime. Page | 69 . -New trial ordered. and liability can flow from either one. For the intent component. the two concepts are distinct. v. 21(1)(c) includes encouraging. -the MR requirement reflected in the word ³purpose´ under s. While it is common to speak of aiding and abetting together. [1995] 2 S.C. the Crown argued at trial that Mr. Briscoe was both an aider and an abettor. Trial judge concluded that he did not know for sure the intent. The Crown must prove that the accused intended to assist the principal in the commission of the offence. Specifically. instigating. 973. v. 21(1)(b) has two components: intent and knowledge. in the words of s. Held: The AR of aiding or abetting is doing (or. 825. That sufficient knowledge is a prerequisite for intention is simply a matter of common sense. Crown appeals. that ³purpose´ in s. The aider or abettor must also have the requisite mental state or MR. [1997] 2 S. It is therefore not required that the accused desired that the offence be successfully committed As for knowledge. although he or she need not know precisely how it will be committed. The trial judge ruled the statements voluntary and relied heavily on their contents in concluding that Mr. Briscoe lacked the requisite knowledge. omitting to do) something that assists or encourages the perpetrator to commit the offence.C. ³[t]o aid under s. Briscoe performed the four acts of assistance described above is not disputed. 21(1)(b) means to assist or help the actor. The AR is not at issue in this appeal. Broadly speaking. it was settled in R.R. As noted earlier. in order to have the intention to assist in the commission of an offence. 21(1)(b) should be understood as essentially synonymous with ³intention´.R. 21(1)(b). . the aider must know that the perpetrator intends to commit the crime. at para. therefore MR for muder not made. .

The trial judge accepted the accused¶s evidence in this regard and also accepted his evidence that he had not used the credit card numbers he had generated. The Crown appealed to this Court on the issue of MR. As well. [2005] 2 S. If they are not committed. CC. Courts cannot contain the inherent dangers of cyberspace crime by expanding or transforming offences. If the offences counseled are committed. it must be shown that the accused either intended that the offence counseled be committed. s. CC. R v. Hamilton. . If they are not committed. v. such as counselling. a handwritten list of Visa numbers was seized in his possession. s. Offence: The accused was charged under s. Held: The concern in this case is with the imposition of criminal liability on those who counsel others to commit crimes The AR for counseling is the deliberate encouragement or active inducement of the commission of a criminal offence. s. CC. concluding that the AR of the offence had been proven in respect of each of the counts but not the MR. 23 operates. If the offences counseled are committed. 464 operates. The accused testified that he had seen a computer generated list of the contents of the files but that he had not read the files. 43 ______________________________________________________________________________ An accused can be convicted of counseling offences. or knowingly counseled the commission of the offence while aware of the unjustified risk that the offence counseled was in fact likely to be committed as a result of the accused¶s conduct. CC. A document describing a credit card number generator that was not part of the files was discovered on the accused¶s computer. 464 operates. The MR for counseling consists of nothing less than an accompanying intent or conscious disregard of the substantial and unjustified risk inherent in the counselling: that is. The accused made at least 20 sales and the files that were sold. No complaints were received by the bank regarding their improper use.R.C. s. 464 of the CC with counselling four indictable offences that were not committed. COUNSELLING (p. whether or not the offences counseled are actually committed. marketing the sale of ³Top Secret´ files he himself had purchased off a website. that were conceived to meet a different and unrelated need Page | 70 . also included instructions on how to make bombs and how to break into a house.10. Hamilton [2005] SCC -illustrates AR/MR for counseling Facts: The accused sent ³teaser´ emails on the Internet to more than 300 people. 22 operates. including fraud. The CA upheld the acquittal. She acquitted the accused.R. although not the teaser. whether or not the offences counseled are actually committed. 132-136) An accused can be convicted of counseling offences. The teaser advertised software that would enable the purchaser to generate ³valid´ credit card numbers.

CC s. Dery exposes the limits of piggy-backing incomplete forms of liability. 465. 465: Counseling . does or omits to do anything for the purpose of carrying out the intention is guilty of an attempt to commit the offence whether or not it was possible under the circumstances to commit the offence.C. [1984] 1 S. it is not an offence to try to commit an act you believe is an offence. You should be aware that the fact that an offence is legally impossible in the factual circumstances is no defence to an attempt charge. AR: The agreement to commit the offence MR: The intention to agree (purposely agreeing) and the intention to commit the offence (purpose to commit offence in the future. Conspiracy s. There is (1) the discrete offence of counseling. 463. Dery) Attempts 24. Ancio shows the relevant mens rea for attempts. ATTEMPTS As the counseling offence in CC. 463: Attempts/Accessories (p. when it is not actually an offence. 464 illustrates. [1986] 2 S. (1) Every one who. CC s. (2) the offence of conspiracy in which the agreement to commit a crime is a crime. 465 provides conspiracy for specific crimes. 660 .R.147) -Attempts/accessories (after the fact of the offence). Dynar) Double-Up: You cannot double up inchoate offences. (2) the offence of conspiracy in which the agreement to commit a crime is a crime. There is (1) the discrete offence of counseling.C. where the offence has not been proven on the evidence. when it is not a crime. v. Otherwise s.R.11. 660: Conviction where offence not committed -authorizes a conviction for an attempt to commit the offence. 2 .See CC ss.what matters is what accused believed (Alicandro.R. . there is no attempt to conspire) (Dungey. ³intent´ also a constitutional requirement Transferred intent would not apply then (Gordon) Page | 71 . Can be indictable/summary.R. Dery. Ancio.J. 465 (1)(c) establishes general offence of conspiracy. s.Counseling an offence that is not committed CC s. AR: The first step out of preparation and into commission satisfies AR for Attempt (Cline) The line b/w preparation and first step of commission is difficult to discern (Deutsch) ·MR The MR for Attempted Murder is subjective intent to kill (Ancio) Purposely killing Knowledge that death will result The Constitutionally required MR for Attempted Murder is nothing less than the subjective foresight of death -.knowledge that death will result (Logan) Again. knowledge that the offence will occur in the future (put agreement into effect) Impossibility: Impossibility of completion of conspired offence due to real state of affairs no defence . Deustch. 53 Not all crimes need to be complete before an offence arises (inchoate crimes). but it is not an offence to try to commit an act you believe is an offence. and Deutsch is instructive on when the attempt proceeds far enough to constitute a crime.R. [2006] S. having an intent to commit an offence. v. v. and (3) there is liability for attempting to commit an offence The fact that an offence is legally impossible in the factual circumstances is no defense to an attempt charge However. not all crimes need to be complete before an offence arises. 225 . and (3) there is liability for attempting to commit an offence. No.C.

230 and 231. without invoking Charter considerations. not striking the man. liability for inchoate offences turns on what the accused believed the material facts to be. Facts: Appellant acquitted by the CA for attempted murder. yet modifies the CA¶s decision. They argue that the intention for attempted murder should extend to an intention to do that which constitutes the commission of the offence of murder as defined in sec. The intent to commit the desired offence is a basic element of the offence of attempt. it is the MR in inchoate crimes which is of primary importance. take the first step in committing that offence. not what they actually were (R. 230 and 231´ which the Crown relies on to advance their argument. gun was accidentally discharged. regardless of whether your beliefs are correct or not you are guilty. Second. it is the statutory characterization of unintentional killings as murder´ ± citing obviously sec. Issue: Crown seeks to overturn the CA¶s decision that the necessary MR required for attempted murder is ³an intention to cause death. R v. v. which states that ³it is illogical to insist upon a higher degree of MR for attempted murder. Held: the MR for attempted murder is the specific intent to kill. special attention must be paid to the MR in assessing the requirements for inchoate crimes. Appellant took shotgun to house of a man his wife was living with. while accepting a lower degree amount to recklessness for murder. Dynar) After Dynar. Crown appealed acquittal to the SCC. 230 and 231 ± certain unlawful acts which. The only caveat is that the offence has to be real -no imaginary impossibilities. they stated that they ³find it impossible to conclude that a person may intend to commit the unintentional killings described in sec. and may be the sole criminal element in the offence given that an attempt may be complete without the AR.Impossibility The AR and MR of Attempt can be satisfied even where the completion of the offence is impossible (US v. Thus. Page | 72 . Ancio [1984] SCC -shows the relevant MR for attempts.´ The Crown relies on the idea that sec. Appellant contends no intention to kill. which be considered murder regardless of intention. 24 and 231 of the CC should be interpreted in conjunction with one another to give rise to a lower MR threshold. the MR is the more important element. Alicandro) If you intend to commit an offence. or an intention to cause bodily harm knowing it to be likely to cause death and being reckless whether death ensues. if committed and death ensues. MR for attempted murder is the specific intent to kill -The crime of attempt is an offence separate and distinct from murder. First they identified the fundamental differences between inchoate and complete crimes: They stated that while it is the AR that is the most important aspect in complete crimes and the aspect sought to be most deterred. While the Crown must still prove both MR and AR. They specifically cite academic critique.´ They rebut this by stating that ³if there is any illogic in this matter. A struggle ensued. Held: The SCC affirming.

where he said ³The AR must be more than mere preparation. As a matter of law. could constitute the AR of an attempt to procure. acquitted. They felt that there would be little else that the appellant would be required to do towards the completion of the offence other than to make the formal offer of employment. It would clearly be an important step in the commission of the offence.R v. ³an act which on its face is an act of commission does not lose its quality as the AR of attempt because further acts were required or because a significant period of time may have elapsed before the completion of the offence.´** Distinction between preparation and attempt is essentially a qualitative one. constitute the AR of an attempt to procure. the trial judge found that the necessary MR was present (he intended a person hired for the position should have sexual relations with clients). At first instance. 195(1)(a) of the CC. Issue: SCC has to decide ³when acts of the appellant amount to more than mere preparation´? Held: Cited w/ approval Laidlaw J. Deutsch [1986] SCC (Roach p. in terms of time. location and acts under the control of the accused remaining to be accomplished. without an offer of employment. Consideration must be given to the relative proximity of the act in question to what would have been the completed offence. Cline. contrary to sec. the next step done by the accused for the purpose and with the intention of committing a specific crime constitutes an AR sufficient in law to establish a criminal attempt to commit that crime. An undercover cop attended interview and was told that a job requirement would be to potentially have sex with clients to close deals. However. 122 ff) -illustrative on when the attempt proceeds far enough to constitute a crime (AR) Facts: Appellant charged. then the holding out of the large financial rewards in the course of the interviews. in R v. Appellant was an employer who advertized an employment opportunity for a secretary. Conclusion: SCC held that the act which broke the barrier between mere preparation and ³next step´ was the holding out of the large financial rewards the secretary would have made during the course of the interviews. and convicted on appeal on the charge of attempting to procure a person to have illicit sexual intercourse with another person. involving the relationship between the nature and quality of the act in question and the nature of the complete offence. in which the necessity of having sexual intercourse with prospective clients was disclosed.´ In addition.´ The judge added to the above: y ³relative proximity may give an act which might otherwise appear to be mere preparation the quality of attempt. Page | 73 .A.´ ³If the appellant had the necessary intent to induce or persuade the women to seek employment requiring them to have sexual intercourse with prospective clients. AR was not. But when the preparation to commit a crime is in fact fully complete and ended. the acts or statements of the appellant did not.

Trial judge found that no agreement had been established between them to steal or possess liquor and acquitted them of conspiracy. Dery [2006] SCC -exposes the limits of piggy-backing incomplete forms of liability. An attempt to conspire to commit a substantive offence is not an offence under Canadian law. acts that precede a conspiracy are not sufficiently proximate to a substantive offence to warrant criminal sanction. or agreed to commit. Majority of the CA aff¶d their convictions. by any of the parties to the discussions. Held: Appeal should be allowed D¶s convictions should be set aside and acquittals entered. Likewise. since an attempt to conspire amounts. when applied to conspiracy. to act upon them. D appealed. In this sense. the criminalization of attempt is warranted because its purpose is to prevent harm by punishing behavior that demonstrates a substantial risk of harm. Facts: D and S charged with conspiring to commit theft and conspiring to possess stolen liquor. the crimes they had discussed. -Even if it were possible. to a risk that a risk will materialize. Criminal liability does not attach to fruitless discussions in contemplation of a substantive crime that is never committed. -The criminal law does not punish bad thoughts that were abandoned before an agreement was reached. but found their actions more than merely preparatory to conspiracy and convicted them of attempting to conspire.R v. at best. or an attempt made. Page | 74 . an agreement to commit a crime in concert with others enhances the risk of its commission. And they can only be hatched by agreement. the justification for criminalizing attempt is lost. Furthermore. -Although D discussed a crime hoping eventually to commit it. conspiracies are criminalized when hatched. Policy behind crime of conspiracy/attempts: By its very nature. it has never been the goal of the criminal law to catch all crime ³in the egg´. However. moreover. nor even attempted. neither D nor S committed. Early intervention through the criminalization of conspiracy is therefore both principled and practical.

the relevant conduct is that of one or more representatives of the organization who alone or together do or fail to do anything.1 for negligence/objective fault offences.2 applies to the subjective MR offences charged against an association. For true crimes the Criminal Code sets out standards for corporate and association liability.2 for subjective fault offences). Objective Fault. Then you must determine which statute applies (22. The first thing to do in cases of Corporate Liability is to determine whether Common Law or Statute Apply (provincial or federal). 22. Page | 75 .1(a).e. Section 22. there is no need to use any legal devices to ascribe MR to the corporation. 1)Under sec. Since these kinds of offences turn on the actus reus alone. Since these kinds of offences turn on the AR alone.2 applies No (i. 22.1 ± Offences of negligence The conditions precedent to liability is twofold.1 applies to objective fault or negligence offences where an association is charged.e. See these provisions. -Therefore the CC corporate liability provisions do not apply to regulatory offences. 22. 22. non-Objective fault CC offence or Federal RO with non-negligence fault/MR): y y 22.1 applies to objective fault or negligence offences where an association is charged -Section. AL): 22. 22. and s. there is no need to use any legal devices to ascribe mens rea to the corporation and so the Criminal Code corporate liability provisions do not apply to regulatory offences.2 applies to subjective mens rea offences charged against an association. SL. Corporate Liability Checklist/Flow Chart Is it a Provincial Offence? -Yes: Common Law (Canadian Dredge and Dock) -No: (then Federal) Charging offence have a MR requirement of recklessness or higher? Yes (i. ______________________________________________________________________________ Corporations are liable for the acts of their agents for strict and absolute liability offences. amounts to an offence of negligence on their part 2. -For true crimes the CC sets out standards for corporate and association liability.12. CORPORATE AND ASSOCIATION LIABLITY Corporations are liable for the acts of their agents for strict and absolute liability offences. b) was not defrauding the corporation c) was for the benefit of the company (Candian Dredge and Dock) Sec. -Section 22.1 applies Common Law Definition This applies to all Provincial Offences The Identification Doctrine outlines where employee action is considered that of corporation: a) within scope of employee¶s authority.

Sec. Mental Element ± In addition to any mental element that must accompany the external circumstances (dependant on offence).capable of providing the accused with acquittal (³air of reality´) To have the defence provide acquittal the accused must meet a persuasive burden . whom the senior officer knows is or is about to be a party to the offence. acting within the scope of his authority.prove the D. 22. by a senior officer that falls within paragraphs (a) to (c) of the section.2 ± Other offences requiring fault (MR) Describes the basis on which an organization becomes a party to an offence that has a fault element other than negligence ± includes both a mental element and external circumstances External Circumstances ± involve conduct. 22. involves the conduct of one or more senior officers of the organization responsible for the aspect of the organization¶s activities that is relevant to the offence. Their conduct must collectively amount to a marked departure from what would reasonably be expected to prevent a representative from being a party to the offence. each applying to different acts To raise a defence the accused must meet an evidential burden . on a balance of probabilities We subjectify the reasonable person standard for D. Liability is also attributable to the organization if the senior officer fails to take all reasonable measures to stop a representative of the organization.1(b). The senior officer.´ and ³Senior Officer´ Selected Criminal Defences Defences do not deny the AR or the MR.´ ³Representative. of Necessity) the two defences remain side by side.s in a way that was disallowed in Creighton for determination of MR.2) The second requirement is imposed by sec. either acts or omissions. Page | 76 . may be a party to the offence or direct the work of other representatives of the organization so that they do or fail to do the things that are the external circumstances of the offence. from being a party. 2 defines what is included in ³Organization. s. the Crown must also prove that a senior officer had an ulterior intent (at least in part) to benefit the organization by the prohibited conduct. they simply provide an excuse They have two sources of authority: statutory and common law Sometimes (as in the case of the D.

1149 . Oommen edifies us about the meaning of ³wrong. Cooper. MENTAL DISORDER Section 16 of the Criminal Code modifies the common law defence of insanity.R. disorder. In order to support a defence of insanity the disease must be of a certain intensity as to render the accused incapable of appreciating the nature and quality of the violent act or of knowing that it is wrong (Cooper). Two Branches: Page | 77 . R.R. 1.g.R. v. s. and double jeopardy.C. The defence of provocation is a partial defence to murder alone. For example. The accused need not be capable of making rational decisions beneficial to him to be ³fit to stand trial´ (Whittle) Fit to stand trial is defined is s.1 of the CC provides for a court or Review Board to determine sentencing of one found NCR ³Disease of the Mind´ is a legal concept (not tied to medical evidence but under discretion of the Judge) (Simpson). 11(d) of the Charter but is a reasonable infringement under s. [1981] 2 S. v.e.R. v. has put the accused¶s capacity for criminal intent at issue (Swain) The presumption of sanity violates s. Park (discussed below). or condition w/ impairs the mind and it¶s functioning (excl.SELECT CRIMINAL DEFENCES Not all criminal defences are listed here.16 (1). 617 . 11 (b) and 24 of the Charter because of unreasonable delay. 25 of the Criminal Code permits law enforcement personnel to use some force to carry out their duties. Mental Disorder and its Two Branches ³Disease of the Mind´ is any illness. It is constitutional for the Crown to raise the defence both after a guilty verdict has been determined (though before entry) and when it is determined that the accused¶s own defence. R.´ . self induced and transitory . 1 (Chaulk and Morrissette) Automatic detention of one found ³Not Criminally Responsible´ on account of mental disorder is unconstitutional (Swain) Part XX. hysteria/concussion). [1980] 1 S.C. The Question becomes: Under what circumstance will an accused be found to have been incapable of either appreciating the nature and quality of his/her act or knowing that his/her act was wrong. Cooper provides a definition of mental disorder. of Mental Disorder. Oommen. To use this defense. 40 permits the defence of property. Cooper also stresses the significance of the concept of ³appreciates´ while R. v. v. There are also procedural defences such as entrapment. s. although it has been modified by R.C.R. v. To have access to this defence the accused must establish that he has a ³mental disorder´ as defined by the case law and that it affected him in one or both of the ways described in s. and there is a general de minimis non curat lex defence gaining recognition that can be used to resist prosecution for trivial legal violations.R. Charges can be ³stayed´ pursuant to s. the accused must establish that he has a ³mental disorder´ as defined by the case law AND that it affected him in one or both of the ways described in s. Kjeldson describes how the defence works for sociopathic or psychopathic offenders. 507 ______________________________________________________________________________ Section 16 modifies the common law defense of insanity. in the view of the TJ. You are responsible only for the select defences described below. v. 2 of the CC Both the Crown and the Accused can raise the D. [1994] 2 S. Kjeldson.16 (1).

Held: Appeal allowed. Issue: Whether there was evidence from which a properly charged jury could conclude that the appellant had disease of the mind to an extent that rendered him incapable of appreciating the nature and quality of the act of which he was charged or of knowing that it was wrong (³wrong´ here meant legally wrong ± but this was later overturned) This raised two legal issues: 1) The meaning to be ascribed to the phrase ³disease of the mind´ 2) The interpretation to be given the words ³incapable of appreciating the nature and quality of an act´. the appellant attempted to have sex with the victim then choked her. 2) Incapable of knowing that it was wrong An accused will not benefit from substituting his own moral code for that of society. that the appellant was sick. was charged with murder. Jury found appellant guilty of non-capital murder and was sentenced to life imprisonment. (2) Issue was that there was non-direction. and jury decides as a matter of fact. whether it exists. it includes being able to rationally apply the knowledge (Oomen). committing of offence (Abbey). Appellant had a lengthy psychiatric history. the criteria to be taken into account in determining criminal responsibility. an out-patient at Psychiatric Hospital. Incapability of ³knowing´ the act was ³wrong´ extends past apprehending right and wrong in the abstract. 16(2) (Chaulk & Morrisette) ³Wrong´ in the second branch refers to moral wrong (Chaulk & Morrisette) This makes more sense for retribution but not exactly for deterrence. the trial judge dealt with this issue of insanity in her charge to the jury. impact and result (e.g. impact and result .g. rather. Page | 78 . The defense of insanity was not raised at trial. -Stresses the significance of the concept of ³appreciates´ Facts: Appellant. Here. An accused can appreciate the nature and quality of his/her act without appreciating that the act will result in penal sanctions b/c s/he is still able to appreciate the consequences.1) Incapable of appreciating the nature and quality of the act If the accused¶s appreciation extends past knowledge of the act (e. R v. choking) to appreciation of the consequences. Judge decides the legal definition of whether what mental disorder is. that this choking will result in unlawful murder) s/he will be found to have appreciated the nature and quality of his/her act (Cooper). Nonetheless. h/w. A psychiatrist was called by the defense to establish that the accused did not have the capacity to form an intention to kill. question is: (1) Whether there was evidence upon which a properly charged jury could conclude. on a BOP. amounting to misdirection. if he is incapable of understanding that the act is morally wrong (by standards of reasonable members of society) he will be protected by s. Appeals. The psychiatrist testified he did not think that the accused was suffering with a disease of the mind. Parks). in failing to relate the evidence of the psychiatrist on the issue as to whether the appellant was able to appreciate the nature and quality of the act. v.i. Cooper [1980] SCC -Provides definition of mental disorder (modified by R. After a party. Section 16 of the CC does not set out a test of insanity but.e.

The first issue raises both legal and factual questions: the term ³disease of the mind´ is a legal concept and what is meant by that term is a question for the judge. but it is for the judge to decide whether the condition described is comprehended by the term ³disease of the mind´. The disease must manifest itself with such intensity as to render the accused incapable of appreciating the nature and quality of the offence or of knowing that it is wrong. the question of fact must be left with the jury. the accused was incapable of appreciating the nature and quality of the act. The CA was entitled to dismiss the appeal of the accused under ss. R v.the absence of appropriate feelings about conduct is NOT a lack of appreciation. and ³appreciating´ the nature and quality of the act. ³disease of the mind´ embraces any illness. The former denotes only an awareness of the physical act. Medical evidence revealed he was a psychopath and understood the physical nature and consequences of his act. 613(1) (b) (iii) of the CC. The jury must also be satisfied of two-different branches of this test: namely. whose only defense was insanity. the Court dismissed the appeal but substituted a verdict of 2nd degree murder b/c the trial judge failed to instruct the jury adequately on the difference between 1st and 2nd degree murder.relating to sociopathic or psychopathic offenders Facts: Appellant. and (2) That he did not know the act was wrong. though was indifferent to such consequences. excluding self-induced sates caused by alcohol or drugs. Issue: What is the definition of the word ³appreciating´? And whether the judge¶s charge to the jury regarding the word appreciating was adequate? Page | 79 . disorder or abnormal condition which impairs the human mind and its functioning. On appeal. Once the judge has determined that there is any evidence that the accused did suffer from such a disease (in legal terms). It is the function of the psychiatrist to describe the accused¶s mental condition and how it is considered from a medical point of view. Trial judge instructed the jury (1) That psychopathy could be a disease of the mind and (2) On the meaning of the word ³appreciate´ in s. (1) That at the relevant time. Kjeldson [1981] SCC . as well as transitory mental states such as hysteria or concussion. As a general guide. 16 of the CC. This formulation is unique to Canada There was no substantial wrong or miscarriage of justice. while the latter requires a level of understanding of the act which is more than mere knowledge that it¶s taking place ± there must be (1) an appreciation of the factors involved in the act and (2) a mental capacity to measure and foresee the consequences of the violent conduct. . was convicted of 1st murder at trial. A fundamental difference arises between ³knowing´ the nature and quality of the act. The jury must determine whether the accused had disease of the mind at the time the criminal act was committed.

16(1) of the CC. concluding that in view of the accused's general capacity to know right from wrong. his delusion deprived him of that capacity and led him to believe that killing was necessary and justified under the circumstances as he perceived them.Held: In addressing the defense of mental disorder. the SCC refused to extend the exemption to a person who has the necessary understanding of the nature. but also the ability to apply that knowledge in a rational way to the alleged criminal act. notwithstanding his subjective belief. the accused raised the defense of insanity. This delusion. -An accused need not establish that his delusion permits him to raise a specific defense. at the time of the killing. On the night of the murder. Oommen [1994] SCC ± capacity to distinguish ³right from wrong´. persuaded him that he was obliged to kill the victim to prevent her from killing him. Here. Page | 80 . Accused had been suffering from a mental disorder described as a psychosis of a paranoid delusional type and. Convicted of 2nd degree murder. such as self-defense.accused should be exempted from liability where at the time of the act a mental disorder deprived him of the capacity for rational perception and hence rational choice about the rightness or wrongness of the act . 16(1). a friend who was sleeping in his apartment. evidence is capable of supporting a conclusion that the accused was deprived of the capacity to know his act was wrong by the standards of the ordinary person. Section focuses on the particular capacity of the accused to understand that his act was wrong at the time of committing the act. chooses to commit them. he was not relieved from criminal responsibility under s. but merely lacks appropriate feelings for the victim or lacks feelings of remorse of guilt for what he has done.´ Facts: Accused killed w/out motive. Section 16(1) of the Code embraces not only the intellectual ability to know right from wrong in an abstract sense. CA ordered a new trial on the ground that the trial judge had erred in his interpretation of s. Held: Appeal should be dismissed. even if such lack of feelings stem from a ³disease of the mind´. R v. combined with his belief that the victim was one of the conspirators. An accused should thus be exempted from criminal liability where. Appeal dismissed. character and consequences of the act. including delusions. at the time of the act. his paranoia was fixed on a belief that the members of a local union were conspiring to "destroy" him. at the time of the killing. . Psychiatrists testified that accused possessed the general capacity to distinguish right from wrong and would know that to kill a person is wrong but the night of the murder. to be exempted from criminal responsibility. Trial judge rejected insanity defense.the defence does not apply to a ³psychopath or a person following a deviant moral code´ if such a person ³is capable of knowing that his or her acts are wrong in the eyes of society. a mental disorder deprived him of the capacity for rational perception and hence rational choice about the rightness or wrongness of the act. he became convinced that they had surrounded his apartment building with the intention of killing him. and despite such knowledge. The inability to make a rational choice may result from a variety of mental disorders.

Stone. v. The ³voluntariness´ concept explains the defense of automatism.´ since an accused person who is automatistic due to a disease of the mind. which operates on the theory that the accused¶s physical motions were not culpable where they are not voluntary or thought-directed or conscious.´ Where a court finds ³insane automatism´ the real defense it is applying is ³mental disorder. (1) ³insane (or mental disorder) automatism´. R.R. [2001] O.´ Where a court finds ³insane automatism´ the real defence it is applying is ³mental disorder. the state of a person who. 290 R. which operates on the theory that the accused¶s physical motions are not culpable where they are not voluntary or thought-directed or conscious. as in the sleep-walking case of R.R. The SCC has defined automatism as ³unconscious. Fontaine. Parks.´ The accused may not be actually unconscious. A more sophisticated application of the voluntariness concept was employed in R. involuntarily behaviour. 2390 (Ont. though capable of action is not conscious of what he is doing. v. If the defence that applies in ³non-insane automatism.2. Fontaine some of the excessive language of Stone was qualified by the Court.C. cannot appreciate the nature and quality of his act or have the capacity to understand that the act is wrong. Parks. 871 R. the accused does not satisfy the actus reus requirement unless his act is willed. v. and.J. although in R.C. but his or her consciousness must be so impaired that he or she ³has no voluntary control over that action. If the Page | 81 . although Stone has stacked the deck against this kind of defence succeeding. v. v.) R. (2) ³non-insane (non-mental disorder) automatism. [1992] 2 S. Stone. Note that ³automatism´ is divided into two categories.C. but the legitimacy of this reasoning is questionable.´ since an accused person who is automatistic because of a disease of the mind cannot appreciate the nature and quality of his act or have the capacity to understand that the act is wrong. 702 The accused does not satisfy the AR requirement unless his act is willed.C. involuntarily act. No. VOLUNTARY ACTS ³NEGATIVING¶ THE AR AND AUTOMATISM As indicated above. [2004] 1 S.R. The result of the Parks decision was controversial enough that the Supreme Court of Canada took procedural steps to cut the defence back in R. Note: ³automatism´ is divided into two categories. Parks. ³insane (or mental disorder) automatism´ and ³noninsane (non-mental disorder) automatism. v. v. where the mind does not go with what is being done. Please note that automatism will not realistically operate in any case where the accused appears conscious of his conduct ± it is reserved to those unusual cases where there appears to be some disconnect between the actions of the accused and his conscious will. -Automatism will not realistically operate in any case where the accused appears conscious of his conduct ± it is reserved to those unusual cases where there appears to be some disconnect between the actions of the accused and his conscious will. Swaby. Stone).´ a complete acquittal is appropriate. v.´ (R. as in the sleep-walking case of R. v. using the specious reasoning that their physical act was not willed. Some courts have acquitted individuals who reflexively strike out.A. v. [1999] 2 S. It means an unconscious. Swaby. It is the ³voluntariness´ concept that explains the defence of automatism.

he would have to be given a reasonable opportunity to either remove himself or to see that the weapon was removed from the vehicle. The jury disbelieved both Johnson and the appellant. it cannot be the case that the driver is immediately guilty. If a passenger tells the driver that the passenger has a gun.defense applies ³non-insane automatism. asking for further help. Mr. he was not entitled to insist that the jury be given a complete answer to its questions. The appellant did put his knowledge of the gun in issue. v. albeit in lay terms. There must be some period of time. I do not accept the Crown's argument that there was no "air of reality" to a defense on this point [s. Nor do I agree that because the appellant denied all knowledge of the weapon. It is the conduct of the driver following the coincidence of occupancy and knowledge that counts. The needin the criminal systems. Johnson were in that vehicle.´ a complete acquittal is appropriate. Johnson had a significant criminal record and was the subject of immigration proceedings. He was convicted of being an occupant in a vehicle knowing there was an unlicensed restricted weapon (s.94(3)CC]. Accordingly. After being told that ". Even though he was disbelieved. Swaby [2001] ONCA -A sophisticated application of the voluntariness concept Facts: Police officers followed a car driven by the appellant. he would be entitled to an acquittal. with Johnson as a passenger. Sleepwalking is a disorder not a ³disease of mind´ (R. 94 CC) Issue: Whether the Trial Judge properly answered the jury's question regarding the time at which the appellant knew of the gun? Held: Voluntary conduct is a necessary element for criminal liability. the driver would have known of the gun while he was an occupant of the vehicle. The jury's specific and persistent questions regarding the timing of the appellant's knowledge of the gun indicate that they were asking for guidance on the legal principles they should apply if they found that appellant acquired knowledge of the weapon after he had got into the car with Johnson.. until sometime after he embarked on his drive with Johnson. He pleaded guilty to possession of the handgun and received a (42 day) sentence. The driver's occupancy of the vehicle would have coincided with his knowledge of the gun. Should the driver immediately stop the vehicle and tell the passenger to leave." the foreperson persisted. it surely cannot be the law that criminal liability instantly attaches. but he would have done all the law could expect. They stopped car and found a loaded gun. there is no voluntary act for the criminal law to punish. but it could not be said that the coincidence of knowledge and occupancy amounted to voluntary conduct on the part of the driver. it is my view that if the appellant acquired knowledge of the weapon while the vehicle was in motion. the appellant was entitled to a full answer to the jury's very specific questions regarding the timing of his knowledge of the gun. of the Page | 82 . although Stone has stacked the deck against this kind of defense succeeding. The jury's questions also suggest an instinctive awareness. The appellant was tried before a Judge & jury on an indictment containing eight counts. Swaby must be proven to have been aware of the existence of the weapon while both he and Mr. however short. Parks) The court found this way b/c MD carried mandatory detention and declaring the crime non-MD was the only way to avoid this.. Johnson was Crown key witness. afforded to the person who has acquired that knowledge to deal with the situation. to implemt a contingent standard has been farr overdue R v. If the appellant only acquired knowledge of the weapon at the point when Johnson was leaving the vehicle. and if the driver acts with appropriate dispatch to get either the gun or himself out of the vehicle. It was certainly open to the jury to reject the appellant's evidence that he knew nothing of the weapon. If one acquires knowledge of an illegal weapon while travelling in a moving vehicle.

They needed and asked for help on the point. that sleepwalking could never be a disease of Page | 83 . not an acquittal). That is not to say. the medical component of the condition would be assessed by virtue of the medical knowledge at the given time. Therefore. the trial judge ruled that his defense should be left to the jury as non-insane automatism (recall that it is the judge¶s role to assess whether a medical condition is a ³disease of the mind´ within the meaning of the law) and did not give the jury the option of the defense of insanity (which. the SCC emphasized that sleepwalking involved an act done by virtue only of a man¶s muscles. medically speaking. sleepwalking is not regarded as an illness. Held: Chief Justice Lamer. he raised the defense of sleepwalking. however. and not his mind since that person is not conscious of what he is doing. and was acquitted by the jury. As such. in assessing the second part of the test (that of current medical opinion) the SCC accepted the expert evidence heard at trial that most cases of sleepwalking fell within the category of automatism. since the concept of ³disease of the mind´ is capable of evolving with increased medical knowledge. mental or neurological. (2). In charging the jury. At trial. in speaking for the majority. the exemption from criminal liability is minimal at best since the sleepwalker cannot appreciate the nature and quality of his actions. Issue: The Crown contends that the trial judge erred in ruling that sleepwalking was a form of non-insane automatism and not a disease of the mind.voluntariness point I have just discussed. judge must determine whether there is some evidence to support leaving the defense to the jury and whether the condition alleged in law. and (b) the protection of the public by the control and treatment of persons who have caused serious harm while in a mentally disordered or disturbed state. Parks [1992] SCC -when µnon-insane¶ automatism (sleepwalking). Regarding part (b) (protection of the public). R v. appeal dismissed. whether physical. would result in a special verdict. The court stated that in deciding which medical conditions amounted to a ³disease of the mind´ it would apply a two-fold test: (1) the legal/policy component would assess (a) the scope of the exemption from criminal responsibility to be afforded by mental disorder or disturbance. Lastly. but their questions were not fully answered by the Trial Judge. agreed with the ruling of the trial judge. public safety would not be an issue. and that sleepwalking episodes in which violent acts were committed are not common. is non-insane automatism -Two-fold test to determine whether a medical condition was a disease of the mind -LaForest: µcontinuing danger theory=insanity¶ & µinternal cause theory=insanity¶ -Sleepwalking IS NOT a disease of the mind Facts: Respondent was charged with murder and attempted murder after he killed his mother-inlaw and seriously wounded his father-in-law. current medical evidence adduced and accepted at trial showed that it was extremely unlikely that sleepwalkers who acted violently would ever repeat that kind of behavior. It also accepted the evidence that the respondent was not suffering from any mental illness and that. Therefore. In assessing part (a) of the 1st part of the test (scope of exemption from criminal liability). if accepted.

No burden of proof is imposed upon an accused raising such a defense beyond pointing to facts. (NEW TEST in Next Case) -In light of Parks. are by no means conclusive of attainment of the evidentiary burden. They justified their finding on the basis that the law presumes that people act voluntarily in order to avoid placing the onerous burden of proving voluntariness beyond a reasonable doubt on the Crown. the judge must. R v. the trial judge must take into consideration all the psychiatric and/or psychological evidence. Alternative View: Justice La Forest concurred with the majority. Stone. He asserts that when a defense of non-insane automatism is raised. In doing this. Held: In reversing the decision in Park as it applies to the burden of proof relating to involuntariness. Stone [1999] (Leading case on Automatism Defence) ± R: claims of automatism must be on the defence to prove involuntariness on the balance of probabilities (p. 1. he must first determine whether there was some evidence on the record to support leaving the defense to the jury. In making that determination. as well as examine any another relevant evidence. is easily feigned and all knowledge of its occurrence rests with the accused. they assert. the majority of the court stated that ³claims of automatism must be on the defense to prove involuntariness on the balance of probabilities. The burden will only be met once the trial judge concludes that there is evidence upon which a properly instructed jury could find that the accused acted involuntarily on a balance of probabilities.´ They recognized that placing a balance of probabilities burden on the defense with respect to an element of the offence constituted a limitation of the accused¶s right under sec. but sought to a number of procedural and policy considerations relevant to the insane/non-insane dichotomy. the onus will rest upon the prosecution to prove that it is. the trial judge must decide whether the condition alleged by D is a mental disorder or non-mental automatism. in another case on different evidence. but were of the opinion that it was saved by sec. If the proper foundation is present. and then look to the evidence to determine whether it convinces him that the condition is not a disease of the mind. The Crown is entitled to raise the prospects of insanity. not non-insane automatism beyond a reasonable doubt. SCC took procedural steps to cut the defense back in R. consider whether the condition alleged by the accused is in law non-insane automatism. such as the severity of the triggering event. 11(d) of the Charter. If the judge is satisfied that it is. v. The SCC took the opportunity to make some crucial amendments to how the defense of automatism can be applied & what must be taken into account in terms of procedure and policy. which indicate the existence of such a condition.the mind. etc« The evidence established that there are states of automatism where Page | 84 . The two latter requirements.62) -once this burden has been met. corroborating medical history of automatistic-like dissociative states. Facts: The facts of this case are not important. suffice it to say that the defense proposed both insane and non-insane automatism as possible defenses during trial. the trial judge must determine whether the defense should be left with the trier of fact. Automatism. In raising the defense of automatism. and (2) Call expert psychiatric and/or psychological evidence confirming that assertion. the defense must: (1) Make an assertion of involuntariness. This necessarily requires the trial judge to begin from the premise that the automatism is caused by a disease of the mind. The majority gave examples of relevant factors that could be considered. in fact. if met. corroborating evidence by bystanders. second.

if accepted by trier of fact. Once the trial judge exercised his gatekeeper function to screen frivolous or feigned claims. that the respondent did not meet the evidentiary burden required to put the defense of mental disorder automatism to the jury. namely that there is some evidence with which a properly instructed jury could reasonably. judge neither entitled nor required to assess weight of evidence or probability of its success ± this for trier of fact Function of judge is to determine whether there is relevant evidence that. supported by the logically probative opinion of a qualified expert. although accused may claim independent s. It is to be expected that the jury will subject the evidence of involuntariness to appropriate scrutiny. would tend to support affirmative defence ± test remains the same whether or not defence is one that carries reverse onus ³Where mental disorder automatism is raised as a defense. will normally provide a sufficient evidentiary foundation for putting the defense to the jury. the accused must show that there is an ³air of reality´ to the defence. Held: The SCC agrees with the respondent. conclude in favour of the accused (Fontaine) Defence must present expert psychiatric evidence (Stone) Additional evidence also relevant in determining if accused has met evidentiary or proper foundation burden: severity of the triggering stimulus corroborating evidence of bystander as to accused's appearance (unresponsive.´ Fontaine eliminates any suggestion in Stone that in considering evidential burden judge should assess weight that might be given to evidence. felt that because there were inconsistencies in the respondent¶s evidence and that evidence of the defense¶s main psychiatric witness had been contradicted by other psychiatrists. but restates its views on evidentiary threshold for defence Discharge of evidential burden regarding affirmative defence is matter for trial judge must leave to jury any defence supported by evidence In making this determination. Stone) To do so. distant medical history of automatistic-like dissociative states motive-absence for act will generally lend plausibility to claim of involuntariness ± no single factor determinative if proper foundation not established. The trial judge. following the instructions in Stone. so the accused must rebut presumption of voluntariness (Parks. neither defence available to jury. R v. The burden remains on the accused to establish the defense to the required degree of probability ± the balance of probabilities o Final Non-insane/insane Automatism Defence Framework ** (As per Parks. on account of that evidence. 16 mental disorder defence.perfectly sane people lose conscious control over their actions. it was for the jury to make up its mind on the credibility of the plea of automatism. This jurisdiction should not be removed by ³judicially created policy´. Page | 85 . Fontaine [2004] SCC Facts: The accused shot and killed a man whom he believed had a contract to kill. Fontaine) STEP (1): Is there a proper foundation for a finding of automatism? The law presumes people to act voluntarily. particularly because of excessive marijuana use (not at issue in this trial). Stone. He asserts that at the time of the shooting he was in a psychotic state. presumption of voluntariness applies. Supreme Court does not modify majority¶s views in Stone on substantive law of automatism. an assertion of involuntariness on the part of the accused.

which defence should be left with the jury): The assessment of which form of automatism should be left with the trier of fact comes down to the question of whether or not the condition alleged by the accused is a mental disorder ± legal term defined in s. Policy considerations include: Reputation of administration of justice Ease of feigning (faking) Page | 86 . The nature of the alleged trigger of the automatism is at the centre of the comparison the trial judge must undertake. and the continuing danger factor is inconclusive because there is no continuing danger of violence.g. this means that the condition is a DOM (Note: if not internal cause. 2 as ³disease of mind´ Question of what mental conditions are included in term disease of mind is question of law ± judge must also determine whether condition the accused claims to have suffered from satisfies legal test for disease of mind Judge to start from proposition that condition is disease of mind. Parks Judge should consider the following: (a) Internal cause factor (developed in context of psychological blow Automatism: If the condition stems from an ³internal cause´. and asks whether evidence takes it out of category (Stone) Determining whether condition is disease of mind: two distinct approaches to disease of mind inquiry: internal cause theory and continuing danger theory. continuing danger theory and policy concerns raised in Rahey. the trial judge must consider the nature of the trigger and determine whether a normal person in the same circumstances might have reacted to it by entering an automatistic state as the accused claims to have done (this approach is helpful in some cases.1 of the Code. where the internal cause factor is not helpful because it is impossible to classify the alleged cause of the automatism as internal or external. whether the accused should be subject to evaluation under the regime contained in Part XX.e. In effect. Holistic approach must be available to trial judges in dealing with disease of mind question ± approach must be informed by internal cause theory. finding of no continuing danger does not preclude finding of DOM Consider expert evidence Consider medical history/psychiatric history Consider likelihood of triggers occurring (c) May consider other ³policy factors´ There may be cases in which consideration of the internal cause and continuing danger factors alone does not permit a conclusive answer to the disease of the mind question. evidence of an extremely shocking trigger will be required to establish that a normal person might have reacted to it by entering an automatistic state as the accused claims to have done. Policy concerns assist trial judges in answering the fundamental question of mixed law and fact which is at the centre of the disease of the mind inquiry: whether society requires protection from the accused and. not so in others) For psychological blow automatism.. still may be DOM). consequently.STEP (2): If Step # 1 satisfied. the trial judge determines whether the condition alleged is mental disorder or non-mental disorder automatism (i. but while continuing danger suggests DOM. It will be internal if not ³extraordinary event that would cause a normal person to dissociate´ (b) Continuing danger factor: Any condition which is likely to present a recurring danger to the public should be treated as a disease of the mind likelihood of recurrence of violence is factor to be considered in disease of mind inquiry. e.

A motiveless act will generally lend plausibility to an accused¶s claim of involuntariness Severity of triggering stimulus Corroborating evidence of bystanders Corroborating medical history Whether the trigger is the victim (b) Insane automatism? If the trial judge concludes that the alleged condition is a disease of the mind. 16 provides framework within which protection of public assured when mental disorder automatism established trier's determination whether accused has made out successfully defence of mental disorder automatism absorbs question whether accused acted involuntarily ± if automatism could only have resulted from disease of mind.Floodgates potentiality Ensuring public safety Note: Courts take judicial notice that it will only be in rare cases that automatism is not caused by DOM STEP (3): Available defences for trier of fact to consider (a) Non-insane automatism? If the trial judge concludes that the condition the accused claims to have suffered from is not a disease of the mind. finding that the accused not suffering from mental disorder necessarily extinguishes validity of accused's claim of involuntariness A successful defence of mental disorder automatism will result in a verdict of not criminally responsible on account of mental disorder as dictated by s. The case will then proceed like any other s.34 of the Code.e. jury may be instructed to consider things such as: Whether there is a motive for crime ± i. on a balance of probabilities.. only mental disorder automatism will be left with the trier of fact. leaving for the trier of fact the question of whether the defence has proven. discharged conditionally or detained in a hospital. an accused who receives this qualified acquittal may be discharged absolutely. on a balance of probabilities that the accused acted involuntarily. 672. Under s. A positive answer to this question by the trier of fact will result in an absolute acquittal Here. only the defence of non-mental disorder automatism will be left with the trier of fact as the trial judge will have already found that there is evidence upon which a properly instructed jury could find that the accused acted involuntarily. The question for the trier of fact will then be whether the defence has proven.54. Page | 87 . 16 case. that the accused suffered from a mental disorder which rendered him or her incapable of appreciating the nature and quality of the act in question s. 672.

270(b)) 2.C. Attempted crimes 8.C. Assault (s. [1988] 2 S. the question of whether the accused had the relevant MR will be assessed on the assumption that the accused was not intoxicated . murder mischief 6. This so-called defence of intoxication (simple intoxication) operates only if proof of the intoxication helps leave the judge or jury in reasonable doubt over whether the accused formed the relevant mens rea. Theft 7. The law is hostile to this claim. It therefore limits the defence to ³specific intent´ offences. 683 Intoxication does not operate as a justification or excuse for criminal conduct.even if he was. touching for a sexual purpose (s 271) (s 151) assault causing bodily harm 5. break enter w/ intent to commit (s 348(1) (a)) (s 348(1) (b)) 4. In other words. the inquiry is no longer into ³capacity to form the intent´ as it was in common law England ± the defense applies if intoxication prevents the formation of the specific intent required by the relevant section.R v. the question of whether the accused had the relevant mens rea will be assessed on the assumption that the accused was not intoxicated . The concept of a ³specific intent´ and ³general intent´ offence is described in the extreme intoxication case of R. Please note that in Canada. Robbery See Libmann outline Page | 88 . Daviault below. SIMPLE INTOXICATION Intoxication does not operate as a justification or excuse for criminal conduct. turns on whether an offence is one of: GENERAL or SPECIFIC INTENT General Intention Offences Specific Intention Offences 1. 833 .R. Bernard. v. Break enter and commit 3a.even if he was. assault w/ intent to resist arrest (s.R. The applicability of the intoxication defence. It therefore limits the defense to ³specific intent´ offences. arson w/ intent to defraud (s 435) (s. v. 266) 1a. in Canada. the inquiry is no longer into ³capacity to form the intent´ as it was in common law England ± the defence applies if intoxication prevents the formation of the specific intent required by the relevant section. For ³general intent´ offences.R. Arson causing bodily harm 2a. Manslaughter 5a. as shown below. 433) 3. Thus. Sexual assault (rape) 4a. This defense of intoxication (simple intoxication) operates only if proof of the intoxication helps leave the judge or jury in reasonable doubt over whether the accused formed the relevant MR.3. the law of simple intoxication operates less as a defence than as a way of limiting cases where the judge or jury can factor intoxication into mens rea determinations. . for ³general intent´ offences. Robinson. Aiding and abetting a crime 9. The law is hostile to this claim. [1996] 1 S.

In responding to assertions by the appellant that the Leary rule relieves the Crown from the burden of proving the MR. Citing Dickson J. should be preserved so that evidence of intoxication can go to the trier of fact in general intent offences only if it is evidence of extreme intoxication involving an absence of awareness akin to a state of insanity or automatism. however. It was held in those cases that an intention to commit an assault was proof of the requisite intention. Since sexual assault causing bodily harm had previously been decided to be a crime of general intent. The rule in Leary should not be overruled. The trial judge. Bernard [1988] SCC Drunkenness in a general sense is not a true defense to a criminal act. The rule. Issue: whether evidence of self-induced intoxication should be considered by the trier of fact. Facts: The appellant was charged with sexual assault causing bodily harm. which should accompany the doing of the prohibited act in general. their Justiceships stated the following: the Crown is not relieved of its burden to prove the MR. ³an offence where the intent involved relates solely to the performance of the act in question with no further ulterior intent or purpose.´ The defense of simple intoxication is not to be extended so as to cover crimes of general intent ± decided in the case of Leary. The defense. the judges sought to justify their exclusion of general intent crimes from the ambit of the defense of simple intoxication. Only in such a case is the evidence capable of raising a reasonable doubt as to the existence of the minimal intent required for the offence. then the defense was not available. in determining whether the prosecution has proved beyond a reasonable doubt the MR required to constitute the offence? Held: On appeal to the SCC. The requisite state of mind may be proved in two ways: first. 7 and 11(d) of the Charter in cases of general intent. ³involves the performance of the AR. violates sec. in charging the jury. contrary to sec. and thus. the more extended will be his opportunity for a successful defense against conviction. along with all other relevant evidence. Chief Justice Dickson and Lamer dissented. the Crown may meet its evidentiary obligation respecting the necessary blameworthy Page | 89 . applied in its more flexible form. Majority: Justice McIntyre and Beetz ± began by defining what a general intent crime was: namely. couples with an intent or purpose going beyond the mere performance of the questioned act.R v. however.. 272(c) of the Code.´ A specific intent crime. Dickson¶s position was that self-induced intoxication should be a relevant consideration in determining whether the MR of any particular offence has been proved by the Crown. They believe the effect of such a conclusion would be that the more drunk a person becomes by his own voluntary consumption. The defense does not apply in offences of general intent The Leary rule is consistent with an onus resting on the Crown to prove the minimal intent. The appellant asserts that his drunkenness caused him to attack the complainant. there is the general proposition that triers of fact may infer MR from the AR. in cases where the accused was so intoxicated as to raise doubt as to the voluntary nature of his conduct. intent offences. Evidence of intoxication should not go to the trier of fact in every case regardless of its possible relevance to the issue of the existence of the minimal intent required for the offence. stated that drunkenness was no defense to the charge alleged. second. the majority was of the opinion that the defense of simple intoxication was not available to a crime of general intent. Sexual assault is a general offence as stated in Swietlinkski and Chase. may apply in a specific intent offence when the accused is so intoxicated that he lacks the capacity to form the specific intent required to commit the crime.

mental state by proving the fact of voluntary self-induced intoxication. Only in cases of the most extreme self-intoxication, however, does the trier of fact need to consider the second proposition. Their Justiceships conceded that their approach might not stand up to the rigors of logic, but justified it on the grounds of policy: intoxication, whether by alcohol or drugs, lies at the root of many, if not most, violent offences. In responding to Charter scrutiny to their approach, they stated that while the Charter requires that the morally blameless not be punished, that is not the case for persons who have voluntarily consumed alcohol or drugs, thereby depriving themselves of self-control leading to the commission of a crime, are not morally innocent and are indeed criminally blameworthy. Justice Wilson and L¶Heureux-Dube ± agreed with the position of the latter Justices that, in cases involving general intent, the Crown will be able to establish the accused¶s blameworthy mental state by inference from his acts. However, in regards to substituting proof of the necessary mental element with proof that the accused was voluntarily intoxicated, their Justiceships felt that this was too intrusive a proposition on an individual¶s rights to be compatible with sec. 11(d) of the Charter. In regards to the general-specific intent dichotomy, their Justiceships were of the opinion that it amounted to good law. They also agreed that the crime of sexual assault is a crime of general intent. They stated that it is first and foremost an assault; it is sexual in nature only because, objectively viewed, it is related to sex either on account of the area of the body to which the violence is applied or on account of words accompanying the violence. Their Justiceships agreed with the rule laid out in Leary, which allows evidence of self-induced intoxication to go to the trier of fact in general intent offences only if it is evidence of extreme intoxication akin to a state of insanity or automatism. In addressing the allegations that the Leary rule transforms crimes of general intent, where intoxication is involved, into crimes of strict/absolute liability, the Justices stated that this is not so since the jury must have regard to all the evidence, except evidence of intoxication, in determining the defendant¶s intention. They would, therefore, follow Justice McIntyre¶s lead and dismiss the appeal. Dissent: Justice Dickson and Lamer ± feel that Leary is not good law because (1) it is based on illogical/unsupported policy conclusions, (2) in light of the enactment of the Charter, Leary fails to meet the constitutional standards of legislation, (3) its effect has discombobulated the defense of mistaken fact, and (4) its enforcement leads to uncertain results. In responding to policy arguments for restricting the jury¶s use of evidence of drunkenness, the justices had three issues: first, they argue that if the law is to be altered in the name of policy over principle that is a task for Parliament and not the courts. Second, in relation to the generalspecific intent dichotomy, they feel that this artificial principle does nothing in the way of social protection. To the extent that intoxication merely lowers inhibitions, removes self-restraint or induces unusual self-confidence, it would be of no avail to an accused, as such offences do not relate to the MR requirement for volitional and intentional or reckless conduct. Third, they argue that this policy stance has emanated mainly out of distrust of juries and trial judges to properly weigh the evidence, which may result in hasty acquittals. They disagree with that assertion, adopting the Australian approach, which allows jurors and trial judges to weigh such evidence. They argue, mainly by citing statistics, that there are no known problems of accused persons who were drunk during the commission of the offence with ³getting away with their crimes´. In
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regards to the Charter, their Justiceships felt that the policy created an offence of absolute liability. This, they assert, is contrary to sec. 7 in that it doesn¶t require proof of the requisite mental intent. This runs contrary to the fundamental principles of voluntariness and fault, they assert. In relation to sec. 11(d) as it applies o crimes of general intent, they believe the policy has the effect assuming guilty upon proof of intoxication. Regarding policy being saved under sec. 1, they feel that while the objective of the policy is noble, in that it seeks to protect the public, it fails under the proportionality inquiry. They state ³the measure is not adopted in a carefully designed manner to achieve the objective in question´. They justify that assertion by arguing that the general-specific intent dichotomy does not rationally protect the public, as it criminalizes offences judged to be of general intent, while allowing those who engage in more serious crimes (usually falling under the umbrella of specific intent) to be acquitted. In regards to the second branch of the proportionality test, they state that policy does not choose the means that will impair the rights and freedoms of individuals as little as possible. In justifying that assertion, they point to their earlier conclusion that the policy creates a crime of absolute liability. Regarding the defense of mistaken fact, they state that the Leary rule fits most awkwardly with that enunciated in Pappajohn. If an accused seeks to employ the defense of mistaken belief, and where intoxication is a factor, they jury must be instructed that while an honest but unreasonable belief will negate the MR, they are to disregard the effect that intoxication might have had in inducing that mistake. This results in the jury engaging in the difficult and artificial task of putting out of their mind the evidence of intoxication on the issue of whether the accused honestly believed in the mistaken fact. The Justices assert that this unduly complicates a jury¶s task. Their final point is that the Leary rule creates uncertainty in the law. They base this conclusion mainly on the general-specific intent dichotomy. They assert that the classification of offences as falling within or without one of the categories is necessarily an ad hoc and unpredictable exercise, leading to different results. Citing Campbell, where the accused was charged with breaking and entering with intent. This was held to be a crime of specific intent, and thus, evidence of intoxication was relevant. However, in the decision of Quin, the accused was charged with breaking and entering and committing an indictable offence. The court in that case held that that was a crime of general intent, and thus, evidence of intoxication was not a relevant factor. For all those reasons, they felt that the decision in Leary should be overruled, and the appeal in this case allowed. R v. Robinson [1996] SCC -intoxication only becomes relevant for the trier of fact to consider where it removes D¶s capacity to form the requisite intent; and -the presumption that a person intends the natural consequence of their actions cannot be rebutted by evidence falling short of incapacity (p. 43) Facts: The accused killed a man but claimed to have acted without intent because he was intoxicated. The evidence showed he had been drinking with the victim and that the killing occurred after victim offended him. After being instructed on provocation, self-defense and intoxication, the jury found the accused guilty of 2nd degree murder. CA allowed his appeal. Issue: (1) How should juries be instructed regarding evidence of intoxication? (2) Whether the charge to the jury, read as a whole, constituted misdirection and reversible error on the issues of intoxication, the common-sense inference that a person

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intends the natural and probable consequences of his or her acts, and the burden on the Crown to prove the intent required for murder beyond a reasonable doubt; and (3) Whether the curative provisions of s. 686(1) (b) (iii) of the CC should be applied? Held: The appeal should be dismissed. The Beard rules (Director of Public Prosecutions v. Beard) on intoxication should be overruled. These rules provide that intoxication is not a relevant factor for tiers of fact to consider except where the intoxicant removed the accused's capacity to form the requisite intent. According to the Beard rules, the presumption that a person intends the natural consequences of his or her acts cannot be rebutted by evidence falling short of incapacity. This presumption to which Beard refers should only be interpreted, as a common-sense inference that the jury can but is not compelled to make. Five separate considerations favored overruling the Beard rules: (1) The opinions of Laskin and Dickson C.JJ. Albeit in dissent, suggested that the real focus should be on whether the Crown, in light of the intoxication evidence, has established the requisite intent BARD; (2) Developments in provincial appellate courts, which no longer follow the Beard rules and have developed two different approaches in its place; (3) Developments in England, New Zealand and Australia where "capacity" language has fallen out of favor and intoxication is now simply a factor jurors can consider in assessing whether the prosecution has proved beyond a reasonable doubt that the accused had the required intent; (4) Academic commentary which favors abandoning the Beard rules; and (5) The Canadian Charter of Rights and Freedoms, which is violated by the Beard rules. The Beard rules violate ss. 7 and 11(d) of the Charter because they put an accused in jeopardy of being convicted even though a reasonable doubt could exist in the minds of the jurors on the issue of actual intent. This restriction on an accused's legal rights does not constitute a reasonable limit under s. 1 of the Charter. A strict application of the Oakes test is appropriate. While decisions of the legislatures may be entitled to judicial deference under s. 1 as a matter of policy, such deference is not required when reviewing judge made law. The protection of the public from intoxicated offenders is of sufficient importance to warrant overriding a constitutionally protected right. A rational connection exists between the "capacity" restriction of the defense contained in the impugned common law rule and its objective. The restriction fails the proportionality prong, however, because it does not impair an accused's ss. 7 and 11(d) rights as little as is reasonably possible. The Beard rules cast the criminal net too far in that all accused with the capacity to formulate the requisite intent cannot rely on their state of intoxication even though it might create a reasonable doubt as to whether the accused actually had the intent necessary to the crime.

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4. EXTREME INTOXICATION This defence was created in R. v. Daviault under the influence of the Charter. Extreme intoxication is distinct from the simple intoxication defence. Where extreme intoxication applies, it can operate as a defence to any offence, whether specific intent or general intent. The theory behind the defence is that a person can become intoxicated enough that his mind may cease to operate sufficiently to make conscious choices relating to his actions. Scientifically, the premise that this can happen is controversial, although Daviault recognized that if this were to occur the Charter would require an acquittal since voluntariness is a principle of fundamental justice. Daviault was so controversial that Parliament immediately enacted s. 33.1 of the Criminal Code to eradicate the defence in sexual offence and violence cases. This means that, subject to Charter challenge [Canadian courts are split on whether s. 33.1 is constitutionally valid] extreme intoxication can only be used for other kinds of offences. Be aware that nothing in s. 33.1 abolishes the defence of simple intoxication ± it limits only the defence of extreme intoxication. - R. v. Daviault, [1994] 3 S.C.R. 63 - C.C. s. 33.1 Defence created in R. v. Daviault under the influence of the Charter. Extreme intoxication is distinct from simple intoxication. Where extreme intoxication applies, it can operate as a defense to any offence, whether specific intent or general intent. Theory: a person can become intoxicated enough that his mind may cease to operate sufficiently to make conscious choices relating to his actions. Scientifically, the premise that this can happen is controversial, although Daviault recognized that if this were to occur the Charter would require an acquittal since voluntariness is a principle of fundamental justice. Daviault was so controversial that Parliament enacted s. 33.1 of the CC to eradicate the defense in sexual offence and violence cases. This means that, subject to Charter challenge [courts split on whether s. 33.1 is constitutionally valid] extreme intoxication can only be used for other kinds of offences. Caution: nothing in s. 33.1 abolishes simple intoxication ± it limits only extreme intoxication. R v. Daviault [1994] SCC p. 105: ³Where extreme intoxication applies, it can operate as a defence to any offence, whether specific intent or general intent¶ Facts: D sexually assaults crippled old lady Issue: Can a state of drunkenness which is so extreme that an accused is in a condition that closely resembles automatism or a disease of the mind as defined in s. 16 of the Criminal Code, R.S.C., 1985, c. C-46, constitute a basis for defending a crime which requires not a specific but only a general intent? Reasoning (Cory J.): Where intoxication is so extreme an essential element of the offence, voluntariness, is not present. Can¶t hold someone morally at fault w/ absence of voluntariness. Court held EI had to be accepted b/c of Charter - s. 11 (d) presumes individuals to be innocent, s. 7 contrary to PFJ to commit someone if they didn¶t voluntary commit something. To use defence of EI, you need: 1. Expert evidence (that the accused was in a state of automatism or insanity) 2. Accused must prove, with that expert evidence alongside any other evidence that, on a BOP, he was in an extreme state of intoxication
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Given the minimal nature of the mental element required for crimes of general intent, even those who are significantly drunk will usually be able to form the requisite mens rea and will be found to have acted voluntarily. Note: Should it be thought that the mental element involved relates to the actus reus rather than the mens rea then the result must be the same. The actus reus requires that the prohibited criminal act be performed voluntarily as a willed act. A person in a state of automatism cannot perform a voluntary willed act since the automatism has deprived the person of the ability to carry out such an act. Note: Court noted that this defence would only be available in rare cases, essentially where the accused was an automaton CC s. 33.1²Self Induced Intoxication (Defense not available) Extreme intoxication is NOT a defence to any offence which involves assault as an element or involves interfering, or threatening to interfere, with a person¶s bodily integrity, whether or not that person, by reason of the intoxication, lacked the general intent or voluntariness required for the offence So, the defence of EI after Daviault is available for all general intent offences except for assault, sexual assault, or interference w/ bodily integrity of another (basically any violence or threats of violence)

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5. DEFENCE OF THE PERSON Self-defence is a complex defence in Canada. There are four separate but potentially overlapping statutory defences. All of the defences apply where the accused is being unlawfully assaulted, or reasonably believes he is about to be unlawfully assaulted but each of the four separate offences has its own additional requirements that must be satisfied. ‡ Section 34(1) applies where the accused does not provoke the assault being defended against, and defends against it without intending to cause death or grievous bodily harm, whether or not death or grievous bodily harm is caused. ‡ Section 34(2) applies whether or not the accused provoked the assault being defended against and intends to cause death or grievous bodily harm. ‡ Section 35 applies where the accused provoked the assault, but this defence has lost much of its relevance given that section 34(2), which is less restrictive than section 35, can be used where assaults are provoked. The concept of provocation is defined for the purposes of self-defence in section 36. ‡ Section 37 operates as a general defence that is broad enough to subsume the other defences but courts tend not to use it if any of the other provisions apply. Pintar explains the relationship between sections 34(1) and (2), and the general approach that should be taken to using the various defences. As Cinous shows, each of these defences has both subjective and objective components that have to be satisfied. Lavallee illustrates the defence applied in the battered women context. - R. v. Pintar, [1996] O.J. No. 3451 (Ont. C.A.) - R. v. Cinous, [2002] 2 S.C.R. 3 - R. v. Lavallee, [1990] 1 S.C.R. - There are 4 separate but potentially overlapping statutory defences: s 34(1), 34(2), 35 and 37. - Note that the concept of provocation for the purpose of self defence is defined in s 36. - All of the defenses apply where the accused is being unlawfully assaulted, or reasonably believes he is about to be unlawfully assaulted but each of the four separate offences has its own additional requirements that must be satisfied Section 34(1) applies where the accused does not provoke assault, and defends against it without intending to cause death or grievous bodily harm, whether or not death or grievous bodily harm is caused. Section 34(2) applies whether or not the accused provoked the assault being defended against and intends to cause death or grievous bodily harm. Section 35 applies where accused provoked assault defense has lost much of its relevance b/c s. 34(2). Concept of provocation is defined for the purposes of self- defense in section 36. Section 37 operates as a general defense that is broad enough to subsume the other defenses but courts tend not to use it if any of the other provisions apply. Defines extent of force that can be justified. Although the extreme intoxication, mental disorder and automatism defences must be proven by the accused on a BOP, the defences of self-defence, necessity and duress must be disproved by the Crown as part of its burden to prove guilt BARD. Thus, if the jury has a reasonable doubt that an accused acted in self-defence,
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34(2). 34(2) the issue is not whether the responsive force used was no more than necessary to enable D to self-defend (like in 34(1)). but who do in fact cause death or grievous bodily harm Issue 3 . s 34(2) does not. 34(2) since that provision formed the essence of the appellant's claim to self-defence Issue 2 . that the initial unprovoked assault by R still had significance at the events which occurred outside the home. and P ducks punch and knocked R to floor.or under duress or necessity. y y Background information about the attackers¶ propensity for violence is relevant here. Issue: Was it self defense? Held: y Issue 1 . the judge should assume that evidence is true and leave the determination of its credibility to the jury.Unlike s 34(1) which speaks to the issue of intent. v. Cinous. it was necessary that the jury believe or have a reasonable doubt that at the time of the shootings. the jury should be instructed to acquit if it has reasonable doubt about the existence of the defence. The plain wording of s. rather whether D believed on reasonable grounds. unlike 34(1). Where death or GBH (grievous bodily harm) results. Section 34(2) applies if D has provoked the assault. notwithstanding that D intended to caused death or GBH. The error takes on special significance in respect of s. R made known he wanted to kill P. General Approach: To give effect to the functional approach. Facts: P started seeing R¶s (victim¶s) wife. and that his use of deadly force in response to that attack was necessary. takes swing at P. Under s. S.e. The appropriate test was whether a properly instructed jury acting reasonably could acquit on the basis of the evidence. Parliament's silence may be taken to mean that s.defense: Page | 96 . 34(1)¶s scope for justification is must narrower then that provided in s. Pintar [1996] ONCA -explains the relationship between sections 34(1) and (2) and the general approach that should be taken when using various defenses -R: Ss. 34(2) reveals that the provision is triggered when a person who has been unlawfully assaulted causes death or grievous bodily harm in repelling the assault.The TJ erred in failing to leave the ³single transaction´ option to the jury ± i. P shot and killed R.In order for the appellant to succeed on s. This requires evidence on each necessary element of the defence and that the evidence be such that a properly instructed jury acting reasonably could acquit on the basis of the evidence. 34(1) and (2) apply where D has been unlawfully assaulted. the SCC indicated that a standard air of reality test should apply to all defences. it must acquit. By necessary implication. s. as well as to those who do not have such intent. Once a judge determined there is an air of reality to any of the defences. After more threats to P¶s life. 34(2) applies. I would urge trial judges to consider the following guidelines when faced with the prospect of charging a jury on the law of self. In R. R enters P¶s home. R v. In administering the air of reality test. 34(2) is meant to apply to accused persons who intend to kill or cause grievous bodily harm. the appellant genuinely believed on reasonable grounds. 34(2). that they could not otherwise preserve themselves from death or GBH. that he was in grave danger from the violence with which Ross and Gill pursued their attack upon him. The air of reality test does not impose a persuasive burden on the accused.

34(2) Held: Appeal should be allowed and the accused¶s conviction restored. Cinous [2002] SCC -all SD defenses¶ have a subjective and objective component that must be satisfied (specifically s. and that this belief was reasonable in the circumstances. When they met up. which is the antithesis of public order. C testified that this was an instinctive reaction to a situation of danger.´ (993) Criminals cannot claim self-defence if they avoid an alternative fearing that the alternative would face them with arrest. and that he held this belief on reasonable grounds). (987) The accused¶s testimony can provide a basis for inferring that both the subjective AND objective components of each elements have been met Binnie. Offence: Accused found guilty of second degree murder. A jury acting reasonably could draw an inference from the Page | 97 .(1) Consider the evidence carefully with a view to determining the essence of the claim to self-defense and the Code provision(s) realistically available to that claim. does not grant self-defence to criminals who set their own ³rule of the criminal subculture. pulled out gun and shot M in back of head. Crown counsel should be encouraged to admit the underlying facts and thereby avoid unnecessary legal instruction. With respect to each of the three elements. Reasonable belief in the absence of alternatives to killing or causing GBH (It must be established both that the accused believed that he could not preserve himself except by shooting the victim. Application: Unlawful assault? It would be possible for the jury reasonably to conclude that the accused believed that he was going to be attacked. Issue: Interpretation of self-defense under s. 34(2)) Facts: C heard that M and Y wanted to kill him. There is an air of reality to the subjective component of the defence as there is direct evidence on the accused¶s beliefs. The ³whole defence´ must have an air of reality and backed by evidence. the defence should not be put to the jury. the approach is first to inquire about the subjective perceptions of the accused. and the provision somehow fills a gap unaccounted for in the justification afforded by the wider provision. in the form of the accused¶s testimony. It overturned the conviction and ordered a new trial. and then to ask whether those perceptions were objectively reasonable in the circumstances. M and Y were acting suspicious. (3) To the extent that the evidence clearly establishes one or more of the constituent elements of a particular provision. one day. Note: if any of these elements lack an air of reality. R v. M and Y. While driving. asked C to assist in a computer theft. concurring. (4) Where a particular provision affords the accused a wider scope of justification than a companion provision. (2) To the extent that the evidence fails the air of reality test in respect of one or more of the constituent elements of a particular provision. the narrower provision should only be put to the jury if the evidence lends an air of reality to the factual underpinnings of that provision. M was wearing latex gloves. These three elements must be real as perceived by the accused (subjective) and be reasonable (objective). C pulled over to gas station. Elements of the defence: To succeed in a defence of self-defence. that provision should not be left with the jury. there must be: The existence of an assault (did the accused reasonably and actually believe that s/he was unlawfully assaulted?) Reasonable apprehension of death or grievous bodily harm. and they kept touching their jackets like they had a gun it. Each of the three elements have both a subjective and objective component. The CA held that the defense was not properly explained to the jury.

Reasonable apprehension of death or GBH? Yes.´ She claims to have attempted to miss. Tells her. The situation is not so for battered women. at the time he shot the victim. to let BWS inform the argument that accused was justified in killing for self-defence purposes as per s. The accused¶s testimony is unambiguously to the effect that he feared a deadly attack. S. Expert testament must be used to assist jury in determining whether accused has ³reasonable apprehension of death´ (Wilson J) Facts: Woman kills boyfriend after history of abuse. which are generally foreign to the world inhabited by the hypothetical ³reasonable man. . Here. escape at the moment that she believed her life to be in danger. (2) A reasonable apprehension of a risk of death or grievous bodily harm. The accused¶s extensive direct testimony regarding his subjective perceptions at the relevant time amounts to more than a ³mere assertion´ of the element of the defence. -For the last two requirements. and the wearing of the gloves. more importantly. (3) Reasonable belief that it is not possible to preserve oneself from harm except by killing the adversary. including particularly the many threatening indicators to which he testified. However. and that he held this belief on reasonable grounds. there is absolutely no evidence from which a jury could reasonably infer the reasonableness of a belief in the absence of alternatives. That is why it has generally been understood to be immanent. Criminal Provision: s. Lavallee [1990] SCC -Requirements of SD for accused with Battered Wife Syndrome: (1) Existence of an unlawful assault. circumstances and perceptions of the appellant who has been battered. R v. to the reasonableness of his perception that he was in mortal danger Reasonable belief of no reasonable alternatives to killing? It must be established both that the accused believed that he could not preserve himself except by shooting the victim. The objective is not to prove that accused has BWS. to the reasonableness of his perception that he was going to be attacked. the suspicious behaviour. A jury acting reasonably could draw an inference from the circumstances described by the accused. The temporal requirement that the apprehension of death must be ³immanent´ must be relaxed in cases involving battered woman¶s syndrome. including particularly the indications that Y and M were armed. Reasonable man assumes that parties are of relatively equal power. 34(2). he actually believed that he had no alternative.The definition of what is reasonable must be adapted to the circumstances of a battered woman. the belief that the accused had no other option but to kill must have been objectively reasonable. in deciding what is ³reasonable´ one must take into account the relevant history. ³either you kill me or I¶ll get you. that an individual can in fact defend themselves if they reasonable apprehend immanent death. There is an air of reality to the accused¶s claim that. the rumours of a plan to assassinate him. but she hit him anyways.Must retool the concept of ³reasonable grounds´ to account for this belief o Subjective element introduced into Page | 98 .´ The killing must occur when there is a ³Reasonable Apprehension of Death´. 34(2) self-defence can be retooled to work in the context of BWS Reasons: .circumstances described by the accused. 34(2) (Self-Defence causing death) Held: Not guilty because s. 34(2)(a) does not require an apprehension of immanent danger. Psychological factors of arising from BWS account for woman¶s inability to leave battering relationship and. but has case law has read that requirement into the defense.

objective test.Note: (a) An unlawful assault against accused need not actually occur. and (b) He believes.´ Therefore. on reasonable. that they could not ³otherwise preserve herself from death or grievous bodily harm. (b) Is no more than necessary to defend themselves. Making battered woman wait until assault was underway would be ³murder by installment´ The accused must believe. whether provoked or unprovoked. Accused is justified in causing death or GBH in response to the assault only if: (a) He causes death or GBH under a reasonable apprehension of his own death or GBH from the violence with which the original assault was made. Note: (a) This section may not be used where accused intended to cause death or GBH (R v Bryson) (b) An unlawful assault against accused need not actually occur. or assault against him (in the case of (ii). without justification. grounds. it is sufficient that accused reasonably believed that an assault has occurred (R v Cinous) (b) Each of the above elements must have an air of reality to them (Cinous) (c) Each of the above elements (3 elements) has a subjective and objective component: first. OR. ask whether those perceptions are objectively reasonable (Cinous). the SCC concluded that it is not for the jury to pass judgment on the fact that an accused battered woman stayed in the relationship. The question the jury must ask itself is ³whether. it is sufficient that accused reasonably believed that an assault has occurred (R v Cinous) (c) The accused need not have any apprehension of death or GBH S 34(2): Applies where there is an unlawful assault. that there are no alternatives to killing or causing GBH in order to preserve him . on reasonable grounds. only if force used: (a) Under the reasonable apprehension of death or GBH from the person who he has assaulted/provoked Page | 99 . inquire about the subjective beliefs of the accused. Accused justified to the use of subsequent force against him (in the case of (i)). to repel the assault. second. y Summary of the Self Defence Provisions ** S 34(1): Applies where there is an unlawful assault against the accused his unprovoked [Remember: the elements of an assault as per s 265 must be met for the accused to rely on this sub section] Accused may repel force by using force if the force used: (a) Is not intended to cause death or GBH. assaults another but didn¶t commence the assault with intent to cause death or GBH. and accused. her belief that she could not preserve herself from being killed by the batterer that night except by killing him first was reasonable´. Still less is it entitled to concluded that she forfeited her right to self-defense for having done so. S 35: Applies either where: (i) the accused. causes death or GBH to another [Remember: the elements of an assault as per s 265 must be met for the accused to rely on this sub section]. given the history. circumstances and perceptions of the appellant. (ii) where the accused provoked an assault him by another.

that it¶s necessary to preserve himself from death or GBH (c) He declined further conflict and quitted or retreated from it as far as it was feasible to do before the necessity of preserving himself from death or GBH S 37: This is used only where other provisions don¶t apply Page | 100 . on reasonably grounds.(b) In the belief.

. Killing a person ² in order to relieve the suffering produced by a medically manageable physical or mental condition ² is not a proportionate response to the harm represented by the non-life threatening suffering resulting from that condition). T¶s proposed surgery did not pose an imminent threat to her life. it has to be on the verge of transpiring (e. Latimer [2001] SCC The defence of necessity is narrow and of limited application to criminal law. R v. and T¶s ongoing pain did not constitute an emergency in this case. with what was unquestionably a difficult situation. [2001] 1 S.315) The defence of necessity permits the conduct of the accused to be excused where its elements are met. the harm inflicted in this case was immeasurably more serious than the pain resulting from T¶s operation which the accused sought to avoid.g. applies to any offence (c) Results in full acquittal (d) probably not available for murder (hard to imagine harm proportionate to death) [Latimer]. The third requirement for the defence of necessity.e. It involves an objective evaluation. NECESSITY(pg. Page | 101 . It was not reasonable for the accused to form the belief that further surgery amounted to imminent peril. particularly when better pain management was available) (2) No reasonable legal alternative to the course of action: Ask. 3 The defence of necessity permits the conduct of the accused to be excused where its elements are met. The defence is heavily circumscribed. as it would violate fundamental principles of the criminal law to do otherwise HELD: The trial judge was correct to remove the defence from the jury since there was no air of reality to any of the three requirements for necessity. including his ability to perceive the existence of alternative courses of action). the accused did not himself face any peril. or harm unavoidable and near ± it isn¶t enough that peril is foreseeable or likely. leaving open the question of whether the proportionality requirement could be met in a homicide situation. but one that takes into account the situation and characteristics of the particular accused person. by helping T to live and by minimizing her pain as much as possible or by permitting an institution to do so) (3) Proportionality between the harm inflicted and the harm avoided (e.R. proportionality. Latimer.. here. What standard to employ? For the first 2 of the 3 elements. could he nevertheless realistically have acted to avoid peril or prevent harm without breaking the law? (e. given that the accused had to act.g. a modified objective test is employed (i.6.R. nor did her medical condition. v. The defence is heavily circumscribed. must be measured on an objective standard. . here. (a) Where one acts in response to an emergency situation (b) CL defence. here..C. the accused had at least one reasonable legal alternative to killing his daughter: he could have struggled on.g. The accused must establish the existence of 3 elements: (1) Imminent peril or danger: Disaster must be imminent.

CL defence applies to all accused who act as accomplices to crimes under s. but the common law and Charter have been used to extend its application. The accuse must not be a party to a conspiracy or association CL defence of duress coexists with s. The threats must emanate from a person who is present when the offence is committed 3. 3. No safe avenue of escape and no legal way out(mod obj/subj) (Hibbert): what a reasonable person in the accused's circumstances would have perceived as a safe avenue of escape and a legal way out. DURESS The defence of duress is available under section 17 of the Criminal Code and at common law. When considering the perceptions of a ³reasonable person´.R.R. and the CL defence of duress applies to other parties. 17 Requirements: 1. Acts of moral involuntariness should not be criminally blameworthy. 21(1) (b) and (c) and 21(2). 687 ______________________________________________________________________________ The defence of duress is available under section 17 of the CC and at common law. The threats by which the accused is compelled must be of immediate death or bodily harm 2.R. A murder can be a proportionate response to a threat. Threats need not be made by a person who is at the scene of the crime (no presence requirement) (Ruzic) 2. Section 17 identifies a limited defence.7. but not if a non-life-threatening pain. Cases where accused was acting under compulsion of threats from another. CL defence of duress and CL excuse of necessity have the same juridical basis evidential burden on accused D to bring air of reality to all elements: 1. 973 . Section 17 identifies a limited defence. Thus juries sometimes have to be instructed about both defences of duress. the personal circumstances of the accused are relevant and Page | 102 . SCC struck down only the immediacy and presence requirements. 7 of the Charter. Need not to be imminent. Proportionality (obj) between the harm avoided and harm caused by the A. but there is a need for close temporal connection between the threat and the harm threatened. v. 17 CC because a defence that punished morally involuntary behavior would violate s. Threat of death/serious bodily harm (mod obj/subj=reasonable person in the accused's circumstances). Principal offender can rely on the CL defence if it¶s not a listed excluded offence. The appropriate objective standard to be employed is one that takes into account the particular circumstances and frailties of the accused. The A will be obliged to seek a realistic and safe avenue of escape. Sec. [1995] 2 S. v. Ruzic. .R. Hibbert.C. The accused must believe the threats will be carried out 4. S. 17 applies only to principal offenders. but the common law and Charter have been used to extend its application.C. [2001] 1 S.

The fact that a person who commits a criminal act does so as a result of threats of death or bodily harm can.that is. The common law defence applies to persons liable as parties. CL defence of duress excuses A's behaviour (Hibbert). contrary to s. the condition of "normative involuntariness" that provides the theoretical basis for the defences of both duress and necessity is absent. on the structure of the particular offence in question -. had threatened to harm her mother unless she brought Page | 103 . 5(1) of the Narcotic Control Act. the personal circumstances of the accused are relevant and important. Whether or not this is so will depend. If successful. Hibbert [1995] SCC -the common law defence to duress is whether there was a ³safe avenue of escape. The question of whether or not a safe avenue of escape existed is to be determined according to an objective standard. duress will not negate the MR required to be a party to an offence. and should be taken into account. have a bearing on the existence of mens rea. If the offence is one where the presence of duress is of potential relevance to the existence of mens rea. as a matter of logic. results in acquittal R v. H helped get M down from his apartment where he was subsequently shot Reasoning: s 17 of the Code does not constitute an exhaustive codification of the law of duress. among other things. S 17 applies only to persons who commit offences as PRINCIPALS. and of possession and use of a false passport contrary to s. however. The accused admitted having committed both offences but claimed that she was then acting under duress and should thus be relieved from any criminal liability.important. be relevant to the question of whether he possessed the mens rea necessary to commit an offence. The mental states specified in ss. A person who commits a criminal act under threats of death or bodily harm may also be able to invoke an excuse based defence (either the statutory defence set out in s. depending on whether the accused is charged as a principal or as a party). She testified that a man in Belgrade. An accused person cannot rely on the common law defence of duress if he had an opportunity to extricate himself safely from the situation of duress. 368 of the Criminal Code. where she lived in an apartment with her mother. This is so regardless of whether or not the offence at issue is one where the presence of coercion also has a bearing on the existence of mens rea. H was punched in the face by M as a way of forcing H to help him find F. Rationale for the "safe avenue of escape" rule is simply that. in some instances. on whether or not the mental state specified by Parliament in its definition of the offence is such that the presence of coercion can. in such circumstances.´ which is to be assessed by a modified objective test (an objective standard that takes into account the particular circumstances and human frailties of the accused). 21(1)(b) and 21(2) of the Code are not susceptible to being "negated" by duress. Ruzic [2001] SCC -Charter standard of Moral Involuntariness Facts: The accused was tried before a judge and jury on charges of unlawfully importing two kilograms of heroin into Canada. and should be taken into account (Hibbert).´ Facts: H accompanied M at the time M shot F. This requirement assess whether the accused¶s conduct was ³normatively involuntary. the accused is entitled to point to the presence of threats when arguing that the Crown has not proven beyond a reasonable doubt that he possessed the mental state required for liability. When considering the perceptions of a "reasonable person". 17 of the Criminal Code or the common law defence of duress. R v.

In particular. She also said that she did not seek police protection because she believed the police in Belgrade were corrupt and would do nothing to assist her. 17 may capture threats to third parties. but the Court of Appeal dismissed the appeal. The accused conceded that her claim of duress did not meet the immediacy and presence requirements of s. The Crown made no attempt before this Court to justify the immediacy and presence criteria according to the s. With respect to proportionality. 1. While s. 17 of the Code. similarly situated. 1 analysis. The immediacy and presence requirements. Practically speaking.e. In any event. coupled with the immediacy criterion. a threat of harm will seldom qualify as immediate if the threatener is not physically present at the scene of the crime. there must be a close temporal connection between the threat and the harm threatened (i. The accused should be expcted to demonstrate some fortitude to put up a normal resistance to the threat (2) The threat must deprive the accused of any safe avenue of escape in the eyes of a reasonable person. Page | 104 . 17 under s. Although the threat need not be immediate. 7 of the Charter. The common law defence of duress frees itself from the constraints of ³immediacy´ and ³presence´. and remains available to parties to an offence. 7 rights. 17 infringes s. clearly preclude threats of future harm. She successfully challenged the constitutionality of s. The underinclusiveness of s. Courts usually follow Latimer standard. The Crown appealed the acquittal on the charge of importing heroin. 7 of the Charter because it allows individuals who acted involuntarily to be declared criminally liable. indicates that the person issuing the threat must be either at the scene of the crime or at whatever other location is necessary to make good on the threat without delay should the accused resist. these requirements seemingly do not minimally impair the accused¶s s. The common law defence of duress was never completely superseded by s. The elements include: (1) A threat to the integrity of the person: The law includes a requirement of proportionality between the threat and the criminal act to be executed. the criteria would likely not meet the proportionality branch of the s. inconsistent with Latimer. The phrase ³present when the offence is committed´. 1 analysis and has therefore failed to satisfy its onus under s. the immediacy and presence criteria continue to impose considerable obstacles to relying on the defence in hostage or other third party situations. which provides a defence for a person ³who commits an offence under compulsion by threats of immediate death or bodily harm from a person who is present when the offence is committed´. 17 is quite restrictive in scope. raised the common law defence of duress and was acquitted. 7 of the Canadian Charter of Rights and Freedoms. Issue: Scope and constititutionality of the defence of duress Reasoning: Section 17 of the Code breaches s.the heroin to Canada. The section limits the defence of duress to a person who is compelled to commit an offence under threats of immediate death or bodily harm from a person who is present when the offence is committed. The plain meaning of s. 17 of the Code. SCC suggests in dicta to employ objectivesubjective standard of the reasonable person similarly situated. taken together. the threat had to be a real threat affecting the accused at the time of the offence) (no immediacy requirement) (3) Threats need not be made by a person who is at the scene of the crime (no presence requirement).

A prosecution may be conducted in any province or territory where an element of the offence occurred. 150 ± 154. Charter has minimal impact on investigations by Canadian actors outside of Canada (principle of sovereignty) (see Hape. personal consent by AG not required. They cannot be inconsistent with statutes but they are there Public v. Requires consent of AG and these cannot be reviewed. Private prosecutions are a private action between parties. given discretion to proceed by indictable or summary conviction procedure. Private jurisdiction (p.486 of the CC allows the courts to create their own rules. judge. LAYING THE CHARGE . (ii) under oath. nor do they offend the Charter Whole purpose of indictment is that it is fundamental to a fair trail because the accused must know the charges he or she must meet. 507) You cannot be an accused person without a charge being laid against you . pp.s 507 (substance of information considered): Once the information has been received (under s 504). Not limited to the CC. that the offence was committed [If the judge signs the information. 41 ± 50 _____________________________________________________________________________ No person may be considered an accused in the absence of a charge and. Therefore there can be concurrent jurisdiction. 577 allows for µdirect indictments¶. the justice who received the information must consider the substance of the information¶s allegations. 48). 505) S. 152f. citizens are permitted to prosecute where AG does not. Jurisdiction Constitution Statutes. requirement for consent of AG intended to ensure critical examination of cases before charges are laid. 507. General Time of laying information before a justice when person passes from being a suspect to being an accused P is focused on proving the guilt of a particular person.Coughlan. Competition Act. 504) and judicial function (s.s 504 (non-discretionary. must conclude that there are REASONABLE GROUNDS. 294 ± 296. therefore. these are rare.): Public= AG principle law officer for Crown.1). Essentially.THE CRIMINAL CHARGE 20. The elements the Court have noted which indicates that they were committed in more then one province includes: Page | 105 . 6(2)).s 506: An information may be laid in the manner set out in Form 2 . ministerial function): Justice must receive the information where: (i) ³any person´ who has reasonable grounds to believe an offence has been committed. AND (iii) the information alleges a number of required things . p. to endorse it. that marks the moment at which a charge is formally laid and a prosecution begins] Trial Process Charges made by way of an information (s. as disclosed in the information and any evidence adduced thereof. Territorial limitation: general rule says person can only be liable for an offence he commits in Canadian territorial limits (s. Offence can also have a µreal and substantial¶ connection to Canada or fall within class of offence committed in Canada. Tax Act Common law/judge-made law Procedural defenses created by the courts Rules of Court S. Process consists of a ministerial (s. no court can have jurisdiction over the prosecution of a person in the absence of a charge. lays an information in writing. AG can intervene in any matter and assume carriage of prosecution or enter into a stay of proceedings (s.

Bigelow) Page | 106 .(1) continuity of operation (2) commission of an overt act (3) generation of effects (R v.

and for any offences that are ³included´ in the criminal charge.21. G. but nothing more: R v.R. 662 of the Criminal Code: (1) the Criminal Code does not explicitly make sexual assault or sexual interference an offence included in incest. such facts taken together with the elements of the charge. The accused is in jeopardy of conviction only for the offence charged. and there is nothing in the nature of the offence of incest as described in the CC to put the respondent on notice that he was in jeopardy of a conviction for sexual assault or sexual interference R cannot be convicted of sexual assault or sexual interference because the Crown cannot bring these offences within any of the three categories of "included offences" set out in s.J. and (3) the wording of the count in this case does not describe facts to put an accused on notice that. if proven. is that acquittal on the charge of incest does not provide R with a defence of autrefois acquit to any future charge of sexual assault or sexual interference. . not on what the accused already knows. The Crown seeks to have the respondent convicted of charges which require the prosecution to establish elements which were not part of the allegations against him at trial. however. a trial is not an inquiry into whether the accused has committed some criminal offence.. v. [2005] SCC Facts: GR acquitted of the charge of incest. It is a trial to determine whether the Crown prosecutor can prove the specific allegation that has been made. An Page | 107 . An important function of an indictment is thus to put the accused on formal notice of his or her potential legal jeopardy. but it is not enough for the Crown to say to an accused "you know perfectly well what you're guilty of". THE SIGNIFICANCE OF THE CHARGE In Canada. (2) incest as "described in the enactment creating it" does not include sexual assault or sexual interference. The Crown did not allege that the daughter was below the age of consent on the indictment. The corollary. and for any offences that are ³included´ in the criminal charge. No. beyond a reasonable doubt.R.C.. G. The basis of our criminal law is that he or she is only called upon to meet the charge put forward by the prosecution. Issue: Whether the rules governing ³included´ offences under s 662 of the Criminal Code can be applied to justify the result in this case of the respondent being found guilty of sexual assault/sexual interference. but being acquitted of the charge of incest (Was the charge of incest found in attempted sexual assault?) Ratio: It is fundamental to a fair trail that an accused knows the charge or charges he or she must meet ± the proper focus is on what the Crown alleges. An accused will often know a good deal more about the circumstances of an offence than the police or Crown will ever know. [2005] S.R. would disclose the commission of sexual assault or sexual interference. 45 ______________________________________________________________________________ The accused is in jeopardy of conviction only for the offence charged.

Cases in the second category also meet the test of fair notice because "an indictment charging an offence also charges all offences which as a matter of law are necessarily committed in the commission of the principal offence as described in the enactment creating it" (Harmer and Miller. [1941] S. but there is nothing in s. e. 660. if proven. 662 that permits the Crown to supplement the allegations in the charge. such facts taken together with the elements of the charge. common assault in a charge of sexual assault. 662 authorizes convictions for "included" offences in only three categories: offences included by statute. that other offence is not included". Of course. and s. and that the age of the daughter must have been within the knowledge of the respondent. With respect to the second category. e. HELD: Crown cannot add these charges Page | 108 .g. it may be said that "[i]f the whole offence charged can be committed without committing another offence.. 581 of the Code "included" offences in the first category can be ascertained from the Criminal Code itself: see. the added words must be pertinent to the offence charged. the offence must be one which is properly included in the count. In none of these categories is there reference to the "sufficiency" of the factual particulars of the transaction underlying the charge. emphasis added). and attempts provided for in s. offences included in the enactment creating the offence charged. that is an offence would be included where the essential elements of this offence are part of the offence charged. offences which become included by the addition of apt words of description to the principal charge. or the elements of the enactment creating the offence. at p. R. Wilmot. The Crown says the evidence subsequently led in the case shows that commission of incest in this case would necessarily have involved the commission of sexual interference and a sexual assault due to the age of the daughter.C. 662(2) to (6). those offences specified in s. third category: What is required are words of description in the count itself of facts which put an accused on notice that. v.g. 19. The charge must be so worded that the accused is afforded reasonable notice of the offence or offences alleged to be included in the principal offence charged. 53. Moreover.R. e. by reference to the personal knowledge of an accused.g. Clearly the offence of incest can be committed without committing sexual assault or sexual interference. disclose the commission of an "included" offence: Allard.accused is entitled to know which amongst those charges available he or she is required to answer The subject of included offences is now governed by statute. That is a wholly different subject and is dealt with in s.

particularly as the onus is on the accused for the first and the on the Crown for the second (R. whether the accused wishes to testify on some counts and not others. Society has an interest in avoiding a multiplicity of proceedings. The Code gives little guidance on severance decisions.C. Otherwise the limits on joinder of counts are assessed case-by-case according to the criteria in s. 591(4) allows the order to be made before or during trial. v.C.C. THE VALIDITY OF THE CHARGE .296 ± 312 ______________________________________________________________________________ 1) Joinder and Severance of Charges (p.C. At such a late stage. Trial judges must take significant care in distinguishing between the issues of severability and similar fact evidence. v.C. though even this rule is subject to exceptions if the other offence arises out of the same ³transaction´ or the accused consents to joinder (s.22. Few restrictions on structure of indictments.C. complexity of the evidence. and whether similar act evidence will be introduced (R. v. Courts have developed considerations to take into account with regard to severing counts.)). Clunas (1992) (S. Where an application to sever is made later in the trial. An indictment can contain any number of ³counts´.C.)). and so the onus is on the accused to show on a balance of probabilities that separate trials should be held (R. Severance done by trail judge. 296) As a general rule.Coughlan.A.A. Section 589 prevents any charge from being joined with murder. It is now even possible to hold a trial on one or more indictments simultaneously provided the accused consents. 591(3). D. C.). the burden on the accused is heavy and an assertion that the accused wished to testify on some counts but not others would not be sufficient. or the trial judge feels that it is in the interests of justice and the charges could have been jointly charged in a single indictment (R. 591(3)). Summary conviction and indictable offences can be tried together provided the accused¶s election and the other procedures make it possible to do so (Clunas). This decision is subject to review on appeal.)). can charge multiple counts in one.)). each count encompassing a ³single transaction´ (s. it ought to be based on some prejudice that was not apparent at the start (D. However.A.)).A. v.C. The accused would be required to outline the basic nature of the proposed defence to justify severance and the consequent re-trial on the severed charges Page | 109 . (1996) (B. but should not be interfered with unless he acted unjudicially (R. v. 581(1)). a phrase given a broad interpretation. 473(1. pp. Litchfield (1993) (S.C. With regard to severing counts. A preliminary inquiry judge does not have jurisdiction to sever.C.1)). Cross (1996) (Que. it must be done by a trial judge (R. s.C. therefore accused must show on BOP interest Factors to take into account when deciding severance to separate trial. Hynes (2001) (S. other factors to consider are the factual and legal nexus between counts.C. Avoid multiplicity of proceedings. with the jury being discharged with regard to any counts or accused that are severed during trial. there are few restrictions on the structure of indictments.)). Several indictments can be tried simultaneously w/ consent of accused or if in the interest of justice Murder cannot be joined unless there is µone single transaction¶ or µconsent¶. Arp (1998) (S. however. v. not in µpreliminary hearing¶ Severance can be appealed. stating only that the court must do so where ³the interests of justice require´ (s.

this could result in one¶s right to fair trial conflicting with the coaccused¶s right to silence. Fact that co-accused are compellable witnesses for one another is NOT determinative of severance Case-by-case decision. v. 581(1)). C. R. 3) Content of Charges Any count ³shall contain in substance a statement that the accused or defendant committed an indictable offence specified therein´ (s.)).A.´ Page | 110 .C.C. Move to sever mid trial will face heavy burden and should be based on a prejudice that was not apparent at start of trial. v.). The fact that one of the accused would be a compellable witness for the other accused in a separate trial but not in a joint trial is relevant. Guimond (1979) (S.C.A. for example. and cross-examine one another on issues of propensity or similar issues (in ways not available to the Crown). When co-accused blame one another.(D.A. and particularly where a damaging statement will be admissible against one but not the other.C. The fact that some evidence will be admissible against one accused but not another is relevant. v.C. where the evidence is much stronger against one accused. C. but otherwise the absence or insufficiency of details does not vitiate the count. 581(3) is that: ³A count shall contain sufficient detail of the circumstances of the alleged offence to give to the accused reasonable information with respect to the act or omission to be proved against him and to identify the transaction referred to. In R. but not sufficient in itself to require severance. Similar to severance above. 591(3). even more strongly in these circumstances. Boulet (1987) (Que. C. adhered to quite firmly.). The general rule. the practical goal of avoiding multiple proceedings favours not holding separate trials over the same facts unless it is necessary. 2) Joinder and Severance of Accused Similar considerations arise here as in the severance of counts.)). v. The question is whether the co-accused¶s evidence could reasonably affect the verdict by creating a reasonable doubt (R. Chow (2005) (S. Crawford. The key rule as spelled out in s. but not determinative. However. v.A. the Court has held that the solution is not to sever the trials. if required in the interests of justice.)). Torbiak and Gillis (1978) (Ont. v. the safer course is to order separate trials. is that the accused who are alleged to have committed a crime together should be tried together (R.)). Much will depend on the facts of the individual case (R. General Rule where co-accused with same facts should be heard together TJ has jurisdiction to sever the trial in accordance with s. the Ontario CAupheld the trial judge¶s decision not to sever.) has suggested however that in conspiracy trials. Even then. as there was insufficient evidence that the co-accused would have given useful evidence to the applicant even if he had been compelled. the policy reasons favouring joint trial apply with equal or greater force than normally (R.C. but to balance the competing rights of the two accused along with the interests of the State in a joint trial: where there is a ³cut-throat defence´. The SCC in R.C. Agawa and Mallett (1975) (Ont. Creighton (1995) (S. v.

(b) it does not name the person who owns or has a special property or interest in property mentioned in the count. 581(5)). In R. The charge would have been perfectly acceptable had it not specified which narcotic was to be imported. Section 581(3) also deals with the ³surplusage rule´. the Crown was obliged to prove the substance was cocaine. (1991) (Que. state that the consent has been obtained. Similarly. although the evidence at trial showed that the substance she claimed to be cocaine was actually a mixture of baby powder and aspirin. In Saunders for example.A. one accused had taken the stand to testify that he had been involved in one of several conspiracies to import narcotics. the Crown charged a number of accused with conspiracy to import heroin. N. official or authority is required before proceedings may be instituted for an offence. (g) it does not name or describe with precision any person. However. or (h) it does not.e. (f) it does not specify the means by which the alleged offence was committed.The important part is that the accused is given sufficient notice of the charges (s. there has been a gradual shift from requiring Page | 111 . the accused was charged with trafficking in cocaine.C. 583 omissions that are not fatal: (a) it does not name the person injured or intended or attempted to be injured. v. This would have been an offence nonetheless.C. 583 limits omissions that do not affect the charged count Whether a detail will be considered surplusage. depends on whether the accused¶s defence will be prejudiced. where the consent of a person. the court held that. and its failure to do so would lead to an acquittal. Certain details or lack of information laid out may affect a conviction. (e) it does not set out the words used where words that are alleged to have been used are the subject of the charge. but not in the particular conspiracy that was to import heroin. since the Narcotic Control Act provision also made it an offence to traffic in any substance held out to be a narcotic. and lists in s. unnecessary detail. despite being alleged. C. or whether the Crown will be held to proof of the fact. (c) it charges an intent to defraud without naming or describing the person whom it was intended to defraud. in R. 4) Remedies for a Defective Charge The issue of what to do in the face of a defective charge is intimately bound up in the nature of the defect. v. In that case.).)).C. In Canada. (a) Potential Remedies The real issue is what to do when the charge is alleged not to be sufficient because it does not comply with the necessary requirements. additional. However. having charged the accused with trafficking cocaine. i. place or thing. (d) it does not set out any writing that is the subject of the charge. however s. having specified heroin. Saunders (1990) (S. The Code specifies that an absence of detail does not automatically render a count insufficient. the SCC held that the Crown was obliged to prove that the conspiracy related to that narcotic in particular. This means a fact that need not be proven. not holding the Crown to proof of the particular narcotic alleged would have been prejudicial.

C. while the duplicity rule limits it to a single legal issue. (2) If the charge is flawed but not so that it is a nullity. but this is a rare occurrence. TJ can divide a count on application of the A pursuant to s.´ (b) Insufficient Charges (p. v. a charge is defective when it departs from the ³golden rule´ in R. What is considered to be a defect in a charge? In a broad sense. breach of these technical requirements can result in an accused avoiding trial occasionally. Insufficiency is an error egregious enough that the charge must be quashed (as spoken of in Moore). There are 3 possibilities arising out of an error in an indictment: (1) If it is so flawed that it is an absolute nullity. to requiring them to amend instead: there remains ³little discretion to quash´ (R. Moore (1988) (S. the accused was never in jeopardy and the Crown can simply lay a new charge without violating the double jeopardy rules. Brodie). 581(1). the trial judge must grant an adjournment in order to remedy that prejudice. For insufficiency to have any greater impact. v. v. In that event. 590 (2)(b). The accused¶s interests lie in clarity and sufficiency of notice in trial on the merits. A charge can only be quashed if the prejudice caused by the amending cannot be remedied by an adjournment (Moore).)). That rule limits a count to a single factual situation. Cote. the trial judge has no jurisdiction to hear the matter and the charge must be quashed. a count must violate the standard in Moore or Cote and be so badly drawn up that it does not give the A notice of the charge. 310) A duplicitous count is one that charges the A with committing two different offences. This is rarely the case. Page | 112 . that the A is entitled ³to be reasonably informed of the transaction allleged against him. (3) If the accused has been prejudiced by the error. 306) The indictment must lift the charge from the general to the particular (R. the trial judge must amend the charge. and it is objectionable because the ambiguity prevents the A from knowing the case to meet. thus giving him the possibility of a full defence a fair trial.judges to quash such charges. (c) Duplicitous Charges (p. Consequently. This is a distinct requirement from the ³single transaction´ rule in s.C.

Those presumptions known as ³mandatory presumptions´ can be rebutted by the accused simply raising a reasonable doubt about whether the presumed fact Page | 113 . This is the same standard that applies where the accused is entitled to and requests a preliminary inquiry to determine whether there is a case to answer. THE ADVESARIAL PROCESS As indicated. The key characteristic of the Canadian criminal trial is therefore the specific allegation.11(d) of the Charter. Cinous and R. 320 . v. a right guaranteed by s.(J. No. v. 24 (b) Other Burdens ± While the Crown prosecutor must prove guilt beyond a reasonable doubt at the end of the case. For example. the Crown must prove the guilt of the accused beyond a reasonable doubt.H. 312 . there are other burdens of proof that operate during the criminal process. Dinardo. Lifchus. canvassed above in the discussion of the charge. the accused must show that the defence has an ³air of reality´ to it. There are ³evidential´ burdens that some rules of law impose in order for a party who wishes a matter to be placed in issue to succeed in having that matter placed in issue.R.R. The meaning of proof beyond a reasonable doubt is described in R. This means that ultimately. pp.331 (a) The Presumption of Innocence and the Ultimate Standard of Proof ± At a Canadian trial. It is helpful to understand the trial process to situate what follows: . Dinardo.R.R. v. Arcuri (next page). A presumption is a rule of law that directs judges and jury to assume that a fact is true (known as the ³presumed fact´) in any case where the Crown proves that another fact is true (known as the ³basic fact´). . v. unless the accused can rebut the presumed fact according to the assigned standard of proof.Coughlan. v. if the accused wants to have a defence considered.J. This is done during a trial. the judge must consider the defence. No. S. Even the accused must at times satisfy an evidential burden in order to have a matter placed in issue. This is the Crown¶s ultimate burden in both a criminal or regulatory prosecution. 30 . [2008] S. Fontaine illustrate this. the accused is presumed to be innocent.J. the preliminary inquiry judge will discharge the accused unless the Crown can show a prima facie case. Indeed. v. The meaning of the prima facie case is discussed in R. If the accused succeeds. if at the end of the Crown¶s case in chief the defence argues that there is no ³case to meet´ and requests a ³directed verdict of acquittal´ the judge will evaluate whether the Crown has shown a prima facie case. There are numerous rules of evidence called ³presumptions´ that operate to assign burdens of proof on the accused.C.C. [2008] S. v. at the end of the whole case. Lifchus and in R. v. [1997] 3 S.C. and in a jury trial must direct the jury on the law that applies to that defence: R. a trial is the opportunity for the Crown prosecutor to prove the specific allegation made in the charge (information or indictment) beyond a reasonable doubt.THE ADVERSARIAL PROCEEDING 23.).

1) and (g). [2005] S. No. 258 (1) (c). v. s. Requiring the judge to remain neutral and impartial does not require the judge to remain passive.C. [2002] S. more than 95% of all criminal trials are conducted by a judge alone. No.349 . Many presumptions operate in alcohol driving prosecutions and are used to determine whether the accused has more than a legal amount of alcohol in his blood while driving or having care or control of a motor vehicle: See.Coughlan. Other presumptions operate as ³reverse onus provisions. [2004] O. 3252 (Ont. Indeed. [2004] S. 103 R. This means that the judge makes all legal and procedural decisions during the trial.J. v.C. In Canada the appropriate sentence is a question of law. the judge acts as the trier of law. Hamilton. The jury then makes the factual decision and renders the holding. Still. 73 (c) The Neutral Impartial Trier . Arcuri. 23 R. A presumption can be easily recognized as a ³mandatory presumption´ because the legal rule raising the presumption will use the term ³evidence to the contrary´ to describe the burden of rebuttal. The prosecutor has many discretionary decisions that can be made and should act as a ³minister of justice. 25 (1) of the Intepretation Act. Gunning.R.C. This means that the prosecutor cannot act solely as an advocate. and directs the jury by training them in the law that applies. Where a mandatory presumption is rebutted.J.The prosecutor is an advocate. v. pp. R. and therefore sentencing is done by the judge and not by the jury. C. the ³presumed fact´ falls back into issue notwithstanding the presumption. [2005] S.R. 52 R. Cinous. all mandatory presumptions. Where there is a jury trial. Presumptions are prima facie contrary to the Charter and must be saved under s. 258 (1) (a).J. No. In Canada.C. Oakes. (d. . 28 R. Fontaine. 339 . the essence of the adversarial system is that the parties initiate the proof that is brought forward.C. v.follows from the basic fact. Boucher. No. so the judge performs the role both of the trier of law and the trier of fact. the jury should not be told of the possible sentences for fear that this will inspire a sympathetic rather than a legal verdict.R. including the interests of the accused.C. but also a quasi-judicial officer. No. A presumption will be interpreted as a ³mandatory presumption´ where it fails to set out the required standard of rebuttal because of s.J. 1. No.J. and must be proved by the Crown in the ordinary way. [1986] 1 S.) (d) The Role of the Prosecutor . not the judge. 25 .´ Page | 114 . v.´ deeming the presumed fact to exist where the Crown proves the basic fact unless the accused disproves the presumed fact on the balance of probabilities. [2001] S.J. but must make decisions in the interests of justice and the larger public interest.A. v. for example. without the assistance of the presumption. [a reverse onus provision] and ss. v. and the jury as the trier of fact. impartial trier of law (to make legal decisions) and a neutral impartial trier of fact (to make factual findings at the end of the trial).Another critical component of the accusatorial system is the presence of a neutral.

and propriety. for example.J. He described it as a fundamental principle in criminal justice and was intertwined with the presumption of innocence. Lifchus [1997] SCC Beyond Reasonable Doubt Cory J. and therefore must be respectful and honest with the court and must not attempt to mislead the court as to the state of the law.The defence counsel is an officer of the court. 45 (e) The Role of the Defence .R v. for example. [1997] 1 S. It is logically connected to the evidence or absence of evidence. ³It should be explained that: The standard of proof beyond a reasonable doubt is inextricably intertwined with that principle fundamental to all criminal trials. It does not involve proof to an absolute certainty. a trial is the opportunity for the Crown prosecutor to prove the specific allegation made in the charge (information or indictment) beyond a reasonable doubt.J. . This is done during a trial. The Crown must prove guilt BRD: R v. Candidates should consult. A reasonable doubt is not a doubt based upon sympathy or prejudice. including relating to pleas of guilty. As such. No. Chapter IX (The Lawyer as Advocate) of the Canadian Bar Association Code of Professional Conduct (http://www. Candidates should consult The Rules of Professional Conduct in force in the jurisdiction where they are writing by reviewing the Role of the Prosecutor. the defence counsel is obliged to act solely in the interests of the accused.C. No. Cory J. Proulx.R. [2001] S. The key characteristic of the Canadian criminal trial is therefore the specific allegation. See. The burden of proof rests on the prosecution throughout the trial and never shifts to the accused. the presumption of innocence. it is based upon reason and common sense. Subject to this and the rules of law and ethics. it is not proof Page | 115 .org/CBA/activities/code/). Rather. advising the accused on the implications of. Chapter IX (The Lawyer as Advocate) of the Canadian Bar Association Code of Professional Conduct (http://www. Law Society of Alberta.Krieger v. 65 . securing advantage of all procedural and constitutional protections available to the accused that are not properly waived. the description of the meaning to the jury must be done very carefully. [2002] S.11(d) of the Charter. and advancing all defences that properly arise. challenging the sufficiency of prosecutorial evidence. preparing the case fully. of pleading guilty.See. The Rules of Professional Conduct in force in the jurisdiction where they are writing by reviewing the Role of the defence counsel. v. As indicated.C.cba. 1113 .cba.C. provides a series of principles upon which a trial judge must formulate their definition of "reasonable doubt" to a jury. Cook. a right guaranteed by s. canvassed above in the discussion of the charge.R. It is helpful to understand the trial process to situate what follows: a) The Presumption of Innocence and the Ultimate Standard of Proof The accused is presumed to be innocent. and if the accused pleads not guilty. used the case as an opportunity to describe the significance of the "reasonable doubt" standard.org/CBA/activities/code/).

decisions in their own lives.) should not result in triumph of form over substance. S. There is no magic incantation R v. A jury charge that includes these considerations will be a valid one. The "credibility contest" error must be avoided.H. before providing them with a proper definition as to the meaning of the words "beyond a reasonable doubt". On the other hand. It must be made crystal clear to the jury that the burden never shifts from the Crown to prove every element of the offence beyond a reasonable doubt. the reasoning of the majority brushes uncomfortably close to treatment of W. which may mislead the jury. The trial judge told the jury that they could not decide the case simply by choosing between the evidence of the complainant and that of the accused. (J. Where credibility is important. they could still accept some of it. it is not proof beyond any doubt nor is it an imaginary or frivolous doubt.beyond any doubt nor is it an imaginary or frivolous doubt. Rather. This was sufficient. certain references to the required standard of proof should be avoided. (D. Inviting jurors to apply to the task before them the same standard of proof that they apply to important. Qualifying the word "doubt" with adjectives other than "reasonable". (D.) as a "magic incantation". the charge did not leave the jury with any misapprehension as to the correct burden and standard of proof to apply. It must not be based upon sympathy or prejudice. When read as a whole. it is based on common sense. she reminded the jury that they must consider all of the evidence when determining reasonable doubt. and Instructing jurors that they may convict if they are "sure" that the accused is guilty. A general instruction on reasonable doubt without adverting to its relationship to the credibility (or lack of credibility) of the witnesses leaves open too great a possibility of confusion or misunderstanding. More is required than proof that the accused is probably guilty. such as "serious". or even the most important. "substantial" or "haunting". the application of W. Equating proof "beyond a reasonable doubt" to proof "to a moral certainty". it is logically derived from the evidence or absence of evidence. For example: Describing the term "reasonable doubt" as an ordinary expression which has no special meaning in the criminal law context. the trial judge's instructions must not leave the jury with the impression that it has to choose between the two versions of events. She also explained that any reasonable doubt must be resolved in favour of the accused and. Page | 116 . However. She explained that even if they did not accept all of the accused's testimony. and More is required than proof that the accused is probably guilty ± a jury which concludes only that the accused is probably guilty must acquit.´ Held: BRD does not involve proof to an absolute certainty. In this case. Lack of credibility on the part of the accused does not equate to proof of his or her guilt beyond a reasonable doubt. the judge must explain the relationship between the assessment of credibility and the Crown's ultimate burden to prove the guilt of the accused to the criminal standard.) [2008] SCC²No shifting burden Held: Where credibility is a central issue in a jury trial. in that context.

the trial judge emphasized that she did not contradict herself on the important aspects of her allegations. Page | 117 . The test is whether there is any evidence upon which a reasonable trier of fact. The complainant's answers on the central parts of her allegations were consistent. because the evidence was entirely circumstantial. The defence rested on the overall lack of credibility and reliability of the complainant's testimony. But the nature of the judge¶s takes varies according to the type of evidence that the Crown has advanced. He also concluded that her evidence at trial was corroborated by her out-ofcourt statements made shortly after the alleged incident. how he resolved these difficulties to reach a verdict beyond a reasonable doubt.R v. Where the trial judge's reasoning is not apparent from the reasons or the record. Reasons are sufficient when they respond to the case's live issues. Failure to do so would deprive Convicted of their right to a meaningful appeal where trial judges reasons not clear. and to be able to pass through the preliminary inquiry stage. Voir dire was held to determine whether the complainant was competent to testify. A majority of the CA upheld the convictions. A new trial is ordered. a complicated situation arose. reviewing court should not subsitute its own analysis for the lack of the trial judge¶s. the defence and the Crown. who is mildly mentally challenged. His failure to do so deprived Dinardo of his right to a meaningful appeal. The trial judge erred in using the complainant's prior consistent statements to corroborate her evidence. properly instructed. The trial judge said yes.Prima facie case: For directed verdicts. the reviewing court should not substitute its own analysis of the evidence for that of the trial judge. The test (above) applies in this context as well. could convict (Arcuri). In assessing the complainant's credibility. convicted of sexual assault and sexual exploitation of a passenger. as the majority of the CA did here. In Arcuri. but the majority concluded that the improper use of the statements did not justify a new trial because Dinardo suffered no prejudice. The complainant's truthfulness was a live issue. particularly on the issue of whether she invented the allegations. (b) Other Burdens . must show that there is a prima facie case. Dinardo [2008] SCC Judge must provide reasons as to why he came to the decision that the accused was guilty beyond a reasonable doubt. Facts: a cab driver. and the trial judge erred by failing to explain how he reconciled the inconsistencies in the complainant's testimony. even in succinct terms. It was incumbent upon the trial judge to explain. she gave contradictory answers on many points. respectively. Issue: Dinardo appealed his conviction on the grounds that the trial judge misdirected himself on the issue of credibility and failed to provide sufficient reasons to allow for meaningful appellate review Held: Appeal allowed. However. She also gave conflicting testimony about inventing the allegations.

the preliminary inquiry judge does not draw inferences from facts. in determining whether the evidence was sufficient to commit the accused to trial. The issue before this Court was whether the preliminary inquiry judge. or includes. the Crown's case was entirely circumstantial and the accused called two witnesses whose testimony was arguably exculpatory.e. erred in refusing to weigh the Crown's evidence against the allegedly exculpatory direct evidence adduced by the accused. the judge must engage in a limited weighing of the whole of the evidence (i. There is no reason to believe that he arrived at the wrong result in committing the accused to trial. instead. whether elements of offence may be reasonably inferred from evidence). the judge is required to determine what reasonable inferences can be made (i. if the Crown's evidence is believed. Nor does she assess credibility. whether it be direct or circumstantial. R. the case must proceed to trial.. like self defence. Notwithstanding certain confusing language in Mezzo and Monteleone. in situations where the defence calls exculpatory evidence.e. The judge only asks whether the evidence. The preliminary inquiry judge rejected the accused's contention that he must weigh the evidence and. it would be reasonable for a properly instructed jury to infer guilt. circumstantial evidence. The task is essentially the same. v. The question that arises in this case is whether the preliminary inquiry judge's task differs where the defence tenders exculpatory evidence. the judge's task is to determine whether. after viewing the evidence as a whole. This requires limited weighing. including any defence evidence) to determine whether a reasonable jury properly instructed could return a verdict of guilty. In performing the task of limited weighing. ³air of reality test´): The correct approach to the air of reality test is well established: the test is whether there is evidence on the record upon which a properly instructed jury acting reasonably could acquit (assuming the evidence to be true). where the Crown's evidence consists of. regardless of the existence of defence evidence. before committing the accused to trial. However. At the preliminary inquiry. Where the Crown adduces direct evidence on all the elements of the offence.For circumstantial evidence. determined that the accused should be committed to trial for second degree murder. the accused may have an evidential burden where she seeks to rely upon positive defences. nothing in this Court's jurisprudence calls into question the continuing validity of the common law rule in Shephard. It should be regarded.e. This task of limited weighing never requires consideration of the inherent reliability of the evidence itself. as the only conclusion that needs to be reached is whether the evidence is true.Evidential burden for putting forward defences: R v Cinous (In criminal cases. Rather. as an assessment of the reasonableness of the inferences to be drawn from the circumstantial evidence. could reasonably support an inference of guilt. surveying the circumstantial evidence presented by the Crown. . not entitled to ask whether accused is guilty. 548 of the Criminal Code is whether there is any evidence upon which a reasonable jury properly instructed could return a verdict of guilty. Reasons: The question to be asked by a preliminary inquiry judge under s. Held: The appeal should be dismissed. i. in other Page | 118 . as well as the allegedly exculpatory evidence tendered by the defence. the preliminary inquiry judge considered the evidence as a whole. Arcuri [2001] SCC Facts: The accused was charged with first degree murder. IF BELIEVED. In this case. The accused's certiorari application was dismissed and that decision was affirmed by the Court of Appeal.

. unless the accused can rebut the presumed fact according to the assigned standard of proof. if accepted by the jury.Burden to rebut a presumption: There are numerous rules of evidence called ³presumptions´ that operate to assign burdens of proof on the accused. not persuasive burden): In Stone. The first is a matter of law. the judge decides whether the evidential burden has been met. In these defences. A presumption can be Page | 119 .words. These are fundamentally different questions. If there is some evidence upon which a properly instructed jury could reasonably conclude that an accused probably perpetrated the alleged criminal act in a state of automatism. the Court altered this. weight or reliability of the evidence. the judge does not evaluate the quality. Accompanying instructions in law will make it clear to the jury that the burden remains on the accused to establish the defence to the required degree of probability. on a trial before judge and jury. the defence will be in play whenever a properly instructed jury could reasonably. a defence should be put to a jury if and only if there is an evidential foundation for it. an assertion of involuntariness on the part of the accused. An "evidential burden" is not a burden of proof. a question of fact. Accordingly. A presumption directs judges/jury to assume that a fact is true (known as the presumed fact) in any case where the Crown proves that another fact is true (known as the basic fact). Held: The appeal should be dismissed. In answering that question. supported by evidence from a qualified expert which. will normally provide a sufficient evidentiary foundation for putting the defence to the jury. In Fontaine. it appeared that the accused needed to discharge a persuasive burden before the jury could even hear the defence of non-mental disorder automatism. the evidential burden will be discharged where there is some evidence that puts the defence "in play". As regards all affirmative defences. conclude in favour of the accused. and the purpose is not aimed at establishing the substantive elements of the defence. The accused's defence of mental disorder automatism should have been put to the jury. look at the totality of the evidence. would tend to support that defence. the second. Where mental disorder automatism is raised as a defence. In the case of "reverse onus" defences. Two principles derive from this test: (1) a judge must put to the jury all defences that arise on the facts which have an air of reality (2) they must keep from the jury defences lacking an evidential foundation. (1) ³Mandatory presumptions´ can be rebutted by the accused simply raising a reasonable doubt about whether the presumed fact follows from the basic fact. It was held that all the accused has to do is put forward SOME evidence capable of supporting the defence. The judge simply decides whether there is evidence upon which a properly instructed jury could reasonably decide the issue. the evidential burden has been discharged and the defence is in play before the jury. while the "persuasive burden" determines how the issue should be decided. R v Fontaine [2004] SCC (Putting in play ³reverse onus´ defences just requires evidential. the persuasive burden is discharged by evidence on the balance of probabilities. It determines whether an issue should be left to the trier of fact. such as mental disorder automatism. on account of that evidence. Whether there is an air of reality to a defence is a question of law. it is the accused who bears both the persuasive and the evidential burdens. In applying the test.

. Boucher) R v. the Court made the following comment: Page | 120 . Held: The appeal should be allowed and the guilty verdict restored.1) and 258(1)(g) of the Criminal Code The standard of proof that must be met to rebut the presumptions of identity and accuracy is the same: reasonable doubt. His blood analysis certificates indicated 93 and 92 mg. it cannot be found based on the evidence that there is a reasonable doubt as to the accuracy of the results of the breathalyzer tests. Rules in ss. the accused's testimony was not credible. In the case at bar. The standard of proof that must be met to rebut the presumption of accuracy is reasonable doubt. raised a reasonable doubt in favour of the accused. 258(1)(c). where a person with the accused's physical characteristics consumed this amount. the trial judge necessarily assessed the evidence as a whole. C. in explaining the expression "evidence to the contrary" in s. in concluding that only the expert evidence would have been capable of constituting evidence to the contrary if it had had any basis. Evidence to the contrary that raises a reasonable doubt that the certificate correctly reflects the blood alcohol level at the time when the offence was alleged to have been committed is sufficient to rebut the presumption under s. In her opinion. 258(1)(g) of the Criminal Code that the test results were accurate had not been rebutted. 258(1)(d. The majority of the Court of Appeal affirmed the acquittal. is not significant where the charge is driving with a blood alcohol level exceeding 80 mg. She concluded that the statutory presumption in s. The defence has no burden of proof. and she rejected the related expert opinion. The defence expert asserted that. This evidence can come from that adduced by the Crown or the accused. A presumption will be interpreted as a mandatory presumption where it fails to set out the required standard of rebuttal. The trial judge found the accused guilty. Boucher [2005] SCC The accused was charged in Municipal Court with operating a vehicle while his blood alcohol level exceeded the legal limit. although relevant as a defence to a charge of impaired driving. In Proudlock. 306(2)(a) Cr. The trial judge rejected the accused's testimony on the basis that it was not credible. the normal result would be much less than the level recorded on the certificates. The defence has no burden of proof. He testified that he had drunk two large beers during the few hours prior to his arrest. Furthermore. 258(1)(g). Finally. including the expert's testimony. On appeal. the court does not have to be satisfied on a balance of probabilities. and an expert opinion based on that testimony cannot constitute evidence to the contrary. (2) that the level did not exceed 80 mg or (3) that the certificate does not accurately reflect the blood alcohol level. the results of the tests themselves cannot be used to demonstrate their own inaccuracy. (R v.recognized as a ³mandatory presumption´ because the legal rule raising the presumption will use the term ³evidence to the contrary´ to describe the burden of rebuttal. the expert evidence merely provides theoretical information without regard for the accused's personal level of alcohol tolerance. and the absence of symptoms of intoxication. the Superior Court set aside the guilty verdict on the basis that the evidence as a whole. Where there is evidence tending to show (1) that the blood alcohol level recorded on the certificate is not the same as the level at the time of the offence.

Pierre. Although s. C. [1980] 1 S. at para. [Emphasis added. at the conclusion of the case on both sides. 20 Such evidence to the contrary adduced to rebut the presumption of identity does not deprive the prosecution of the benefit of the presumption that the certificate accurately states the blood alcohol level at the time of the breathalyzer test (the presumption of accuracy). "in the absence of evidence to the contrary". Although s. those words are included therein by implication because of s. C. does not use the expression "in the absence of any evidence to the contrary".. 1089. at paras. R. "in the absence of evidence to the contrary". 17 Section 258(1)(c) Cr. R. C. those words are included therein by implication because of s. 26. C. Pierre. 2985. 258(1) Cr.S. 548-49. the same as the level at the time when the offence was alleged to have been committed. however. 25(1) of the Interpretation Act. the courts tended to confuse them.. which allows the presumption to be rebutted by evidence to the contrary: 25. Crosthwait. Vauclair. 19 The presumption of identity in s. I-21. expressly provides that the alcohol level measured by a test administered within two hours after the vehicle was driven is. Béliveau and M. Pierre. 258(1)(c) Cr. 830. all he has to do is to raise a reasonable doubt. 17 Section 258(1)(c) Cr. The accused does not have to "establish" a defence or an excuse. the accuracy of which is not in dispute. at p.C.] 16 This standard was applied by this Court to the expression "evidence to the contrary" in s. This Court therefore clarified these differences in St.C. at para. Pierre. The Crown can still prove that the accused's blood alcohol level at the time when the offence was alleged to have been committed exceeded 80 mg.(1) Where an enactment provides that a document is evidence of a fact without anything in the context to indicate that the document is conclusive evidence. to prove the blood alcohol level at the time when the offence was alleged to have been Page | 121 . Traité général de preuve et de procédure pénales (11th ed. Pierre. 44. I-21. and this fact was capable of rebutting the presumption that the blood alcohol level measured at the time of the test was the same as the blood alcohol level at the time she was driving her vehicle. The burden of proof does not shift. C.S. Additional evidence would be needed. the document is admissible in evidence and the fact is deemed to be established in the absence of any evidence to the contrary. However. in St. 258(1)(g) Cr.. c. and P. [A]ll the presumption does is to establish a prima facie case. the accused consumed two miniature bottles of vodka after being arrested but before taking a breathalyzer test. v. then the accused will necessarily have the burden of adducing evidence if he is to escape conviction. at pp. 2985. 850. expressly provides that the alcohol level measured by a test administered within two hours after the vehicle was driven is. 2004). 25(1) of the Interpretation Act. in any judicial proceedings. 258(1) Cr. he will not have the burden of proving his innocence. C. which allows the presumption to be rebutted by evidence to the contrary: Differences Between the Presumptions 18 Although the differences between the presumptions are evident from reading s. in R. See St. the same as the level at the time when the offence was alleged to have been committed. the trier of fact has a reasonable doubt. can be rebutted by evidence that tends to show that the blood alcohol level at the time when the offence was alleged to have been committed was different from the level measured at the time of the breathalyzer test (St. 46 and 49).. c.R. it will be sufficient if. one piece of evidence would then be the reading taken by the breathalyzer. Thus. does not use the expression "in the absence of any evidence to the contrary". then. 258(1)(g) Cr.C. and in St. C. If there is nothing in the evidence adduced by the Crown from which a reasonable doubt can arise.

The trial judge also erred by failing to instruct the jury on the provisions of s.. This evidence must raise a reasonable doubt about the accuracy of the breathalyzer result. 258(1)(d. C. The judge is entitled to give an opinion on a question of fact but not a direction. 41 of the Criminal Code. it will be presumed. but to reinforce the presumption of identity. Parliament amended the Criminal Code to add s. to decide whether. and the jury alone. A provision which requires an accused to disprove on a balance of probabilities the existence of a presumed fact violates the presumption of innocence. C. A trial judge has no duty or entitlement to direct a verdict of guilty and the duty to keep from the jury affirmative defences lacking an evidential foundation does not detract from this principle. Page | 122 . was not to change the type of evidence needed to rebut the presumption of identity in s. This would arise if the accused adduced sufficient evidence to raise a reasonable doubt as to his or her innocence but did not convince the jury on a balance of probabilities that the presumed fact was untrue (R v Oakes) (c)The Neutral Impartial Trier R v Gunning [2005] SCC: The trial judge erred in instructing the jury that the Crown had proven the "unlawful act" necessary to prove murder or manslaughter and his recharge did not cure the error. C. in respect of the defence of house or property. to have exceeded 80 mg at the time when the offence was alleged to have been committed. C.committed. which expands the presumption of identity. 258(1)(g) Cr. Other presumptions operate as (2) ³reverse onus provisions´.. deeming the presumed fact to exist where the Crown proves the basic fact.1) Cr. must tend to show that the certificate does not in fact correctly reflect the blood alcohol level at the time of the breathalyzer test. it is for the judge to direct the jury on the law and to assist the jury in their consideration of the facts.1) Cr. It is of fundamental importance to keep these functions separate. 22 Shortly after St. Pierre. According to this new provision. the offence has been proven. 258(1)(c) Cr. In criminal cases. 258(1)(g) Cr. but it is for the jury. That is. or the presumption of accuracy in s. on the facts. The effect of the enactment of s. If an accused bears the burden of disproving an element of the offence. where the accused's blood alcohol level exceeded 80 mg at the time of the breathalyzer test. it would be possible for a conviction to occur despite the existence of a reasonable doubt. C. legal presumptions are often in tension with the presumption of innocence. unless the accused disproves the presumed fact on a balance of probabilities. It is a basic principle of law that the jury is to decide whether an offence has been proven on the facts. 21 Evidence to the contrary that is adduced to rebut the presumption of accuracy in s. 258(1)(d. in the absence of evidence to the contrary.

but should receive conditional sentences. Reasoning: . The judge had no indication of who may have hired them. the former is not.**Judge did not purport to base his findings of fact on any material that actually related to these respondents. the respondents were paid minimal amounts and used those amounts to provide the bare necessities for their children) . In addition. s. Based on this evidence.. Section 485 specifically preserves the court¶s jurisdiction over an accused despite a failure to comply with any of the Code¶s provisions concerning adjournment and remand.A. v. the judge concluded that the women should not receive imprisonment. preserves the court¶s jurisdiction despite a failure ³to act in the Page | 123 . extensive social context evidence concerning poverty. The Ontario CoA commented on the inappropriateness of the judges decision.) it draws a distinction between findings of fact based exclusively on personal judicial experience and judicial perceptions of applicable social context.g. or even more broadly.D. Valley (1986) (Ont. Both were black single mothers. and applied those generalizations to the respondents. While a judge is permitted to use common sense and wisdom gained from personal experience in judging the trustworthiness of a particular witness. .482 permits superior courts to make rules of court as long as they are not inconsistent with the CC.Judge made several findings of ³fact´ which were not supported by evidence (e. Cory J said in R v S (R. CC. but ³whether a reasonably minded person who had been present at the trial would consider that the accused had not had a fair trial´ (R. At the sentencing hearings conducted by Justice Hill. gender bias and systemic racism was filed. the judge must avoid judging the credibility on the basis of generalizations or upon matters that were not in evidence. Coughlan 339-349 Powers of the Court (i)Control over the Court Process A trial judge has a variety of powers to control process in the courtroom. he relied on his experiences in sentencing other individuals who couriered cocaine from Jamaica. and the judge provided 700 pages of materials. but must exercise caution so as not to violate the accused¶s right to a fair trial.R v Hamilton: [2004] ONCA Facts: H and M were charged with importing cocaine. Judges have extensive powers and discretion as to conducting trials. The test is not whether the accused was actually prejudiced. Instead. what compensation they received or what would happen to their children if they went to jail. and the findings of fact based on evidence viewed through the lens of personal judicial experience and social context.The respondents didn¶t offer an explanation/description of their involvement in the crimes apart from H¶s indication that she acted out of financial need. M was not a Canadian citizen and faced risk of deportation. C.)). Sections 537 and 645 of the Code gives judges the power to grant adjournments during trials or other proceedings. The latter is proper.

(ii) The judge must consider whether the order is limited as much as possible. He can exclude members of the public for all or part of the trial. 486(3)). as long as the judge is of the opinion this will not interfere with the proper administration of justice ± he can order that these 2 persons not communicate during the witness testimony. Section 486. v. and (iii) The judge must weigh the importance of the objectives of the particular order and its probable effects against the importance of openness and the particular expression that will be limited to ensure that the positive and negative effects of this order are disproportionate.2(4).)). In conclusion. but the current proceedings are considered dismissed for want of prosecution (ss.1 also gives the judge some powers over the manner witnesses will testify. 486. 486.C.A. The judge can also allow a witness under 18 or with mental disability to testify outside the courtroom or screened away from the accused. Note that in such situations.C. Felderhof (2003) (Ont. (5)). which has been held not to violate the Charter (R. Levogiannis (1993) (S. A trial judge also has discretion as to the circumstances in which the evidence will be heard.A.) held that the provision violates s.C.)). Currie (2002) (Ont. A judge who does not grant a request for exclusion in a sexual offence case must give reasons for doing so (s. 485(3) and 485.)) or generally carrying his questions too far (R. e. Where a court does lose jurisdiction over an accused.exercise of jurisdiction´. expressing opinions on whether the accused has presented any defence (R.1). The overriding rule is that the trial judge¶s behaviour must not create a reasonable apprehension of bias. but only where such exclusion is necessary to obtain a full and candid testimony (s. 2(b) of the Charter but is saved as a reasonable limit under s. the maintenance of order or the proper administration of justice´ (s. C. v. the screen does not prevent the accused from seeing the witness. Although this power conflicts with the principle that court proceedings should be open. Brouillard (1985) (S.g. C.C. The burden is on the person seeking the exclusion to provide sufficient factual foundation.1 as long as the following criteria are met: (i) The judge must consider the available options and consider whether there are any other reasonable and effective alternatives available. if that power is used ³in the interest of public morals. from intervening to ask questions to embarking on lengthy voir dires (R.1(1) and (4)). The judge has substantial latitude over this procedure. the judge has a great deal of general discretion over how the trial proceeds. A witness under 18 or with mental disability is permitted to have a support person of their choice nearby when testifying.C. 486(1)). it can regain it by issuing a summons or warrant for the accused within 3 months. the SCC in Canadian Broadcasting Corporation v. 485(2).)).C. v. v. Page | 124 . New Brunswick (Attorney General) (1996) (S. for instance (ss.

C. Defence applied for an injunction to restrain the CBC from broadcasting the show and from publishing any information relating to the show until the last of the four trials were over. 276. etc.) on the basis that although the provision violated freedom of the press. 486. such as those dealing with criminal organizations (s. Most notably. however.C. v. the risk of harm to the witness if his identity is disclosed. The judge.486. such as the right to a fair and public hearing.5(2)) and terrorism offences (s. A similar power to seek a ban on publication of information disclosing the identity of a victim or witness is found in s. The defence brought an application requesting the jury be charged before the airing of the show or else sequestered over the weekend of the show's airing. the ONCA upheld the injunction but limited it only to Ontario and Montreal. CBC made a documentary about it and wanted to air it during trial.C. Here.(ii)Publication Bans A trial judge has the ability in exceptional situations to order a publication ban in defiance of the open court principle.C. however. Canadian Broadcasting Corporation [1994] (S. The Youth Criminal Justice Act also bans publication of identifying information of a young victim or witness (s.C.C. it was saved under section 1 of the Charter because the need to encourage victims of sexual assault to report crime was both a sufficiently important objective. This power is only available for certain offences. 486. Other particular bans in the Code include the prevention of reporting information regarding an application to admit evidence of a previous sexual activity (s. 486. to minimize the violation of rights. 110 and 111). Page | 125 . The injunction was granted. and the prevention of publication of evidence from a trial while jurors are separated before beginning deliberations (s.2(5)). were charged with sexual abuse of young boys while they were teachers at an Ontario Catholic school. 648). which is seen as the ³hallmark of a democratic society´ and the ³cornerstone of the common law´ (Re Vancouver Sun (2004) (S. The judge declined and instead merely directed the jury to avoid watching the show. Canada (Attorney General) (1988) (S. and overturned the ban on any publicity of the show. and made the provision minimally impairing. must weigh competing rights. a Catholic order.5. the ban is discretionary and the trial judge must consider a number of factors. Dagenais v. It was held that judges have a common law discretionary authority to impose publication bans on information revealed in a criminal trial. such as freedom of expression and right to a fair trial. It was further held that the media has a right to appeal a decision of a publication ban.3). An earlier version of this provision was upheld under the Charter in Canadian Newspapers Co. The CBC and the National Film Board of Canada appealed the decision to the SCC. Facts: Members Christian Brothers.)).) leading SCC decision on publication bans and their relation to the right to freedom of expression under section 2(b) of the Canadian Charter of Rights and Freedoms. the impact of the order on freedom of expression. On appeal. s.4 allows a judge to ban the publication of any information that would identify the complainant or a witness in various listed sexual offences. CC.

Page | 126 .Held: The majority of the SCC held that the publication ban was in violation of the freedom of expression under section 2(b) of the Charter. 10. a distinction still reflected in s. The person seeking the publication ban has the onus. 9. Mentuck (2001). s. Superior courts have jurisdiction over both types of contempt. In Dagenais. changing venues. including the effects on the right to freedom of expression. and the appeal procedures therefore are set out in CC. The Crown sought a publication ban on both names of the particular police officers involved. The Court therefore concluded that the real question was of finding a balance between the many possible interests that made up the proper administration of justice on one hand. According to the Dagenais / Mentuck test. In R. s. and freedom of expression on the other. the publication bans were not justified because there were various alternatives such as adjourning trials. as well as on the release of the technique itself. the SCC returned to the subject of publication bans. (iii)Contempt of Court Judges¶ common law power to find people in contempt of court is expressly preserved by CC. sequestering jurors etc. and that a broader range of interests would need to be contrasted with freedom of expression here. the ban on the names of particular officers was justified since they were using their real names. The Court in Mentuck observed that the test in Dagenais ± whether a right to fair trial was compromised ± was too narrowly phrased. and the efficacy of the administration of justice. The ban on reporting the technique in general was not justified because the Court was unconvinced that a serious risk to the effectiveness of the technique would arise if its existence were reported in newspapers. and (ii) The salutary effects of the publication ban outweigh the deleterious effects on the rights and interests of the parties and the public. the right of the accused to a fair and public trial. publication bans should only be ordered where: (i) Such an order is necessary in order to prevent a serious risk to the proper administration of justice because reasonably alternative measures will not prevent the risk. but this time in circumstances where the ban was sought by the Crown and no right of fair trial was at issue. and therefore their safety and the integrity of other undercover investigations would have been jeopardized. while inferior courts can only punish the former. In Mentuck. Mentuck involved an undercover police investigation where a suspect is induced to give details of an offence he has committed to what he believes to be the members of a criminal organization to which he is being recruited. Contempt is divided into contempt committed in the face of the court and not committed in the face of the court. v.10.

This usually means a 3-step process: (i) The person is ³cited´ (i. A trial judge can also declare a mistrial where he is satisfied that a jury is unable to agree on a verdict (CC. which gives the accused the usual procedural guarantees of a criminal trial. v. A mistrial is not automatically granted in the case of such errors. inadmissible evidence being given to the jury. v. Bengert (No.C.). a judge can respond to such behaviour in 2 ways: (i) Through the ordinary procedure.C. and in fact is a remedy of last resort: where a judge can remedy a prejudice by less drastic means. For the most part. re-opening the case.C.C. (L.) (1989) (S. v. According to R. E. Doz (1987) (S. ³only the least possible power adequate to the end proposed´ should be used (Arradi). v. he should do so.The power to punish contempt is aimed at maintaining the dignity of the court and to ensure a fair trial. v. Williams (1998) (S. put on notice) for contempt.C.C.C. McAnespie (1993) (S. D. It is a discretionary decision subject to appeal. Such remedies would include an adjournment.C.g. (iv)Mistrials A judge has the authority to declare a mistrial at virtually any point in proceedings.C. from the jury selection stage (R.)). 653(2) says that discretion is not reviewable.C. although it must be made clear to them that guilt for contempt has no bearing on guilt in the actual trial. which can only be used where it is urgent and imperative to act immediately. and the accused.)) to the post-conviction but pre-sentence stage (R. 653).C.) (1995) (S.C. or (ii) Through a more summary procedure. v.C. although that discretion will only be interfered with if the trial judge proceeded on some wrong principle or was wrong (R. e. even after an appeal has been launched but the sentence has not yet been handed down (R.C.)). Page | 127 .C. the authority to order a mistrial comes from the common law. MacDonald (1991) (S.C. v.C. witnesses or even counsel can be cited. (ii) An adjournment should be granted to give the person an opportunity to consult and possibly be represented by counsel.e. and the procedure must comply with natural justice requirements absent exceptional circumstances. s. Contempt proceedings can also take place in front of the jury where the contempt occurred in front of it (R.)). Contempt can cover a variety of behaviours. In other words.)).)). Not only the accused. although s. 13) (1979)) (B. including refusal to answer questions under oath (R. Williams (1998) (S. K.(B. v. Only when such remedies are insufficient should a mistrial be granted (R.S. Arradi (2003) (S. Failure to follow this process amounts to an error of law (Arradi). v.C.)).)). or instructing the jury to ignore certain submissions. but also the Crown can apply for a mistrial (R. A wide variety of issues can lead to a mistrial application. (iii) The person if found in contempt should be allowed to make representations as to sentence.

Since the Crown must now disclose relevant information it possesses (R.As a general rule. the Charter might prevent a new trial. given its special function in ensuring that justice is served. The Crown. The main ground for opposing the Crown's discretionary authority to call witnesses has historically been that of fairness. but also a quasi-judicial officer. but it is both permissible and desirable that the Crown vigorously pursue a legitimate result to the best of its ability. any existing unfairness can be resolved through the disclosure process and the accused¶s ability to call the witness. narrative" in Lemay v. and the fact of a mistrial does not allow an accused to plead autrefois acquit or autrefois convict. These developments have extinguished any rationale compelling the Crown to call witnesses based on the need to bring all material facts forward. v.C.C. Where the "narrative" is not adequately set forth. whether or not witnesses have been called is a factor appellate courts can consider in reviewing a decision as to the reasonableness of its verdict. The King does not mean that all witnesses with relevant testimony have to be called by the prosecution. Part of this discretion involves the choice of which witnesses to call. The accused is not "ambushed" by the fact Page | 128 . must possess a fair deal of discretion extending to all aspects of the trial process. This discretion is not absolute and its improper exercise can result in the finding of an abuse of process. The term refers only to the Crown's burden of proof in a criminal proceeding. Cook [1997] SCC²Crown Adverserial Role/Quasi-Judicial Officer -The Crown cannot adopt a purely adversarial role towards the defence. but must make decisions in the interests of justice and the larger public interest. the defence cannot now be "ambushed" in the sense that it was unaware of potentially exculpatory evidence discovered by the Crown or even of material inconsistencies. Given the strong preference this Court has shown for deferring to the Crown's discretionary authority. but only where the principles of fundamental justice are in issue. . v. elements of the offence might not be properly proven and the Crown risks losing its case. the Charter might prevent a new trial from being held after an improper declaration of a mistrial. it would take a strong opposing rationale to warrant the creation of a duty which so clearly impedes it. Stinchcombe). The Crown cannot adopt a purely adversarial role towards the defence. -The accused is not ³ambushed´ by the fact that a given witness is not called.´ Review LSUC Rules of Professional Conduct. The jurisprudence does not suggest such an imposition. that the ability to cross-examine would be lost and that an accused would be deprived of the right to address the jury last. but it is both permissible and desirable that the Crown vigorously pursue a legitimate result to the best of its ability.)). The prosecutor has many discretionary decisions that can be made and should act as a ³minister of justice. Pan (2001) (S. a new trial can be held following a mistrial. for example. but in ordinary circumstances new proceedings can be commenced (R. The Role of the Prosecutor The prosecutor is an advocate. Additionally. R v. including the interests of the accused. for the criminal justice system to work well. . In particular circumstances. The term "essential to the . Three factors affecting fairness were raised: that the Crown's not calling witnesses would cause a trial by ambush. This means that the prosecutor cannot act solely as an advocate. Where a trial judge declares a mistrial to save a floundering Crown case and give it time to obtain further witnesses. given its special function in ensuring that justice is served.

Following his acquittal. where the Crown intentionally abuses its discretion in some manner by failing to call the witness. In assessing whether the Crown prosecuted maliciously you have to apply the four Nelles requirements. Still. will need some other evidence of a compelling nature to establish the accused's guilt beyond a reasonable doubt. The onus to prove the Crown's misconduct lies upon the accused. In the rare case the tactical disadvantage to the defence of calling a potentially hostile witness would be manifestly unfair. Facts: Prosecutor determined insufficient grounds to charge the appellant with the murder of his former gf as there was no reliable identification evidence. The trial judge did not err in failing to inquire into why the Crown chose not to call the victim. At trial. on the Canada Evidence Act. a question about disclosure could arise in that the Crown could be alleged to have discovered information damaging to its case. An accused concerned about a deprivation of the opportunity to crossexamine can rely. The testimony of the complainant or victim should not be treated any differently from that of any other witness. flexible solution which allows the trial judge to balance the competing factors carefully and assess the actual prejudice to an accused rather than merely speculating about potential harm. The prosecution file was closed. the failure to call a witness can be a factor for the trial judge to consider in deciding whether or not to call the witness himor herself. 5 years later. was not called on behalf of the Crown. prosecutor was advised of a potential new identification witness. the Crown.that a given witness is not called. where it adduces nothing at all from the complainant or victim. the appellant brought an action for damages for Page | 129 . the trial judge would be entitled to consider this as a factor in deciding whether to call the witness him. the trial judge can still consider the Crown's conduct as a factor influencing his or her exercise of the discretion to call the witness. In many situations. the jury found the appellant guilty. R v. This burden will be even more difficult to overcome where there appears to be no good reason for refusing to call the witness. A failure on the Crown's part to call a witness which would result in prejudice to the accused because of loss of the choice to address the jury last should not affect the Crown's discretion to produce the witnesses it chooses. Rather. Similarly.or herself. The contemporaneous cross-examination of a witness is not necessary to guarantee a fair trial. there is no duty resting upon the Crown to call the witness. find that the Crown has committed an abuse of process. in an appropriate case. the approach taken by this Court in cases where disclosure is not properly made should be applied. This is a preferable. a finding of an abuse of process or "oblique motive" is only available where the accused can establish such conduct on a balance of probabilities. There is no prejudice in the respondent's not getting a free opportunity to cross-examine every potential witness whether or not the Crown wished to call them. or alternatively. the CA overturned the conviction with strong criticism of the lack of credible evidence. legitimate questions would arise in the minds of the trier of fact where a victim was willing and able to testify. Where the Crown does not call a given witness two problems can theoretically arise as a result. On appeal. any existing unfairness can be resolved through the disclosure process and the accused's ability to call the witness. The prosecutor decided to prosecute the appellant on a first degree murder charge. and yet without any explanation. In the vast majority of cases. Proulx [2001] SCC ²Prosecutors Discretion/Malicious -Prosecutors are vested w/ extensive discretion and decision making authority to carry out their functions and courts should be cautious to second guess their judgement calls. First. The calling of witnesses by the trial judge is a matter to be left to each judge's discretion and should be exercised in rare cases so as to avoid overly interfering with the adversarial nature of the proceedings. Second. Here.

Even though none of the facts disclosed by the investigation at that time. he or she must believe in good faith in the guilt of the accused. Dissent: In this case. The Superior Court found the Attorney General liable and entered judgment against the Attorney General for over a million dollars in damages. The evidence in the record establishes that at the time the prosecution was initiated the prosecutor could reasonably have believed that he had reasonable and probable grounds to charge the appellant and that he did not act with malice. The Department of the Attorney General and its prosecutors. in that respect. In subjective terms. or even to ensure. A majority of the CA allowed the Attorney General¶s appeal and dismissed the action. the charge was laid on the basis of entirely circumstantial evidence. when added up and taken in its entirety. in bad faith or beyond his mandate for improper purposes. it must be determined whether a prudent and cautious person would have believed that the appellant was probably guilty of the crime. but there must be sufficient evidence to ground a reasonable belief that a conviction could properly be obtained. are not above the law and this is one of the exceptional cases in which Crown immunity for prosecutorial misconduct should be lifted. The record reveals that: (1) the respondent initiated the prosecution. The role of the AG is not that of the judge. of the guilt of an accused. beyond a reasonable doubt. (3) the Crown prosecutor did not have reasonable and probable cause upon which to found the charges brought against the appellant. nor to be objectively satisfied. Therefore no evidence to show that the prosecutor acted for personal purposes. In this case. Prosecutors are vested with extensive discretion and decision-making authority to carry out their functions and courts should be very slow to secondguess a prosecutor¶s judgment calls when assessing Crown liability for prosecutorial misconduct. A careful examination of the facts in evidence in the civil action shows that the prosecutor acted w/in the Page | 130 . Nelles sets out four requirements that must be established on a balance of probabilities in an action in damages based on prosecutorial misconduct and those requirements are satisfied here. or that he committed a fraud on the law. On the question of the objective analysis of the reasonableness of that belief. The charges brought against the appellant were grounded in mere suspicion and hypotheses and were not based on reasonable and probable cause. Issue: whether this is one of the exceptional cases in which Crown immunity for prosecutorial misconduct should be lifted? Held: The appeal should be allowed. that evidence. out of vengeance or ill-will . that the evidence he or she has will necessarily be sufficient to guarantee a guilty verdict. was sufficient to establish the guilt of the accused.malicious prosecution against the Attorney General of Quebec. one must have regard to the circumstances of the case. that the evidence could not properly have resulted in a conviction. and that certainty must be based on reasonable and probable grounds. and (4) the prosecution was motivated by an improper purpose. (2) the prosecution resulted in the appellant¶s acquittal. could reasonably have justified a finding of guilt. the facts alleged against the Attorney General and the prosecutor do not meet the last two criteria in Nelles. In this case. when he authorized the charge of first degree murder. it must have been clear to the prosecutor in 1991. however. Clearly a prosecutor need not be convinced beyond a reasonable doubt of an accused person¶s guilt before bringing charges. taken in isolation. In applying that test.

to be guilty of a crime. therefore they must be respectful and honest with the court and must not attempt to mislead the court as to the state of the law. The Act gives the Law Society jurisdiction over a very broad range of conduct including prosecutorial decisions made dishonestly or in bad faith. but that is a different function from the ability to discipline the same prosecutor in his or her capacity as a member of the Law Society. and if the accused pleads not guilty. advising the accused on the implications of. Page | 131 . prosecuting an individual whom he believed. in good faith. Krieger v. the defence counsel is obliged to act solely in the interests of the accused. Subject to this and the rules of law and ethics.bounds of his functions as a public officer. Law Society of Alberta [2002] SCC²Prosecutor Discretion not reviewable except bad faith -Disclosure of relevant evidence is a matter of prosecutorial duty. Held: All conduct that is not protected by the doctrine of prosecutorial discretion is subject to the conduct review process. and advancing all defenses that properly arise. preparing the case fully. challenging the sufficiency of prosecutorial evidence. securing advantage of all procedural and constitutional provisions available to them that are not properly waived. and only the latter can be regulated by the Law Society. The AG¶s office has the ability to discipline a prosecutor for failing to meet the standards set by that office. A clear distinction exists between prosecutorial discretion and professional conduct. the Law Society possesses the jurisdiction to review an allegation that a Crown prosecutor acting dishonestly or in bad faith failed to disclose relevant information. Review LSUS Rules of Professional Conduct. of pleading guilty. and propriety. The Role of the Defense Officer of the court. As the disclosure of relevant evidence is not a matter of prosecutorial discretion but rather a legal duty. notwithstanding that the AG had reviewed it from the perspective of an employer. and transgressions related to this duty constitute a very serious breach of legal ethics.

Overview Summary . the police will often seek legal advice from Crown prosecutors. use force. v.Police have broad powers under statute (mainly Criminal Code).Statutory powers include powers allowing police to: arrest an accused. without undermining the effectiveness of police investigations and law enforcement. 143-146 (power to ³break the law´) Police officers are independent of the Crown prosecutor in Canada. This independence is important to permit the prosecutor to act as a quasi-judicial officer. Police officers also have significant obligations to perform in securing the right to counsel for the subject. 8 (unreasonable search or seizure) and s. individuals have the right to remain silent in their dealings with the police.GETTING TO THE TRIAL: THE CRIMINAL INVESTIGATION 24. Police powers are also significantly limited by the Charter.Coughlan pp. The law of evidence supports limits on police powers.R. . 9 (arbitrary detention). most significantly s. the powers of the police are constrained by law. and powers at common law. . 11 ± 23 (general police powers) .Coughlan pp.set of an investigator. In the interests of securing liberty. 9 (arbitrary detention). This independence is important to permit the prosecutor to act as a quasi-judicial officer. common law and by implication from statute and common law. Still. the police will often seek legal advice from Crown prosecutors. including on the wording of search warrants and the like. compel an accused¶s appearance in court via a summons or appearance notice. although can be derived from statute. 8 (unreasonable search or seizure) and s. 59 ± 125 (powers of search and seizure) . Courts have undertaken a careful balancing of police powers in an attempt to ensure respect for liberty. 126-142 (powers of detention) . v. although can be derived from statute. evidence that has been obtained as a result may be excluded from consideration. Still. Police powers are also significantly limited by the Charter. search Page | 132 . 460 . and not get too close to the mind-set of an investigator.Coughlan pp. the powers of the police are constrained by law.Theme throughout: balancing liberty with public security General police powers .Coughlan pp. most significantly s. without undermining the effectiveness of police investigations and law enforcement. common law and by implication from statute and common law. Courts have undertaken a careful balancing of police powers in an attempt to ensure respect for liberty. POLICE POWERS Police officers are independent of the Crown prosecutor in Canada. Although not covered in this examination. including on the wording of search warrants and the like. obligations that go beyond this examination. Suberu [2009] 2 S. what they say cannot be admitted if it is not ³voluntary. Grant 2009 SCC 32 .´ Where there has been an unconstitutional search or arbitrary detention.R.C.R. and not get too close to the mind. In the interests of securing liberty. again.

Then. .Must be issued by a justice. protection of evidence from destruction.Note that there are some limits to this search warrant power (e. To enter into a private dwelling in a hot pursuit (allowed ± leading case is R v Feeney) (2) New CL powers can be created ± the ³ancillary powers´ doctrine (see R v Waterfield [EWCA]) (p 17): The SCC has relied on this doctrine to support police power in a number of areas.Warrants for taking blood.Only available for ³designated offences´ listed in s 487.Note the law in this area attempts to balance individual interests (i. and discovery of evidence (R v Caslake).Common law powers: (1) Historical CL powers: a.Analyze searches with warrant and without warrant separately (1) Searches with a warrant (a) Searching places with warrant . There are problems with relying on this test. liberty) with interests of the state What is a search? Purposive approach: A state investigative technique is or is not a search depending on whether it infringes on a person's reasonable expectation of privacy. (iii) anything reasonably believed to be intended to be used to commit an offence for which the person could be arrested without warrant or (iv) offence related property). (ii) anything that will provide evidence regarding an offence or the location of a person suspected of committing an offence. (3) Consent (a final area from which police develop their powers) (4) Default common law powers: Police have the power to do anything that will not result in some remedy being granted to an accused Powers of search and seizure . and the particular requirements that must be met (p 16) b. etc [Note: the important ones are covered in the upcoming sections] . or afford evidence concerning an offence (b) Searching people (DNA warrants): . .A related provision found in s 489 allows police who are searching under a warrant to seize items not mentioned in the warrant if they believe on reasonable grounds that they were obtained by. saliva etc .General search warrant provision is found in s 487 .e. receptacle or place´.g specificity) (see p 69) .05 for the requirements to get the warrant .Other than in powers of arrest.Basic requirements = a provincial court judge (i. justice must be satisfied on reasonable grounds that evidence will be found (which must fall into 4 categories: (i) anything on or in respect of which an offence has been committed. the search must be related to a ³building.04 (see p 945 of Code) .See s 487. Search incident to arrest for the purposes of ensuring safety. or were used in. as it was not intended to allow the creation of new CL powers. there must be someone responsible for carrying out the search. and the DNA analysis of the substance will Page | 133 .e.suspects. that a person was a party to the offence. though. cannot be a JP) must be satisfied by information on oath that a bodily substance connected with an offence has been found. the ability of police offers to interfere with the liberty of individuals is most evident in powers of search and seizure . see R v Golden for strip searches incident to arrest.

(d) How significant of a right to privacy is this on a sliding scale? (2) Once it has been determined that an individual has a reasonable expectation of privacy. judge is required to believe that the issuing of the warrant will be in the bests interests of the administration of justice. . a person has greater privacy when the search involves a bodily cavity as opposed to the trunk of their car.The Code contains no provisions to review a warrant. in that case. 78): .e.g. or was it an intrusion. and therefore no breach of s 8). guarantee against unreasonable search and seizure) (Hunter v Southam). every warrantless search must be made consistent with minimum Charter standards.e the standards of privacy that a person can EXPECT to enjoy in a free and democratic society (Wong) (b) Look at factors in Edwards (looking at ³totality of circumstances´) (p 87) (c) Note the three kinds of interests that privacy protects (e. and informational privacy) (Tessling). exclusion of evidence only under s.The following is the approach to determine the constitutional validity of the warrantless search: (1) Threshold issue: First. 81) . if there is no reasonable expectation of privacy.g. Note: informational privacy = more difficult to prove. (a) Look at ³entitlement´ to privacy ± not whether X had. The issue then becomes whether the search itself is reasonable.The central issue in reviewing a warrant is whether the requirements for its issuance under the Code have been met . there is no search/seizure at all. . Here. territory and information (i. then it follows that the search was a prima facie violation of the accused¶s s 8 right. to be a breach of s 8.As a result. The actual result of the search is not relevant on review (2) Searches without a warrant (p. . personal privacy.The question for the reviewing judge is whether there is evidence upon which the issuing judge could have decided to issue the warrant (R v Garofoli). the more difficult it will be to determine that the search was reasonable. the nature of the accused¶s reasonable expectation of privacy is also a background factor in determining how reasonable the search is (the higher the level of privacy expected. the individual searched must be determined to have a reasonable expectation of privacy over their person.e.provide evidence about whether the bodily substance was from that person. or in the situation of a search incident to arrest ± heavy state interests). Reasonableness of the search is generally determined by the Collins factors ± have they been met? Page | 134 . in light of that expectation of privacy. privacy ± i. e. territorial privacy.Different rules apply when the DNA warrant concerns young people (see p 73) (c) Reviewing a warrant (p. But it is possible to challenge the issuance of a warrant by way of Certiorari (used to review the process by which the warrant is used). etc (see p 72) . However.Every warrantless search is prima facie unreasonable under s 8 of the Charter (i. 24(2) of the Charter.

Here. i..e.Some powers of detention exist by statute. ie.1 (p.(a) Is the warrantless search authorized by law: (i) Statute? (e.11 (in relation to the s 487 search warrant power) (ii) CL? (i. The police must ensure that a person is not detained arbitrarily.NOTE: There are variations on the Hunter v Southam standard. search incident to arrest. and sections 25 to 33 create related powers allowing the use of Page | 135 . right to counsel. (ii) Police roadblocks Ability to break the law: s 25.01) (which have broader warrant power than s 487) Powers of Detention at the Investigative Stage (a) Definition of detention . search during investigative detention. Police powers of arrest are quite broad.NOTE Other investigative powers. Certain of the rights guaranteed by the Canadian Charter of Rights and Freedoms apply when a person is detained or arrested. 143-146) 1) General Police Powers (Coughlan pp.e. 11 ± 23) The CC sets out when police may arrest a suspect. The overall reasonableness of the decision to detain must further be assessed against all of the circumstances. the search was truly incidental to that arrest and that the search was conducted in a reasonable manner) (iii) Consent? (b) Is the law itself reasonable? (c) Is the manner in which the search is carried out reasonable? . e. the Charter guarantees that everyone who is arrested or detained has: the right to be informed of the right to counsel.g. Searches under an administrative scheme and searches of press offices have different rules (see p 111) . Dedman case upheld RIDE program under Waterfield test as a valid form of detention) (i) Investigative detention (Mann test): Reasonable grounds for officer¶s suspicion that individual is implicated in criminal activity under investigation.. if you are saying that there is a search incident to arrest. One troubling context is police questioning ± when does this qualify as a detention and therefore give the detainee s 10(b) rights? (b) Common law powers of detention . you would have to go through the elements identified in the book.g. Generally. the police are required to have reasonable and probable grounds to believe that a person has committed an offence. exigent circumstances. The issue is whether someone has been detained. warrantless searches are authorized by s 487.g. Sections 494 to 528 of the Code create a statutory scheme allowing police officers and others to arrest an accused or compel appearance in court via a summons or appearance notice. and the right to retain and instruct counsel without delay. Common law detentions are more controversial (e. general warrants (s 487. and some aspects of customs searches are all legislatively created detentions. In addition. you would have to establish that: the arrest was lawful. The ability to make breathalyser demands and routine traffic stops.S 10(b) gives rights to people who are ³detained´.

There is no corresponding obligation.force to execute powers authorized by law. however. The general rule regarding the admissibility of statements is that a statement made was made voluntarily and was the product of a conscious operating mind. including authorizations to: Use a tracking device to monitor location of a person or object (s. the Firearms Act authorizing inspectors without a warrant to enter premises to search for prohibited firearms on reasonable grounds). Perform video surveillance on a location (s. as well as material in addition to that specified in the warrant. 487. 254) In addition to statutes other than the Code also providing investigative powers (e. Section 489(1) also authorizes the seizure of material searched for. the Court has consistently expanded common law police powers. Obtain blood samples (s. In R.091). One must determine whether police actions individually.01(4)).C. 492. so this rationale does not perfectly fit with the Court¶s actions. This analysis must be a contextual one. police powers to ³break the law´). s. there are a number of police investigative powers. Install a wiretap device to monitor telecommunications or private communications (Part IV). and cumulatively. 25. or to prevent a breach of the peace. the Court stated that it has ³consistently held that the common law rights of the property holder to be free of police intrusion can be restricted only by powers granted in clear statutory language´.1 of the Code gives police very broad powers to perform acts. footprints. with respect to police trickery. Obtain handprints. Other provisions of the Code create extensive search powers. or impressions of teeth and other parts of the body (s. 256). The eeqivalent to Page | 136 . the statement may be inadmissible. The general test is that a confession will not be admissible if it is made under circumstances that raise a reasonable doubt as to its voluntariness. under circumstances that would for any other person constitute a crime (i. for a person to respond to these questions. if the conduct would shock the community. A balance must be found between protection of individual liberty and the need for public security. In some circumstances even deadly force is authorized. 492(1)).C. and Obtain DNA samples (s. interrogation in oppressive circumstances may lead to the statement being inadmissible. v.e. However. improperly induced a confession. Interrogation A police officer is authorized to question individuals in the course of his or her duties.2(2)). The Code also contains a general power to seize without a warrant if there are certain ³reasonable grounds´.). 487. Kokesch (1990) (S. Finally. In addition.g. Generally. Install number recorders on a telephone (s. and such warrants are typically issued when a justice is satisfied that the search will produce evidence with respect to the commission of the offence or where there are ³reasonable grounds´. fingerprints. In addition to the general search warrant provision. threats and promises should not be made to induce a statement. Section 487 creates the general search warrant provision. to prevent the commission of some offences.

The law relating to interrogation presents a combination of 3 bodies of law: The common law confessions rule The right to counsel in s. 10(b) of the Charter The right to silence in s. 7 of the Charter. (a) Right to Counsel (i) Triggering Mechanisms Section 2(c)(ii) of the Canadian Bill of Rights provides a person arrested or detained ³the right to retain and instruct counsel without delay´. Section 10(b) of the Charter provides the right to retain and instruct counsel without delay and to be informed of that right. In R. v. Therens (1985) (S.C.C.), the SCC held that the word "detention" in s. 10 is directed to a restraint of liberty of varying duration other than arrest in which a person may reasonably require the assistance of counsel and might be prevented or impeded from retaining and instructing counsel without delay but for the constitutional guarantee. In addition to the case of deprivation of liberty by physical constraint, there is also a "detention" within s. 10 when a police officer assumes control over the movement of a person by a demand or direction which may have significant legal consequence and which prevents or impedes access to counsel. There must, however, be some form of compulsion or coercion. Any criminal liability for failure to comply with a demand or direction of a police officer is sufficient to make compliance involuntary. Under s. 235(2), a refusal to comply with a s. 235(1) demand without reasonable excuse is a criminal offence. Here, the court held that someone under a roadside test (under what is now s. 254(2)) is detained. It later held that there was no right to counsel since the provision constituted a demonstrably justified reasonable limit on s. 10(b). In Thomson v. R. (1988) (S.C.C.), the Court held that a roadside alcohol test constituted detention under s. 10(b) of the Charter. The demand by the police in the case at bar fell under what constitutes detention. The way in which the officer assumed control over the movement of the appellant was one which might have significant legal consequence. Given the criminal liability under s. 234.1(2) for refusal, without reasonable excuse, the situation was one in which a person might reasonably require the assistance of counsel. The criminal liability for refusal also constituted the necessary compulsion or coercion to make the restraint of liberty a detention. In R. v. Moran (1987) (S.C.C.), the Court held that the questioning of the accused during the interviews at the station did not constitute a ³detention´ within s. 10(b). The right to counsel under s. 10(b) is not absolute. Unless a detainee invokes the right and is reasonably diligent in exercising it, the correlative duty on the police to provide a reasonable opportunity and to refrain from eliciting evidence will either not arise in the first place or will be suspended. Further, the rights guaranteed by s. 10(b) may be waived by the detainee, although the standard for waiver will be high, especially in circumstances where the alleged waiver has been implicit.
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Moran and Therens still largely remain the authority with regards to the triggers to the right to counsel. The difference with later cases lies on the importance given to the subjective feelings of the accused regarding the detention as compared to the subjective feelings of the police (ii) Informational Duties Unlike the Bill, s. 10(b) of the Charter expressly confers the right to be informed of the right to retain and instruct counsel. This is mandatory on arrest and detention. Informational duties refer to stating to the accused of her right to counsel. In R. v. Brydges (1990) (S.C.C.), the Court held that s. 10(b) was violated by failing to inform the accused of the availability of legal aid. Once the accused requested the assistance of counsel it was incumbent on the police officer to facilitate contact with counsel by giving the appellant a reasonable opportunity to exercise his right to counsel. There is a duty on the police to inform him of the existence of duty counsel and the ability to apply for Legal Aid. In R. v. Bartle (1994), it was held to be critical that the information component of the right to counsel be comprehensive in scope and that it be presented by police authorities in a "timely and comprehensible" manner. Unless they are clearly and fully informed of their rights at the outset, detainees cannot be expected to make ³informed and meaningful´ choices and decisions about whether or not to contact counsel and, in turn, whether to exercise other rights, such as their right to silence (see Hebert). One thing that informational duties do not require, is that the accused in fact understands the right to counsel. In Baig the SCC placed the onus on the accused to show that she did not understand the right. The implementation duties, on the other hand, do require that the accused understands her right. (iii) Implementation Duties Laskin J.¶s minority concurring judgment in Brownridge is still referred to in this respect, stating that the right to counsel raises a correlative obligation on the police to facilitate contact with counsel, such as providing the accused with a phone Some courts have held that privacy should be afforded by the police to the accused in contacting counsel, while the SCC in Jumaga v. R (1977) (S.C.C.), held that it is not a requirement. The positive wording of s. 10(b) has been relied upon to distinguish Jumaga and hold that privacy must be afforded whether or not it is requested (see R. v. Playford (1987)). In R. v. Manninen (1987) (S.C.C.), it was held that s. 10(b) imposes at least 2 duties on the police in addition to the duty to inform the detainee of her rights: 1. The police must provide the detainee with a reasonable opportunity to exercise the right to retain and instruct counsel without delay. This means allowing her upon his request to use the telephone for that purpose if one is available. No such evidence was put forth in this case. Absent such circumstances, once the police have complied with s. 10(b), by advising the accused without delay of her right to counsel, there are no correlative duties triggered and cast upon them until the accused, if she so chooses, has indicated his desire to exercise her right to counsel.
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In R. v. Prosper (1994) (S.C.C.), the SCC held that there is no constitutional obligation on governments to provide a free duty counsel on arrest or detention. (iv) Waiver and Duty to be Reasonably Diligent in Exercise of Right Generally speaking, the SCC has been generous to the accused when characterizing the issues of waiver of the right to counsel. It is far less generous when insisting on the duty to assert the s. 10(b) right with reasonable diligence. It seems unclear, however, which ruling will be adopted in each case, thus leading to inconsistencies. There is a difference between the standards used in the right to counsel (³awareness of consequences´ test) and the right to silence (³operating mind´ test). In R. v. Clarkson (1986) (S.C.C.), the Court held that the accused could not effectively waive her right to counsel while being intoxicated. Given the concern for fair treatment of an accused which underlies the right to counsel in s. 10(b), it is evident that any alleged waiver of this right by an accused must be carefully considered and that the accused's awareness of the consequences of what she was saying is crucial. As per Korponay v. Attorney General of Canada (1982) (S.C.C.), any waiver "is dependent upon it being clear and unequivocal that the person is waiving the procedural safeguard and is doing so with full knowledge of the rights the procedure was enacted to protect and of the effect the waiver will have on those rights in the process". It is clear that the waiver of the s. 10(b) right by an intoxicated accused must pass some form of ³awareness of consequences´ test. Any voluntary waiver in order to be valid and effective must be premised on a true appreciation of the consequences of giving up the right. (b) Right to Silence and Confessions This right has been very poorly defined in Canada and did not exist for a long time. Until recently, the confession rule was the only standard restricting the admissibility of some incriminating statements. The reasons behind exercising this right are (1) the unequal power balance between the State and the accused, and (2) the risk of a false confession. The confession rule from the Ibrahim v. The King (1914) (U.K.P.C.) is that confessions made to persons in authority under promises or threats may be unreliable. In R. v. Hebert (1990) (S.C.C.), the idea of voluntariness was expanded to include the reputation of the administration of justice The burden of proof for confessions is that: y Voluntariness has to be proved by the Crown beyond a reasonable doubt; and Showing that the administration of justice was brought into disrepute has to be done by the accused, as any other Charter violation (then the burden shifts to the Crown).

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y

According to R. v. Oickle (2000) (S.C.C.), the Crown is requested to show under the voluntary confession rule (assuming that the person who heard the confession was a person in authority): o No threats of promises Operating mind Does not require more than knowledge of what the accused is saying No oppression Though Oickle set a very high bar for oppression No police trickery This forms part of a distinct inquiry, which deals with the integrity of the justice system It seems like the first three deal with the reliability of the confession The standard is the shock of the community Police informants seem to be admissible within this high standard of trickery

As for the right to silence under s. 7 of the Charter: y y y Police persuasion is acceptable; After detention Voluntary statements to cellmates are allowed Undercover officers to observe are allowed, but not to elicit information In R. v. Herbert (1990) (S.C.C.), it was held by the Court that a statement elicited by an undercover police officer once the accused expressed his intention not to speak to the police violated his s. 7 Charter rights. Section 7 of the Charter accords a detained person a pre-trial right to remain silent which extends beyond the narrow formulation of the confessions rule. The rules relating to the right to remain silent and the privilege against self-incrimination.

The scope of the right to silence, however, does not go as far as to prohibit police from obtaining confessions in all circumstances. The right does not affect voluntary statements made to fellow cell mates. A distinction must be made between the use of undercover agents to observe the suspect, and the use of undercover agents to actively elicit information in violation of the suspect's choice to remain silent. Finally, even where a violation of the suspect's right is established, the evidence may, where appropriate, be admitted ± only if the court is satisfied that its reception would be likely to bring the administration of justice into disrepute can the evidence be rejected under s. 24(2) of the Charter. In R. v. Oickle (2000) (S.C.C.), the Court held that there are 2 strands to the confessions rule: Under one approach any statement made by cops where there is an explicit promise or threat to accused should be excluded (as in Ibrahim). This gives the accused a negative right - i.e. the right not to be tortured or coerced into making a statement by threats or promises held out to him by a person who is and whom he subjectively believes to be a person in authority. The decision in Hebert recognized a broader approach whereby the absence of violence was not dispositive of the case ± you still need the necessary mental element of deciding between alternative options. It is important to note that the Charter does not subsume these common law rules regarding confessions. The confessions rule has a broader scope than the Charter. The Charter also has a different standard and burden of proof. Remedies under the Charter are different as well. In summary, the confessions rule today is concerned with voluntariness, broadly defined.

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The 5 categories of confessions are: 1. 2. 3. 4. 5. Voluntary Stress-compliant confessions The person will say anything to get rid of the stress The coerced compliant Coercion by threats or promises to confess Most cases of false confessions come out of these Most cases develop in relation to this Non-coerced persuaded

Take someone who does not recall the events well and lead her to confess to something didn¶t happen Someone with mental challenges, who was intoxicated at the time, etc One of the ways to go about persuading someone to confess is through the fabrication of false facts The would likely get the most false confessions from vulnerable people and those who are easily influenced to agree with others You have to look at the strength of mind of the accused Coerced-persuaded. The confessions rule today must be applied contextually. The following factors should be considered by trial judges in reviewing confessions: y y y y Threats or promises Reduced charge Minimizing the seriousness of the crime Offer psychological help Moral or spiritual inducements Oppression Denial of food, clothes, rest, medical attention, intimidating questioning Has a large impact on false confessions Operating mind Inspired by principle of voluntariness and the accused being aware of what she is saying Other police trickery Shock to the community criteria (as per Lamer J. in Rothman)

Search and Seizure Police have both statutory and common law powers to conduct searches. With respect to drugrelated offences, the Controlled Drugs and Substances Act establishes a comprehensive search and seizure scheme. Although these provisions are similar to the search and seizure provisions of the CC, police have some additional powers under the illicit drug legislation. For example, the legislation authorizes police who are in the process of executing a search warrant to search a person found at the locale for illicit drugs if certain conditions are satisfied. Generally, police are only allowed to search a person when it is incidental to lawful arrest. As in the CC, the legislation authorizes warrantless searches in exigent circumstances. Section 8 of the Charter provides that everyone has the right to be secure against unreasonable search and seizure. Court decisions have dealt with the question of whether searches are reasonable in various situations and the ancillary question of whether evidence obtained during the searches can be adduced at trial. A search will generally be reasonable if it is authorized by law, the law itself is reasonable, and the search is carried out in a reasonable manner.

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Section 8 protects the public¶s reasonable expectation of privacy from state intrusions. Thus, where there is no reasonable expectation of privacy, section 8 does not apply. In addition, a diminished expectation of privacy (for example, in prisons or at border crossings) will lower the standard of reasonableness (for example, excusing the absence of a warrant or reducing the standard required for justifying the search). A person¶s home is where there would be the greatest expectation of privacy and thus a greater degree of constitutional protection. There is a presumption that a warrantless search is unreasonable. The general rule for a valid search is that the police will require prior authorization to conduct the search (for example, by obtaining a search warrant) and reasonable and probable grounds that justify it. This is to provide a safeguard against unjustified state intrusion. It is recognized, however, that prior authorization is not always feasible, although this should generally be limited to situations in which exigent circumstances render obtaining a warrant impractical. Generally, federal criminal law does not provide authorization for a search of the person. The common law does, however, allow a search of the person incidental to a lawful arrest. This common law power is an exception to the general rule that a search requires prior authorization to be reasonable. A person may only be searched for the purpose of locating further evidence relating to the charge upon which he or she has been arrested or to locate a weapon or some article which may assist him or her to escape or commit violence. Although the power to search incidental to an arrest is fairly broad, there is no automatic unrestricted right to search incidental to an arrest. More intrusive searches such as strip searches would seem to require greater justification. Because of the consensual nature of drug offences, police often resort to special investigative techniques to detect these crimes, including the use of electronic surveillance. The SCC has stated that electronic surveillance constitutes a search for the purposes of section 8 of the Charter, and its decisions in this area have had a significant impact on the CC provisions dealing with such techniques. Because electronic surveillance is more invasive of privacy than regular search warrants, more procedural safeguards are provided in the legislation. Exclusion of Evidence The rules regarding the exclusion of evidence have changed since the adoption of the Charter. The test is whether the admission of the evidence would bring the administration of justice into disrepute in the eyes of the reasonable person, dispassionate and fully apprised of the circumstances of the case. The 3 primary factors to be considered are: (a) does the admission of the evidence affect the fairness of the trial; (b) how serious was the Charter breach; and (c) what would be the effect on the system¶s repute of excluding the evidence.

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or (2) having a reasonable suspicion or acting in the course of a bona fide inquiry. the police go beyond providing an opportunity and induce the commission of an offence. Although this is a default sense not usually spoken of. Such tactics are used in the case of drug-related offences because of the consensual nature of the offence. the ³ancillary powers´ doctrine allows the courts to create and authorize new common law police powers. C. there is a sense in which the police have the common law power to do anything that has no negative consequences for the officer concerned and which results in evidence being admitted at trial.C. So in R.Entrapment and Illegal Police Activity Entrapment and illegal police activity are both based on the doctrine of abuse of process. Page | 143 . Entrapment will occur in one of two circumstances: (1) the police provide a person with an opportunity to commit an offence without acting on a reasonable suspicion that this person is already engaged in criminal activity or pursuant to a bona fide inquiry. The court must adopt a contextual approach.A. (i) Historical Common Law Powers Historical common law powers include the power of police to search incident to an arrest or to enter a private dwelling house in ³hot pursuit´ of a person fleeing arrest. ³holds that the police have a power to search a lawfully arrested person and to seize anything in his possession or immediate surroundings to guarantee the safety of the police and the accused. the Court said.). This power. and which have continued to exist despite codification of most police powers. the Ontario CA held that a search of a vehicle was still in the vicinity of search incidental to arrest.C. Speid (1991) (Ont. there are some powers that were historically given to police.). and the doctrine will apply only in the "clearest of cases. and despite the fact that a warrant had been refused. the remedy is a stay of proceedings. Third." If the accused succeeds in proving there was entrapment. The wording in Cloutier did not preclude wider searches for evidence. A common law power may also evolve. The power to search incident to arrest was confirmed in Canadian law by the SCC in Cloutier v. prevent the prisoner¶s escape or provide evidence against him.´ Therefore even if the Code did not specify such a search power. Second. the police nonetheless had the power to search an arrested person for 1 of those 3 purposes. Both are common law powers not set out in the Code. The SCC has established a non-exhaustive list of factors that a court must assess in determining whether the police conduct goes further than providing an opportunity. Common Law Powers There are 3 senses in which police may be said to have common law powers: First. even though it did not take place at the time of the arrest. Langlois (1990) (S. v.

does the conduct fall within the general scope of any duty imposed by statute or recognized at common law. 8 Charter right against unreasonable search and seizure.)) (iii) ³Default´ Common Law Powers Prior to the Charter.C. v. Canadian caselaw has adopted the test of the English decision in R. involve an unjustifiable use of powers associated with the duty.C. 8 right where there is a reasonable expectation of privacy. and must be conducted at a police station unless there are reasonable and probable grounds to believe that the search cannot be postponed.)) Stop cars randomly to check for impaired drivers (R. the evidence will be admitted just as though the police were acting with authority. Mann (2004) (S.C.C.C.With regard to strip searches. Page | 144 . Dedman (1985) (S. Golden (2001) (S.C.)). v.)).) for this purpose: First. v. v. Although no explicit statutory powers exists. Stenning (1970) (S. where there has been a breach of a Charter right.)) Set up roadblocks (R. Godoy (1999) (S. does the conduct. the question often arises whether the police officer. Edwards (1996) (S. As long as it was reliable. The Court has held that an accused only has a s. in the absence of any statutory powers.C.)) Enter premises without a warrant or reasonable grounds to investigate a shooting (R. Examples of this include a guest in an apartment (R.C. Section 24(2) of the Charter however does allow the exclusion of evidence. The clearest example of this is the s.A.C. The SCC has relied on this test to support police powers to: Protect foreign dignitaries (R. v. v. Belnavis (1997) (S. v.C.C. Clayton (2007) (S. Wray (1971) (S.)) Detain individuals for investigative purposes.) held that police must have reasonable and probable grounds to believe that a strip search is necessary in the particular circumstances of the arrest. Waterfield (1963) (U.)).C. and Second.C. and passengers in a motor vehicle (R. (ii) New Common Law Powers ± The ³Ancillary Powers´ Doctrine As common law powers can evolve.K. and in some circumstances.C. This is an important caveat.C. and has defined various circumstances where an accused does not have such an expectation. v. the Court in R. conduct searches for those individuals (R. Knowlton (1974) (S.C.C. v. v.C.)) Forcibly enter an apartment to investigate a disconnected 911 call (R. there was basically no basis to exclude relevant evidence in Canada. and not pre-existing or ancillary common law power will be invoked.C. This is an explicit example of developing the common law along Charter principles. had common law powers. it was admissible (R.C. albeit within the general scope of such a duty.C. v.

Therens (1985) (S.C. A further issue is the limits of the accused¶s consent. Under this section police are prohibited from "unreasonable" searches. evidence that the accused refused to appear in a lineup can be introduced at trial.C. As a result.)).)). (b) Reasonable Expectation of Privacy A search can be unreasonable where there is a violation of a reasonable expectation of privacy. Collins)) (for details p.)). Although there is no statutory or common law authority allowing them to require an accused to participate (R.)). v. consent given can also be revoked (R. Thomas (1993) (S.Consent Cooperation of a suspect is effectively another source of police powers (R.C. Edwards [1996] (S. v. The accused must show there is a reasonable expectation of privacy. On the other hand.C. (b) the law itself must be reasonable. The inquiry of the lawfulness of a search is based on whether the search was "reasonable" in the circumstances. This is the principle that the police need no statutory or common law authority to obtain evidence by making a request of the suspect. then the accused no longer has a reasonable expectation of privacy in the sample and the police are free to use it as they wish (R. Page | 145 . The circumstances include the nature of the duty performed as well as the purpose of the search.)).)). The privacy interest alleged must be that of the accused person (Edwards).C. A lawful search must be (a) authorized by law. Finally. complying with a breathalyser demand without first calling counsel (R. C.C. v.C. equally the Court has never decided whether an accused has a positive right to refuse to participate in a lineup (R. v. Marcoux (No.)). cannot automatically be considered consensual actions. (2) Powers of Search and Seizure (Coughlan pp. C.C. pulling a car over to the side of the road when directed to (Dedman). Ross (1989) (S. v.A.C. although a suspect need not agree.)).C. 2) (1973) (Ont. the Court has also held that if an accused does consensually provide DNA samples without attaching limits to their potential use. v.A. Mellenthin (1992) (S. There is also the issue of certainty over the accused¶s consent. Arp (1998) (S.)). and (c) the manner in which the search was carried out must be reasonable (R. While the SCC has held that taking a DNA sample for the investigation of one offence. v. and so on. violates the guarantee of unreasonable search and seizure. Esposito (1985) (Ont. v. specifically in the investigation of another offence (R. 93ff). For example. emptying the contents of a sports bag (R. and using it for purposes other than those consented to. v. 59 ± 125) (a) Searches Generally Section 8 of the Charter governs searches by government agents.C.C.C. The second step is to determine whether the search was performed in a reasonable manner (R. v. Police lineups are a good example. Borden (1994) (S.C.

Whether there is a reasonable expectation of privacy is to be determined by the totality of the circumstances: presence at the time of the search. The police officer must lawfully make an initial intrusion or otherwise properly be in a position from which he can view a particular area.C.J. and the objective reasonableness of the expectation (Edwards). [1984] (S.C. Police may enter into a house on the basis preserve the property and the public peace. if the individual can demonstrate that a police search was conducted without a warrant. Southam Inc. C. and (4) Search in plain view. v.A. (2) Search incident to arrest. Without a lawful search or lawful entrance. Caslake [1988] S. The officer must discover incriminating evidence inadvertently. v. there can be no basis for the doctrine (R. v. The Crown then must prove the reasonableness of the search on a balance of probabilities (R. the ability to regulate access. which is to say.)).B. ownership of the property or place.A. the existence of a subjective expectation of privacy.C. (d) ³Plain View´ Doctrine A person has no reasonable expectation of privacy in what he knowingly exposes to the public or abandons in a public place (R.C. C. 2. Fitt (1995) (N.C. For example.A.)).C. that search will be presumed to be unreasonable unless shown to be justified (Hunter v.)). S. There are 4 types of warrantless searches: (1) Search by consent. A peace officer may seize any evidence which he observes by use of one or more of his senses from a lawful vantage point (R. possession or control of the property or place searched. Page | 146 .)). it may be considered lawful under the plain view doctrine (R. There are generally 3 requirements for the plain view doctrine (R. v. That being said. Shea (1982) (Ont. v.): 1. If an officer is on a premises lawfully and observes items believed to be illegal. Tessling (2004) (S.)). Dreysko (1990) (Alta. v. (3) Search for abandoned property. Ruiz (1991) (N.)). historical use of the property or item.)). relying on the plain view doctrine only as a pretext. Nielsen (1988) (Sask.C.S. and if on entering they discover stolen property in the household.C.A.C. it is lawful for his to seize the items (The Queen v. including the right to admit or exclude others from the place. (c) Warrantless Searches An individual alleging a breach of his or her Charter rights bears the burden of proving that violation on a balance of probabilities. he may not know in advance the location of certain evidence and intend to seize it.

Searches incidental to arrest are required to follow a number of principles stated in R. they may seize it immediately: Lands accessible to the public ± i.A.)).)). v.)). Mann (2004) (S. or the safety of others. Calderon (2004) (Ont. C. These requirements having been met.)) If the search goes beyond the purpose of officer safety and becomes investigative then a lawful search can become unlawful (R.C. Caslake [1998] (S.3. (3) Search of the Person (a) Incident to Detention There is a common law power to search incident to detention where "the officer « believe[s] on reasonable grounds that his or her own safety.C): 1. v.)).A. the "open fields" doctrine does not encompass all open air private properties (R.)).C. This common law power is an exception to the usual requirement of "reasonable grounds" for a search. C.C. However. is at risk.A.e. The right to search does not arise out of a reduced expectation of privacy of the arrested person. 4. an accused has no expectation of privacy with respect to his personal belongings seized upon arrest (R. v. (R. Blais (2004) (Ont.C. v. v.).A. (b) Incident to Arrest A Peace Officer has the common law power to search an individual incident to a lawful arrest without a warrant. C.)). v. or otherwise subject to seizure. Officers undertaking a search incidental to arrest do not require reasonable and probable grounds. "open fields" ± do not have a reasonable expectation of privacy and so are not protected by the Charter where illegal items are found in it (R." (R. v. A legally unauthorized search to make an inventory is not a valid search incidental to arrest. contraband.C. Rajaratnam (2006) (Alt. The 3 main purposes of a search incidental to arrest are: Page | 147 . Further. There is no "blanket authority" to search a car incident to arrest.B. It does not stretch so far as to include a bag found in a locker at a public bus station (R.C. v. The Officer must subjectively believe that person is committing or has committed an indictable offence and their belief is based on objectively reasonable grounds (R. 3. v. Kelly (1999) (N.C. Buhay (2003) (S. Bulmer (2005) (Sask.A. but flows out of the need for the authorities to gain control of the situation and the need to obtain information. It must be immediately apparent to the police that the items they observe may be evidence of a crime. a lawful arrest provides that foundation and the right to search derives from it. C. Boersma (1994) (S.C. 2. when police officers lawfully engaged in an activity in a particular area perceive a suspicious object.

4. 5. This however is limited to where the vehicle could be moved "quickly" and there is a risk that the evidence may be lost if attempt was made to get a search warrant (R. Wise [1992] (S.)). the Court suggested the following requirements for a warrantless search: 1. (2) to protect evidence.A. 2. Klimchuk (1991) (B. v. 7. McComber (1988) (Ont. it is considered more limited than locations such as houses (R. That the scope of the search itself bear a reasonable relationship to the offence suspected and the evidence sought. v. Page | 148 .A. Check stop programs aimed to check for sobriety. C.)). v. C. In R. 3. the reasonableness of which must be considered objectively.)).D.A. However. Belnavis (1996) (Ont. ownership. (I. v. make it not feasible to obtain a warrant. v. The categories of legitimate purposes are not closed: while the police have considerable leeway.C. licences.C. roadblocks set-up to search vehicles in order to catch suspects fleeing an armed robbery was considered a lawful search given the existence of a basis for investigative detention and the relative seriousness of the offence.) (1987) (Sask. such as imminent loss. is being or is about to be committed and that a search will disclose evidence relevant to that offence. That the vehicle be stopped or the occupants be detained lawfully. D.).C. (3) to discover evidence. removal or destruction of the evidence. 6. The police undertaking a search incidental to arrest subjectively must have a valid purpose in mind. there must be a reasonable prospect the evidence will relate to the offence for which the person has been arrested.C. However. That the officer conducting the search have reasonable and probable grounds to believe that an offence has been. a valid purpose is required that must be ³truly incidental´ to the arrest. (i) Roadside Stops Even if the police have lawful grounds to stop a vehicle it does not allow a search of the vehicle unless there are "reasonable grounds".). A warrantless search of a vehicle may be reasonable where there are reasonable grounds to believe the vehicle contained illegal items (R.A. C. (4) Search of Motor Vehicles A driver has a reasonable expectation of privacy for the contents of their motor vehicle (R. insurance and the mechanical fitness of cars cannot be used by the police to search beyond its aims. If the justification for the search is to find evidence. That exigent circumstances.(1) to ensure the safety of the police and the public.

1 authorizing the entry. without a warrant referred to in section 529 or 529.(ii) Incident to Arrest However. or (b) Has reasonable grounds to believe that evidence relating to the commission of an indictable offence is present in the dwelling-house and that entry into the dwelling-house is necessary to prevent the imminent loss or imminent destruction of the evidence.C.A. the peace officer may enter the dwelling-house for the purpose of arresting or apprehending a person.C. Dreyer (2008) (B. there is a lessen expectation of privacy.C.)). Wilson J. v.A.3 (1) Without limiting or restricting any power a peace officer may have to enter a dwellinghouse under this or any other Act or law. Nicolisi (1998) (Ont. exigent circumstances include circumstances in which the peace officer ± Has reasonable grounds to suspect that entry into the dwelling-house is necessary to prevent imminent bodily harm or death to any person. if the peace officer has reasonable grounds to believe that the person is present in the dwelling-house.)). any contents of the vehicle in plain view upon entering the vehicle can be seized (R. Klimchuk (1991) (B. and the conditions for obtaining a warrant under section 529.1 exist but by reason of exigent circumstances it would be impracticable to obtain a warrant.C.C.C. Majedi (2009) (B.C.C. stated the analytical approach for considering confidential or anonymous information: First. v. was the information predicting the commission of a criminal offence compelling? Secondly. v.C. (5) Search of Residences Section 529. of information received from a confidential or anonymous source.)) For example.C. Belnavis [1997] (S. (iv)Passengers A passenger in a motor vehicle generally does not have a reasonable expectation of privacy (R. there is an expectation of privacy to the limited area underneath the passenger (R.)).C.C.A. a search of a brief case found in a stolen vehicle incident to arrest is justified (R. A request by a police officer for a driver's licence and insurance is not a search (R. C. Police may search a vehicle to determine whether there are weapons found in the vehicle (R.) provided guidance with respect to the issue of weighing the information the Peace Officer is intending to rely upon for the search or arrest. However. v. The SCC case of R.A. There is no heightened expectation of privacy justifying an exemption from the usual common law principles of search incident to arrest. Caslake [1998] (S.C. automobiles can be searched incident to arrest. v. where that information was based on a "tip" originating from a source outside the Page | 149 . v.)).A. Debot [1989] (S. Thus. in part.3(1) provides the power for police to enter a residence without a warrant: 529. v. The presumption of unreasonableness of a warrantless search is rebutted upon proof that the arrest was lawful and the search was reasonable (R. v. Mohamad (2004) (Ont. (iii) Other Where the police seize a vehicle for the purpose of removing it from the road. v.C. (2) For the purposes of subsection (1). C. (R.)). Hufsky [1988] (S.)). (i) Confidential Informers Police will often affect searches and arrests on the basis.)).

's view that the "totality of the circumstances" must meet the standard of reasonableness... c.. was that source credible? Finally. the court must look to a variety of factors including: a. There is no formulaic test as to what this entails. The informer¶s source of knowledge.A. Garofoli [1990] (S. be compensated by strengths in the other two.. evidence of a tip from an informer. Rather.): ³.) and evidence of reliability of an informant tendered to establish similar grounds in respect of a wiretap authorization.. such as the supplying of reliable information in the past or confirmation of part of his or her story by police surveillance. (ii) The reliability of the tip is to be assessed by recourse to ³the totality of the circumstances´. Rather. v. Weaknesses in one area may. b. I concur with Martin J.. of times paid (before / after incident) 2. was the information corroborated by police investigation prior to making the decision to conduct the search? ³I do not suggest that each of these factors forms a separate test. whether the informer discloses his or her source or means of knowledge and whether there are any indicia of his or her reliability. ex post facto. The degree of detail of the ³tip´. provide evidence of reliability of information. (iii) The results of the search cannot..I see no difference between evidence of reliability of an informant tendered to establish reasonable and probable grounds to justify a warrantless search (the issue in the cases cited by Lamer J.police. to some extent. is insufficient to establish reasonable and probable grounds.´ Martin J. I conclude that the following propositions can be regarded as having been accepted by this Court in Debot and Greffe: (i) Hearsay statements of an informant can provide reasonable and probable grounds to justify a search. of valid search warrants based on his information Page | 150 . However. had stated: ³I am of the view that such a mere conclusory statement made by an informer to a police officer would not constitute reasonable grounds for conducting a warrantless search . are whether the informer's "tip" contains sufficient detail to ensure it is based on more than mere rumour or gossip.A.C. Highly relevant .C.´ Other factors considered include: Level of detail of the informer's information: Length of discussions with informer Amount of information known of accused (by name or description)? Did information include the location of criminal offence? did information include nature and quality of drugs? did information include the nature of the deal? Informers source of knowledge 1st. by itself. Indicia of the informer¶s reliability such as past performance or confirmation from other investigative sources. Moreover. 2nd or 3rd hand information? (3rd degree is as good as anonymous) Freshness of the information Past reliability: Length of time known Frequency of contact 1.´ The test was further refined in R.

492. 487.256) Proceeds of Crime (s. and 3.2(2)) Bodily impressions (s. A police direction or demand.Had searches resulted in seizure of drugs/monies/weapons (If so. SEE PREVIOUS SECTIONS CASES + COMMON LAW POWERS OF DETENTION UNDER THE WATERFIELD TEST! (i) Investigative Detention definition of detention: p. of negative. 2. The investigation must be based on a ³reasonable suspicion that the particular individual is implicated in the criminal activity under investigation´ for it to be considered lawful. how many.1(1)) Telephone records (s. 487) General Searches (s.05) Tracking (s. The individual¶s reasonable belief that there is no choice but to comply Page | 151 .091) (7) Powers of Detention (Coughlan pp. 126 It has been well established that the police have a common law right to detain for investigative purposes. The individual¶s voluntary compliance with the direction or demand resulting in a deprivation of liberty or other serious legal consequences. 462. 487.117. false or inaccurate information? 2.B. of cases resulted in dismissed/acquitted/withdrawn Credibility of Informer Did they have pending charges at the time? Non-conclusory information Did they have a criminal record? For offences of dishonesty? If so. A person can be detained physically or psychologically.01) DNA Sample (s. in what amount?) Had information resulted in convictions? 1.1) Number recordings (s. 126-142) N. and how long ago? Corroboration/Confirmation by other investigative sources how many/much of the details of the information confirmed? how much of the information was non-obvious or obscure? (6) Warrant Searches A Search Warrant is an Order issued by a Justice of the Peace under statute that authorizes a person to enter into a location and seize specified evidence that is relevant and material to an offence. 492.04) Blood samples (s.487. The CC provides for several types of search warrants: Weapons warrant (s. Psychological detention has 3 elements: 1.32) Federal Offences (s. 492.

Held: Detention under ss. the following factors: (a) the circumstances giving rise to the encounter as they would reasonably be perceived by the individual. In cases where there is no physical restraint or legal obligation. or a reasonable person would conclude by reason of the state conduct that he or she had no choice but to comply. whether or not the detention is solely for investigative purposes. SCC Held: Evidence admitted. (b) the nature of the police conduct. broadening the category of conscriptive evidence and increasing its importance to the ultimate decision on admissibility´. 24(2) of the Charter Facts: police officers were doing µneighbourhood policing¶ in a high crime area. and (c) the particular characteristics or circumstances of the individual where relevant. The detention was unlawful and therefore unconstitutional contrary to s. ³It is difficult to reconcile trial fairness as a multifaceted and contextual concept with a near-automatic presumption that admission of a broad class of evidence will render a trial unfair. Psychological detention is established either where the individual has a legal obligation to comply with a restrictive request or demand. 9. applying the proper legal principles to the particular facts of the case. It is for the trial judge. s. 8 of the Charter because the police lacked reasonable grounds to suspect that Grant committed an offence. to determine whether the line has been crossed between police conduct that respects liberty and the individual¶s right to choose. it is open to them to inform the subject in unambiguous terms that he or she is under no obligation to answer questions and is free to go. Stillman created an ³all but automatic exclusionary rule for nondiscoverable conscriptive evidence. and conduct that does not. Grant [2009] SCC²leading case re: µdetention¶ & s. They said they questioned him because Grant stared at them and fidgeted with his coat and pants in a way that made him suspicious. Grant admitted to carrying a gun on him. inter alia. An unlawful detention is necessarily arbitrary. it may not be clear whether a person has been detained. in violation of s. The officers erred in their stopping Grant. by blocking his way on the sideway and began questioning him. the court may consider. The right to counsel arises immediately upon detention. To answer the question whether there is a detention involves a realistic appraisal of the entire interaction as it developed. 9 and 10 of the Charter refers to a suspension of the individual¶s liberty interest by a significant physical or psychological restraint. Deference is owed to the trial judge¶s findings of fact.R v. Also. not a minute parsing of words and movements. In those situations where the police may be uncertain whether their conduct is having a coercive effect on the individual. To determine whether the reasonable person in the individual¶s circumstances would conclude that he or she had been deprived by the state of the liberty of choice. although application of the law to the facts is a question of law. 10(b) was breached b/c the officers did not advice Grant to his right to counsel. regardless of the circumstances Page | 152 . Their stopping constituted a µdetention¶ because a reasonable person in Grant¶s position would conclude by reason of this police conduct that he had no choice but to comply with the officer¶s demands. Stopped Grant.

Ultimate Test: The court must assess and balance the effect of admitting the evidence on society¶s confidence in the justice system. (2) Spectrum re blameworthiness: Severe-Deliberate conduct -.-.) (p. (1) Seriousness of Charter-infringing state conduct: FACT SPECIFIC Focus is not merely on the breach ± broad look at state¶s conduct.-.in which it was obtained«trial fairness is better conceived as an overarching systemic goal than as a distinct stage of the s. (ii) the degree of departure from Charter standards. Buhay: an officer must honestly but mistakenly believe that s/he is respecting the Charter. (a) Ask: Was breach inadvertent or minor or willful or reckless disregard for Charter rights? (b) If acted in ³good faith´ ± reduced need to disassociate itself (R. and (iii) the presence or absence of extenuating circumstances. while the absence of such a problem is hardly a mitigating factor. REVISED APPROACH ± Section 24(2): Concerned about maintaining good repute of administration of justice«repute of justice system viewed in long term«forward looking«purpose is societal«not about punishing police or providing compensation to accused.v. (a) The more significant the deviation.27-30) (c) Is there evidence of pattern of abuse? (racial profiling. The belief must be reasonable. (b) Therefore determine whether the breach is substantial or merely technical. the more compelling the case for exclusion. may [thin] seriousness of police conduct´ Page | 153 . discrim)« (d) P: compliance with defective internal policy directives or bad legal advice given beforehand: R. (p.24(2) analysis´. vulnerability of the accused is exploited. v. (c) (iii)³«extenuating circumstances.Inadvertent-Minor.Harrison: evidence of systematic or institutional abuse will aggravate the seriousness of the breach and weigh in favour of exclusion. (b) (ii)³«must consider seriousness of violation viewed in terms of the gravity of the offending conduct by state authorities whom the rule of law requires to uphold the rights guaranteed by the Charter´. (eg) need to prevent disappearance of evidence.31) (c) possible factors: the more general manner in which police conducted themselves. Court is asking: Can we afford to be associated with their conduct? Are the courts condoning deviation from rule of law? Three considerations that will colour the seriousness of the breach: (i) blameworthiness of the conduct.

Feeney: more is needed than the simple fact that after any crime is committted. Discoverability only where it can be said confidentially that the statement would have been made notwithstanding the Charter breach. -.33): Does admission send message that individual rights count for little? ³«evaluation of extent to which breach actually undermined the interests protected by the right infringed«the more serious the impact on the accused¶s protected interests. are of little actual avail to the citizen«´ Look at interests behind the right (para. as opposed to inadvertent.8: requires court to examine degree to which search and seizure intruded upon privacy. human dignity. The degree of intrusion will be coloured by the nature of the investigative technique employed The way the impact is assessed varies with the kind of evidence sought to be admitted. There must be some particular foundation for the belief in urgency or necessity in each case. and more broadly. Kinds of evidence: Statements by Accused: They will be presumptively inadmissible (but not automatically excluded).) Bodily Evidence: The degree of intrusion caused when bodily samples are secured depends upon the extent to which privacy. Charter violations. We have exam the nature and degree of intrusion of the Charter breach into the Charter-protected interest of the accused. however high-sounding. or the breach is so technical as to have no real effect on the important Charter-protected interest of the A to make an informed choice about whether to speak to the authorities.8 of the Charter may impact on the protected interests of privacy.´ Example: ³How big was human dignity interest impacted?´ Bodily Evidence in violation of s. also by the role the Charter breach played in making the evidence available.´ Why focus on ³interests´? We are concerned how society would view it. (a) R. Stillman treated hair sample the same as body cavity search because they are both conscriptive. (2) Impact of breach on Charter-protected interests of accused (p. bodily integrity. the greater the risk that admission of the evidence may signal to the public that Charter rights. Initial delay in providing right to counsel caused by desire of police to get potentially volatile situation under control (Strachan).NECESSITY/EMERGENCY? eg: Likelihood that co-conspirators knew of arrest raised spectre that any contraband at his house would be removed before police could arrive (Silveira). OK due to police safety (Golub). more generous approach. the possibility that might be destroyed is inevitable present. (b) The urgency of preserving evidence should not be understood as reducing the seriousness of intentional. like in Silveira.77): ³an unreasonable search contrary to s. unless sound basis for concluding that the A would have spoken in any event. (c) In emergency cases where public or police safety is at stake. The degree of intrusion will also be coloured by the nature of the investigative technique employed. Concriptive test produced anomalies: minor breaches (breathalyzers) often Page | 154 . Perrin: This part of case not very well fleshed out. bodily integrity. The more intrusive the breach is. Police entered house without warrant after receiving report the accused by machine gun. and human dignity of the accused. the greater the danger to the repute of the administration of justice in appearing to discount Charter rights. Section 7 silence to protect from self-incrimination.Huge range for difference with respect to impact of breach ± that is why you shouldn¶t have automatic Stillman exclusionary rule. and human dignity are compromised given the nature of the samples and the manner in which they are secured. Breathalyzers are example of very low intrusive method of obtaining bodily samples. v. (Where statement is made to recognized person in authority inadmissible unless Crown established BARD that it was made voluntarily.

causation and discoverability are relevant considerations for all kinds of evidence.Consider 3 steps of inquiry and where evidence came from. or locker. the significance of the intrusion varies with the degree of likelihood that discovery would have occurred in any event. those who are present (Golden). (3) Society¶s interest in adjudication of case on merits: [radical change to law] Now TJ will be asked to assess liability! Whether truth-seeking function of process would be better served by admission or exclusion: ³«society¶s collective interest in ensuring those who transgress the law are brought to trial and dealt with according to the law«´ Two central factors: reliability of the evidence + importance of the evidence to the Crown's case (a) Focal Point: How reliable is unconstitutionally-obtained evidence? Admission of unreliable evidence does not help anyone ± but exclusion of relevant. relative sex of subject. eg: privacy. vi.Stage 1 is fact specific: Depends on extent to which the conduct can be characterized as deliberate or egregious. Regarding #2 stage.automatically excluded. Searches of home more serious than car. the breach had no real impact on the Charter-protected interest of the A to make an informed choice about whether to speak to the authorities. nature of physical contact. to the derivative evidence. there is diminished role for derivative evidence. Since ³derivative´ evidence comes from unconstitutionally obtained statements. If this cannot be determined with any confidence. unless v. a dwelling house attracts a higher expectation of privacy than a place of business or an automobile. it can confidently be concluded that there is a likelihood that the derivative evidence would have been discovered even had there been no Charter violation. discoverability will have no impact on the inquiry and the intrusiveness of the breach is apt to be treated as high. .41) ix. office. The significance of the impact of the violation will turn on the Charter breach used to obtain the statement that led. Para 110: Society¶s interest generally favors admission [they are reliable]. -. reliable evidence undermines public confidence ± even if unconstitutionally obtained balance of interests. Non-Bodily Physical evidence: The significance of the impact of the violation turns primarily on the manner of discovery and the degree to which the manner of discovery undermines the Charter-protected privacy interests of the accused. Discoverability does not enhance admissibility of bad faith breaches (reference to Buhay. Now. while major (seizure of illegal drugs) have been admitted when nonconscriptive. it can confidently be said that the statement in question would have been made notwithstanding the Charter breach vii. Ask: Did breach have no real impact on Charter-protected interest of accused to make informed choice about whether to speak? Would statement have been made notwithstanding Charter right? Would it have been discovered anyway? According to P&S(p. Where this conclusion can be made. ii. Page | 155 . although privacy interests related to the nature of the physical evidence should also be considered. cavity search demeaning to human dignity i. Derivative evidence: = physical evidence discovered as a result of an unlawfully obtained statement. x. Many features can change intrusiveness of strip search: where it took place. Turns primarily on manner of discovery and the degree to which manner of discovery undermines Charter-protected privacy interests of accused. Feeney). that degree of intrusion will generally be significant. This evidence usually ³real´ or physical ± less concern of reliability public interest in having trial adjudicated on merits usually favor admission of derivative evidence. in turn.

As R. While seriousness is valid consideration it has potential to cut both ways. and by attaching less importance to the seriousness of the offence in the third. Irwin (p. Evidence obtained from an accused¶s body is generally reliable. the more serious or significant the breach must be for exclusion to occur. that is. (b) Importance of evidence to Crown¶s case is important factor. evidence will be excluded if Charter breach is serious enough or its impact on Charter-protected interests is significant enough. v.. does not give sufficient consideration to the long-term societal interest that must guide the judge in reaching a decision´. ³Failure to effectively prosecute a serious charge due to excluded evidence may have an immediate impact on how people view the justice system«yet«it is long term repute of the system that is s. Harrison shows. xvii.ix. The more crucial the evidence is. xi. the more the public will be outraged that evidence was not included to get at the truth. Tied closely to reliability concerns (para.24(2) of the Charter. The statement that s. while«. The more serious. x. by focusing the analysis on the conduct of the police in the first branch and on the interest of the accused in the second.83): If questionably reliable. (c) Seriousness of offence: (para. Deschamps J: ³Regarding the factors to consider in deciding whether to admit or exclude evidence obtained in violation of a Charter right. where the breach is serious enough and its impact significant. But if we exclude highly reliable evidence it may impact more negatively on repute of admin of justice where the remedy effectively guts the prosecution. which is to maintain public confidence in the administration of justice. It cannot be legitimate interest of the accused to exclude evidence simply because they are charged with a more serious offense. Link reliability with importance to Crown¶s case! xiii.favored admission. A breach that compels suspect to talk undermines reliability. The proposed test. the new test proposed by the majority is inconsistent with the purpose of s. xiv.24(2) has a long-term societal purpose is of great significance for the identification of the factors to consider in the analysis. evidence is more likely to bring admin of justice to disrepute when forming the entirety of Crown¶s case. the reliability of the evidence will not save it from exclusion. ³One of the problems with the reliance on trial fairness [in Collins] was that it is a concept with several possible meanings and can accordingly lead to confusion´.24(2)¶s focus´ ± not immediate impact on how people view system! xviii. ³«having made these inquiries.] xix. in fact it will have no material bearing on the outcome. but not serious.24(2)´ Page | 156 . significant impact of breach on rights strongly favored exclusion of gun. Exam: Should seriousness play a role in fact pattern? [Deschamp says it is vital consideration and does NOT cut both ways.84) ± it is a wash and doesn¶t help [this court] decide this case. Even if evidence is crucial. ³I find the majority¶s emphasis on state conduct puzzling in view of the purpose of s. value of evidence was considerable and reliable.45): Section 24(2)¶s goals ³operate independently of the type of crime for which the individual stands accused´. which encapsulates all of the circumstances of the case«´ ± EXHAUSTIVE! Application to Facts: Breach was significant. xv.

however. At the OCSJ. Section 9 of the Charter does not dictate that police abstain from interacting with members of the public until they have specific grounds to connect the individual to the commission of a crime. The CA for Ontario rejected the summary conviction appeal judge's proposition. or is physically delayed by contact with the police. They are stopped. will trigger an individual¶s right to counsel under s. Facts: Two men used stolen credit cards & go on a shopping spree. The onus is on the applicant to show that. Held: The police duty to inform an individual of his or her s. possession of a stolen credit card. detention under ss. The issue was whether the police constable should have informed Suberu of his rights to counsel at the outset of their interaction. The immediacy of this obligation is only subject to concerns for officer or public safety. Therefore. 1 of the Charter. is asked questions. and possession of a stolen debit card. will amount to a detention for the purposes of the Charter. The phrase ³without delay´ in s. from the moment an individual is detained. The concerns regarding compelled self-incrimination and the interference with liberty that s. 10(b) must be interpreted as ³immediately´. 10(b) seeks to address are present as soon as a detention is effected. not every police encounter. even when a person is under investigation for criminal activity. The Court applied the new test for detention created in the companion case of R. in the circumstances. Not every interaction with the police. triggering section 10 of the Charter. the summary conviction appeal judge upheld the conviction. There was no issue about the timing of the rights to counsel in relation to the arrest. he or she was effectively deprived of his or her liberty of choice. Suberu was convicted of possession of property obtained by crime. The line between general questioning and focussed interrogation Page | 157 . but dismissed the appeal on the basis that the wording of "without delay" in section 10(b) of the Charter allows for a brief interlude at the beginning of an investigative detention to allow police to ask exploratory questions to determine whether further detention is necessary. the police have the obligation to inform the detainee of his or her right to counsel. or a reasonable person would conclude by reason of the state conduct that he or she had no choice but to comply. or to reasonable limitations that are prescribed by law and justified under s. Accused was questioned by a police officer in a mini van. Grant. However. 10(b). the applicant¶s contention that the police by their conduct effected a significant deprivation of his or her liberty must find support in the evidence. 10(b) Charter right to retain and instruct counsel is triggered at the outset of an investigative detention. However. v. Suberu [2009] SCC²application of Grant test concerning µdetention¶ a leading decision of the SCC on section 9 and section 10 of the Charter. According to the purposive approach adopted in R. The cop arrested him and read him his rights. the trial judge found that there was a necessary "momentary investigative detention". the trial judge went on to find that the police were not required to inform Suberu of his rights to counsel before he was asked preliminary or exploratory questions to determine if there was any involvement by Suberu.R v. The test is an objective one and the failure of the applicant to testify as to his or her perceptions of the encounter is not fatal to the application. even with a suspect. v. Grant and ruled on the timing of when a individual is required to be informed of his or her rights to counsel after being arrested or detained. Likewise. 9 and 10 of the Charter refers to a suspension of the individual¶s liberty interest by a significant physical or psychological restraint. Psychological detention is established either where the individual has a legal obligation to comply with the restrictive request or demand. arguing that the constable's instruction to "wait" meant that there was a detention. but on the basis that section 10(b) of the Charter is never engaged by investigative detentions. At the Ontario Court of Justice.

1(4) sets out that ³the competent authority shall make designations under subsection (3) on the advice of a senior official and shall consider the nature of the duties performed by the public officer in relation to law enforcement generally. the court may consider.1(2) provides that ³it is in the public interest to ensure that public officers may effectively carry out their law enforcement duties in accordance with the rule of law and. Finally. making general inquiries regarding a particular occurrence. inter alia. 9 and 10 of the Charter refers to a suspension of the individual¶s liberty interest by a significant physical or psychological restraint. it may not be clear whether a person has been detained. 1 need not be invoked in order to allow the police to fulfill their investigative duties effectively. To determine whether the reasonable person in the individual¶s circumstances would conclude that he or she had been deprived by the state of the liberty of choice. the duration of the encounter. Section 25. maintaining general order. including age. to that end. to expressly recognize in law a justification for public officers and other persons acting at their direction to commit acts or omissions that would otherwise constitute offences. the place where the interaction occurred. minority status. or a reasonable person would conclude by reason of the state conduct that he or she had no choice but to comply. 143-146) Designated officers are permitted to break the law if in their judgment that is a reasonable choice. b) The nature of the police conduct. (8) Power to ³Break the Law´ (Coughlan pp. Psychological detention is established either where the individual has a legal obligation to comply with the restrictive request or demand. It is the task of the trial judge on a Charter application to assess the circumstances and determine whether the line between general questioning and detention has been crossed. Because the definition of detention gives the police leeway to engage members of the public in non-coercive. Therefore. physical stature.´ Suberu was not physically detained and did not face any legal obligations to comply with the officer's request to wait. ³Detention under ss. s. level of sophistication. the presence of others. including the language used.´ Section 25. c) The particular characteristics or circumstances of the individual where relevant. exploratory questioning without necessarily triggering their Charter rights relating to detention. the use of physical contact. it has not been demonstrated that a general suspension of the right to counsel during the course of short ³investigatory´ detentions is necessary and justified under s. or. singling out the individual for focused investigation. the remaining question was whether the police officer's conduct would lead a reasonable person to believe that he had no choice but to comply. the following factors: a) The circumstances giving rise to the encounter as they would reasonably be perceived by the individual: whether the police were providing general assistance. In cases where there is no physical restraint or legal obligation.amounting to detention may be difficult to draw in particular cases. rather than in relation to any particular investigation or enforcement activity. 1 of the Charter.´ Page | 158 .

25.1(9): 25. or (b) Believes on reasonable grounds that the grounds for obtaining an authorization under paragraph (a) exist but it is not feasible in the circumstances to obtain the authorization and that the act or omission is necessary to ± (i) Preserve the life or safety of any person. the nature of the investigation and the reasonable availability of other means for carrying out the public officer¶s law enforcement duties. is reasonable and proportional in the circumstances. 25. in addition to meeting the conditions set out in paragraphs (8)(a) to (c).1(9) No public officer is justified in committing an act or omission that would otherwise constitute an offence and that would be likely to result in loss of or serious damage to property. having regard to such matters as the nature of the act or omission. he or she ± (a) Is personally authorized in writing to commit the act or omission ² or direct its commission ² by a senior official who believes on reasonable grounds that committing the act or omission. as compared to the nature of the offence or criminal activity being investigated. is reasonable and proportional in the circumstances. or (iii) Prevent the imminent loss or destruction of evidence of an indictable offence. (ii) Prevent the compromise of the identity of a public officer acting in an undercover capacity. . or the enforcement of. having regard to such matters as the nature of the act or omission. unless. Going to the Trial: Taking over the Accused \ Page | 159 . or in directing the commission of an act or omission under subsection (10). as compared to the nature of the offence or criminal activity being investigated.1(8). which states: 25. the nature of the investigation and the reasonable availability of other means for carrying out the public officer¶s law enforcement duties.The justification for such acts is set out in s. (b) Is designated under subsection (3) or (6). of a confidential informant or of a person acting covertly under the direction and control of a public officer. an Act of Parliament or in the investigation of criminal activity.1(8) A public officer is justified in committing an act or omission ² or in directing the commission of an act or omission under subsection (10) ² that would otherwise constitute an offence if the public officer ± (a) is engaged in the investigation of an offence under. and (c) Believes on reasonable grounds that the commission of the act or omission. There are however limitations to such acts under s.

Where an individual is arrested. or held in custody pending the trial. 470). In addition. So too do non-police officers.C. . The common theme in the relevant legal provisions is that arrest ± taking physical control over the subject . The common theme in the relevant legal provisions is that arrest ± taking physical control over the subject .Coughlan pp. So too do non-police officers. fails to comply with Code provisions respecting adjournments and remands. e. These less intrusive modes of securing attendance include the appearance notice. Generally speaking. Uranium Canada Ltd (1983) (S. the promise to appear. such as bench warrant for arrest.C. and the courts have broad authority to issue process.Coughlan pp 50 ± 53 (gaining jurisdiction over the accused) . (i) Gaining Jurisdiction over the Accused (Coughlan pp 50 ± 53) The Court will have jurisdiction over the person of the accused if (a) he is within the territorial limits of the jurisdiction.Coughlan pp. he or she must be released or given a bail hearing where it will be decided whether the individual should be released absolutely.R. no matter what process has brought that person there.J. Persons immune from prosecution for policy reasons.1)).is to be used as a last resort when other measures available for ensuring the good conduct and attendance before the criminal justice process are not practical or desirable. 153 ± 161 (compelling appearance without arrest) . subjected to conditions of release. 485(1. No. SECURING JURISDICTION OVER THE ACCUSED & INTERIM RELEASE The police have specified powers to arrest individuals. and the summons.). he or she must be released or given a bail hearing where it will be decided whether the individual should be released absolutely.is to be used as a last resort when other measures available for ensuring the good conduct and attendance before the criminal justice process are not practical or desirable. or held in custody pending the trial. [2002] S. Where an individual is arrested.Coughlan pp. 161 ± 167 (the bail hearing) . Section 485 now excuses most errors relating to appearance of the accused. or (b) the accused has otherwise been lawfully ordered to appear before that court (s.168 ± 195 (the arrest) . 485(2)). that allows jurisdiction over the accused to be regained in the event that it is lost (s. diplomats. jurisdiction over an accused is not lost because of non-appearance (s. Page | 160 . 13). it was suggested that the court retains jurisdiction over the person so long as the person is present in court. v. A second issue is whether that jurisdiction once lost can be regained. v. subjected to conditions of release.GETTING TO THE TRIAL: TAKING CONTROL OVER THE ACCUSED 25. the promise to appear. in R. and thus jurisdiction is not lost simply because a judge fails to exercise jurisdiction in time. Eldorado Nuclear Ltd.C. The court does not however have jurisdiction over: Persons under the age of 12 (presumed to be incapable of crime under s.g. and the summons. 65 The police have specified powers to arrest individuals. These less intrusive modes of securing attendance include the appearance notice. Hall.

(ii) Jurisdiction in Time Indictable offences are generally not time-barred. the SCC decided that a court of competent jurisdiction means for practical purposes in criminal matters.C. Hynes (1986) (S. This is a departure from the Court¶s earlier decision in R.).).).C. If unreasonable delay is caused by institutional delay (rather than party-caused delay). v. Although the right to trial within a reasonable time is not typically seen as an aspect of jurisdiction.)).C. v. Note that the retrospectivity rule applies to substantive criminal law. Criminal offences do not have retrospective application ± a court has no jurisdiction to try a charge of conduct that was not an offence when it occurred.C. but not procedural criminal rules.)). it should be mentioned because unreasonable delay can cause a Charter violation under s. v.C. the SCCof Canada¶s decision in R.).). Page | 161 .A. Morin (1992) (S.C. the court of trial. v. dramatically reduced the number of applications brought under this section. and will be classified as substantive where it impinges on vested rights (Re Application under Section 83. Another justification for this decision is that it avoids the possibility of contradictory rulings on constitutional issues between the preliminary inquiry judge and the trial court. Mills (1986) (S. the Court decided that as a preliminary inquiry judge has no jurisdiction to entertain constitutional issues.C. A law will be classified as procedural only in this analysis if it is exclusively so. (b) Jurisdiction under the Charter Section 24 of the Charter allows a ³court of competent jurisdiction´ to grant a remedy for breach of a Charter right. placing a much greater emphasis on the need for the accused to demonstrate actual prejudice from the delay. Although the Charter includes no express allocation of jurisdiction. This principle is confirmed in s. where the Court identified measures to be taken to rectify the system. it is not a ³court of competent jurisdiction´ for Charter matters. These matters will influence the Crown¶s decision in electing with hybrid offences (R. Askov (1990) (S. which are normally presumed to have immediate effect.C. Summary conviction matters are however time-barred after 6 months after the completion of the offence. 11(g) of the Charter. Belair (1988) (Ont. the Court held that the partial exception to this rule is for war crimes allegedly occurred in Europe during WWII (recognized as crimes in international law at the time of their commission). The Mills decision was aff¶d by the SCC in R.28 of the CC (2004) (S. C. In R.C.C. This justification however remains questionable in the event that there is no pending trial. v.C.C. In R. v. subject to considerations over the quality of the evidence. 11(b) of the Charter. Finta (1994) (S.

The Queen [1979] (S. (4) Where the accused appears voluntarily for the offence in respect of which the accused is charged. or by the person submitting to the arrest (R. A warrant is one among several means of securing an accused's attendance at court. v. (c)Arrest Without Warrant²Explained (p. There is reasonable grounds a person has committed an indictable offence. Whitfield) (p. and section 795 adopts the procedures of Part XVI for summary convictions. (3) Notwithstanding paragraph (1)(c). Asante-Mensah). to be dealt with according to law. (2) A warrant issued under this Part remains in force until it is executed and need not be made returnable at any particular time.)).C. 171) A warrant can only be issued after an information that sets out ³reasonable grounds´ to believe that a person has committed an offence is laid before a justice. among other things (Moore v. or 4. v.: An arrest consists of words of arrest accompanied either by touching of the person with a view to detention. starting with the moment of custody and extending until the person is either released from custody or brought before a justice and detained (R. There is limited power to arrest where the accused is found committing a summary offence and it is necessary to establish the accused's identity. 3.170). (1) A warrant issued under this Part shall ± (a) Name or describe the accused. s. CC. (b) Arrest With Warrant²Warrant explained (p. 173) Where there is no warrant for a person's arrest. 511 states: 511. that is powers to make arrest continue to be available. a judge or justice who issues a warrant may specify in the warrant the period before which the warrant shall not be executed. A person is committing an indictable offence. A police officer can arrest where: 1. Section 504 creates this rule for indictable offences. (b) Set out briefly the offence in respect of which the accused is charged. to allow the accused to appear voluntarily before a judge or justice having jurisdiction in the territorial division in which the warrant was issued. s. and (c) Order that the accused be forthwith arrested and brought before the judge or justice who issued the warrant or before some other judge or justice having jurisdiction in the same territorial division. On warrants.(a) Power of Arrest Def.C. 495: Page | 162 . the warrant is deemed to be executed. a Peace Officer is governed by CC. Arrest is a continuing act. 2. There is reasonable grounds a person is about to commit an indictable offence. A person has a warrant out for his/her arrest.

(b) Reasonable Grounds (p. v. he believes has committed or is about to commit an indictable offence. 553. Storrey (1990) (SCC)). 175) Reasonable grounds for arrest (sometimes referred to as "reasonable and probable grounds') has an objective and subjective component (R. (b) A person whom he finds committing a criminal offence. (1) A peace officer may arrest without warrant ± (a) A person who has committed an indictable offence or who. However.A. Rajaratnam (2006) (Alta. v. and (e) He has no reasonable grounds to believe that.495. in any form set out in Part XXVIII in relation thereto. the person will fail to attend court in order to be dealt with according to law. unless in any such proceedings it is alleged and established by the person making the allegation that the peace officer did not comply with the requirements of subsection (2). 494 CC (³citizen's arrest´) is also available since peace officer is ³any one´. or (c) A person in respect of whom he has reasonable grounds to believe that a warrant of arrest or committal. C. For example. having regard to all the circumstances including the need to (i) Establish the identity of the person. (2) A peace officer shall not arrest a person without warrant for (a) An indictable offence mentioned in s.)). Page | 163 . on reasonable grounds. and (b) Any other proceedings. The requirement is read to mean ³apparently´ finds committing. if he does not so arrest the person. or (iii) Prevent the continuation or repetition of the offence or the commission of another offence. (b) An offence for which the person may be prosecuted by indictment or for which he is punishable on summary conviction. or (c) An offence punishable on summary conviction. or any person fleeing from any type of offence. a peace officer acting under subsection (1) is deemed to be acting lawfully and in the execution of his duty for the purposes of ± (a) Any proceedings under this or any other Act of Parliament. (ii) Secure or preserve evidence of or relating to the offence. The officer may use his training and experience in determining objective reasonableness. s. what may appear to be innocent objects to the general public may have a very different meaning to an officer experienced in drug operations (R. Section 495 basically states that officers can arrest without warrant people who have committed indictable offences. The ³finds committing´ standard requires that the person arresting have actually witnessed the commission of the offence. in any case where (d) He believes on reasonable grounds that the public interest. is in force within the territorial jurisdiction in which the person is found. (3) Notwithstanding subsection (2). may be satisfied without so arresting the person.

Waugh (1956) (Ont. It is generally expected that the arresting officer.A.)). v. The "tip" must be considered based on the 1) the degree of detail provided. 2) the informant's source of information. to be informed promptly of the reasons therefor". v.)). v. The subjective grounds must be based on a bona fides belief to a relevant fact.. C.C. will not support an objective finding of reasonable and probable grounds for an arrest (R.C. CA)) (c) Procedure on Arrest (p.C. v. Bennett (1996) (Que.C.S.)). Warford (2001) (Nlfd. it is not necessary (Koechlin v. Lal (1998) (B. 3) the informant's prior reliability (R. C. 185ff) (i) Script The arresting officer must inform the accused of the charges and their right to counsel. an accused has a constitutional right to counsel under s. Wood (1994) (N. upon making the arrest. will inform the person of the reason for the arrest. Typically. (iii) Right to Counsel Upon arrest or detention. An anonymous tip generally is not sufficient (R. they must wait for counsel to arrive (R. 10(b) of the Charter. C.A.A conclusory statement from one officer to another. where the reason is obvious and the person is well aware of the reason. v.)).A. However.C.C. Borden [1994] (S. Post-fulfillment Once the obligations have been fulfilled the police may undertake questioning at will and do not need to stop by further requests for a chance to speak with a lawyer (R. A "tip" can be used to form the grounds of arrest. Howard (1983) (Ont. v.A. It is not necessary that the fact actually be true (Eccles v. if counsel is on the way.)). However.)). The police do not need to cease a lawful search while the accused seeks counsel (R.A. the officer will read from a script: (ii) Right to be Informed of Charges Section 10(a) of the Charter entitles all people "the right on arrest or detention . Bourque [1975] (S. Page | 164 .)).C.. such as ³a drug transaction has taken place´.

s. If the bail hearing is adjourned. Failure to comply with the summons can result in an arrest warrant and further charges (s. a hybrid offence. the prosecutor. However. 495(2) which directs police officers to prefer the use of an appearance notice to an arrest for some offences. 494. treason. Failure to comply with the appearance notice can result in an arrest warrant and further charges (s. The choice between a summons and an arrest warrant lies in the discretion of the judge. the judge or justice of the peace can hear the bail hearing. and to report for fingerprinting and mug shots. 144). the accused is automatically detained so that he or she can be dealt with as described below.3) Compelling Appearance Without Arrest (Coughlan pp. if the defence does not consent to the adjournment. the court may order the accused not to communicate with certain individuals while he or she is detained. 153 ± 161) Summons A provincial court judge or a justice of the peace can issue a summons requiring an accused to appear in court on a given date. s. this is parallel to s. or an offence found in CC.). they can issue the person an Appearance Notice instead of arresting them (provided that the offence is a summary conviction offence. Like a summons. However. 504). s. Page | 165 . the bail hearing can only be adjourned up to 3 days. he or she must be brought before a provincial court judge or a justice of the peace without unreasonable delay and in any event within 24 hours of the arrest. 469 (murder. (a) Timing If an accused is not released by the police. or the court. 553). 145). unless a justice is not available in that amount of time in which case the accused must be brought before a justice as soon as possible. If the offence is one found in CC. Appearance Notice If a police officer is satisfied on reasonable grounds that an arrest is not necessary to establish the identity of the person. secure or preserve evidence. The summons can also indicate when a person is required to report for fingerprinting and a mug shot (s. an Appearance Notice directs the accused to appear in court on a given date. Otherwise. or prevent the continuation of the offence or the commission of another offence. 507(4) directs a justice to issue a summons unless there are reasonable grounds to believe that a warrant is necessary in the public interest. s. The hearing may be adjourned by the defence. etc. At a policy level.

They are commonly referred to as primary grounds. This ground is narrower and more precise than the old public interest ground which was struck down as vague in 1992 and provides an intelligible standard for debate and for the exercise of discretion. 515(6) [reversed onus] and 515 (11) [refers to 522: only judge. and the type of offences before the court. their connections (or lack of) with the jurisdiction. Primary grounds refers to whether detention is necessary to ensure the accused's attendance in court (s. Considerations include the accused's criminal history. The means chosen do not go further than necessary to achieve Parliament¶s purpose of maintaining public confidence in the bail system and the justice system as whole. Secondary grounds refers to whether detention is necessary for the protection or safety of the public (s. and is generally reserved for very serious offences. 11(e) of the Charter. This includes whether there is a substantial likelihood the accused will commit a further offence or interfere with the administration of justice. 164) Held: Denial of bail ³to maintain confidence in the administration of justice´ having regard to the factors set out in s. Parliament has hedged the provision with important safeguards: a judge can only deny bail if satisfied that. including whether a firearm was used. in view of the four specified factors and related circumstances. However. 515(10)(a)). faces a minimum of 3 year of jail. secondary grounds. the prosecutor has the burden to show on a balance of probabilities why the accused should be detained. Hall [2002] SCC (also p. their behaviour in the matter before the court. The provision is not overbroad but strikes an appropriate balance between the rights of the accused and the need to maintain justice in the community. the accused has the burden to show why he or she should be released if they are charged with the following offences under s. and If found guilty. 515(10)(c) complies with s. not justice. or if a firearm was involved. (b) Burden of Proof Generally. Tertiary grounds refers to whether detention is necessary to maintain confidence in the administration of justice. 515(10)(b)). 161ff) In Canada. Two exceptions to general approach: s. can decide about releasse wrt to 469 offences] R v. 515(10)(c) are: The apparent strength of the prosecutor's case. The seriousness of the offence. 515(6)(a): Page | 166 . a reasonable member of the community would be satisfied that denial of bail is necessary to maintain confidence in the administration of justice. there are only 3 grounds for detaining an accused prior to sentence.(a) Justification for Detention (p. and tertiary grounds. The four factors to consider in s. whether the accused is liable to a potentially lengthy term of imprisonment. The circumstances surrounding the offence.

(ii) Recognizance Without Sureties and Without Deposit A recognizance requires an accused to follow certain conditions with a financial penalty if they are not followed. then the recognizance just requires the accused to attend court as directed by the recognizance. 515 (2) CC (p. Certain violent offences (including attempted murder) where a firearm was used. Page | 167 . crossbow. etc. The recognizance can be for any amount the court determines would be appropriate based on all of the circumstances (the accused's financial situation. If there are no conditions. The court is allowed to consider other offences the accused has been charged with but is still awaiting trial for. or prohibited weapon while under a weapons prohibition. a judge can order the accused to be liable to the Crown for an amount up to the amount of the recognizance. An offence committed at the direction or in association with a criminal organization. 162) If the court is satisfied that the accused should be released.An offence committed while at large on a release. A weapons trafficking offence. If the recognizance is not complied with. s. (d) Types of Release. 145 CC). An offence of failing to comply with release conditions or failing to attend court. A terrorism offence. the circumstances of the offence. Any offence if the accused is not an ordinary resident of Canada. indicate they do want to show cause why they should be released) and consent to their detention. Certain offences under the Security of Information Act. the likelihood of the recognizance not being complied with. or Certain offences under the Controlled Drugs and Substances Act that carry the possibility of a life sentence. Failure to comply with the undertaking is a criminal offence (s. (c) Evidence (s. 145 CC). An offence that involved a firearm. and can include hearsay. there are a number of options available: (i) Undertaking A basic undertaking only requires the accused to appear in court as directed by the undertaking. The court may also impose further conditions as described below. This can include a summary of the alleged offence and any witness statements.). 518) The standard of evidence in a bail hearing is trustworthy and credible. The prosecutor is not required to show cause why an accused should be detained. Similarly. and may consent to the release of an accused. restricted weapon. The accused can also face further criminal charges (s. the accused may concede that the prosecutor can show cause (or if the accused has the burden of proof.

Refrain from attending certain locations.(iii) Recognizance With Sureties and Without Deposit The court may require that sureties be added to the recognizance. witness.1)): An offence with the commission of violence. An offence that involves a firearm. Criminal harassment. crossbow. Certain offences under the Controlled Drugs and Substances Act. restricted weapon.3)): Page | 168 . they can require the accused to comply with one or more of the following conditions (s. Sureties are allowed to apply to the court to be relieved of their obligations. or the threat of violence. they can make a deposit instead of requiring sureties. Notify the police of any change of address.). attempted violence. the court can require that they deposit a sum of money or valuable security. Comply with any other condition the court considers necessary to ensure the safety of any victim or witness. If the accused is charged with one of the following offences. the court is required to consider whether conditions are necessary to protect the victim or witnesses of the offence (515 (4. (e) Conditions of Release If the court releases a person on bail. This will usually result in the accused being arrested and held for a new bail hearing. unless the court considers that such an order is not required (515 (4. Abstain from communicating. or prohibited weapon. Sureties are jointly and severally liable for the amount of the recognizance. Remain within the territorial jurisdiction. which they will not get back until their matter is disposed of. The court has the ability to name specific individuals as sureties. directly or indirectly with certain individuals. employment. crossbow. etc. If the accused is an ordinary resident. or they do not ordinarily reside within 200 kilometres of where they are in custody. Deposit their passport. restricted weapon. A terrorism offence. Sureties are an option in this situation. or occupation. provided the prosecutor consents to such an arrangement.2) and (4. or Certain offences under the Security of Information Act. or prohibited weapon. Intimidation of a justice system participant (victim. If the accused is charged with one of the following offences. and Comply with any other reasonable condition the court considers desirable. 515(4)): Report at a certain time to the police. the court is required to prohibit the accused from possessing any firearm. (iv) Recognizance With Deposit If the accused is not an ordinary resident of the province where they are in custody.

For summary conviction offence. The consequence results in the accused being arrested and facing a bail hearing as though he or she has just been arrested for the original offence. attempted violence. Criminal harassment. both parties must wait 30 days before being allowed to make another application. (f) Publication Bans Either party can request a publication ban on all evidence and reasons given in a bail hearing until the charges are resolved (s. Besides being able to vacate and replace the order. or the threat of violence. and hold a new bail hearing on all outstanding charges.2 of the charter b/c saved by s. or Certain offences under the Security of Information Act. If the court is satisfied that there are reasonable grounds. The burden of proof is on the accused. Page | 169 . For indictable offences. An offence with the commission of violence.A terrorism offence. they can arrest the individual. Once a decision is made. 520. (a) Bail Review (i) Application for Review (s. and if necessary vacate and replace it. Bail can also be revoked by the trial judge under CC. it can revoke all outstanding releases. 521) If and the court makes an order for the release or detention of the accused. 517). It does not infringe s. s. If the publication ban is requested by the defence it is automatic. an automatic bail review is made by a superior court judge after a prescribed period of time.1. either party can bring an application to a superior court judge to review the order. the period is 90 days from the date the detention order was made. or varies such an order. Intimidation of justice system participant. 525) If an accused is ordered detained (either at a bail hearing or after a bail review application). the judge can also make directions to expedite the accused's trial. (ii) Automatic Review (s. the period is 30 days from the date the detention order was made. (g) Revocation of Bail If a police officer has reasonable grounds that an accused has or is about to contravene any type of release (including summons and appearance notices). 523. (h) Bail Variation A recognizance or undertaking can be varied at any time with the written consent of the prosecutor.

11(e) of the Charter. Parliament has hedged the provision with important safeguards: a judge can only deny bail if satisfied that. 515(10)(c) complies with s. \ Page | 170 . This ground is narrower and more precise than the old public interest ground which was struck down as vague in 1992 and provides an intelligible standard for debate and for the exercise of discretion. a reasonable member of the community would be satisfied that denial of bail is necessary to maintain confidence in the administration of justice. The provision is not overbroad but strikes an appropriate balance between the rights of the accused and the need to maintain justice in the community. in view of the four specified factors and related circumstances.R v. Hall [2002] SCC Held: Denial of bail ³to maintain confidence in the administration of justice´ having regard to the factors set out in s. The means chosen do not go further than necessary to achieve Parliament¶s purpose of maintaining public confidence in the bail system and the justice system as whole.

C. Disclosure is to be made before the accused is called upon to elect his mode of trial for s. DISCLOSURE A key right of the accused.R. complex applications must be brought.C.536 indictable offences.Coughlan pp. Page | 171 . The Crown is required to disclose "all relevant materials" in their possession or control (R. [1991] 3 S. 326 . the assigned trial judge should ordinarily resolve them. Stinchcombe. v.C.R.)). which differ depending on whether the charge is a sexual offence prosecution or some other offence.536 indictable offences. The law of privilege is covered by the law of evidence but the most relevant privileges should be flagged here. Stinchcombe [1991] (S. Disclosure is to be made before the accused is called upon to elect his mode of trial for s. "Relevant materials" includes all materials for which there is a "reasonable possibility" that it may be useful for the Defence. All of the fruits of the investigation are to be disclosed save what is clearly irrelevant or privileged.197 ± 222 A key right of the accused. v. As a practical matter. This is not limited to sole inculpatory evidence nor only evidence that the Crown would adduce at trial. v. The accused may also seek to secure relevant ³third party records´ ± relevant documents that are not the fruits of the investigation that are under the control of persons other than prosecution and police. Lemay [1952] (S. 1) Coughlan p. If issues arise as to whether proper disclosure has been made. s.C )) as well as the right to make full answer and defence (CC. and an important obligation on the Crown is to make full disclosure of the fruits of the investigation (all information gathered by or made known to the police during the investigation) to the accused. . this requires early assignment of a trial judge who can address these matters. McNeil 2009 SCC 3 .GETTING READY FOR TRIAL 26.C. Where third party records are sought. 197-222: Introduction General Principles The right to disclosure is founded in the principle of fair play between parties (R. 650(3)). The law of privilege is covered by the law of evidence but the most relevant privileges should be flagged here.R. v. and an important obligation on the Crown is to make full disclosure of the investigation (all information gathered by or made known to the police during the investigation) to the accused.

603: 603. and must produce all information which may assist the accused. Stinchcombe Principles The Stinchcombe principles are as follows: 1. If the information is of no use. This Court has also defined the concept of ³relevance´ broadly. all statements obtained from persons who have provided relevant information to the authorities should be produced notwithstanding that they are not proposed as Crown witnesses. but. reports and statements generated during their investigation that is forwarded to the Crown Attorney's office. are the property of the public to ensure that justice is done. The general principle is that all relevant information must be disclosed. Moreover. (ii) Of his own statement. Taillefer [2003] as follows: ³The Crown must disclose all relevant information to the accused. (a) To inspect without charge the indictment. An accused is entitled. whether it is inculpatory or exculpatory. v. after he has been ordered to stand trial or at his trial. and (b) To receive. on payment of a reasonable fee determined in accordance with a tariff of fees fixed or approved by the Attorney General of the province. The fruits of the investigation which are in the possession of the Crown are not the property of the Crown for the use in securing a conviction. Jack). The obligation to disclose includes both the Crown prosecutor and the police (R.Materials including statements and police notes are required to be disclosed under s. But the trial shall not be postponed to enable the accused to secure copies unless the court is satisfied that the failure of the accused to secure them before the trial is not attributable to lack of diligence on the part of the accused. The current state of affairs was summarized by the SCC in R. which is reviewable by the trial judge. if any. subject to the exercise of the Crown's discretion to refuse to disclose information that is privileged or plainly irrelevant. whether or not the Crown intends to introduce it in evidence. The Crown must disclose relevant information. if any. whether inculpatory or exculpatory. his own statement. the evidence and the exhibits. and the Crown must disclose any additional information it Page | 172 . This usually comprises the initial disclosure package that is made available to the Defence counsel. Structure of the Right Police compile a package of the evidence consisting of the notes. The relevant information must be disclosed whether or not the Crown intends to introduce it in evidence. and (iii) Of the indictment. a copy (i) Of the evidence. then it is irrelevant and will be excluded by Crown counsel in the exercise of the Crown's discretion. before election or plea. Relevance must be assessed in relation both to the charge itself and to the reasonably possible defences. The obligation is a continuing one. 2. rather. v.

) The Court found that the Crown had a duty to provide the defence with all evidence that could possibly be relevant to the case. the main consideration is whether the Crown or the police took reasonable steps to preserve the evidence for disclosure. however. writing for a unanimous Court. wrote Sopkina J. The accused was eventually convicted.receives. v. SCC Decision Sopinka J. The concerns the court ought to look at in making a assessment of lost evidence were summarized as follows: The court should analyze the circumstances surrounding the loss of the evidence. This case put to rest the long standing issue of whether the Crown could purposely deny the defence evidence that the Crown found would be harmful to their case. is derived from the right of an accused to make full answer and defence which has been entrenched under section 7 of the Charter. The fruits of the investigation which are in its possession are not the property of the Crown for use in securing a conviction but the property of the public to be used to ensure that justice is done.. regardless of whether the Crown plans to call that evidence at trial or not.C. however. ³where the Crown¶s explanation satisfies the trial judge that the evidence has not been destroyed or lost owing to unacceptable negligence. or whether it helps or hurts the Crown's case. La and the Prejudice Requirement Sopinka J. is still subject to rules of privilege. Later a statement was taken from her by an RCMP officer. noted that the Crown¶s duty to disclose under Stinchcombe also ³gives rise to an obligation to preserve relevant evidence´. 2) Current State of the Law and ³Lost Evidence´ Cases (a) R. Stinchcombe [1991] (S.´ The duty. v. in the case of lost evidence. This duty. as the Crown was under a duty to disclose all evidence. Page | 173 . the duty to disclose has not been breached´. KEY CASE R. and that. Equally. at trial the defence was denied access to the contents of the statement.C. ³The Crown has a legal duty to disclose all relevant information to the defence. and it is not entitled to assume that it has received all relevant information. One of the Crown's witnesses was a former secretary of Stinchcombe's who had given evidence at the preliminary inquiry that supported the defence's position. When the Crown decided not to use the statement the defence made a request for it to the judge who refused to provide it. held that the judge was wrong in refusing the application by the defence. the defence has a continuing obligation to seek disclosure.. Facts William Stinchcombe was a lawyer who was charged with theft and fraud.

210 Identity of the Police Informer. Dixon and R. Page | 174 . R. v. fall into this category. Disclosure and Privilege. an order for disclosure or an adjournment might be a sufficient remedy (Dixon). p. however. typically. a judge should not try to assess the evidence and decide whether it actually would have affected a jury's deliberations. p.C. It will still be possible for the A's right to full answer and defence to be breached. so too does the degree of care for its preservation that is expected of the police. The deliberate destruction of material by the police or other officers of the Crown for the purpose of defeating the Crown¶s obligation to disclose the material will. but only if the A can establish actual prejudice.)). This is especially the case in drug trafficking cases (R. a court must look at the evidence as whole and not at each undisclosed piece of information individually (Taillefer). what remedy should be granted? Where the A requests a remedy during trial. v. or (2) a reasonable possibility that lines of inquiry with witnesses or opportunities to gather further evidence exist. an unacceptable degree of negligent conduct may suffice. 210 It is generally said that the prosecution does not need to disclose the identity of the police informer or provide information that may disclose the identity (R. Scott (1990) (S. It is sufficient that there be a reasonable possibility it would have done so for the fairness of the trial process to be affected (Taillefer).As the relevance of the evidence increases.C. With respect to (2) the standard is only that of ³reasonable possibility´ That is. Other serious departures from the Crown¶s duty to preserve material that is subject to production may also amount to an abuse of process notwithstanding that a deliberate destruction for the purpose of evading disclosure is not established²in some cases.)). An abuse of process is not. Grey (1996) (Ont. Taillefer ± non-disclosure raised after trial (1) Was the accused's right to disclosure breached (Stinchcombe standard)? (2) If so. v. did that breach violate the A's right to make full answer and defence? The A must show that there is a reasonable possibility the nondisclosure affected the outcome at trial or the overall fairness of the trial process (Dixon). Conduct amounting to an abuse of process includes conduct on the part of governmental authorities that violates those fundamental principles that underlie the community¶s sense of decency and fair play. C.A. v. This standard will be met where there is either (1) a reasonable possibility that the evidence would have affected the decision to convict. With respect to (1). (3) If so. which would have been available if the evidence had been disclosed (Dixon). limited to conduct of officers of the Crown which proceeds from an improper motive.

it is likely to raise a reasonable doubt as to the guilt of the A. Stage#1: The A seeking production has to demonstrate an evidentiary basis to conclude that a communication exists that could raise a reasonable doubt as to his guilt. In short. Held: The Crown¶s obligation to disclose all relevant information in its possession to an accused is well established at common law under the Stinchcombe regime. the police have a duty to participate in the disclosure process. A question then arises as to whether the ³Crown´ for disclosure purposes encompasses other state authorities. where the police misconduct is Page | 175 . McNeil [2009] SCC ± Police must disclose disciplinary records -requires the police to hand over records of the discipline and misconduct of its officers as part of its disclosure obligation to the defence in criminal proceedings. It comprises a threshold question and a two-stage-innocence at stake test. Under Stinchcombe. the Crown¶s first party disclosure obligation extends only to material relating to the accused¶s case in the possession or control of the prosecuting Crown. casting serious doubt on the credibility of his testimony at trial. the defence learned through a newspaper article that PC Hacket was standing trial for a number of criminal offences. but in the intervening period prior to sentencing. Records relating to findings of serious misconduct by police officers involved in the investigation against the accused properly fall within the scope of the first party disclosure package due to the Crown from police. p. which proceed as follows: To satisfy the threshold test. and had no less than 71 pending Police Act charges relating to the ongoing use.C. This can apply where the informer is a material witness to the offence. Facts: the accused was charged with possession of crack cocaine for the purpose of trafficking and the primary witness at his trial was the arresting officer. sale and transportation of narcotics. PC Hackett. the A must establish that: the information he seeks from the solicitor-client communication is not available from any other source. Leipert) Solicitor-Client Privilege. The necessary corollary to the Crown¶s disclosure duty under Stinchombe is the obligation of police to disclose to the Crown all material pertaining to its investigation of the accused. If the threshold test has been satisfied. For the purposes of fulfilling this corollary obligation. McNeil was convicted at trial. 211 Exemption to this privilege and the Informer privilege is the innocent at stake test in McClure. in fact. the Crown has the choice of staying the proceedings rather than making the disclosure (R. although distinct and independent from the Crown at law.The court will only order the disclosure of the identity if it is needed to show the innocence of an accused person.)). Even then. the investigating police force. is not a third party. Stage#2: If such an evidentiary basis exists. the trial judge should examine the communication to determine whether. A McClure application is intended to be a last resort. Garofoli (1990) (S. it appeared that the arresting officer was himself involved in the drug trade.C. it acts on the same first party footing as the Crown. R v. and he is otherwise unable to raise a reasonable doubt. Rather. The determination requires balancing of the relevance of the identity of the informer and the prejudice to the informer and public interest in law enforcement (R. While the roles of the Crown and the police are separate and distinct. v. the judge should proceed to the innocence at stake test. v.

This is particularly so in respect of criminal investigation files concerning third party accused. the court may well impose restrictions on the dissemination of the information produced for purposes unrelated to the accused¶s full answer and defence or prosecution of an appeal. the third party record holder may be ordered to produce the documents for inspection by the court in order to determine whether production should be ordered. If likely relevance is demonstrated by the applicant. Production of disciplinary records and criminal investigation files in the possession of the police that do not fall within the scope of this first party disclosure package is governed by the O¶Connor regime for third party production. in the sense that they pertain to an issue in the trial. and is not limited to cases where third party records attract a reasonable expectation of privacy. In effect. Once a court has ascertained upon inspection that third party records are indeed relevant to the accused¶s case. The first step in the O¶Connor procedure for production of documents in the possession of a third party is for the person seeking production to satisfy the court that the documents are likely relevant to the proceedings. would there be any basis under the first party Stinchcombe disclosure regime for not disclosing it to the accused? If the answer to that question is no. a useful starting point for courts in balancing the competing interests at the second stage of an O¶Connor application will be to assess the true relevancy of the targeted record in the case against the accused. outweigh any residual privacy interest held by third parties in the material. or the finding of misconduct could reasonably impact on the case against the accused. the court may find it necessary to make a production order subject to redactions or other conditions. the second stage balancing exercise is easily performed. police disciplinary records or any other third party records should be disregarded. That is not to say that residual privacy interests in the contents of criminal investigation files. The accused¶s interest in obtaining disclosure for the purpose of making full answer and defence will. In addition. Ultimately. when just and appropriate to do so. To ensure that only relevant material is produced and that no unwarranted invasion of privacy interests occurs. It may be useful to pose the question in this way: If the third party record in question had found its way into the Crown prosecutor¶s file. there can be no principled reason to arrive at a different outcome on the third party production application. Page | 176 . The court should ensure that a production order is properly tailored to meet the exigencies of the case but do no more. The O¶Connor procedure provides a general mechanism at common law for ordering production of any record beyond the possession or control of the prosecuting Crown. a finding of true relevance puts the third party records in the same category for disclosure purposes as the fruits of the investigation against the accused in the hands of the prosecuting Crown under Stinchcombe. In most cases. what is required at this second stage of the common law regime is a balancing of the competing interests at stake in the particular circumstances of the case.either related to the investigation. as a general rule. To limit the applicability of the O¶Connor regime to those cases where a third party has an expectation of privacy in the targeted documents would raise some uncertainty concerning the appropriate mechanism for accessing third party records when it is unknown whether a reasonable expectation of privacy attaches.

the accused is committed to stand trial and the prosecutor will be called upon to draft an indictment. the justice shall. The direct indictment can be used to re-institute a prosecution after a preliminary inquiry discharge. 52 (read above) The judge must determine whether the Crown has presented a prima facie case. v. Page | 177 . 537. s. which will replace the original information as the new charging document. the judge must determine whether the Crown has presented a prima facie case. the accused is committed to stand trial and the prosecutor will be called upon to draft an indictment. 535: 535.1(3). . the accused is discharged and the prosecution on the charge that has been laid ends ± in effect. 224 ± 249) The statutory foundation for a preliminary inquiry is set out at CC.Coughlan pp.R. the accused who was ³charged´ is ³discharged. an acquittal. The prosecution can relay the charge and try again. however.C. however. or to bypass a preliminary inquiry altogether by indicting the accused directly to trial.249 . but will not do so unless important new evidence is uncovered. Arcuri [2001] S. The Attorney General also has the authority to lay a direct indictment. The prosecution can relay the charge and try again. in accordance with this Part. at the preliminary inquiry. The inquiry judge has a general power to regulate the inquiry process under s. PRELIMIARY INQUIRIES As indicated. The purpose of the preliminary inquiry is to determine if there is sufficient evidence to set the matter down for trial before a Justice of the Superior Court. 224 .´ A discharge at a preliminary inquiry is not. The direct indictment can be used to reinstitute a prosecution after a preliminary inquiry discharge. which gives jurisdiction to a court to try the accused.27. inquire into the charge and any other indictable offence. which will replace the original information as the new charging document. the accused who was ³charged´ is ³discharged. The Attorney General also has the authority to lay a direct indictment. founded on the facts that are disclosed by the evidence taken in accordance with this Part. the accused is discharged and the prosecution on the charge that has been laid ends ± in effect. If an accused who is charged with an indictable offence is before a justice and a request has been made for a preliminary inquiry under subsection 536(4) or 536. No. If the Crown does not establish a prima facie case. an acquittal. If so.´ A discharge at a preliminary inquiry is not. If the Crowndoes not establish a prima facie case. but will not do so unless important new evidence is uncovered. which gives jurisdiction to a court to try the accused. in respect of the same transaction. (Coughlan pp.J. or to bypass a preliminary inquiry altogether by indicting the accused directly to trial. In practice the Inquiry is used to test the strength of the Crown¶s case. If so.

exposure to public trial where the enforcement agency is not in possession of evidence to warrant the continuation of the process. It is first and foremost a charge screening device. there are a host of other functions served by the inquiry. Page | 178 . Nonetheless.3). 3) The Statement of Issues and Focus Hearing Recent changes to Part XVIII of the Code are designed to streamline preliminary inquiries by encouraging both the Crown and the defence to focus the hearing on essential issues. The preliminary inquiry is not a trial. Hynes (2001) (S. The justice evaluates the admissible evidence to determine whether it is sufficient to justify requiring the accused to stand trial. The accused does not enter a plea.C. and indeed. McLachlin J. and on what issues. 2) When a Preliminary Hearing is Available In all cases where the charge is proceeding by indictment (either because the offence is defined as indictable. wrote: ³The primary function of a preliminary inquiry justice is to determine whether the Crown has sufficient evidence to warrant committing the accused to trial. The party who requests the preliminary hearing must provide the court with a statement setting out which witnesses. In R. A preliminary inquiry is often used by the Crown to test or challenge the Crown's case. In any event. Its paramount purpose is to protect the accused from a needless. v.´ 1) The Purpose and Benefits of the Hearing Part XVIII of the CC sets out the purpose of. 536. It is rather a pre-trial screening procedure aimed at filtering out weak cases that do not merit trial. 536(4)). they want to hear evidence at the inquiry (s. the inquiry is not a trial on the merits and nothing can be read into a judge's direction to send the charge to trial. the Crown and the administration of justice. the proceedings before the preliminary inquiry judge will commence with the accused being arraigned and put to his or her election regarding the mode of trial. The Hearing (a) Procedural Matters that Arise at the Commencement of the Hearing When not already done. the defence or the Crown may request the hearing (s. preliminary inquiries. with benefits to the defence. improper. The preliminary inquiry (or hearing) ensures the Crown has sufficient evidence to warrant a trial and protects an accused from being subjected to a public trial improperly or unnecessarily. or is a hybrid offence and the Crown has elected to proceed by indictment) and the trial is to take place in the Superior Court of Justice (either because the charge is within the absolute jurisdiction of the Superior Court or because the accused has elected trial in the higher court).C. and procedural rules applying to.).Note that the charge on the table must be for an indictable offence and that only the accused can request a preliminary inquiry.

the application for the appointment of a commissioner must be made to a Superior Court judge. (c) Commission Evidence When a witness is unable to come to court to testify due to disability or ³some other good and sufficient cause´. Before invoking s. or that the officer in charge testify first. as well as at the preliminary inquiry (s. 709). While the justice has the power to exclude the public from the hearing altogether ³where the ends of justice will be best served by so doing´ (s. 540(7) the party seeking to tender the evidence must give reasonable notice and a copy of the evidence to the other party. Evidence admitted under s.Prior to the calling of evidence. The application may also be made to a Superior Court judge. (b) The Conduct of the Hearing Under s. 537 appears to give a preliminary hearing judge fairly extensive powers to regulate the process of the hearing. When a witness is outside Canada. While s. The presiding justice must inform an unrepresented accused of the right to apply for a publication ban. including a written or recorded statement. 539 prohibiting the publication of any of the evidence from the preliminary hearing to protect their clients¶ right to a fair trial and untainted jury. Page | 179 . defence counsel will usually want to request an order excluding witnesses. As long as the order is requested before any evidence is called. the evidence commences with the Crown calling its witnesses. Section 540(7) provides that otherwise inadmissible evidence that is ³credible and trustworthy´. is admissible at a preliminary hearing. An exception is commonly made for the officer in charge of the case who will assist the Crown in court. the SCC has interpreted the powers of a justice as being only those explicitly granted under the scheme and thus quite restrictively. 540. While a justice may refuse the order it is usually granted. but in the appropriate case defence counsel may request that no exception be made. The evidence obtained in this fashion is admissible at trial. either party may apply to the justice presiding at the hearing for an order appointing a commissioner to take the evidence of the witness. 715. the justice has no jurisdiction to refuse the request. The Crown may also request the ban and the justice has a discretion to grant the request or not. 537(1)(h)). all court proceedings are presumed public and any exercise of this power will be rare. The defence is given an opportunity to cross-examine. Any publication ban ordered operates until the accused is discharged or until the end of the trial. 540 (7) is not admissible to be read in at trial under s. Defence counsel will usually want to seek an order under s.

the justice must provide the accused or his or her counsel an opportunity to make submissions.´ Upon the completion of the evidence. 541(2): ³You are not obliged to say anything. Mills (1986) (S. -To preserve the evidence of a defence witness who might become unavailable. There is no need for the accused to take the stand.C. an alibi). set out in s. and -To discover the potential evidence of a witness who is not willing to provide an out of court interview to the defence. but whatever you do say may be given in evidence against you at your trial. and has no power to grant remedies for Charter breaches.C. Hynes (2001) (S.e. This includes having no power to make evidentiary rulings based on Charter violations. the justice must read the accused the warning. (e) Charter jurisdiction The SCC in both R. There may be no publication of a confession or the fact that one was tendered at the preliminary hearing ± even in the absence of the standard publication ban. v. 24(1) or 52 of the Charter. and may grant this right to the prosecutor or Crown counsel. this disclosure can be done by way of a statement through counsel on the record.C. In circumstances where the accused wants to rely on a defence that ought to be disclosed in advance of the trial (i. to avoid giving the Crown a significant advantage on cross-examination. There are some specific circumstances when the defence may want to call other witnesses: -To ³discover´ the evidence of a Crown witness the Crown has chosen not to call at the hearing.) and R. Page | 180 . You should not make any confession or admission of guilt because of any promise or threat made to you but if you do make any statement it may be given in evidence against you at your trial in spite of the promise or threat. If the accused is unrepresented at the preliminary hearing.C. v. if the statement is proven voluntary beyond a reasonable doubt (s. (f) Proceedings Following the Crown¶s Case The accused is given an opportunity to call his or her own evidence at the conclusion of the Crown¶s case.(d) Confessions The Crown may lead evidence of an accused person¶s confession at the preliminary hearing.) held that a justice conducting a preliminary hearing is not ³a court of competent jurisdiction´ under s. 542(1)). or by letter to the Crown. An accused rarely testifies at the hearing.

if believed. the justice must simply determine whether the Crown has led evidence going to every element of the offence. whether it be direct or circumstantial.e. If the Crown¶s case is circumstantial. (3) The validity of an order to stand trial is not affected by any defect apparent on the face of the information in respect of which the preliminary inquiry is held or in respect of any charge on which the accused is ordered to stand trial unless. The task is essentially the same. 548 is whether there is any evidence upon which a reasonable jury properly instructed could return a verdict of guilty. If a judge on an extradition hearing concludes that the evidence is manifestly unreliable. in situations where the defence tenders exculpatory evidence. in the opinion of the court before which an objection to the information or charge is taken.1) A justice who orders that an accused is to stand trial has the power to fix the date for the trial or the date on which the accused must appear in the trial court to have that date fixed. it would be reasonable for a properly instructed jury to infer guilt. When the evidence the Crown relies upon is direct evidence. order the accused to stand trial. v. the accused has been misled or prejudiced in his defence by reason of that defect. the justice shall endorse on the information the charges on which he orders the accused to stand trial. he shall ± (a) If in his opinion there is sufficient evidence to put the accused on trial for the offence charged or any other indictable offence in respect of the same transaction. the SCC held that the question to be asked by a preliminary inquiry judge under s. or (b) Discharge the accused. the judge should not order extradition (United States of America v.C. A different test applies in extradition cases.6. The test for committal (i. (2) Where the justice orders the accused to stand trial for an indictable offence.). Ferras). Rather. This is sufficient for committal. Arcuri (2001) (S. if in his opinion on the whole of the evidence no sufficient case is made out to put the accused on trial for the offence charged or any other indictable offence in respect of the same transaction. for order to stand trial or discharge) as set out in s.C. 548 is one of ³sufficiency of evidence´ In R. (2. other than or in addition to the one with which the accused was charged. the justice must do some limited weighing of the whole of the evidence to determine whether. the issue is what inferences the whole of the evidence could support. Page | 181 . This limited weighing does not involve drawing inferences from facts or assessing the reliability or credibility of the evidence. Order to Stand Trial (a) The Test on Committal 548 (1) When all the evidence has been taken by the justice.

and prior to the first appearance. 574(1)) without seeking the consent of the Attorney General. Defence counsel should ensure they have a copy of the transcript in sufficient time to prepare for trial and should seek an adjournment of the trial if the transcript is not yet available. 7 of the Charter. 7) Proceedings Following the Order to Stand Trial (a) The Indictment Following the committal order. the prosecutor may lay a new Information and start the process again. A justice may commit an accused to stand trial on Code charges revealed by the evidence even though the preliminary hearing is being held in regards to charges under some other Act (such as the Income Tax Act). (b) The Transcript While no rule requires it. but may give rise to an abuse of process argument under s. The ³other offence´ must be closely interwoven or related to the charged offences (s. any other (i. the justice may commit the accused to stand trial on that charge as well. Page | 182 . Alternatively. 11(h) of the Charter (or a successful plea of autrefois acquit). defence counsel needs a copy of the transcript of the preliminary hearing prior to trial. if believed. With the Attorney General¶s personal consent. This process does not amount to double jeopardy under s. The one exception is that for the first 14 days upon the completion of the preliminary hearing an accused may re-visit the choice between a trial before judge and jury. for instance. 548(1)(a)). the charge may be the subject of a ³preferred´ or direct indictment under s.. (c) Re-Election The accused may re-elect the mode of trial at any time with the written consent of the Crown. A preliminary hearing on a charge of second degree murder can result in a committal to trial on a charge of first degree murder.(b) Committal on Other Offences If during the course of the preliminary hearing. (c) Consequences of a Discharge For the most part. as of right. could support a finding of planning and deliberation. but may be a more serious than any offence charged on the Information. or a trial by judge alone. the prosecutor will prepare the Indictment.e. but any other charge ³founded on the facts disclosed by the evidence taken at the preliminary inquiry´ (s. not charged on the Information) indictable offence ³in respect of the same transaction´ or connected events is revealed by the evidence. if the evidence reveals any admissible evidence which. The Indictment may include not only those offences on which there was a committal. a discharge at the preliminary inquiry will mark the end of the proceedings. the accused will be remanded to the Superior Court. 577.

Generally. There is some authority that the reviewing court may quash the order and send the case back to the Ontario Court so that the Crown can call further evidence. after viewing the evidence as a whole. The accused would have to move to quash the Indictment. Arcuri [2001] SCC± leading case on Preliminary Hearings Facts: The accused was charged with first degree murder. for this would be to simply substitute their opinion for that of the preliminary inquiry justice. the reviewing court must conclude there was no evidence upon which the justice could have concluded there was sufficient evidence to put the accused on trial. The Crown may also apply for certiorari to quash an order discharging the accused on the basis that the preliminary hearing justice made a jurisdictional error. The court will. for some reason. the Indictment becomes the operative document. Page | 183 . determined that the accused should be committed to trial for second degree murder. the reviewing court is not to ask whether there was evidence upon which a properly instructed jury acting judicially could convict. and the accused can no longer challenge the committal order. Instead. In brief. The standard of review on a certiorari application when the judge is said to have committed the accused in the absence of any evidence. The preliminary inquiry judge rejected the accused¶s contention that he must weigh the evidence and. -By breaching the rules of natural justice. accordingly. The accused¶s certiorari application was dismissed and that decision was aff¶d by the CA. the Indictment is ³presented´ (that is. The reviewing court may quash the committal order or substitute a committal order for a lesser offence. an application to quash the order on the basis that the preliminary justice exceeded his or her jurisdiction. At the preliminary inquiry. the Crown¶s case was entirely circumstantial and the accused called two witnesses whose testimony was arguably exculpatory. If. The application must be brought to the Superior Court of Justice within 30 days of the order to stand trial. A jurisdictional error is committed if the justice fails to consider the ³whole of the evidence´ before discharging the accused. expect the application to proceed as expeditiously as possible. 548). -By ordering committal in the absence of evidence on an element of the offence. lodged with the court at the opening of the accused¶s trial) while a certiorari application is still pending.8) Quashing the Order to Stand Trial A committal order may be challenged only by way of certiorari. has been the subject of an inordinate amount of jurisprudence. A justice may exceed their jurisdiction at a preliminary hearing in one of 3 ways: -By failing to comply with mandatory provisions of the Code (for instance s. RELEVANT JURISPRUDENCE R v. a certiorari application will cause the trial to be delayed.

as an assessment of the reasonableness of the inferences to be drawn from the circumstantial evidence Notwithstanding certain confusing language in Mezzo and Monteleone. including any defence evidence) to determine whether a reasonable jury properly instructed could return a verdict of guilty. or includes.e. whether it be direct or circumstantial Where the Crown adduces direct evidence on all the elements of the offence. in situations where the defence tenders exculpatory evidence.Issue: Did the trial judge. nor does she assess credibility The judge¶s task is to determine whether. McLachlin CJ: The question to be asked by a preliminary inquiry judge under s. nothing in this Court¶s jurisprudence calls into question the continuing validity of the common law rule in Shephard Comments: Notice here the use of the concept of µlimited weighing¶ Page | 184 . the case must proceed to trial. In performing the task of LIMITED WEIGHING. in determining whether the evidence was sufficient to commit the accused. the preliminary inquiry judge does not draw inferences from facts. The task is essentially the same. instead. as the only conclusion that needs to be reached is whether the evidence is true However. the judge must engage in a limited weighing of the whole of the evidence (i. it would be reasonable for a properly instructed jury to infer guilt This task of limited weighing never requires consideration of the inherent reliability of the evidence itself It should be regarded. 548 of the Code is whether there is any evidence upon which a reasonable jury properly instructed could return a verdict of guilty. appeal dismissed. if the Crown¶s evidence is believed. regardless of the existence of defence evidence. where the Crown¶s evidence consists of. err in refusing to weigh the Crown¶s evidence against that of the accused? Held: No. circumstantial evidence.

565(1)(c). reelection is either a right or requires consent from the prosecutor. Although s. s. 536(2) the accused is asked to elect a mode of trial. even for the offences listed in s. and a jury is selected. 473 states that an accused can elect not to have a jury. 469. THE JURY TRIAL If a jury trial is to be held. s. even if the accused does not want a jury. 469. However. 471 mandates jury trials as the putative norm. 54 ± 58 (selecting mode of trial) . 558 states that an accused can elect not to have a jury. then according to s. In Ontario. except for the offences listed in s. 567 if there is more than one co-accused and they elect differently from one another. 54 ± 58) (read the 4 pages) If the matter is indictable. Most indictable offences can be tried in any court. the trial will be by judge and jury. and the vast majority of criminal trials occur without a jury.28. a trial judge is assigned. if the offence is listed in s. and to what point the proceedings have advanced. In fact. Further. 553). with the Attorney General¶s consent. a trial judge is assigned. 626(1)). Depending on whether the accused is re-electing ³down´ or ³up´. if the offence is listed as in the absolute jurisdiction of the magistrate. Normally. then the accused does not elect and is tried in provincial court (s. and a jury is selected. s. 568).Coughlan pp. 469. 274 ± 292) (a) Qualifications of Jurors The Code delegates the responsibility for determining who may act as jurors to the provinces (s. 274 ± 292 (jury selection) If a jury trial is to be held. exceptions of some sort are then made for every offence. the Attorney General can compel a jury trial if the offence is punishable by more than 5 years (s. as set out in s. Further. 1) Selecting Mode of Trial (Coughlan pp. 561. therefore. Similarly.Coughlan pp. Looking at the 2) Jury selection (Coughlan pp. The same is also true under s. If the accused refuses to elect. the governing statute is the Juries Act. Page | 185 . 471 states that the trial must be judge and jury unless some other part of the Code specifies otherwise. The accused has various rights of re-election. . the accused does not elect and is sent to trial by judge and jury (subject to the Attorney General¶s consent as in s. 473). a choice of mode of trial exists and under s.

They occur in that order. 276) Where either the accused or the Crown is of the view that the panel has been assembled unfairly. the trial judge shall direct that a new panel be returned (s. the sheriff sends letters summoning people to jury duty for a particular period of time. (i) Excusing Jurors. and manipulation of the composition of juries would erode that trust. Q. 633 CC) Under s.). There are three mechanism by which a member of the jury array might be excluded from the jury: exemption. exemption (ss. at any time prior to the start of the trial. or Personal hardship or any other reasonable cause that warrants excuse. This group then comprises the jury panel (or jury array) from which the jurors for any particular case are chosen. the accused. at the direction of the trial judge. allowing for challenges and excuses.277) Section 631 provides that the names of each member of the panel shall be written on a separate card and placed in a box and that the cards ³be thoroughly shaken together´. the Crown. (d) Selecting from the Panel (p. name. This challenge may be brought only on one of the three following grounds: ³partiality.B. 632. Two essential themes in jury selection is ensuring impartiality and ensuring representativeness. In R. 630). 632. The effectiveness of the jury system is based on its widespread acceptance by the community as a fair and just method of deciding issues of criminal responsibility. v. Then. address and occupation of the person is read and the person comes forward. a prospective juror may be excused from jury duty on the grounds of ± Having a personal interest in the case Having a relationship with the judge.(b) Assembling the Panel In Ontario. 629). it was held that artificially skewing the composition of jury panels to accommodate the demands of any of the distinct segments of Canadian society would compromise the integrity of the jury system. (c) Challenging the Panel (p. the sheriff of the judicial district in which the trial is to occur has the task of assembling a group of prospective jurors. they may challenge the jury panel. and peremptory challenge. Born With a Tooth (1993) (Alta. counsel for the accused or a prospective witness. challenge for cause. fraud or wilful misconduct on the part of the sheriff or other officer by whom the panel was returned´ (s. and succeed even more rarely. a jury of 12 can be assembled. the clerk of the court randomly draws a card from the box and the number. To do so. While such challenges are rare. if one of the enumerated grounds is made out. Page | 186 . This process is repeated until there are enough prospective jurors standing at the front of the court (usually 15 or 20) such that.

2 other people who are present in court and appointed by the judge to rule on the challenge. v. 638 provides for a challenge for cause where the ³juror is not indifferent between the Queen and the accused. on a ground sufficiently articulated in the application (2 step process. To embark on a challenge for cause the accused or the Crown must apply to the court and establish that there exists a realistic potential for the existence of partiality. counsel will be permitted to ask a limited number of questions of that prospective juror. Where these triers find that the challenge is ³not true´ then the person challenged will be sworn into the jury (unless one of the parties exercises a peremptory challenge). 640). Section 638 sets out the ³causes´ that may justify such a challenge: the name of the juror does not appear on the panel. Sherratt). Where one of the parties indicates that they intend to challenge a particular person for cause.C. if the challenge is found to be ³true´. The appropriate evidentiary standard on applications to challenge for cause based on racial prejudice is a ³realistic potential for partiality´ (the rule in R. 279) In addition to the peremptory challenge. a potential juror may be challenged for cause. Most importantly. A judge¶s discretion to allow challenge for cause must be exercised in accordance with the Charter.(ii) Challenge for Cause (p. Page | 187 . The Code sets out a procedure for dealing with challenges for cause (s. then the person challenged is excused. The decision as to whether the challenge for cause has been made out (the challenge is ³true´) is left to two ³triers. s.´ The triers are the 2 most recently sworn jurors or. v. The judge has a wide discretion in controlling the challenge process and should permit challenges if there is a realistic possibility that the jury pool may contain people whose racial prejudice might incline them to favour the Crown (R. the juror is physically unable to perform the duties of a juror. 281).´ (4 relevant types. however. Williams (1998) (S.280) The challenge for cause procedure allows the party seeking the challenge to question the potential jurors in order to discover evidence of partiality.)). if there are no sworn jurors. The jurisprudence on this issue is as follows: Candidates for jury duty are presumed to be indifferent or impartial and this presumption must be displaced before they can be challenged and questioned. On the other hand. p.C. Section 638(1)(b) protects the accused¶s right to a fair trial by an impartial jury and the privacy interests of prospective jurors while avoiding lengthening trials or increasing their cost (Williams). the juror does not speak the official language in which the trial is to be conducted. p. the juror has been convicted of a criminal offence and sentenced to a term of imprisonment exceeding 12 months.

A peremptory challenge is simply an objection to that person¶s inclusion on the jury in the absence of having to state any reason for so objecting. accused look upon the juror´. There is a discussion whether the Crown is restrained in the exercise of this right in certain cases. The clerk then says. 635). 631(4)).1.(iii) Peremptory Challenges Each prospective juror is then asked to step forward in turn. 642. 644(1. but must declare a mistrial if the number of jurors falls below ten (s. 644(2)). the accused must declare first whether he or she challenges. If 1 of those 12 is unable to continue to act as a juror ³by reason of illness or other reasonable cause´. 1 or 2 alternate jurors may be selected (s. look upon the accused. This process is repeated until 12 jurors are selected or until the first group of people drawn is exhausted. the ill juror is discharged but not replaced. the trial judge may select a new juror by drawing a name from the panel (s. Counsel must indicate either ³challenge for cause´ or ³challenge´ or ³content´. If the presiding judge considers it advisable in the interests of justice. at which time the initial procedure of drawing cards from the box is repeated. With respect to the first juror. ³Juror. 634(2)-(4))). If the jury has begun to hear evidence. then that juror will be discharged (s. The trial judge has a discretion to proceed with eleven or ten jurors. (e) The Juror who Cannot Continue 12 jurors are selected to make up the jury. Where that illness or other reasonable cause comes to light before the jury has heard any evidence. the accused or the Crown: May indicate that they are content with the prospective juror. \ Page | 188 . Thereafter the Crown and the accused are called upon alternately to declare first whether a juror is challenged or accepted (s.1)). 644(1)). Each of the parties has a number of peremptory challenges that they have the right to exercise (the number varies depending on the offence being tried and on the number of accused (ss.1)) or by substituting an alternate in accordance with s. or May make a peremptory challenge to the prospective juror (for which the procedure is set out in s. At this time. If both the accused¶s counsel and the Crown are content. May make a challenge for cause (see below). 635). 631(2. then the juror is sworn and takes a seat in the jury box (s.

Counsel may seek relief from a missed deadline either with the consent of the opposing party or by asking the court for an abridgement of the time requirements. it is prudent for counsel to ask that a judge be assigned to deal with these preliminary matters at the earliest opportunity. 1) Introduction Pre-trial applications are assuming an increasingly important role in the trial process. In pre-trial applications counsel are attempting to set the parameters of the trial and. In a jury trial. select the jury and require it to leave the courtroom until the motions are completed. it is often convenient to assign the judge and to dispose of these matters before a jury is selected. 605. 645(5) of the CC permits a trial judge to deal with pre-trial applications before the jury is selected. or if the motions can be resolved expeditiously. in doing so. These will ordinarily be dealt with by the assigned trial judge.29. s. Today it is not unusual for these motions to last far longer than the trial itself. PRE-TRIAL MOTIONS (Coughlan p. Further. since certain motions must be heard by the trial judge.253 ± 27 In either judge alone or jury trials. or if the motions can be resolved expeditiously. there will often be preliminary legal issues to be resolved before the trial gets going. 2) Preparatory Motions Important examples of preparatory motions are applications for disclosure and for taking evidence by way of a commission. These motions will determine matters ranging from when. they are most frequently used by Page | 189 . In jury trials. In a jury trial. and 15 days before the hearing in the Ontario Court of Justice. 253-273) In either judge alone or jury trials. and if. there will often be preliminary legal issues to be resolved before the trial gets going. . select the jury and require it to leave the courtroom until the motions are completed. are dealing with some of the most hotly contested issues in the case. Although these applications can be made by Crown counsel. it is often convenient to assign the judge and to dispose of these matters before a jury is selected.Coughlan pp. the trial will proceed to the nature of the evidence to be heard. counsel may apply to a judge of the Superior Court or Ontario Court of Justice for an order for the release of any exhibit for the purpose of examination or testing. (a) Release of Exhibits for Testing Pursuant to s. Rule 6 of both the Superior Court of Justice Criminal Proceedings Rules and the Rules of the Ontario Court of Justice in Criminal Proceedings (Rules) requires that a notice of application be served at least 30 days before the hearing in the Superior Court. These will ordinarily be dealt with by the assigned trial judge.

modify or go beyond the testing done by experts for the prosecution. Where counsel must seek an adjournment on the eve of a trial. The application is made before a judge of the court in which the proceeding is to be heard. In addition. Included in this category are challenges to the validity of the information.defence counsel to secure independent testing of physical evidence in order to challenge. Rule 21 of the Criminal Proceedings Rules and Rule 20 of the Rules set out the requirements for this application in virtually identical terms. setting out information that includes the status of the proceedings. requests for particulars and applications for severance of counts or accused. the nature and relevance of the exhibit. detailing the nature of the testing. such as where a witness has suddenly become ill. 605 order will be granted where there is an air of reality to the contention that examination of the exhibit is likely to support a defence available to the accused. must also be produced. The Rules require that a notice of application be filed at least 15 days before the date on which the motion will be heard. and whether testing will delay the trial. The motion must be made before a judge of the court in which the accused is going to be tried on at least two days notice. A second affidavit. the time needed to complete the testing. the applicant must be filed. A s. or on behalf of. Where a date has been set for a preliminary hearing or trial. This 25-day deadline means that counsel must act quickly when the need for an adjournment arises. 3) Non-Constitutional Pre-Trial Applications (a) Challenges to the Wording of the Charge This type of pre-trial motion involves attacks on the way in which the charge was framed in the information or indictment. he or she should immediately notify the court and the opposing party and seek either an abridgement of the time requirements in the Rules or relief from compliance with them altogether. from the person or agency being proposed to conduct the testing. (b) Procedural Applications (i) Adjournments Adjournments are a common feature of the day-today business in the criminal courts. A request for an adjournment may be made for many different reasons. including the unavailability of a key witness or to permit the accused to retain counsel. when the applicant will be in a position to decide whether to adduce the test results at trial. 26 of the Criminal Proceedings Rules and Rule 25 of the Rules. and any safeguards that will be used to preserve the exhibit for use at trial. the procedure to be employed in seeking an adjournment is described in R. the significance of the testing. and that the motion occur at least 10 days before the date fixed for the proceeding. An affidavit by. counsel should be prepared to provide the court with as much information as possible about the witness¶ Page | 190 .

In jury trials. The affidavit supporting the application must detail the nature and circumstances of the offence charged. That prejudice must not be capable of being cured by safeguards in jury selection. where it is alleged that the accused cannot receive a fair and impartial trial in the community because of prejudicial pre-trial publicity. the defence brings most applications for a change of venue. of the court in which the accused is going to be tried. The applicant. Section 599 permits a judge. A factum is necessary where the motion is to be heard in the Superior Court and may be required in the Ontario Court of Justice. Suzack). The notice of application must set out the location in which it is proposed that the trial be held. such as the diagnosis. There must be strong evidence of a general prejudice attitude in the community as a whole. the reasons why a particular place is being proposed as the new venue and any potential prejudice that would ensue if the trial location is not changed. or on behalf of. which must be no less than 10 days before the trial is scheduled to begin. whether the Crown or defence. by instructions from the TJ to the jury panel. or by rules of evidence (R. p. 22 of the Criminal Proceedings Rules and R. must be served on the opposing party at least 15 days before the date set for the motion. the date set for the trial.illness. (ii) Change of Venue. p. the treatment being received and the anticipated time for recovery. based on an objective consideration of all of the circumstances. A court has a broad discretion in determining whether or not to grant an adjournment. In general. an accused person should be granted an adjournment where it is necessary in order to make full answer and defence. together with an affidavit by. v. Fitness to stand trial. 21 of the Rules. the applicant. The affidavit that accompanies the application provides the evidentiary foundation for the order being sought. a notice of application. must establish on a balance of probabilities that an order for a change of venue is "expedient to the ends of justice. Mere inconvenience to one of the parties is insufficient. unless it is apparent that the accused is deliberately attempting to manipulate the system. Pursuant to R. 259 Page | 191 . 258 The general rule in criminal cases is that trials should take place in the community in which the offence allegedly occurred. to order that the trial be held in a different location within the province. The discretion must be exercised judicially." The purpose of a change of venue is to safeguard the accused and society¶s interests in a fair trial.

witnesses will not be needlessly inconvenienced by an interruption of their testimony to deal with the issue and. Examples of some common types of voir dires include the following: y y Confession voir dires. This matter raises both legal and ethical issues. a lawyer may not withdraw for non-payment of fees where the trial date is not far enough in the future to permit the accused to retain a new counsel who is properly prepared to defend the case. (c) Evidence Voir Dires Where the need for a ruling with respect to the admissibility of evidence can be foreseen before the commencement of the trial.´ Thereafter. where the Crown must establish that the accused¶s statement was made voluntarily as a precondition to its admission into evidence. being discharged by the client and the existence of a serious loss of confidence between the lawyer and the client. the jurors need not wait outside the courtroom for the legal argument to be completed. the issue ought to be addressed in a pre-trial motion. In criminal proceedings.(iii) Removal of Counsel When a lawyer has undertaken to act for a client and has appeared in court to set a date for a preliminary hearing or trial. where it must be shown that the statement meets the criteria of necessity and reliability. and Page | 192 . For example. A voir dire as to the admissibility of a hearsay statement. the applicant must accompany the notice. in a jury trial. permission to do so must be obtained from the court. which must be no less than 10 days before the preliminary inquiry or trial. If counsel wishes to withdraw from representing the accused. including nonpayment of fees. Withdrawal by defence counsel may occur in a variety of circumstances. The Crown may seek to have defence counsel removed from the record on the basis of a conflict of interest. An affidavit by. By this means the trial can be more focussed. or on behalf of. Rule 25 of the Criminal Proceedings Rules and R. he or she has become the ³solicitor of record. 24 of the Rules set out the procedure for both withdrawal and removal of defence counsel as the solicitor of record. the timing of an application to withdraw can be significant. The application must be made as soon as practicable and within sufficient time to avoid an adjournment of the proceedings. The notice of application and supporting materials must be served on the opposing party at least 15 days before the hearing date. A conflict that warrants disqualification may arise where defence counsel previously represented a Crown witness or where defence counsel proposes to represent persons who are jointly charged. counsel has an obligation to appear in court on the accused¶s behalf. A voir dire (trial within a trial) is necessary where evidence must be called to resolve a preliminary question of fact before the judge can make a ruling. The accused must also be served by mailing a copy of the materials to his or her last known address.

on the basis that it infringes a right guaranteed by the Charter. This section will examine the procedural requirements and some of the tactical considerations involved in bringing a constitutional application. who are agents of the state. the subject matter and the remedy being sought. in whole or in part. The evidence adduced in a voir dire cannot be applied to the trial itself unless both counsel agree to it. for exclusion of the publich from trial or a publication ban (s. where an initial showing that the records are ³likely relevant´ is necessary before the issue of production can be considered. 24(2) of the Charter. 4) Constitutional Applications. The advent of the Charter has had a dramatic impact on the nature and effectiveness of pre-trial motions in criminal proceedings. In general.587). Rules 30 and 31 apply to applications to admit evidence and applications to exclude evidence. In exceptional circumstances. a judge presiding at a preliminary inquiry is restricted to the powers set out in Part XVIII of the Code and has no ability to grant relief under the Charter.y Applications for the production of sensitive records under s. 262 ff. which has inherent jurisdiction to grant pre-trial relief. as it is best situated to take into account the entire factual context in making a constitutional determination. In the Superior Court of Justice. (d) Other motions specifically permitted in the CC are applications for particulars(s. or to sever counts (591(3)). the trial court (whether the Ontario Court of Justice or the Superior Court) is the proper forum in which to address Charter issues. an application may be made to the Superior Court. Examples of exceptional circumstances include situations where there is no court of competent jurisdiction as the proceedings have not yet reached a trial stage. Page | 193 . for violating the accused¶s Charter rights. and The conduct of individuals.1.486). or applications to exclude evidence under s. an accused person can challenge: A legislative enactment. on the basis that it is inconsistent with the Charter in either its purpose or its effects. (a) Jurisdiction A constitutional remedy can only be granted by a court of competent jurisdiction. p. In criminal proceedings. and make specific requirements for written notice in areas such as applications to admit evidence of prior disreputable conduct of an accused. By means of a constitutional application. and where the trial judge is allegedly involved in the Charter violation. A procedural or evidentiary rule. Clearly. a court that has jurisdiction over the person. 278. whether created by statute or common law. in a jury trial any relevant portions of the evidence will have to be repeated for the jurors¶ consideration.

an application record must be served as well. This is the case whether the accused is seeking to have legislation declared invalid under s. the constitutional principles to be relied upon. (c) Challenging Legislation ± Section 52(1) No one can be convicted of an offence under an unconstitutional law. 52(1) of the Charter for being inconsistent with the Charter. In the Superior Court of Justice.(b) Burden The applicant bears the onus of establishing a breach of the constitution on a balance of probabilities. An affidavit by. to the extent of the inconsistency.´ Page | 194 . in some circumstances the onus of proving a particular issue will shift to the Crown. or whether the accused is alleging an infringement of a right guaranteed by the Charter. The document must contain the grounds to be argued. The notice and all supporting materials must be served on the Constitutional Law Division of the Ministry of the Attorney General for Ontario and the regional office of the Attorney General for Canada (Department of Justice). Although the applicant bears the ultimate burden of establishing a breach of the constitution. A notice of application and constitutional issue must be prepared.´ The procedural requirements for such a constitutional application are set out in R. The application record must include: A copy of the information or indictment. 52(1) of the Charter. the Rules expand the usual service requirements. This subsection states: ³any law that is inconsistent with the provisions of the Constitution is. The applicant¶s affidavit must contain the particulars of the charge and ³a statement of all facts material to a just determination of the constitutional issue that are not disclosed in any other materials filed in support of the application. The notice must be served no less than 30 days in the Superior Court of Justice and no less than 15 days in the Ontario Court of Justice before the application is to be heard. in addition to the prosecutor with carriage of the proceedings. 26 of the Rules. of no force or effect. and Any other supporting materials. If counsel intends to defend a case by arguing that the legislation is constitutionally invalid. as well as many other prosecutions. the applicant. 27 of the Superior Court of Justice Rules and R. and a list of the evidence to be tendered at the hearing. the vehicle for such an application is s. the constitutional issues to be raised. The applicant must also provide an evidentiary foundation in order to support the allegation of a constitutional violation. A transcript of any relevant earlier proceedings. A factum and an application record must be filed. or on behalf of. Because a successful application to have legislation declared unconstitutional would have significant ramifications for the accused¶s case.

to a denial of the right to be tried within a reasonable time. so long as the remedy is one that is available in the criminal process. as it ensures that there is a complete evidentiary context for determining the constitutional issue. Where the basis for the challenge is that the legislation is unconstitutional in its effects. 24(1) of the Charter entitles the accused to seek a remedy that is ³appropriate and just in the circumstances. economic and cultural context. and a stay of proceedings where the accused was not tried within a reasonable time. the accused must demonstrate that a particular remedy is warranted. where the application is clearly meritorious and is not dependent on the facts to be adduced at trial. the judge should be provided with evidence of both adjudicative facts and legislative facts. s. Legislative facts establish the background and history of the legislation and are directed toward the validity or purpose of the provision. reports or statistics. and social science data. If the applicant is successful in establishing that the legislation contravenes the Charter. the record should include material such as the history of the legislation. In constitutional litigation. to a failure by the prosecutor to disclose relevant evidence. In general. When a violation of a Charter right is established. They provide the factual context for the decision. In general. a disclosure order. Charter breaches can take innumerable forms.´ A judge is entitled to use s. the onus will shift to the Crown to prove that the violation constitutes a reasonable limitation on the applicant¶s right or freedom. ranging from an arbitrary detention by the police. pursuant to s. Where the basis for a Charter challenge is that the legislation is unconstitutional in its purpose. a stay Page | 195 . A court will not entertain a constitutional application in a factual vacuum. the latter course is preferable. a trial judge has the discretion to rule on the motion or to reserve the decision until the end of the case. In dealing with a constitutional application. an adjournment and the payment of costs where the prosecutor failed to disclose evidence. The documentation set out in the Rules is the bare minimum needed to advance a constitutional challenge. (d) Charter Remedies ± Section 24(1) Most constitutional litigation is directed at complaints about an accused person¶s treatment within the justice system. In circumstances where no evidence was obtained as a result of the constitutional violation. Adjudicative facts are about the immediate parties to the litigation. This material could include affidavits from persons who claim to have been unconstitutionally affected by the legislation. such as studies. a successful application will generally require far more supporting material. They provide the social. In criminal cases. 24(1) to provide imaginative and innovative redress for a Charter breach. Parliamentary debates. A civil remedy. However. rather than efforts to strike down legislation. academic articles and law reform reports. such as damages. counsel must prepare a record that establishes the improper impact of the provision. 1 of the Charter. is inappropriate. Examples of some ³just and appropriate´ remedies under this provision include a sentence reduction where there was an arbitrary detention. opinion evidence from experts who are able to describe the adverse effects of the legislation on a particular group.Counsel must ensure that the presiding judge has a proper factual foundation on which to measure the impugned legislation against the requirements of the Charter. the motion may be decided at the outset of the proceedings.

the grounds to be argued. the contents of the application record must focus on the relevant issues in the case and the substantive law pertaining to the constitutional issue being raised. In the Superior Court of Justice. The preliminary inquiry provides counsel with an opportunity to lay a foundation for Charter applications at trial and to commit police witnesses to a version of events under oath. Subsection 24(2) of the Charter provides that unconstitutionally obtained evidence will be excluded if its admission would bring the ³administration of justice into disrepute´. The notice of application must set out the evidence sought to be excluded. the applicant is only required where it is necessary to complete the factual record. These documents need only be served on the prosecutor with carriage of the proceedings. The requirements of R. Different provisions exist in the 2 levels of court. It may not be possible. Rule 30 requires that the grounds be stated. 24(2). the evidence to be used to support the application. Page | 196 . The application record must contain a copy of the information and any transcripts of earlier proceedings relevant to the issue. The evidence that counsel may seek to have excluded can take many forms. By contrast. the applicable rule should be carefully consulted well in advance of trial. 52(1) of the Charter. In addition to the materials specifically required by the Rules. As described above in relation to s. or on behalf of. along with ³a concise statement of the exclusionary issue to be raised´. a trial in the Ontario Court of Justice means that there has been no preliminary inquiry and no incidental opportunity to build a record prior to the Charter motion. Accordingly. including an incriminating statement or bodily samples taken from the accused or physical evidence seized by the police. R. the applicant must file a notice of application and constitutional issue. This is particularly true where the accused¶s trial will be taking place in the Ontario Court of Justice. 31 governs Charter applications to exclude evidence under s. 30 governs Charter applications to exclude evidence under s. counsel should bear this in mind when drafting the ³grounds to be argued´ portion of the notice of application. R. where no lesser remedy is suitable. 26 of the Rules are applied in this type of constitutional application. In the Ontario Court of Justice.is a remedy of last resort ± it is only available in the clearest of cases. An affidavit by. and the relief being requested. 24(2). a factum and an application record. (e) The Charter Remedy of Exclusion of Evidence ± Section 24(2) The remedy most frequently sought in constitutional litigation is the exclusion of evidence. but does not demand a detailed outline of the argument on the Charter application. just as they were to applications to strike down legislation. (i) Tactical Considerations and the Notice of Application The requirement that the notice set out ³the grounds to be argued´ gives rise to strategic considerations.

24(2). The Crown will usually conduct a vigorous cross-examination of the accused and call the police officers involved. Yet. in which the accused gives a version of events involving a constitutional violation. to provide the identical level of detail in advance of a motion in the Ontario Court of Justice. Often the only other witnesses to the relevant events are the police. defence counsel may seek to exclude the statement on the basis that it was obtained in breach of the Charter. This is especially true in motions for the exclusion of evidence under s. This Page | 197 . A voir dire will be of particular importance where there was no preliminary inquiry or where the outcome of the application will depend on findings of credibility. From a defence perspective. the defence would lead evidence to establish a Charter breach on a balance of probabilities. A straightforward way of dealing with these matters would be to hold two voir dires. it may be necessary to have him or her testify in the voir dire. the Crown must establish that it was voluntarily made in order for it to be admissible. a tactical approach can alleviate some of the difficulties that arise from bearing the burden of proof. as the factual basis for the Charter argument is rarely settled before the application is heard. in the other. (ii) Tactical Considerations Flowing from the Burden of Proof In many cases. The challenge becomes greater when counsel does not want to call the accused. Defence counsel should give careful consideration regarding how to meet this onus. even with a client who is a good witness. the accused bears the evidentiary and legal burden of proof. This situation generally leads to a credibility contest. a voir dire may be needed to permit the Crown to cross-examine on any affidavits in the motion record and to call evidence to explain or qualify the testimony at the preliminary inquiry. In one. The situation may improve where other witnesses can confirm all or part of the accused¶s evidence. in some circumstances. while the police describe carrying out their duties in accordance with the Charter. Even where defence counsel were able to bring a Charter violation to light during crossexamination of police witnesses at the preliminary inquiry and could discharge the evidentiary burden by including the relevant transcripts in the application record filed. There are no fixed rules as to the way in which a Charter voir dire will be conducted ± a flexible approach is employed. At the same time. As the applicant. The following examples illustrate this point: (1) When the accused has made a statement to the police. the Crown would call evidence to prove voluntariness beyond a reasonable doubt. The likelihood of eliciting evidence of a Charter violation from a police officer during examination-in-chief is not great ± obtaining such an admission is difficult enough during cross-examination.without the benefit of evidence under oath at a preliminary hearing. this is a not an ideal scenario. Usually a voir dire will be held in which viva voce evidence will be called. As the accused is the person most likely to have direct knowledge of the circumstances giving rise to the Charter violation being alleged. a Charter application cannot be decided solely on basis of the records filed by defence and Crown counsel.

it is presumptively unreasonable. where fairness requires it. which guarantees the right to be tried within a reasonable time. the presiding judge can relax the evidentiary rules which normally prevent a party from cross-examining his or her own witness. Askov (1990) Page | 198 . Some counsel are of the view that in reversing the normal manner of questioning (from crossexamination to examining in chief). which will give defence counsel an opportunity to cross-examine the police officers who seized the evidence. Before the trial judge can grant leave to cross-examine the affiant. most counsel and judges prefer to hold a blended voir dire in which both issues are addressed at one time. This will require the Crown to call evidence. plays a significant role in criminal cases. 263 Section 11(b) of the Charter. To avoid such unnecessary duplication. Once counsel establishes that a search was warrantless. The time frame to be considered in analyzing a claim of unreasonable delay runs from the date the information was sworn to the estimated date for completion of the trial. pursuant to s. Often the problem of differing burdens of proof is addressed by loosening the rules governing examination-in-chief and cross-examination of witnesses. there are better opportunities to achieve a more accurate record on which to make the final argument. In essence. the burden of proof shifts to the Crown to demonstrate on a balance of probabilities that it was nevertheless reasonable. v. (2) Where the police have searched the accused¶s home and seized an item of physical evidence. In addition. When deciding whether s. where a search occurs in the absence of a warrant. 11(b) has been infringed. this provision places a constitutional time limitation on the jurisdiction of the court to deal with a charge. defence counsel must show that there is some basis to believe that crossexamination will tend to discredit the existence of one of the pre-conditions for granting the warrant. if an accused is required to call police witnesses to support a Charter claim. and the defence has no choice but to call police witnesses to substantiate a Charter claim. The courts have held that. defence counsel may want to challenge its admissibility by arguing that the search was unreasonable. a judge should give an accused some leeway in exploring potential Charter issues. (f) Applications to Stay Proceedings for Unreasonable Delay. the trial judge is required to balance the factors developed by the SCC. The test developed by the SCC in R. where it has taken too long to bring the matter to trial. some cases suggest that. (3) When counsel wants to challenge a search conducted pursuant to warrant. Where these approaches are inapplicable.would involve some or all of the witnesses giving the same evidence in each voir dire. he or she can cross-examine the affiant in order to gather additional evidence for the Charter application. other methods to establish the claim exist. If defence counsel succeeds in doing this. 8 of the Charter. There is authority to suggest that. p. he or she may seek to cross-examine the affiant who swore the information to obtain the search warrant.

at any point.C. On a contested factual matter such as prejudice. To do this.) and R. Smith (1989) (S.C. a stay of proceedings must be ordered. Therefore.(S. A transcript will be particularly helpful to the defence if counsel emphasized the client¶s desire for an ³early´ or the ³earliest available´ trial date at each appearance in court. The procedure to be followed in making this Charter application is that already described in seeking a remedy under s. Morin (1992) (S. detailing the effect of the delay from a personal. prejudice to the accused is another factor that is relevant to a successful application. a family member or an employer. Where the client¶s liberty interests have been curtailed through strict bail conditions.´ An application to stay proceedings under s. Filing the transcripts from each court appearance is the best way to document matters such as the actions of the accused and the Crown and whether they contributed in any way to delaying the proceedings and whether the accused. a copy of the recognizance should be appended as an exhibit to the affidavit. waived the right to a trial within a reasonable time.C.). Although prejudice to an accused can be inferred from a prolonged delay. 24(1).) for assessing whether there has been a violation of the s. 11(b) provides an excellent illustration of the importance of a well-prepared factual record. an important issue on such applications is the parties¶ approach to delay during the course of the proceedings.C. an affidavit will suffice for setting out the procedural history. As noted above.C. familial and financial standpoint. v. and set out by the Court in R. The affidavit must also include ³a full history of the proceedings against the applicant prior to the date scheduled for trial. counsel should obtain additional affidavits from those who know the accused well. in order to supplement the accused¶s evidence. Yet.11(b) Charter right to trial within a ³reasonable time´ is as follows: (1) Length of the delay (2) Waiver of time periods (3) Reasons for the delay. Page | 199 . if the client will be a poor witness. including ± (a) Inherent time requirements of the case (b) Actions of the accused (c) Actions of the Crown (d) Limits on institutional resources (e) Other reasons for delay (4) Prejudice to the accused Where a breach of the subsection is found. v. Under the Rules. counsel cannot file an affidavit that is based on information and belief or which contains hearsay. it is more effective for the record to demonstrate actual prejudice. such as a spouse.C. counsel will have to consider submitting an affidavit from the accused.

the witness or the complainant. but may require that witness to testify first. The judge has an obligation to inform a witness under 18 years of age and the complainant of the right to apply for this order. such as permitting the investigating officer to remain in court. (b) Non-Publication Orders Non-publication orders are available through legislation and the common law. The purpose of this motion is to ensure that the testimony of a witness is not tainted by having heard the evidence of others. This provision is applicable to pre-trial motions and other proceedings that occur during the jury¶s absence (such as the pre-charge conference or submissions following an objection to a line of questioning). An order of this type is both mandatory and automatic. No formal application or prior notice is needed to obtain this type of publication ban. While no application is necessary. The judge may grant an exception to the order.4 of the Code permits a justice or judge to prohibit the publication. In general. the order shall be made. scope and duration of these orders can vary significantly. prudent counsel will remind the judge and. through him or her. Although the judge has a discretion as to whether to grant or deny the order. Section 486. the nature. it is common practice for counsel to seek an order excluding all of the prospective witnesses (except the accused) from the courtroom. Trial Verdict Page | 200 . broadcasting or transmission of ³any information that could disclose the identity of the complainant or a witness´ when an accused has been charged with certain enumerated sexual offences. The order will remain in effect until the completion of the criminal proceedings (including any appeals). Section 648(1) of the Code prohibits the publication of any information about a portion of the trial for which the jury was not present until after the jurors retire to begin their deliberations. 271) and stay of proceedings (p. Crown counsel will seek an order of this nature at the earliest court appearance (usually at the bail hearing). the public and the media of the existence of this order. Where requested by the prosecutor. No formal written application or advance notice is needed for such a motion. It is important to be aware of two types of non-publication orders that are essential features of criminal trial practice.(g) Abuse of process (p. it is rare for such requests to be refused.273) 5) Motions at the Start of Trial (a) Exclusion of Witnesses At the outset of the proceedings. in order to ensure that it is not inadvertently breached and information that would prejudice the trial revealed. Although publication bans are designed to protect privacy interests and to advance the proper administration of justice.

Calling people to serve as jurors is one of the duties of court officials called Sheriffs. and the jury will retire to deliberate. JURY TRIALS Where there has been a jury trial. returning with a general verdict (i. or serious hardship that would be caused by having to serve. old age. Page | 201 . the judge will conduct a sentencing hearing and impose sentence Jury Selection ± Coughlan p. Judges.. as may someone who does not speak the language in which the trial is going to be conducted. If there is a conviction. The CC allows for 6-person juries in the Northwest and Yukon Territories. . but this has been challenged as a violation of geographical equality rights. and are served with notices requiring them to attend at the courthouse at a particular time. such as British Columbia's Jury Act. politicians and employees of the federal Justice Department or provincial Attorney-General's ministry cannot serve as jurors. police and prison officers. Someone who is called to serve as a juror can apply to the Sheriff for an exemption. a juror must be an adult Canadian citizen who lives in the province..e. the judge will ³charge´ the jury on the relevant law. Qualifications for potential jurors are set out by each province in its own legislation.e. there is usually a period of exemption after a person has served on a jury. Also. If there is a conviction. This might be on the grounds of religious belief. during which he or she need not serve again.THE TRIAL VERDICT 30. a verdict delivered without reasons).Coughlan pp. the Sheriff assembles what is called the "panel" or "array". the judge will conduct a sentencing hearing and impose sentence. The Panel Potential jurors are selected. and the jury will retire to deliberate. People with some disabilities or criminal records may also be disqualified.332 ± 339 Where there has been a jury trial. a verdict delivered without reasons). Typically. returning with a general verdict (i. typically at random from the electoral rolls or some other register of residents. lawyers. Jurors are paid nominal amounts to cover their time and travel expenses. but for many people these amounts will not be enough to make up for lost wages and other expenses. In this way. There can be no disqualification or exemption based on the person's sex. Jury duty is a civic responsibility that is supposed to be accepted anyway. the judge will ³charge´ the jury on the relevant law. if at all possible.332-339 The Jurors The general rule is that a jury has 12 members.

or where the trial is being held. can make a bad impression on a jury. notably natives and the poor. and jurors should not speculate about what the reason might be. and it is quite common for him or her not to do so. Jurors are also quite often given exhibits to examine. and pay close attention to what people are saying. they should try not to get too absorbed in what they are reading or writing. gender. etc. The aim is to lay out the framework of the case and make sure the jury has an idea of what the main issues will be. there will generally be introductory talks by the judge. or where the alleged crime occurred. though. it can chose not to present any evidence itself. even if completely innocent of it. disreputable appearance (or Page | 202 . Procedure At the start of the trial. Should it be representative of the neighbourhood where the accused person lives. although other judges disapprove of note-taking and do not allow it. and may have binders containing documents and photographs that help explain the case. They should remember. are not always well represented in lists of residents. and in some parts of the country the court provides writing materials for this. There is a strict rule that an accused is never required to testify. and how to achieve it. Because of this. and their demeanour while they are saying it. and by lawyers for both sides. That still leaves potential problems. There is a very strict rule that no-one with an interest in the case may communicate with any person called for jury duty. as this will help them decide how much to trust what the witnesses say.The panel is supposed to be "representative" of the community. based on all the evidence presented in the case. Jurors often take notes during the proceedings. such as telephone directories. If jurors are allowed to go home between sittings of the court. There can be many reasons for this. that it is important to observe witnesses while they are testifying. either before or during the trial. To reach a verdict of guilty. though. and to suggest to them how they should evaluate the evidence that will be given. because of poor education. the prosecution will present any witnesses and other evidence that makes up its case. the jury may or may not be "sequestered" (kept apart from others).? The consensus seems to be that truly random selection from a broad geographical area is probably the best approach. Many people accused of a crime. either through witnesses or in the form of "exhibits" (physical things including written documents that may be presented for inspection by the prosecution and the defence). Then. there will be a publication ban on anything that happens in the trial when the jury is not present. as some classes of people. During the Trial During the trial. If the defence feels the Crown has not led enough evidence for a conviction. Doing this is punishable as a form of contempt of court. There has been a lot of debate over what that really means. the jury must be convinced of guilt beyond a reasonable doubt. or more broadly representative of the province as a whole? How important are the factors of race. income. at the discretion of the judge. sexual orientation.

bad manners. This is a factor that is not supposed to be considered when deciding on the question of guilt. etc. and either the evidence is given. rough speech. and should always follow the judge's instructions. The Role of the Judge During testimony by witnesses. Even though some of the rules of trials may seem odd. even if not guilty of this offence. and are designed to give the best possible result for society as a whole. after both sides have asked their own questions. Jurors may sometimes feel like mushrooms. Because there will often be disputes about what is or is not permitted. and the rules of law that must be applied to the evidence to decide the result. they have all been thought about long and hard. This will generally be because no evidence has been presented in relation to some aspect of the charge. the juror should let the judge know. but because of dislike or distrust of the accused. or that was improperly obtained. If this happens. or for some other reason that makes a guilty verdict not legally possible. and have sworn an oath. by a great number of people. Jurors have a duty. If the defence does present evidence. or should limit the use they make of it when they are reaching their verdict. to decide the case according to the law.disreputable history). presenting what he or she feels is a view of the evidence favourable to his or her side. Once the issue is decided. There may occasionally be some question that a juror would like to put to a witness. etc. The jury should take their instructions on the law solely from the judge. the jury is brought back in. being treated this way. or nothing more is said and the trial just goes ahead without it. or a feeling that. by keeping the jury from hearing evidence that may be prejudicial to one side or the other. The judge may tell the jurors from time to time that they are to ignore something they have heard. or that may not be reliable. the jury Page | 203 . he or she is probably guilty of others. Then the judge will talk about the positions taken by both sides. but the procedure is meant to ensure a fair trial. there are times when the jury has to leave the courtroom so that the judge can hear arguments from the lawyers. not because the charge is proved. the evidence that has been heard. The jury is not supposed to think about (or even. it is one of the judge's jobs to make sure that only legallypermitted evidence is heard by the jury. there is a risk that jurors will convict. and the judge may permit the extra question to be asked. Closing Speeches At the close of the trial. If that happens. to know) the penalties that might be imposed if the accused is convicted. based on some of that extra evidence. Where this is the case. ideally. the judge may "direct" a verdict of not guilty on one or more charges. The only time a jury is involved in sentencing is when asked to make a recommendation about the minimum period of parole ineligibility for someone convicted of second degree murder. which may or may not include testimony from the accused. each lawyer will address the jury. the jury may find it has a reasonable doubt about guilt. Occasionally.

The requirement of unanimity. each juror should listen carefully and with an open mind to all other points of view. However. about the evidence or the law. p. the biggest block of votes. 337 It is a criminal offence for a juror to disclose anything that was said or done by the jury while it was not in open court [s. Meals and accommodation will be provided. Where there are differences of opinion amongst the jurors.an aim that is vital to the preservation of the justice system. it will always be sequestered. 336 f. While sequestered. and that becomes very clear at this point. If there is still disagreement after a full discussion and consideration of the evidence. The judge may call the jury back into the courtroom for more instructions. is designed to prevent conviction of innocent people . still does not agree with the majority. When the jury is unable to reach agreement (what is called a "hung" jury). the lawyers. The verdict should not be reached through what we generally think of as the democratic process. p. An extrinsic matter would be that some third party had contact with the jury or gave particular information to a juror. When this is done. he or she should not change position just to allow a unanimous verdict to be reached. This means that no outsider can ever know how the verdict was reached. but it is improper for him or her to push too hard for a verdict. Mercier) Page | 204 . the jury will then retire to consider it. then the foreman should tell the court that. While the jury is "out". the jury must be unanimous. but if any juror. in which the outcome is decided by the majority. and the foreman will relay these back to the judge via the sheriff. whereas an intrinsic matter would be the effect that the contact or information had on the jury's deliberations. The common law rule and s. where there is genuine disagreement. 649]. The jurors are really the most important players in a criminal trial. discussing its verdict. Rendering a verdict. they will be released. the judge will generally discharge the jurors and there will be a new trial. There are often questions that come up in the jury room. There is no requirement that a jury actually reach a verdict. every juror must agree with the verdict. In the Jury Room Once the jury retires to consider its verdict. the judge will answer questions by having the jury come back into court. the court drew a distinction between matters extrinsic to the jury's deliberations and those intrinsic to them. like the "reasonable doubt" rule. That is. If there is a charge on which the judge has not directed a verdict. In reaching a verdict. otherwise. after complete deliberation. Secrecy.will be told not to consider the charge. and (especially) the accused person have little to do but to sit around and wait. a juror may only communicate with other jurors or the court officer (usually a deputy sheriff) assigned to take care of the jury. v. a unanimous decision is often possible. 649 CC only prevent intrinsic matters from being disclosed (R. the judge. Usually.

if it is clear from the record of the trial that the jury could not have been acting fairly and impartially in returning a guilty verdict. it is theoretically possible for a jury to ignore the law completely in making its decision. or prejudice against the person accused of it. and indeed this is what seems to have happened in one or two high-profile cases in the past. or might find someone guilty even though that verdict is not supported by the evidence and the law. It should be noted that a jury finding someone not guilty despite what the law says does not change the law by doing so. jurors do act fairly and impartially. because of outrage at the nature of the offence. the institution of the jury will remain one of the strongest foundations of our system of criminal justice.Because of this. in the vast majority of cases. and as long as that continues to be so. It seems to be true that. Page | 205 . because they disapprove of a law criminalizing certain behaviour. It is difficult for the Crown to appeal against an acquittal that flies in the face of the law and common sense. but an appeal against an unreasonable conviction may well be successful. Jurors might refuse to find someone guilty. even though guilt seems obvious.

DOUBLE JEOPARDY AND ESTOPPEL Where a verdict has been rendered. The Crown adduced evidence of the telephone call during the obstruct justice trial mirroring that put forward at the attempted murder trial. the judge will render the verdict. [2008] S. The judge is obliged to give reasons for decision. rather excludes only evidence inconsistent with determinations of issues resolved in D¶s favour at a previous trial.Coughlan pp. under the doctrine of issue estoppel the Crown is prevented from attempting in future proceedings from relitigating factual issues that have already been decided against the Crown.Issue estoppel does no bar P from leading evidence on any issue raised on a previous trial resulting in an acquittal. Issue estoppel does not mean that every piece of evidence led in a first trial and leading to an acquittal is inadmissible in a subsequent trial on Page | 206 . 6 Where a verdict has been rendered. on the basis of either a positive factual finding or a reasonable doubt. 32. The eyewitness who identified him testified that Mahalingan had telephoned him from jail shortly before the trial commenced. R v. v. Moreover. based on the doctrine of issue estoppel. a majority of the court would have granted the application and ordered a new trial on the basis of the fresh evidence application. under the doctrine of issue estoppel the Crown is prevented from attempting in future proceedings from re-litigating factual issues that have already been decided against the Crown. He also argued that. The judge is obliged to give reasons for decision. evidence of the telephone call was improperly admitted at the first trial.C.31. the accused cannot be tried again for the same offence or for an offence based on the same factual allegations he has been acquitted or convicted of. Mahalingan appealed his conviction on the charge of aggravated assault. the judge will conduct a sentencing hearing.R. Further. . . whether on the basis of a positive finding or reasonable doubt. Mahalingan was acquitted on the charge of attempted murder but convicted of aggravated assault. it is for D to establish that the issue had been conclusively decided in their favour . Facts: Appeal by the Crown from a decision of the Ontario a new trial for Mahalingan. 370 ± 372 Where there has been a judge alone trial. the accused cannot be tried again for the same offence or for an offence based on the same factual allegations he has been acquitted or convicted of. Mahalingan [2008] SCC -Where D raises issue estoppel . asking that he not testify against him. the judge will render the verdict. Mahalingan was acquitted. No. If the accused is convicted. Mahalingan was subsequently charged with attempting to obstruct justice. Issue estoppel is limited to precluding the Crown's relitigating an issue that has been determined in the accused's favour in a prior criminal proceeding. The CA unanimously allowed the Mahalingan¶s appeal and ordered a new trial on the ground that the trial judge had failed to correctly charge the jury.J. However. Mahalingan. arguing that his acquittal for obstructing justice should be accepted as fresh evidence. JUDICAL VERDICTS Where there has been a judge alone trial. Held: Appeal dismissed. If the accused is convicted. the judge will conduct a sentencing hearing. Moreover.

Sentencing Page | 207 . even if on the basis of reasonable doubt. in particular. are estopped. Only issues either necessarily resolved in favour of the A as part of the acquittal or on which findings were made. on the allegations.another matter. Issue estoppel could not operate retrospectively to result in evidence being redacted from the record on a prior trial. However. The accused claiming issue estoppel bears the burden of showing that a particular issue was decided in his or her favour in a previous proceeding. The concern for finality is inconsistent with retroactive application of issue estoppel. The determination of whether an issue was decided at first trial. The version of issue estoppel adopted by the majority of the CA cast the principle too broadly. either expressly or necessarily as a prerequisite to an acquittal must be based on a review of the relevant portions of the transcript of the first trial and. The acquittal in the second trial could not operate retrospectively to render the evidence inadmissible in the earlier case. and the defence case. the CA correctly ruled that the jury charge in the first trial was inadequate and a new trial was correctly ordered on that ground. The Court erred in holding that the subsequent verdict of acquittal on the charge of obstruction of justice required it to find that the witness¶s evidence of the telephone call from the accused was wrongly admitted in the first trial. the nature of the Crown case.

S.CC section 731. 742. 718.R.A.SENTENCING 33. v. v.CC section 730 .1 . [2000] 1 S.CC sections 738 ± 741.) Recognizance Orders .J. v.CC section 732.R. C. [2000] O.1.R. Bremner. [1996] O. v. Fallofield (1973).1. yet the principles continue to apply) Probation and Community Service . Budreo. 2689 (Ont.2. 718.the range of offences eligible for conditional sentences has been altered since R v.) (plea bargain and joint submission) Incarceration .R. C.A. 787 Discharges .R v.) Fines . 719 .3.6. Cromwell. . No.). 1096 (B. [2000] B.01.C.J.R v. No.C..2 inclusive Page | 208 .2 and 811 . No. 61 (NOTE .R.1.3(4) Conditional Sentence of Imprisonment . 742.) .R. Proulx.C. [2005] N. 718. No. v. the general principles of sentencing have been codified in the Criminal Code. 810. 734.3. 13 C. 724 .A. 732.C. 810.C. (2d) 450 (B. 733.7 . Ziatas. 722. 500 .M.CC sections 720.C.CC sections 734. GENERAL PRINCIPLES OF SENTENCING For the most part. C.7.J. 72 (Ont.01.J.1.C. 745. 743.2.CC sections 718. 3369 . C.A. Proulx was decided.C. 718. 736 (note ± there is no fine-option program in force in most provinces. 726 (Ont.R.R.1.C. v. v. 723.C.R. [1973] O.C. refused Restitution . No. 428 (N. leave to appeal to S. 742. 742. including Ontario). Boucher. Priest. 743.CC section 810. [1996] 1 S. No. 718. 810.A. 734. 721.A.CC section 742.A.J.S. 732. [2004] O.J.6.) Procedure .C.

No. 745. [1999] 1 S. 718. Page | 209 . the court must take into account circumstances and realities of life. parole ineligibility of 10 yrs) and are generally constitutional. s. 718.C. specific deterrence. 5 For the most part.CC section 718.6. firearms prohibition.(L. isolation. 718.719.2(e) .02²Objectives for sentencing for offences against peace officer or other justice system participants. statement by accused. evidence about attempts at rehabilitation In determining the fitness of sentence. DNA databank order (can be a mix but not more than 2) Evidence can be introduced by Crown/accused @ sentencing hearing: Criminal record.21.CC section 737(1) Sentencing Aboriginal Offenders . 718.01²Objectives for sentencing for crimes against children s. 718. the general principles of sentencing have been codified in CC in s. M.1. Sentencing always done by Trial Judge²must be proportionate to gravity of the offence & blameworthiness of offender Usually accused gets credit for time spent in custody awaiting trial/sentencing-ratio of 2:1-³deadtime´ Sentencing options: imprisonment.CC sections 743.2 .Victim Surcharges . Crown has to apply for these desigs. fine.R.J. Gladue. 688 Punishment of Organizations . constitutional. rehabilitation.1²Fundamental Principle: a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. can be used in plea bargaining Don¶t apply ³worst offence. conditional/absolute discharge. conditional sentence.C. accused had a hard life) ³goals and ultimate purpose of sentencing´: general deterrence. 735 Parole . 718.) ± (SCC 2008) s. probation. 718²Enumerates the objectives of sentencing. Sweeney ± BCCA 1992 (drunk driving causing death.R. v. Includes reparation to victims. dangerous offender (may be jailed indefinitely). Latimer ± SCC 2001 (challenged min. Sweeney General rule: jury has NO part in sentencing Exception: conviction of 2nd degree murder (mandatory life sentence w/ minimum period of parole ineligibility of between 10-25 yrs). denunciation. v.CC sections 718.3.2. worse offender´ rule too literally for maximum sentences. 718.R. promotion of responsibility in offenders s. letters of reference/support. jury asked to recommend a period of parole ineligibility in these cases Code does not allow discretionary ³constitutional exemptions´-mandatory minimum sentences do NOT violate Charter and are gen. Ferguson ± SCC 2008 long term offender (subject to supervision in the community for a period of 10 years). Zinck [2003] S. victim impact statement.

investigative and prosecutorial costs associated with the offence. The CA reduced the sentence to 18 years and 8 months.21²Organizations. Says incarceration used as a last resort Recognises the principle of consistency Requires the court to take into account specified principles. The Code staggers maximum sentences for the full range of offences at numerical intervals ranging from one year to 14 years. Abuse of person under 18 iv. Factors include: any organizational advantaged realized by commission of the offence. with individual sentences running both consecutively and concurrently. as well as its complexity and duration. absent special circumstances. they commence when it is imposed. in addition to other lesser offences. 718. lists several factors.M [1996] SCC ± no pre fixed boundary to the sentencing discretion of a trial judge Facts: accused pleaded guilty to numerous counts of sexual assault. in the discretion of the court. the Code sets maximum terms of incarceration in accordance with the relative severity of each crime. For offences where imprisonment is available. any regulatory penalties imposed. and as sentences for multiple offences involving consecutive terms of imprisonment. life imprisonment. arising from a largely uncontested pattern of sexual. It is a wellPage | 210 . remarking that the offences were as egregious as any he had ever had occasion to deal with. C. Abuse of spouse or common law partner iii. Generally. None of the offences committed carried a penalty of life imprisonment. non-life) terms of imprisonment.s. The court concluded that where life imprisonment is not available as a penalty. followed by the most severe punishment. ii. R v. The Code is silent. prejudice or hate based on listed grounds. motives of bias. with regard to whether there is an upper limit on fixed-term or numerical (i. A sentence should be increased or reduced to take into account any aggravating or mitigating circumstances related to D¶s offence. The trial judge.2²Other Sentencing principles. Abuse of a position of trust or authority in relation to V v. the nature and extent of planning involved. commission of an offence in the context of organized crime vi. and the circumstances under which cumulative punishments may be imposed.A. except where there is a statutory provision to the contrary. the totality principle requires trial judges to limit fixed-term cumulative sentences under the CC to a term of imprisonment of 20 years. physical and emotional abuse inflicted upon his children over a number of years.. but they are not limited Examples: i. Commission of a terrorist offence 718. however.e. The Court can take into account time in custody when sentencing.3²Degrees of Punishment Section describes the degree of punishment that may be imposed upon D. sentenced the accused to a cumulative sentence of 25 years' imprisonment. Held: The appeal should be allowed and the sentence of 25 years' imprisonment restored. incest and assault with a weapon. both as sentences for single offences where life imprisonment is available but unwarranted. Lists several factors a judge is REQ¶D to take into account when imposing a sentence on an organization. and any measures taken by the organization to reduce the risk 718. 719²Commencement of Sentence Determines the commencement date of the sentence imposed up on a person convicted of an offence.

However. A numerical sentence beyond 20 years may still significantly advance the traditional continuum of sentencing goals ranging from deterrence. (read full summary) Page | 211 . whether at 20 or 25 years' imprisonment. the calculation of parole eligibility for life imprisonment begins at an earlier date. in contrast to a person sentenced to a numerical term of imprisonment. sets very clear rules governing the determination of parole eligibility. The CA erred in applying as a principle of sentencing that fixed-term sentences under the CC ought to be capped at 20 years. subject only to the fundamental principle that the global sentence imposed should reflect the overall culpability of the offender and the circumstances of the offence. namely the date when sentence is imposed. Canadian courts have been reluctant to impose single and consecutive fixed-term sentences beyond 20 years. Within the broad statutory maximum and minimum penalties defined for particular offences under the Code. in the sense that it is so excessive as to outrage standards of decency. the CC.established tenet of our criminal law that the quantum of sentence imposed should be broadly commensurate with the gravity of the offence committed and the moral blameworthiness of the offender. A person sentenced to a numerical term of imprisonment under the Code becomes eligible for full parole after serving the lesser of one third of the sentence or seven years. this general principle of proportionality expresses itself through the more particular form of the totality principle. In the context of consecutive sentences. 12 of the Charter. the principle of proportionality expresses itself as a constitutional obligation. The commencement date for the determination of parole eligibility has generally been understood to coincide with the commencement of sentence. read together with the Corrections Act. Within broader parameters. will violate the constitutional prohibition against cruel and unusual punishment under s. which requires a sentencing judge who orders an offender to serve consecutive sentences for multiple offences to ensure that the cumulative sentence rendered does not exceed the overall culpability of the offender. in that the parole eligibility clock effectively begins to run from the date of arrest. notwithstanding the fact that an offender is eligible for review of the conditions of his or her incarceration after seven years (absent an order extending the period of ineligibility). trial judges enjoy a wide ambit of discretion under s. A person sentenced to life imprisonment other than as a minimum punishment becomes eligible for full parole after serving seven years. There is no pre-fixed boundary to the sentencing discretion of a trial judge. denunciation and rehabilitation to the protection of society. A CA should only intervene to minimize the disparity of sentences where the sentence imposed is in substantial and marked departure from the sentences customarily imposed for similar offenders committing similar crimes. In contrast to the absence of any explicit codal rules governing the limits on fixed-term sentences of imprisonment. Whether under the rubric of the totality principle or a more generalized principle of proportionality. absent special circumstances. 717 in selecting a just and appropriate fixed-term sentence which adequately promotes the traditional goals of sentencing. it also justified its reduction with reference to a contextual application of the accepted principles of sentencing to this case. A legislative or judicial sentence that is grossly disproportionate. While the court reduced the accused's sentence primarily as a result of a framework of sentencing principles that was incorrect in law.

in the context of an attempted murder. The trial judge found that his evidence was not credible.700. an additional aggravating factor in this case is that Boucher's actions were premeditated. The owner of the store went to the appellant's home and accused him of the theft. a first sentence of imprisonment was required to be as short as possible and tailored to the individual circumstances of the accused. He has the same killer instinct. Second. The sentence was unfit. Held: Appeal allowed. He had no prior criminal record. As well. The disproportionate sentence failed to effect the purpose of sentencing to contribute to respect for the law and maintenance of a just society. Boucher was sentenced to two years less a day imprisonment in addition to 28 months credit for time served on the attempted murder charge. The Crown recommended a sentence of 30 to 60 days. justifies the imposition of a substantial penalty separate and apart from the issue of protection (=domestic offence is an aggravating circumstance). Boucher [2004] ONCA± crown appeal allowed for sentences that are µunfit¶ Facts: Appeal by the Crown from the sentence imposed against Boucher on his conviction of attempted murder. Third. enter and theft. Must be proportionate. Boucher drove to his estranged wife's home while intoxicated. The wife attempted to get away in her vehicle but was followed by Boucher. which was five weeks. Further. The trial judge rejected the suggestion that Boucher had accepted the end of his marriage but found that a longer probation period was sufficient. The sentence was followed by a two year probation period.R v. the Page | 212 . Boucher was convicted of attempting to murder and two counts of threatening his wife. First. With regard to youthful first offenders. Boucher telephoned a family member and stated that he had tried to kill his wife and himself. The 19year-old appellant and another person broke into a convenience store and stole goods worth $2. where present. plus one year probation. Such sentences were not to be imposed as a warning to others. The entire proceedings took five minutes. Boucher's vehicle drove into a ditch. The main reason the trial judge gave for the sentence imposed was the prevalence of break and enter in the community. the absence of physical injuries was a function of chance and does not necessarily justify a significant reduction in the range of sentence that is otherwise appropriate. Facts: This was an appeal by the accused from a one-year sentence of imprisonment. where an attempted murder is committed in the context of a domestic relationship. He had no criminal record. Boucher was sentenced to two years less a day followed by three years probation. Boucher testified that he only intended to talk to his wife. such offenders should not be imprisoned without benefit of a presentence report. where he was not represented by counsel. At the trial. Boucher spent 14 months in presentence custody. this could not be the paramount consideration. The appellant admitted what he had done and returned all of the items stolen. The wife testified that Boucher drove his car into hers and caused it to spin. While the prevalence of crime in a community could be taken into account on imposing sentence. The attempted murderer is no less a killer than a murderer. the likelihood of lasting psychological trauma to the victim arising from the irrational and obsessive nature of the misconduct is significant and. The sentence was not proportional to the gravity of the offence and the offender. Priest [1996] ONCA± sentences are to be imposed having regard to the particular offence and the offender. Boucher was 53 years old. Held: The appeal was allowed and the sentence varied to time served. He was also sentenced to 30 days concurrent imprisonment on each threatening charge. Sentence was to be imposed having regard to the particular offence and the offender. the appellant pleaded guilty to break. R v.

which require the party seeking to rely on the facts to prove them on a BOP. 722. . Victim is defined in s. 721²Report by a Probation Officer S. which must be proved BARD R v. except for aggravating facts relied on by P. nor is it indented that these statements erode the usual roles about expert evidence. the victim arising from the commission of the offence. 721(1) requires a probation officer to prepare a presentence report when ordered to do so by a court S.4. Procedure S.2 requires courts to accept all facts essential to the verdict. 721(3) sets out the matters that the report should address S. 723. 721.Impact statements should describe the harm done to.2. substance abuse. For jury trials.1 requires sentencing to take place expeditiously once convicted S. etc. s. 722²Victim Impact Statement S.) To see if this applies. 724. 720. cannot recommend sentence -Victim impact statements should not contain any recommendations for sentence. read or otherwise presented s. 720²Sentencing Proceedings & Court Supervised Programs S. 722(1) requires the court to consider any statement prepared by a victim in accordance with the section The matter of how statement is presented is govered by s. or loss suffered by.4 S. judge must consider the interest of justice and any victim of the offence S. s 723.724²Information Accepted Deals with fact finding for sentencing purposes. It includes allowing victim to read it. 723²Submissions on the Facts Codifies the procedural aspects of the sentencing hearings. even through a victim impact statement has been filed.(5) S. violence. 721.3 prescribes the procedure for resolving disputed facts.(3) the court is not prevented from considering any other evidence concerning any victim of the offence. S. The statements should not contain criticisms of the offender. s.2 permits sentencing delay as an exception where AG and D consent to let D attend a provincially approved and judicially supervised program (drugs. 722. Victims are not permitted to have a role in suggesting the length or kind of sentence. 722. but permits additional findings to be made based on evidence at trial or further evidence which is called by either party S. assertions as the facts of the offence. 721(4) permits the court to require information on other matters By s.() says D and P can make submissions and they can call relevant evidence for the Court to use to make sentence Court can require production of evidence on its own motion Courts can also require the attendance of a compellable witness.principles of denunciation and deterrence are of paramount importance in cases involving domestic violence. Bremner [2000] BCCA²Contents of Victim Impact Statement. 734. or recommendations as to the severity of punishment. or use any psychiatric diagnostic terms. In general the provision allows the court to take as proved any information disclosed during the trial for sentencing. Page | 213 .2 provinces may make regulations concerning the types of offences for which pre-sentence reports can be ordered and their content Copies of this report must be delivered to D and their counsel ASAP under s. 720.

R v. 745² Imprisonment for Life Sets out sentence for life imprisonment for people. An unfit sentence is one that is clearly unreasonable. in whole or part by a term of imprisonment. Shropshire). While driving impaired.1²Imprisonment for more then 2 years When D¶s sentence consists. twoyear driving prohibition and DNA sample for impaired driving causing bodily harm and breach of recognizance. would bring the administration of justice into disrepute or is otherwise unreasonable the judge retains the discretion to reject the joint submission. 743²Imprisonment Enacts a general punishment provision upon conviction of an indictable offence. A trial judge may decline to give effect to joint recommendation. this section generally determines the place of imprisonment Imprisonment for more then 2 years must go to a penitentiary If someone is sentenced to another crime after their 2 years in prison. Cromwell [2005] NSCA± Judge only need consider submissions for conditional sentence Facts: Appeal by Cromwell from sentence for 5 months' imprisonment. while under sentence and also the expiry of the intermittent sentence. the judge is the guardian of the public interest and must preserve the reputation of the administration of justice. for purposes of this case. only if the judge is satisfied there are no other compelling circumstances justifying.1) s. Ultimately. however. They can also consider the availability of appropriate jail accommodation. Held: Appeal dismissed. S. 743. The sentencing judge's rejection of the joint submission was warranted in the circumstances and the sentence imposed was not clearly unreasonable or unfit therefore there was no basis to interfere. If there is more then one offence conviction they are permitted to serve the additional days right after the intermittent sentence. Incarceration s. The sentencing judge considered the joint submission for a conditional sentence but found that it would not represent adequate deterrence. which showed no sign of improvement. Sentences of less then 2 years go to prison Persons under supervision who are sentenced for another crime committed during supervision serve their sentence in the penitentiary under s. Where the agreed resolution is contrary to the public interest. 743. An unreasonable sentence is one falling outside the range (R. S. 732²Intermittent Sentence Court may order that a sentence of 90 days or less be served intermittently. 732(2) says D may apply to serve the intermittent sentence on consecutive days. v. one-year probation. Cromwell was responsible for an accident that injured four people. except for under 18s High treason and first degree murder is imprisonment for life. s. denunciation and protection of public. Joint sentence submissions arising from a negotiated guilty plea are generally respected by the sentencing judge. as in the public interest. those of conditional sentencing. s. which was required in the circumstances of the offence. The sentencing judge gave the recommendation serious consideration and provided sound reasons for rejecting it. but where the sentence is clearly unreasonable and then. Cromwell was released on bail and failed to appear for court and was arrested on a warrant for breach of recognizance.1(3. While the sentencing judge erred in not providing counsel with an opportunity to make further submissions in support of the sentence. the additional information would not have altered the result. 732(1)(b) says a probation order may be imposed with respect to eh period when D is not in custody. the additional time (less then two years) must be served in a penitentiary. They must consider the character of the D and the nature of their offence. not simply because she would have imposed a more severe sanction. a departure from an otherwise fit sentence. It applies only where no punishment is specifically provided for an indictable offence. without eligibility for parole for 25 Page | 214 . Fixing the range requires consideration of the general sentencing principles and. Cromwell had an untreated substance abuse problem.

The 1996 sentencing reforms (³Bill C-41") substantially reformed Part XXIII of the Code. a terrorism offence.2 of the Code are eligible for conditional sentencing s. It is also discretionary. they get life If under 18 is convicted of first degree murder see s. but any time they spent lawfully or unlawfully at large does not count Tells you how to calculate time. Requires court to ensure D understand the order. One of the passengers in the accused¶s car was killed. A custodial sentence was not unfit. 718. Bill C-41 in general and the conditional sentence in particular were enacted both to reduce reliance on incarceration as a sanction and to increase the Page | 215 .3 does not vitiate the order Generally it says they must be peaceful and have good behavior and they must report to the court is required and report to a supervisor s. 742.years. 745. The trial judge imposed 18 months jail. provisions for alternative measures for adult offenders and a new type of sanction. but limits the circumstances. No one convicted of a serious personal injury offence. In the end.1 Second degree murder: sentence is imprisonment for life without eligibility for parole for 10 years. sideswiping one car and crashing into another. a criminal organization offence or an offence punishable by minimum 10 years can be eligible for a conditional sentence Only those where imprisonment is less then 2 years.1²Imposing of conditional sentence Allows service of a sentence of imprisonment in the community. 742. and introduced. After drinking at a party.3(4)²Commencement of a Sentence A sentence commences when it is imposed To determine the sentence to be imposed the court can take into account any time D has spent in custody s 719(3). nor had the trial judge committed any error that would justify appellate interference. Enhanced credit is available in exceptional circumstance (s. but the Manitoba CA substituted a conditional sentence. an express statement of the purposes and principles of sentencing.742.742. inter alia. Also if someone has previsouly been convicted of culpable homicide that is murder and then commits second degree murder. He drove erratically for 10-20 minutes. Failure to comply with s. Held: This is the Court¶s main judgment on the general principles on conditional sentences. The driver of the second car was seriously injured. but does not server more then 25 s.1) Conditional Sentence of Imprisonment s 742²Definitions for this section s.6²Procedure on Breach of Condition Describes the procedure to be followed when dealing with alleged breaches of conditional sentence orders Describes when and how hearings are to be held and what type of evidence can be adduced R v. he decided to drive some friends home in a vehicle that was mechanically unsound. Proulx [2000] SCC²leading case for conditinal sentences Facts: 18 year old accused pleaded guilty to dangerous driving causing bodily harm and dangerous driving causing death.3²Compulsory Conditions of Conditional Sentence Order Sets out the compulsory conditions and optional conditions of a conditional sentence order. the conditional sentence of imprisonment. 719(3. the SCC restored the jail sentence on deference grounds. the service of sentence in the community would not endanger anyone and it would be consistent with the fundamental principles of sentencing in s 718-718.

(2) the court must impose a term of imprisonment of less than two years. (3) the safety of the community would not be endangered by the offender serving the sentence in the community. Section 742.1(b) that the judge be satisfied that the safety of the community would not be endangered by the offender serving his or her sentence in the community is a condition precedent to the imposition of a conditional sentence.1(a). 742. A conditional sentence should be distinguished from probationary measures. In a preliminary determination. 742. 742.use of principles of restorative justice in sentencing. Parliament intended conditional sentences to include both punitive and rehabilitative aspects. By contrast. 742. Instead. 742. Having determined that the appropriate range of sentence is a term of imprisonment of less than two years. and not the primary consideration in determining whether a conditional sentence is appropriate. a purposive interpretation of s. the sentencing judge should reject a penitentiary term and probationary measures as inappropriate. 742. nor should there be presumptions in favour of or against a conditional sentence for specific offences. and (4) a conditional sentence would be consistent with the fundamental purpose and principles of sentencing set out in ss. and (2) the gravity of the damage that could ensue in the event of re-offence. The sole requirement is that the duration and conditions of a conditional sentence make for a just and appropriate sentence. not the broader risk of whether the imposition of a conditional sentence would endanger the safety of the community by providing insufficient general deterrence or undermining general respect for the law. conditional sentences should generally include punitive conditions that are restrictive of the offender's liberty.1(a) should be adopted. Although this approach is suggested by the text of s.2. A consideration of the risk posed by the offender should include the risk of any criminal activity. 718 to 718. In making this determination. Probation is primarily a rehabilitative sentencing tool. Two factors should be taken into account: (1) the risk of the offender re-offending. the judge should then consider whether it is appropriate for the offender to serve his or her sentence in the community. and not be limited solely to the risk of physical or psychological harm to individuals. The requirement in s.1(a). Conditions such as house arrest should be the norm.1 are satisfied.1 of the Code lists four criteria that a court must consider before deciding to impose a conditional sentence: (1) the offender must be convicted of an offence that is not punishable by a minimum term of imprisonment. it is unrealistic and could lead to unfit sentences in some cases. not the exception. Therefore. a conditional sentence need not be of equivalent duration to the sentence of incarceration that would otherwise have been imposed. the judge should consider the risk posed by the specific offender. Once the prerequisites of s. As a corollary of the purposive interpretation of s.1(a) that the judge impose a sentence of imprisonment of less than two years does not require the judge to first impose a sentence of imprisonment of a fixed duration before considering whether that sentence can be served in the community. No offences are excluded from the conditional sentencing regime except those with a minimum term of imprisonment. The requirement in s. the judge should give serious consideration to the possibility of a conditional sentence in all cases by examining whether a conditional sentence is Page | 216 .

in deviation from the approach set out in these reasons. reparations to the victim and the community. Since the accused has already served the conditional sentence imposed by the Court of Appeal in its entirety. They are entitled to considerable deference from appellate courts. A conditional sentence may be imposed even where there are aggravating circumstances. As a general matter. Generally. although the need for denunciation and deterrence will increase in these circumstances.consistent with the fundamental purpose and principles of sentencing set out in ss. The judge should consider all relevant evidence. depending on the nature of the conditions imposed. The Court of Appeal erred in holding that the sentencing judge had given undue weight to the objective of denunciation. and promotion of a sense of responsibility in the offender and acknowledgment of the harm done to the victim and the community. or an overemphasis of the appropriate factors. the duration of the sentence. a conditional sentence may provide sufficient denunciation and deterrence. and the Crown Page | 217 . Where objectives such as denunciation and deterrence are particularly pressing. a conditional sentence will likely be more appropriate than incarceration. There may be some circumstances. failure to consider a relevant factor. even in cases in which restorative objectives are of lesser importance. the longer and more onerous the conditional sentence should be. even if incarceration was not necessary to deter the accused from similar future conduct or necessary for his rehabilitation. where the need for denunciation or deterrence is so pressing that incarceration will be the only suitable way in which to express society's condemnation of the offender's conduct or to deter similar conduct in the future. No party is under a burden of proof to establish that a conditional sentence is either appropriate or inappropriate in the circumstances. an 18-month sentence of incarceration was not demonstrably unfit for these offences and this offender. 718. a conditional sentence will be better than incarceration at achieving the restorative objectives of rehabilitation. She found that. such a sentence would not be in conformity with the objectives of s. A conditional sentence can provide significant denunciation and deterrence. The offences here were very serious. a court of appeal should only intervene to vary a sentence imposed at trial if the sentence is demonstrably unfit. Where a combination of both punitive and restorative objectives may be achieved. it would be in the offender¶s best interests to establish elements militating in favour of a conditional sentence. This follows from Parliament¶s clear message to the judiciary to reduce the use of incarceration as a sanction. the 18-month sentence of incarceration imposed by her should be restored. Sentencing judges have a wide discretion in the choice of the appropriate sentence. In this case the sentencing judge considered that a term of imprisonment of 18 months was appropriate and declined to permit the accused to serve his term in the community. incarceration will generally be the preferable sanction. Absent evidence that the sentence was demonstrably unfit. This may be so notwithstanding the fact that restorative goals might be achieved. the Court of Appeal should not have interfered to substitute its own opinion for that of the sentencing judge. The sentencing judge did not commit a reversible error in principle and she appropriately considered all the relevant factors. no matter by whom it is adduced. However. In her view. dangerous driving and impaired driving may be offences for which harsh sentences plausibly provide general deterrence. While the sentencing judge seems to have proceeded according to a rigid twostep process. while the accused would not endanger the safety of the community by serving a conditional sentence. and had resulted in a death and in severe bodily harm. Accordingly. the more serious the offence. 718 to 718. Moreover. incarceration was necessary to send a strong message to denounce the accused¶s conduct and to deter others from engaging in similar conduct. Absent an error in principle.2. However. and the circumstances of both the offender and the community in which the conditional sentence is to be served. however.

734(5) The find can be taken out of money found in D¶s possession at the time of their arrest s.1²Intermittent Sentence Court can order that a sentence of 90 days or less be served intermittently Must consider the character of the D as well as the nature of the offence. Probation and Community Service s 731²Making a Probation order Describes the instances where probation can be orderd S. 246(2)(b) of the CC. 732. for any offence other than the one for which there is a minimum test of impairment Fine may be in addition to any other sanction Court must be satisfied under s. 734(6). One of the conditions of the probation order was that the appellant should not operate a motor vehicle for the period of one year. The Provincial Judge imposed a fine of $150 and placed the appellant on probation for a term of one year. Page | 218 . 733. 732. P or probation officer. 732. if he had any jurisdiction to impose the condition under s. was to impose such reasonable conditions as he considered desirable for securing the good conduct of the accused and for preventing the repetition by him of the same offence or the commission of other offences. when it is subject to a revocation hearing under s. Order can be changed to add or take away conditions Revocation proceedings are authorized by s. Martin J: The trial judge proceeded upon a wrong principle. inasmuch as he imposed this term of the probation order as an additional punishment to be imposed upon the accused.2(5) Continues to comply if D is convicted of something else. 663(2) of the CC. 732. 734.2(5) s. Can only be where no punishment is described by provision or in addition to fining and sentencing for less then 2 years The court can also give probation when D is discharged s. Issue: Did the trial judge have the right to impose this condition as a term of the probation order? Held: No. Fines s 734²Fines and Forfeiture Authorizes the imposition of a fine on D who is not an organization. R v.2(3) by the sentencing court by an application by D. the sentencing court must look at age. the service of the sentence of incarceration should be stayed. but conditions can change if D cannot meet them because he is incarcerated Order can be varied under s. the max punishment is 18 months Section punishes failure or refusal to comply with an order without a µreasonable excuse¶. character.2 that D is able to pay or discharge the fine A term of imprisonment in default of payment is calculated under formula in s. whereas his only power.2²Coming into Force of order Defines the commencement and duration of probation order and the circumstances under which it can be varied or revoked Order cannot be longer then 3 years. They can also consider appropriate jail accommodation Probation order can be imposed when D is not in jail and also on expiry of sentence s. Ziatas [1973] ONCA ± conditions imposed on probation must relate to deterrence of that offence Facts: This is an application for leave to appeal and an appeal by the accused from the sentence imposed upon him by Provincial Judge Foster upon conviction of the accused on his plea of guilty to a charge of assault with intent to resist arrest contrary to s.stated in oral argument that it was not seeking any further punishment. 731(1) to determine whether a probation order apples. nature of the offence and circumstances surrounding the offence. 732.1²Failure to comply with order Creates a hybrid offence for failure or refusal to comply with a probation order It authorizes trial in various territorial jurisdictions If P proceeds summarily.

incl. He was a corporal in the armed service with no previous record. 5. The second condition precedent is that the Court must consider that a grant of discharge is not contrary to the public interest. 2. 736²Fine Option Program (does not exist in most provinces. The section contemplates the commission of an offence. or a forfeiture has not been paid. knowing that some had been obtained by theft. R v. the order may be filed and entered and enforced as a judgment in any civil court in Canada with jurisdiction over that amount. Value of the carpet was $33. Generally. There is nothing in the language that limits it to a technical or trivial violation. He was employed by a moving company to supplement his income and was on the job at the time of the charge. D is then discharged. ON) Permits discharge of a fine by an individual accused in whole or part by earning credits for work performed during a period of not more then 2 years in a fine option program.000. He wanted a discharge because he thought this would effect his position in the army. which must not be one for which a minimum punishment is prescribed by law or one punishable by imprisonment for life or 14 years D may only be awarded an absolute or conditional discharge where it is D¶s best interest and not contrary to publish interest to do so When discharge is given a finding of guilty is recorded. Discharge can be revoked if D is on probation and is convicted of an offence.s. of course. Judge refused discharge because this was a strict liability offence. 787²General Penalty Provides for a general punishment provision for summary conviction proceedings and prescribes the maximum term of imprisonment of default of payment of a pecuniary penalty. the first is that the Court must consider that it is in the best interests of the accused that he should be discharged either absolutely or upon condition. The section may be used in respect of any offence other than an offence for which a minimum punishment is prescribed by law or the offence is punishable by imprisonment for 14 years or for life or by death. operation. When the police came to his house he was friendly and cooperative. Held: Meaning of s.00. the maximum time for imprisonment for default of that fine is six months. for trivial violations Facts: D was found guilty of being in unlawful possession of some pieces of carpet the value under $200. People vouched that this was an error and that he was not a thief. Of the two conditions precedent to the exercise of the jurisdiction.7²Warrant of Committal Warrant cannot be issued until the time allowed for the payment of the fine in full has expired s. He had obtained this carpet when he was delivering a fridge and thought they were scraps. or 6 months in jail unless the provisions states otherwise If only a fine is imposed as a penalty. 734. D cannot be an organization and must plead or be found guilty of an offence. 734. then that brings the next consideration into operation. Max fine for summary conviction is $2. 734. 4.6²Civil Enforcement of Fines. but no conviction is entered. explaining his position. forfeiture When D is in default of payment of a fine. the first condition would presuppose that the accused is a person of good character. 662. 3. Can be whole or partial discharge of a fine s. s. is the end of the matter. esp.00.1 1. If it is decided that it is in the best interests of the accused. that. Discharges s 730²Absolute and Conditional Discharge Governs the availability. 730(1) describes the circumstances where an absolute or conditional discharge may be granted. S. effect and enforcement of absolute and conditional discharges including the rights of appeal from each disposition S. without previous Page | 219 . If it is not in the best interests of the accused. Fallofield [1973] BCCA ± discharge is not precluded by strict liability offence.6(1) says that this is in addition to any other method provided by law for recovery.

810 to the intimidation offence of s. If reasonable grounds are met.1 should not be exercised as an alternative to probation or suspended sentence. Additional conditions can be prescribed to secure good conduct can be prohibited from using or possessing firearms. and that the entry of a conviction against him may have significant adverse repercussions.810. 7. This may result in an apparent lack of uniformity in the application of the discharge provisions. notwithstanding the absence of a formal criminal prosecution Procedure commenced by laying an information before a justice. does not preclude the judicious use of the discharge provisions. 6. Section 662. while it must be given due weight. 810(3. 7 charter scrutiny s. to compel the attendance of the party before a judge when parties appear. 810(2) under s. 810(3) a hearing is conducted by the justice or summary convictions court. or ii. The powers given by s. D may be ordered to keep the peace and be of good behavior for 12 months.conviction. but leaves the supervisory role for the AG anyone who has reasonably grounded fear that another person will commit one of the above offences may (1) lay an information before a provincial court judge. Damage their property the judge is required to call these people before him s. nor engage the full scope of the criminal process it may attract s. Recognizance Orders s. 8. 662. cause personal injury to that person or to their child or spouse or common law partner.1 should not be applied routinely to any particular offence.1²Where fear of sexual offence a person who causes another a reasonably grounded fear of a listed sexual assault in respect of one or more persons under 16 years old may be required to enter into a recognizance proceedings are commenced before a provincial court judge the prospective victim of the apprehended sexual offence need not be named in the information a Page | 220 . the judge conducts a hearing to determine whether the informanant has reasonable grounds for the articulated fear if satisfied the judge will order the defendant to enter into a recognizance to keep the peace and be of good behavior for no more then 12 months or 2 years if D has a previous conviction they can also add additional conditions if desirable failure by D to enter into a recognizance will lead to imprisonment s. In the context of the second condition the public interest in the deterrence of others.2) authorized additional conditions that prohibit the attendance at or near a specified location and communication in part or in whole with the person on behalf of whom the information was laid and their family section provides a special preventative remedy which does not involve the laying of a formal charge. that it is not necessary to enter a conviction against him in order to deter him from future offences or [*455] to rehabilitate him. with the consent of the AG.01²Fear of Certain Offences adapts the sureties to keep the peace scheme in s. The informant must be a person who fears on reasonable grounds that another person will i.1. 423. criminal organization offences and terrorism offences. ammunition or explosive substances and may have to surrender weapons to relevant authorities failure to adhere to this could make the D go to prison for 12 months s. This lack will be more apparent than real and will stem from the differences in the circumstances of cases. 810²Where Injury or Damage Feared Provides statutory procedure to obtain an order that requires a person to keep the peace and be of good behavior. 810.

s. Section 810. The defendant challenged the constitutionality of s. 7 by creating an offence based on status and by being overly broad and impermissibly vague. The superior court judge therefore read down the word "shall" in s. s. for any period up to one year.1(2) to read "may". Although there are coercive aspects to s.1 does not infringe Charter s. Where.1 of the CC.1 of the CC was not overly Page | 221 . nor does it have a true penal consequence such as would be necessary to characterize it as punitive. with conditions including a condition prohibiting the person for up to one year from engaging in activities involving contact with persons under the age of 14 years and prohibiting the person from attending a public park. 810. 7 on the basis that it creates a status-based offence. 810. the person may be ordered to enter into a recognizance. Held: On appeal by the defendant. such as a medical diagnosis or past criminal history. 810.e revoke fire arms. which permits the court to impose a recognizance on any person likely to commit any of the listed sexual offences against a child under 14 years of age.1 of the CC does not create an offence based on a person's status.7 of the charter -s. and (2) in providing that the issuance of process was mandatory upon the mere filing of an information.2²Where fear of serious personal injury offence same provision as above but where there is fear of personal injry assigns a supervisory role to AG anyone who has reasonable grounds to fear that someone else will commit a serious personal injury offence within s. the issue with respect to s. 810. the appeal should be dismissed. a school ground. 7 of the Charter was whether the restrictions were in accordance with the principles of fundamental justice. not punitive. 1. 810.1. 810. As it was acknowledged by the Crown that s. after a hearing. 7 and 9 of the Canadian Charter of Rights and Freedoms and could not be justified under s.1 of the CC deprived a defendant of his liberty. playground or community centre. The defendant argued that s.810 does not infringes s. A superior court judge held that the provision was constitutionally valid except for two aspects: (1) "community centre" was declared to be inoperative because it was overly broad. Budreo [2000] ONCA ± s. 811²Breach of Recognizance creates a dual procedure offence of breach of recognizance entered into under the above sections. 810.1(2) was held to infringe ss.1 violated s. The purpose of the provision is not to mete out criminal punishment. etc«) failure to enter into recognizance could lead to imprisonment. Section 810. 810. 752 may lay an information with a provincial court judge with the consent of the AG the victim does not have to be named in the information s.hearing will be conducted to determined the reasonable grounds same prohibitions can be issues here (i. a provincial court judge is satisfied that the informant has reasonable grounds to fear that the defendant will commit one of the listed offences. they are necessary to preserve the integrity of the proceedings. held. or a daycare centre. is overly broad or is impermissibly vague. Facts: The defendant was the subject of an application pursuant to s. The provision is preventive. a public swimming area where persons under the age of 14 years are present or can reasonably be expected to be present. AR: The external circumstances consist of any act or omission that is in breach of the recognizance MR requires proof of the intention to case the external circumstances of that offence R v.1 of the CC. 810.

any additional conditions must be similar to the specified examples. 810(3). on conviction or discharge. D may be ordered to pay restitution to that 3rd party s. 730 of any offence or CDSA offence S. 738(1) permits the order to be made on application by AG or on the courts own motion It may be imposed in addition to any other measure S. The restrictions on liberty did not include detention or imprisonment.2(e)-system should minimize reliance on imprisonment-judges to consider all available sanctions other than imprisonment and to pay particular attention to the circumstances of aboriginal offenders Page | 222 . 739²Restitution to persons acting in Good Faith Where property was obtained by D¶s offence was conveyed to a person acting in good faith. they were narrowly targeted to meet Parliament's objective. 718. including loss of income in the case of bodily harm. D may be orderd to make restitution to another person for the cost of property damage. Given the use of the word "including" before the specified conditions are set out in s. accepting the deletion of community centres.741. The extent of the restrictions was proportional to the important societal interest in the protection of young children and. Victim Surcharges s. or D has borrowed money from a 3rd person on the security of that property and the property has been returned to the lawful owner or possessor. pecuniary damages. and reasonable living expences in the case of actual or threatened bodily harm S.2(e)²General Principles (Aboriginals) S.1²Notice of Orders of Restitution Sentencing court must provide a copy of the restitution order or give notice of it to the V who is to receive the restitution. 737(2) enacts 15% rule of any fine imposed An offender seeking an exemption from payment is required to satisfy the sentencing court that payment would cause undue hardship to the offender Sentencing Aboriginal Offenders s. 738(1)(d) must pay expenses for someone to re-establish their identity or restore their bad cred range that may result from an offence Amount rewarded must be reasonable S. in that the defendant may only be prohibited from going places where children under 14 years of age are or can be reasonably expected to be present and the only activities the defendant can be prohibited from engaging in are those involving contact with children under 14. 718. 737(2) calculates the surcharge and provides for D exemptions S. Restitution s. 740²Enforcing Restitution Order Permits unpaid restitution orders to be entered as civil judgments Money found on D on arrest may be applied to restitution order s. 737(1)²Victim Surcharge Imposes a victim surcharge where D is convicted or discharged underf s. 738²Restitution to Victims of Offences Provides that.broad in the extent of the restrictions that may be imposed.

e.2(e) to the circumstances of aboriginal offenders living in rural areas or on-reserve. BUT the offence was a particularly serious one.2(e) is not simply a codification of existing jurisprudence. 5. imprisonment) Need to re-create their own systems of justice. Sentencing judge sentenced her to three years¶ imprisonment. the judge must consider: Page | 223 . Gladue [1999] SCC Facts: Offender. 4.2(e) is to alter the method of analysis which sentencing judges must use in determining a fit sentence for aboriginal offenders. Attention should be paid to the fact that Part XXIII. Section 718. but also differently. and the sentence was no unreasonable. 718. because the circumstances of aboriginal people are unique.2(e) but did not vary the sentence. Section 718. 718. 6. Appeal dismissed. Its purpose is to ameliorate the serious problem of overrepresentation of aboriginal people in prisons. 718. 2. All principles and factors set out in Part XXIII must be taken into consideration in determining the fit sentence. through ss. CA disagreed with narrow application of s.g.2(e) must be read and considered in the context of the rest of the factors referred to in that section and in light of all of Part XXIII. 718. Stated that s 718.2(e). In sentencing an aboriginal offender. encourages restorative approach to sentencing Sentencing aboriginal offenders consider: unique systemic or background factors of particular aboriginal offender.2(e) did not apply since she was living in an urban area off-reserve and not ³within the aboriginal´.2(e) directs sentencing judges to undertake the sentencing of aboriginal offenders individually. the effect of s. and 742. 718.2(e) mandatorily requires sentencing judges to consider all available sanctions other than imprisonment and to pay particular attention to the circumstances of aboriginal offenders. Section 718. plead guilty to stabbing death of her husband. among other provisions.Remedial ± meant to ameliorate the serious disproportionality of aboriginals in prison. Summary: 1. Issues: How is s. Part XXIII of the Criminal Code codifies the fundamental purpose and principles of sentencing and the factors that should be considered by a judge in striving to determine a sentence that is fit for the offender and the offence.2(e) to be applied? Held: the sentencing judge may have erred in limiting the application of s. Section 718. circle sentencing. Sentencing is an individual process and in each case the consideration must continue to be what is a fit sentence for this accused for this offence in this community. an aboriginal woman. sentencing procedures and sanctions appropriate in the circumstances for the offender because of his or her particular aboriginal heritage or connection. has placed a new emphasis upon decreasing the use of incarceration. Gladue ± SCC 1999 (G convicted of manslaughter for ³near murder´ of her husband-20 yrs old. participation in traditional ceremonies while in prison R v. There is a judicial duty to give the provision¶s remedial purpose real force. 3. However. 5 mos pregnant with 2nd child-drunk-G and deceased fought physically right before killing-he was having affair with her sister-tried to flee and she stabbed him-sentenced to 3 yrs. It is remedial in nature. healing circles. 718.1. and to encourage sentencing judges to have recourse to a restorative approach to sentencing.

In this context. The absence of alternative sentencing programs specific to an aboriginal community does not eliminate the ability of a sentencing judge to impose a sanction that takes into account principles of restorative justice and the needs of the parties involved. and of the priority given in aboriginal cultures to a restorative approach to sentencing. 7. the more likely it will be as a practical matter that the terms of imprisonment will be the same for similar offences and offenders. In order to undertake these considerations the trial judge will require information pertaining to the accused. generally. 8.21²Additional factors Section lists several factors that a sentencing judge is REQ¶d to take into account in imposing sentencing on an organization The nature and extent of their influence in the sentencing decision rests on Any organization disadvantage realized by the offence Nature and extent of planning of involved offence. the jail term for an aboriginal offender may in some circumstances be less than the term imposed on a non-aboriginal offender for the same offence.or offreserve. 9. 13. 12. the more serious and violent the crime. Based on the foregoing. whether on.(A) The unique systemic or background factors which may have played a part in bringing the particular aboriginal offender before the courts. 10. and separation. including in an urban centre. It is unreasonable to assume that aboriginal peoples do not believe in the importance of traditional sentencing goals such as deterrence. where warranted. Section 718. Section 718.2(e) applies to all aboriginal persons wherever they reside.2(e) is not to be taken as a means of automatically reducing the prison sentence of aboriginal offenders. the term ³community´ must be defined broadly so as to include any network of support and interaction that might be available. Judges may take judicial notice of the broad systemic and background factors affecting aboriginal people. denunciation. subject to express enactment In lieu of imprisonment. whether the offender is aboriginal or non-aboriginal. 735²Fines on Organizations General punishment provision for organizations. nor should it be assumed that an offender is receiving a more lenient sentence simply because incarceration is not imposed. 718. In defining the relevant aboriginal community for the purpose of achieving an effective sentence. additional case-specific information will come from counsel and from a pre-sentence report which takes into account the factors set out in #6. Punishment of Organizations s. as well as complexity and duration Investigative and prosecutorial costs associated with offence Regulatory practices and penalties imposed for conduct Any measures taken by organization to reduce the risk S. 11. the residence of the aboriginal offender in an urban centre that lacks any network of support does not relieve the sentencing judge of the obligation to try to find an alternative to imprisonment. in a large city or a rural area. If there is no alternative to incarceration the length of the term must be carefully considered. and (B) The types of sentencing procedures and sanctions which may be appropriate in the circumstances for the offender because of his or her particular aboriginal heritage or connection. In the usual course of events. At the same time. The offender may waive the gathering of that information. if convicted of an indictable offence they can be fined an amount that is in the discretion of the court No min or max provided Summary convictions may be fined in an Page | 224 . which in turn may come from representations of the relevant aboriginal community which will usually be that of the offender.

At the end of the process. and must be imposed in a manner that is fair to the D. Section engaged when D is sentenced to a term of two or more years.) s. less then 25 years) Does not apply to youth under 18 Discretionary recommendation. Zinck [2003] SCC± Application of parole principles (delay) -delayed parole is out of the ordinary. Section 743. The judge must once again apply the sentencing factors. but without any consideration of parole eligibility. There is no obligation on the Crown. 734.6 of the CC. Held: In the case of criminal offences falling within the scope of s. The judge must next consider parole eligibility.6²Power of Court to Delay parole Operates notwithstanding s. The sentencing judge must first decide the appropriate punishment for the crime. character of D. R v. it should be invoked only on the basis of demonstrated need. priority is given to the factors of general and specific deterrence as well as denunciation. the accused pleaded guilty to manslaughter. In the course of the second balancing. 743.amount not exceeding $100k No minimum fine for summary Fines can be enforced as civil judgments pursuant to s.6. again applying the sentencing factors. organized crimes. The accused appealed to this Court on the issue of delayed parole.6 should not be applied in a routine manner. Parole s. circumstances of D If court satisfied with society denunciation of the offences or the objective of deterrence This is a mandatory provision that courts must require for the serious offence (terrorism. Fairness requires only that the offender be informed clearly that a s. Generally speaking. taking into account and weighing all relevant factors. The trial judge sentenced him to a 12-year term of imprisonment and ordered that his parole eligibility be delayed for six years under s. 120(1) Corrections and Conditional Releases Act. delayed parole is a decision that remains out of the ordinary and must be used in a manner that is fair to the offender. The sentencing judge must first determine the appropriate punishment for the crime.2²Recommendation by Jury Only applies where jury finds D guilty of 2nd degree murder Can ask jury for recommendation on parole (more then 10. The extent of conflict in the interpretation and application of s. 745. While the reasons need Page | 225 . upon conviction of an offence in Schedules I and II of CCRA. but assigning priority to general and specific deterrence and denunciation Facts: Having shot and killed his neighbour.6 of the CC. The issue should be raised in a fair and timely manner so as to allow the offender to respond effectively. 743. etc. 743. The analysis then may shift to the exercise of the power to delay parole. however.6 does not require the creation of a special and distinct hearing on the issue of delayed parole. the offender is entitled to reasons that must state with sufficient clarity why the delayed parole order is made. to give the offender written notice that delayed parole will be applied for. The prosecution has the burden of establishing that additional punishment is required. who have been prosecuted by indictment Court must consider circumstances of offence. if needed. after a consideration of all the relevant factors. 743.6 in the case law has been overplayed. delaying parole can be a significant component of a sentence. 743. The CA upheld the sentence. The offender must be allowed to make submissions and to introduce additional evidence.6 application is being made. Delayed parole should not be ordered without necessity. A breach of this basic obligation would justify quashing the order. Section 743.

the basis of the decision must be at least ascertainable from the record. The trial judge carefully reviewed all relevant facts. Deficiencies in reasons may sometimes require quashing an order In this case. particularly the gratuitousness of the crime and the need to protect the public. They confirm his conclusion that the objectives of deterrence and denunciation could not be justified without delaying parole eligibility. Page | 226 . but failed to use it. The sentencing hearing did not breach the rules of procedural fairness. 743. the Crown asked for delayed parole. The defence was given a sufficient opportunity to respond. the trial judge did not err in his application of s.not be elaborate. In its submissions at the hearing.6 and his order to delay parole was justified.

hence the judicial review application. 351 ± 375) 1. exemplified in the context of preliminary inquiries Final verdicts can be appealed. Page | 227 .40. for example. to challenge preliminary inquiry results. to seek or quash publication bans. 676(1. Interim decisions can. Interim decisions can.APPEALS AND REVIEW 34. Interim decisions cannot be. pp. . be the subject of judicial review applications where jurisdictional errors occur. for example. 351 ± 370. Section 674 of the CC provides that only appeals authorized in Parts XXI and XXVI can be brought with regard to indictable offences. 372 ± 375 (appeals) . however.1) and s. different grounds of appeal and procedural routes apply. 1) Appeals (pp. Judicial review may be necessary. Interim decisions cannot be. who in some instances can hear: Applications for extraordinary remedies such as certiorari.Coughlan. Judicial review may be necessary. the damage sought to be prevented may have already occurred. pp. Appeals to the SCCof Canada under the SCCAct. However. or to suppress or access third party records. be the subject of judicial review applications where jurisdictional errors occur. in these cases if we wait until the end of the trial. however. 247 ± 249 (judicial review. s. to challenge preliminary inquiry results. Appeals of Final Decisions Rights of appeal in Canada are entirely created by statute. different grounds of appeal and procedural routes apply. as a matter of convenience. In the case of appeals. In the case of appeals. or to suppress or access third party records. the damage sought to be prevented may have already occurred.Coughlan. in these cases if we wait until the end of the trial. depending on whether an offence has been prosecuted summarily or indictably. to seek or quash publication bans. APPEALS OF FINAL DECISIONS AND JR OF INTERIM DECISIONS Final verdicts can be appealed. this has not totally restricted the review method of lower courts. it does permit under CC. hence the judicial review application. However.1) the appeal of a summary conviction matter to be heard along with that of an indictable offence where the two offences were tried together. depending on whether an offence has been prosecuted summarily or indictably. The Code creates separate sets of rules for appeals of indictable offences and summary conviction offences. s. 675(1.

or on any ground of appeal ³that appears to the CAto be a sufficient ground of appeal´. there should be limits on how readily available they should be ± deferring to a trial judge¶s findings of fact helps to impose a limit and does so on a principled basis. inferences of fact and questions of mixed law and fact: Questions of law have a standard of review of ³correctness´. The third filter is found in s. 675). or (iii) on any ground there was a miscarriage of justice.2. questions of fact. (3) Trial judges are better placed to make factual findings. Appeals of Indictable Offences (a) Appeals by the Accused (i) Overview of Appeal Provisions Section 675(1) provides that a person can appeal a conviction based on a question of law alone.´ The Court offered 3 basic rationales for this approach (1) Given the number. Questions of fact should not be overturned unless there is a ³palpable and overriding error´ which amounts to ³prohibiting an appellate court from reviewing a trial judge¶s decision if there was some evidence upon which he relied to reach that conclusion. length and cost of appeals.C. (ii) Appeal Provisions in Depth Standard of Review The SCC in Housen v. so an appellate court can substitute its opinion for that of the trial judge. It even further narrows the grounds by setting out the grounds on which the court of appeal can dismiss an appeal. Nikolaisen (2002) (S. (2) Trial judges are presumed to be competent and able to decide cases justly and fairly.) considered the standard of review for reviews of questions of law. Although this provision appears broad. on a mixed question of law and fact. Page | 228 . on a question of fact (with leave of the court of appeal). (ii) the judgment of the trial court should be set aside on the ground of a wrong decision on a question of law. 687 (1) (b). Those grounds are: (i) the verdict should be set aside on the ground that it is unreasonable or cannot be supported by evidence.C. 3 ³filters´ limit these appeal grounds: The first 2 filters are found in s. 686(1)(a) which set out the grounds on which the appeal can be granted (as opposed to how the appeal can be made in s.

). combined with the curative proviso. Burns (1994) (S. Questions of mixed law and fact are most complicated. it will be difficult to prove that verdicts are inconsistent if some are convicted and some are acquitted. v.Questions on inferences of fact also share that standard.686(1)(a). Errors of Law and Miscarriages of Justice Section 686(1)(a)(ii) permits an appeal to be granted in the case of a ³wrong decision on a question of law´.C. and placed on a spectrum: some questions may be reduced to questions of law (the ³correctness´ standard). as the jury could well have accepted evidence against one accused but not the other). Beaudry (2007) (S. for 4 other judges but in the minority opinion. v.686(1)(a)(iii) permits an appeal based on a ³miscarriage of justice´.C. whether some ³palpable and overriding error´ can be shown from drawing an inference. This test contains both a subjective and objective elements.)). it is difficult to show the 2 verdicts are clearly inconsistent with one another. In that event.C. Pittiman (2006) (S. The SCC in R. In the case of multiple accused charged with the same offence. 686(1)(a)(i) refers to verdicts that are ³unreasonable or cannot be supported by the evidence´. Errors of law and miscarriages of justice do not require a verdict not supported by the evidence (unlike unreasonable verdicts). In essence.C.)) and not merely substitute its view for that of the trier of fact (R. Biniaris (2002) (S. as in R.C.A. while s.C. i. It has been suggested that the same rationale ± miscarriage of justice ± underpins all 3 bases of appeal in s. v. Fish J.)). is an expression of the notion that any error of law is presumed to be a miscarriage of justice unless shown otherwise by the Crown (R.) held that the basic standard for assessing the reasonableness of a verdict is ³whether the verdict is one that a properly instructed jury acting judicially could reasonably have rendered´. held that the issue is whether the ultimate verdict is unreasonable. it should only be overturned in the case of ³palpable and overriding error´. Unreasonable Verdicts The SCC in R.686(1)(a)(i) should fail if the verdict was nonetheless reasonably available on the evidence. and hence ³manifestly bad reasons´ (as opposed to the verdict alone) could lead to a successful appeal. but otherwise the general rule is that where an appeal involves the trial judge¶s interpretation of the evidence as a whole. C. and as such there are 2 different bases on which an appeal might succeed. not the judge¶s reasoning process. will an inconsistent verdict appeal succeed. only in a rare case where the evidence on 2 different charges is not logically separable..686(1)(a)(ii). v.C. v.C.e. an appeal on s. The same standard applies to concluding that a judge has issued an unreasonable verdict. however held that s. v. Yebes (1987) (S. Even if the CA concludes that a jury could have convicted Page | 229 ..C.) per Charron J. Morrissey (1995) (Ont. Since the question is whether the verdicts are supportable on any theory of the evidence that is inconsistent with the law.C. requiring the CA to weigh the evidence (R. and that s.

C. Lohrer (2004) (S. Alberta (Attorney General) (1992) (S. the result would inevitably be a conviction (i. this is a superficial distinction as the underlying theory of the 2 subsections is the same. Jacquard (1997) (S. rather than an accumulation of several errors (R.)). Arradi (2003) (S.)). Bevan (1993) (S. There is no requirement that the error itself must have led to any unfairness or prejudice.)). Cinous (2002) (S. there will be an error of law but it will not prejudice the accused (R.C. The test for this section is whether there has been ³a reasonable possibility that the verdict would have been different had the error not been made´ (Khan). It is an error of law to instruct a jury on a defence when there is no ³air of reality´ to it. and failing to give a Vetrovec warning where one is required (R. G. and as such would not have been able to cause prejudice to the accused (the ³harmless error´ branch).C. that fact is not a basis for rejecting the appeal (R.e.C.C.C. The ³Curative Proviso´ Section 686(1)(b)(iii) allows an appeal court to dismiss an appeal despite an error of law provided that ³no substantial wrong or miscarriage of justice has occurred´.C.) (1996) (S. Examples of the ³harmless error´ branch include: y y y If the trial judge articulates a stricter standard for guilt than is actually required.C. So is the unnecessary use of the summary procedure for contempt of court proceedings (R. Although it is not an absolute rule.M.despite the legal error or miscarriage. v. Although the curative proviso cannot be resorted to for a miscarriage of justice but can be for an error of law. Khan (2001) (S. as is an improper exhortation (R. v.)). An error of law is ³any decision that was an erroneous interpretation or application of the law´ (R. v.C.)).C.)).C. that is only an issue at the curative proviso stage (Khan).)).(R. Caselaw has shown there are 2 ways to satisfy this test: (1) The error is harmless in itself.C. v.)).C.C. v. A failure to permit cross-examination on a point not really in doubt might be an error but not a harmful one (United Nurses of Alberta v. or (2) The evidence against the accused is so overwhelming that even if the appeal was granted and a retrial ordered. Hearsay evidence is improperly admitted but of no consequence to the accused¶s guilt (Gunn v.)).C. v. The Queen (1974) (S.C. v. MacGillivray (1995) (S. v.C. Page | 230 .)).C. The provision of flawed instructions to a jury is an error of law.C. the ³harmless error´ criterion is more likely to be satisfied where a single error is in issue. any theoretical prejudice has no genuine impact).C. or fail to instruct it where there is (R.

´ This right specifically applies in s. and the appeal must be allowed and either an acquittal entered or a new trial ordered. The Crown¶s right to appeal is narrower than that of an accused.) (1993) (S. If the procedural irregularity was previously (before 1985) classified as an irregularity causing a loss of jurisdiction: s. in that it contains nothing equivalent to the accused¶s right under s. and against an order of a trial court that stays proceedings on an indictment or quashes an indictment. it falls under ss. s. B.)). If so.´ The purpose of this subsection is to remove from consideration a wide variety of issues that might technically be errors though they cause prejudice to the accused. 686(1)(b)(iii). 686(1)(a)(iii) applies and the reviewing court must determine whether a miscarriage of justice occurred. and must be used with great circumspection so as to avoid depriving the accused of the right to fair trial by jury (R. In R.The other ground for applying the curative proviso is where the rest of the evidence is so overwhelming that a conviction on a retrial is inevitable. If the procedural error did not amount to. v. Khan (2001) (S. The Crown¶s right of appeal is primarily based in section 676(1)(a): any ground of appeal that involves ³a question of law alone.C.C. 686(1)(b)(iv) provides that this is no longer fatal to the conviction. the Court helpfully summarized the correct approach to applying sections 686(1)(b)(iii) and 686(1)(b)(iv): If the procedural irregularity amounts to or is based on an error of law. but that could not have been dealt with under the curative proviso. Appeals by the Crown Crown appeals can be brought under section 676. which is rare.F. 686(1)(a)(ii) and 686(1)(b)(iii). and an analysis of prejudice must be undertaken. 676(1)(a) to verdicts of acquittal or of not criminally responsible on the grounds of mental disorder.C. This requires a very high standard. the trial court had jurisdiction over the class of offence of which the appellant was convicted and the CAis of the opinion that the appellant suffered no prejudice thereby. 686(1)(a)(i) to have the verdict set aside on the ground that it is unreasonable or cannot be supported by the evidence. in accordance with the principles set out in s. However. Procedural Irregularities Section 686(1)(b)(iv) allows an appeal court to dismiss an appeal on the basis that: ³Notwithstanding any procedural irregularity at trial. v.C. Page | 231 .). 686(1)(b) that can cure such a defect. or originate in an error of law. the subsection will not apply if the procedural irregularity did cause prejudice to the accused. there are no remedial provisions in s. Sections 676(1)(b) and (c) allow appeal against an order of a superior court of criminal jurisdiction that quashes an indictment or in any manner refuses or fails to exercise jurisdiction on an indictment.(F.

Mapara (2004) (B. the only option is to order a new trial (s. v. Morin (1992) (S. B. In some cases. 686(4)). 683. and refer questions to a special commissioner. 679).)) A decision concerning the application of a legal standard (R. v. the nature of the disagreement would really concern the law rather than the facts. In such a case. the CA is not permitted to enter a conviction where the trial was by judge and jury ± in that case. it has 2 choices: to order a new trial. Other Appeal-Related Issues (i) Statutory Powers on Appeal Under s.C. In addition.C. or to enter a conviction. Page | 232 . the court can either impose a sentence or remit the matter to the trial court for sentencing.C. However.A.)). and his detention is not necessary in the public interest (R. 688). Where the CA grants an appeal from an acquittal in a trial by judge alone. a CA can assign counsel for an accused (s. Although the accused has a right to be present at the appeal. That section also permits an appeal court to amend the indictment where the accused has not been misled or prejudiced. hear witnesses or admit an examination of a witness.C.The courts have held the following to be ³questions of law´: Admissibility of evidence Interpretation of a statute Whether evidence is capable of being corroborative (R. that right may not apply if the appeal is on a question of law alone. or order an accused released pending an appeal (s. Baig (1985) (S.C.)) Whether a correct conclusion has been reached on a Charter question (R. It is an error of law for a trial judge to instruct a jury to consider individual pieces of evidence separately to decide whether they constitute proof beyond a reasonable doubt.C. a CA can order exhibits or other items produced. he will surrender himself to custody in accordance with the terms of the order.) (1990) (S. 684).C. Further.)).(G. or where those facts are not in dispute (R.C. v.) identified 3 ways in which the treatment of evidence can constitute a ³question of law´: A question of law could concern the legal effects of undisputed facts.C. v. the appeal court can order that an accused in custody can only appear by electronic means (s. In the latter case.C.)) The SCC in R.C. Cassidy (1989) (S. A CA should only choose to enter a conviction where the trial judge has already made all the findings necessary to support a guilty verdict. an accused must show that the appeal is not frivolous. In the case of an appeal from conviction. v.C. misdirection as to the evidence can be a question of law. Araujo (2000) (S. v. but only in the limited circumstance where the judge based his direction on a misapprehension of some legal principle.

and (4) It must be such that if believed it could reasonably.) made clear that in many circumstances. in all the circumstances. failure to do so. and not the evidence. be expected to have affected the result.)). the SCC in R. the SCC laid down guidelines for the introduction of fresh evidence on appeal that was not before the trial court: (1) The evidence should generally not be admitted if it could have been admitted at trial by due diligence (although this principle is not applied as strictly in criminal cases as it is in civil cases).C.C.). when taken with the other evidence adduced at trial. Boucher (2005) (S. The evidence could also give reason to doubt previous evidence. v. (iii) Duty to Give Reasons (Failure) Although there is no general duty to give reasons.C.C. Generally. will be an error giving rise to a ground of appeal.). the unreliable testimony of a pathologist called by the Crown (R. It is part of his or her accountability for the discharge of the responsibilities of the office. The delivery of reasoned decisions is inherent in the judge¶s role. the functional need to know has been met. v. The trial judge¶s reasons should not be held up against an abstract.g. or do so adequately.A.C.(ii) Fresh Evidence on Appeal In R. e. Reasons for judgment may be important to clarify the basis for the conviction but. Schneider (2004) (N.C. v. In its most general sense. the Palmer criteria do not apply (e. In Sheppard. An accused person should not be left in doubt about why a conviction has been entered. jury standard (R. 2. the following general guidelines were given on the judge¶s duty to give reasons: 1.g.C.)). R.)). (2) It must be determined whether inadequacy permits appellate review. The question is whether. the basis may be clear from the record. Page | 233 .S. v. v. where the trial process itself is in issue. (2) The evidence must be relevant in the sense that it bears upon a decisive or potentially decisive issue in the trial. Trotta (2007) (S. (3) The evidence must be relevant in the sense that it is reasonably capable of belief.C. They are to be assessed as a whole. on the other hand.C.C. Palmer (1980) (S. v. Judges are not required to give their reasoning process in detail. simply to give reasons that the parties can understand and that permit appellate review (R. however. Sheppard (2002) (S. Determining whether there has been an error of law based on insufficient reasons is a 2-stage analysis: (1) The appeal court must ask whether the reasons are inadequate. Rhyason (2007) (S. the obligation to provide reasons for a decision is owed to the public at large.C.

The error of law. i. 3. the appellate court may conclude that it is a case of unreasonable verdict. having regard to the particular circumstances of the case. 686(1)(a). 8.. to a judgment or verdict of acquittal) rather than to the reasons for that result. is reasonably intelligible to the parties and provides the basis for meaningful appellate review of the correctness of the trial judge¶s decision. the presumption is of limited relevance. 5. and it is the correctness of the decision in a particular case that the parties are entitled to have reviewed by the appellate court. 686(1) are equally applicable to summary convictions. if it is so found.)). in the case of the Crown. even without being articulated. 9. an error of law. Reasons perform an important function in the appellate process. Even learned judges can err in particular cases.3. 4. not every failure or deficiency in the reasons provides a ground of appeal. depending on the circumstances of the case and the nature and importance of the trial decision being rendered. as with indictable offences. It is neither expected nor required that the trial judge¶s reasons provide the equivalent of a jury instruction. 683 are also equally applicable. Reasons acquire particular importance when a trial judge is called upon to address troublesome principles of unsettled law. The trial judge¶s duty is satisfied by reasons which are sufficient to serve the purpose for which the duty is imposed. There is no need in such a case for a new trial.C. 7. Regard will be had to the time constraints and general press of business in the criminal courts. they may know all that is required to be known for that purpose on the basis of the rest of the record. a decision which. unless the basis of the trial judge¶s conclusion is apparent from the record. Likewise. Otherwise. Teskey (2007) (S. the appeal court¶s explanation in its own reasons is sufficient. The trial judge is not held to some abstract standard of perfection. but the appeal court considers itself able to do so. 6. Where the trial decision is deficient in explaining the result to the parties. or to resolve confused and contradictory evidence on a key issue. Appeals of Summary Conviction Offences The most notable difference between appeals of summary convictions and appeals from indictable offences is the court to which the appeal is brought. Where the functional needs are not satisfied. Note also that delay itself is not a deciding factor. the bases for granting appeal are narrower than he grounds for launching them.C. all the powers of the court in s. being directed to a conviction (or. v. While it is presumed that judges know the law with which they work day in and day out and deal competently with the issues of fact. would be cured under the s. On the other hand. or a miscarriage of justice within the scope of s. The lawyers for the parties may require reasons to assist them in considering and advising with respect to a potential appeal. The statutory right of appeal. and as such all the rules concerning appeals from convictions and acquittals in s. 686(1)(b)(iii) proviso. but it increases the possibility that reasons will not be seen to have been impartial (R. Section 822(1) incorporates most of sections 683 to 689 by reference.e. Page | 234 . 10.

appeals are permitted in only 2 circumstances: (1) Where a judge of the CA dissents on a question of law.)). and 693). However. These are the only circumstances in which the Crown can appeal. 836). For the most part. A defendant is only permitted to opt for one of 2 methods of appeal (s. then a further basis for appeal is allowed. 694. 691(1). Note that one option for a CA is to overturn the actual conviction at trial. the Code permits a second level of appeal from summary conviction matters to the court of appeal.)). Note also that. 839(2)).C. Demeter (1978) (S. are incorporated by reference to these appeals (s. the accused can appeal on any question of law. and dismiss the appeal on that basis (R. are much narrower than the first level of appeal. 822(4)). Sections 829 to 838 create an alternative method of appeal. Biniaris (2000) (S. both the Crown and the accused will have a right of appeal (R. In that case.C. and the circumstances in which they are permitted. no other ground of appeal is permitted. but substitute a conviction on some other count. 4. v. Appeals to the SCC Sections 691 to 695 create a right to appeal decisions to a CA regarding indictable offences to the SCC. although these provisions are little used. Page | 235 .C. The rules in sections 673 to 689. Apart from the fact that the only ground of appeal is on a question of law.C. In such a case. whether there was a dissent in the CA or not (ss.There are some notable differences between summary conviction and indictable appeals: It is possible for an appeal of a summary conviction matter to take place by trial de novo (s. the SCC of Canada has the power to appoint counsel for an accused and has the power to make any order that the CA could have made (ss. Such appeals depend on leave of the court and can only be brought on a question of law (s. there is also the issue of when the accused or the Crown will be permitted to appeal. An appeal to the SCC can only be based on a question of law. or in which the accused who was convicted at trial and on appeal. 691(2). or (2) When the SCC gives leave to appeal a question of law. that does not preclude it from ultimately concluding that the issue raised is not one of law after all. v. if an accused was acquitted at trial but that acquittal was replaced with a conviction on appeal. 839). which govern appeal of indictable offences. can appeal. Whichever method of appeal is brought at the first level. The grounds upon which such appeals can be brought. even if the SCC of Canada grants leave on a question of law. Like a court of appeal.1 and 695).

C. it is open to the Crown to seek certiorari in the case of discharge and this sometimes occurs (Dubois v. i.C.)). As a practical matter.)).)). If there is no evidence on some element of the charge however. It also means. Because the preliminary inquiry decision is reviewed by way of certiorari rather than appeal. s. The existence of evidence at the preliminary inquiry must be understood broadly. so this means review of such a decision can only be done by certiorari. v. at least some basis in evidence (Dubois). 548 requiring the judge to commit the accused for trial if there is ³sufficient evidence´. it is not sufficient to show an error of law on the part of the preliminary inquiry judge. even a failure to consider evidence presented by the Crown at that stage but not to be led at trial will constitute a jurisdictional error (R. Apart from denying natural justice.2) Judicial Review of Preliminary Inquiry Decisions (p.A.C.577 of preferring a direct indictment despite the discharge. Page | 236 .C. (1986) (S. since the preliminary inquiry judge does not weigh evidence. C. v. 247 ± 249) The Code sets out no procedure for appealing the decision to commit or discharge at a preliminary inquiry. a committal will amount to a jurisdictional error (R.g. certiorari will only be granted where the judge has made a jurisdictional error. Arcuri (2001) (S. that where the Crown has adduced direct evidence of all the elements of an offence. Skogman (1984) (S. Note that excluding evidence at the preliminary hearing is unlikely to be a jurisdictional error (Dubois). so more frequently certiorari applications involve an accused seeking to review a decision to commit.C.C. the judge must commit the accused even if the defence has raised exculpatory evidence (R. Papadopoulos (2005) (Ont.)).e. Rather. the Crown also has the usual simpler option under s. In principle. v. it is also a jurisdictional error if a trial judge fails to comply with a mandatory provision of the Code. e. R.

Constructive possession due to s. Didn t know it was stolen. accused has burden for defences raising REASONABLE DOUBT (WOOLMINGTON). V. For possession there must be ACTIVE CONTROL in addition to knowledge and consent. Charged for possession of stolen property. 4(3) CRIMINAL CODE TERRENCE (1983) y F accused riding in stolen car. His AR = possession of car. Evidential Burden objective burden (on judge) of whether evidence available is capable of raising a reasonable doubt as to guilt of accused.4(3) two or more persons.. PHAM (2005) ( PAGE 213) Page | 237 . STARR) y y reasonable doubt is not an ordinary term it has special meaning. not be based on sympathy or prejudice. LIFCHUS. I did he possess the car? C acquitted R ct reads control into the statutory definition of possession. but logically connected to the presence or absence of evidence. (So the victim s state of mind is part of the AR) look to the statute to determine what AR is required POSSESSION OFENCES S. QUANTUM OF PROOF (R. R. it shall be deemed to be in the custody and possession of each and all of them. the standard of BARD is closer to absolute certainty than to probably guilty Actus Reus y y every thing that is in the statute that you need for guilt except those to do with the accused state of mind. V . y y y R. has anything in his custody or possession. V.Criminal Summary y y y Persuasive Burden subjective burden (on fact-finder) of being convinced BARD that accused guilty. 11(d)=presumption of innocence. with the knowledge and consent of the rest. Crown has both burdens to prove all elements of offence (AR and MR).

I can defence of consent be raised? C no. Where fraud is in issue. the complainant would not have submitted to the particular activity. Central to this is word fraud . we don t care what induced them. R . Page | 238 .Accused charged with manslaughter by means of assault after a fair fight ended in the death of the victim. New Test: There must be a causal connection between the fraud and the submission to act. CUERRIER (1998) (PAGE 237) Facts: man knowingly has unprotected sex with 2 women despite having HIV. Common law rule applies where not expressly prohibited by statute. 2. No one can be charged with a crime under common law (s.Defence of consent cannot be raised when accused intends to cause serious bodily harm. Fraud as to deceive the sexual party as to their identity.CONSENT MAKING ACT LAWFUL R. Accused raised defence of consent. the Crown would be required to prove beyond a reasonable doubt that the accused acted dishonestly in a manner designed to induce the complainant to submit to a specific activity. 9 of CC). Old Test: consent could be vitiated only when: 1. Issue: whether the accused s misrepresentation as to his HIV-positive status can nullify the complainant s apparent consent to sexual intercourse. Clarence says it is still sex. Sopinka agrees with result but says cannot interpret statute as meaning what the cts want it to mean. V. But cts can manipulate CC words by interpreting or even changing the meaning.V. So the nature and quality restriction posed a lot of problems because the reality was that you could operate on a high level of deception but as long as the act was of the same nature and quality as what they expected (sex as sex) it was not an offence. Fraud as to the nature and quality of the act. and that absent the dishonesty. y R. Notable exception sporting events within custom/rules of game. JOBIDON (1991) y y y y F . guilty. you know you are having sex. thus considering the impugned act to be non-consensual application of force. and they don t care if they would have declined had they known the nature of the act. Clarence Case changed everything from the old test nature and quality means the person engaged in sex must know it is sex. Note shows that cts don t always abide by words of statute. both women testify they would have never had sex with him unprotected had they known. Decision: Appeal Allowed new trial ordered.

focusing on whether the accused falsely represented to the complainant that he or she was disease-free when he knew or ought to have known that there was a high risk of infecting the partner. Eaton s did not rely upon the info contained in the application save for name/address. full AR not met y y LEGAL VERSUS FACTUAL CAUSATION y y y y y y factual causation is empirical. scientific causa sine qua non but-for that. R. The Crown must also prove beyond a reasonable doubt that the complainant would have refused to engage in unprotected sex with accused if she had been advised the accused was HIV-positive Cory J. In her application she made at least 2 false statements. b/c the credit was given not in reliance of the application. and you can get off even if there was factual causation Page | 239 . I of legal causation what is required to find her guilty is the offence of (1) obtaining false credit BY (2) false pretences C appeal allowed. appellant did not obtain credit by false pretence. and no other person in your position could possibly have known. The existence of fraud should not vitiate consent unless there is a significant risk of serious harm. Williams (2003) (page 244) CONSEQUENCES AND CAUSATION WHERE CAUSATION NOT FOUND ± R. WINNING y F appellant convicted of obtaining credit by false pretences. V. The test for inducement would be subjective. in the sense that the judge or jury must be satisfied beyond a reasonable doubt that the fraud actually induced the consent. then it is not objectively foreseeable. FRAUD TEST: The test for deception would be objective.The court held that s.v. but goes beyond that it is based on a moral reaction. a value judgment the law decides where to cut off the chain of causation the main issue is whether the harm was foreseeable or not if you can say that you didn t know. Fraud which leads to consent to a sexual act but which does not have that significant risk might ground a civil action. 265(3) was not exhaustive and must be read together with the common law. it would not have happened (scientific cause) a necessary contributing factor legal causation encompasses factual.

STANDARD OF CAUSATION FOR HOMICIDE . but facilities not close). LEWIS y y y y F accused shoots victim. It was unforeseeable that death would have occurred since the doctors caused it by abnormal treatment.THE QUEEN V. chokes on vomit and dies from asphyxiation. SMITH y y y y F soldier stabbed.which caused pneumonia(daleket reot). In this emergency situation. I was the stabbing the legal cause of death. THE QUEEN y F hockey players. Charged with manslaughter (did not intend to cause death) Page | 240 . it was not unforeseeable that death would result (75% chance of survival. but not legally/morally. there is still causal relation between the act and the death. which caused his death. He could have jumped out the window and the result would have still been the same. victim wouldn t have needed to be in the hospital. Intervening factors were the cause of his death. Victim died because in treating the wound. one beats another.accused stabbed victim. Test: did the wound inflicted by the accused contribute to the death? If so there is causation.WHERE LEGAL CAUSATION NOT FOUND B/C INTERVENING FACTORS R. y y y y WHERE LEGAL CAUSATION FOUND . or were there intervening factors C not guilty R stab wound had been mainly healed by the time he got bad treatment. whereas normal treatment would have saved him. because of a malfunction of his epiglottis. which caused oedema(bacheket). Note but-for the stab wound. V. So both factual and legal causation. punches him twice then kicks him. dies from the pierced lung I was the bad treatment an intervening cause? C guilty R only if the second cause is so overwhelming as to make the original wound merely part of the history can it be said that the death does not flow from the wound . given bad treatment at hospital. PEOPLE V. So he did factually cause it. even if the way in which it happened was freaky and unforeseeable. charged with murder. JORDON y y Intervening cause: if there was a second cause of death that was unforeseeable that disturbed the chain of causation F . Operating cause: it doesn't matter which wound he died from since that is morally irrelevant. Even if there are other causes that contributed. At the time of death the original wound was still an operating and substantial cause.SMITHERS V. hospital gave too much IV liquid. victim slits own throat I did this break the chain of causation C guilty R the death was foreseeable.

This became the test for causation. it detaches moral responsibility from fact. Dissent (L HeureuxDube) argues that it is not just semantic. even though not necessarily a good one for this (Mandel). Case where legal cause departs from moral cause (because unforeseeable) but legal cause = scientific cause. Law the test for causation in homicide is whether the acts of the accused were a significant (legal) contributing (factual) cause to the death. Same standard for manslaughter.R. V. but not crim neg Page | 241 . It does not matter what caused the death. It is an exception to the rule of legal causation. Mandel thinks thin skull test has no place in criminal law. Means you can be responsible for things that are not foreseeable. C guilty R . it was a tort principle. but who caused the death.y y y y y y I whether guilty of assault or manslaughter. STANDARD OF CAUSATION FOR SECOND DEGREE MURDER . but a significant change. Do not use 1st degree rule from Harbottle substantial . Return to pre-Smithers where factual cause does not equal legal/moral cause Emphasizing the MORAL aspect of causation y y STANDARD OF CAUSATION FOR FIRST DEGREE MURDER ± R. 231(5) and s. there is a different degree of causation required a substantial and high degree of moral blameworthiness must be evidenced by the accused s role in the killing in order to convict. say significant contributing cause. HARBOTTLE y For first degree murder.Smithers Test (for Causation in homicides): Any unlawful act that was at least a contributing cause of death outside the de minimis (not insignificant. MENZES y y y F street racing. V. NETTE y y y y F . 231(6) Causation is based on moral responsibility (that s why first degree requires more work) y INTERVENING CAUSES R. Actually raises the threshold for establishing causation (but majority says they are not changing the law). V. left hog-tied on her bed. more than a trivial cause) range was sufficient to engage criminal responsibility for manslaughter. S. Its purpose is for denunciation. I what was the standard of causation for 2nd degree murder? C guilty R Use Smithers rule but instead of saying not insignificant .B&E. accused charged with criminal negligence causing death I was there legal and factual causation C guilty of dangerous driving. Died from asphyxiation (henek). As long as the kick was a contributory cause (and there was substantial evidence to show that it was) then that is all the crown needs to prove for causation Thin Skull rule: take your victim as you find them.

wilfully promotes hatred against any identifiable group y I was what they did wilful? What kind of intention does wilful import? y C new trial ordered y R . Steps to convicting: 1) Smithers test 2) Any intervening causes. but knowingly promoted hatred. even if no MR mentioned in provision. All true crime assumes recklessness. REID & STRATTON y F . or knowledge that promotion of hatred was certain.Guys beat up victim. V. They didn t have it as their purpose. Victim became unconscious. R. Illustrates difference between legal causation and factual causation. BUZZANGA AND DUROCHER (1979) F accused handed out pamphlets that were anti-French. If wilful is mentioned. This broke chain. But he did not legally cause it because there was an intervening matter. The result was also foreseeable. Equating purpose with knowledge here. new trial ordered R found the CPR to be intervening cause. claim that they did it to help the French community. Statute reflects the Nette reasoning: causing death. notwithstanding correct or incorrect medical treatment. Charged with s.wilful encompasses purpose and knowledge. in law. Since his action was a significant cause of death.Wilfully promoting hatred = purpose to promote hatred. I was it a significant cause? C conviction thrown out. Statute says guilty regardless of correct or incorrect medical treatment. Basically application of Nette. So we can import the meaning of intention . Must show that there was an awareness of each element of the actus reus assume that there is a mens rea wrt to each element of offence even though legislature may not say it Note that recklessness is the default mens rea. SUBJECTIVE STATES OF FAULT R. it must be assumed to be higher than reckless. y y y y Mens Rea y y y The accused's state of mind with respect to the actus reus. V. CPR caused death. Got bad CPR. 319(2) communicating statements other than in private convo. y Page | 242 . cause the death if the independent intervening cause so overwhelms the unlawful act by the accused as a cause that the unlawful act becomes merely the background or setting for the independent intervening cause to take effect. Defence of abandonment accepted accused pulled out and victim continued as an independent actor. which is what we assume from common law. factually responsible contributing factor is he engaged in race in first place. The accused does not.y R found that he factually caused it but not legally.

They were turned over to the police and used by the Crown at trial. or inform Crown of its presence yet go through voir dire to contest its admissibility Law Society rules: Can retain physical evidence to prevent future physical harm. going to throw it in the lake. to test the evidence.Defence counsel has no reciprocal obligation to the Crown to disclose its case (with several exceptions). client wanted him to pursue defence that he could not Where does one step over line of duty to be a zealous advocate? Several propositions: 1) There is no positive obligation.R. and cannot actively conceal evidence Since the Crown historically has exercised powers as derived from Royal prerogative.What are the duties of defence counsel to disclose evidence? Is there a justification to suppress evidence? Reasons --.v. to do ballistics tests Ratio --.Accused retained by Paul Bernardo. Retained the tapes for 17 months without disclosing existence to the Crown. yet active concealment of evidence is unlawful as obstruction 2) The Crown must disclose its case yet the defence has no such reciprocal obligation (save raising argument of an alibi. to arrange for its transfer to the police. Vandergraff (1994) Page | 243 .Deal struck with Homolka. deposit with trial judge. due to lack of evidence (Crown unaware of tapes¶ existence) Argued that wanted to retain tapes to discredit Homolka s defence of being under duress a sort of surprise tactic. to prevent its destruction. and as a plea bargaining tool (however AG brought direct indictment so no preliminary hearing and so tactic moot) Sought to remove himself as counsel of record due to a private conflict ie. to make effective use of the evidence at trial Ex. the accused handed over the tapes to new counsel and withdrew as counsel. Prior to trial motions. many powers have large discretionary element raises concerns over its exercise R. and on instructions of client removed sex assault tapes from client s home. Issue --. or expert evidence) 3) If covered by Solicitor-client privilege never covers physical evidence (since not a communication) Once discovered evidence had 3 justifiable options turn over to prosecution. Murray (2000) Facts --. if is going to shoot someone else. v. to seek another lawyer to give to police. Charged with obstruction of justice.

But it depends on the particular structure of the event in question. went bankrupt and most investors lost their deposits. R. Accused is guilty of fraud whether he actually intended the consequences or was reckless as to whether they would occur. 1) Motive is always relevant and hence evidence of motive is admissible for the purposes of defences.Accused sent a bomb to victim in a kettle. He knew what he was doing and the consequences of his actions. but didn t. Said he was just doing business. Duress. Duress is irrelevant to intent. told them he had deposit insurance. For the purpose of aiding does not require the accused to actively view the crime as desirable.g.mens rea for fraud consists of subjective awareness that one is undertaking a prohibited act (no insurance exists) and subjective awareness that one s action could likely cause deprivation of another. You must look at Parliaments definition to see if it would make sense that parliament didn t want duress included. the motive and purpose. V. V. He claimed he did it out of duress y I can duress be applied to negate his MR? y C guilty of aggravated assault. Claimed he didn t know it was there. should be left to defence of mens rea. self-defence matters as a motive. If the AR is committed with the necessary MR. but compassion killing cannot. THE QUEEN y F principal offender threatened accused. not attempted murder y R duress does not apply to negate intention or purpose for murder and attempted murder. y R . not crime. E. 21 parties to offence (common intention) (b) and (c) aiding and abetting). 2) motive is no part of the crime and is legally irrelevant to criminal responsibility. Accused charged with attempted murder (under s.Motive and intent have distinct legal meanings. Mens rea does not include your personal feelings about the rightness or wrongness of the action Page | 244 . LEWIS y F . HIBBERT V. any other ulterior motive is legally irrelevant mere motive unless it can be useful for defences. y The fact that a person who commits a criminal act does so as a result of threats or bodily harm can be in some instances relevant to mens rea. accused lured victim to offender who shot him. y I what is the mens rea for fraud? y C guilty y Ratio . Accused charged with defrauding the public. THEROUX (1993) y F collected $ from investors. Had no motive. Co. since you intended the outcome regardless of the reasons.INTENTION AND MOTIVE R.

He wasn t reckless because he wasn t aware of the risk. charged with s. So use WB to get the same result as negligence what he objectively ought to have known. y Wilful blindness can be used where ct finds the accused pretty much knew. receives. 23(1) accessory after the fact knowing that a person has been a party to an offence.accused must foresee a likelihood of death. comforts. V. COOPER y F strangled victim. R. V. you are deemed to have knowledge. Otherwise we d be convicting for murder when we Page | 245 . To be accessory to murder. He was WB. or you are willfully blind. despite the risk. Charged with s. He ought to have known (negligence) but since rape is a true crime.RECKLESSNESS AND WILFUL BLINDNESS y Recklessness: One who is aware that there is danger that his conduct could bring about the result prohibited by criminal law. he is taken to have had knowledge. Cts will assume because you wish to remain ignorant. drunk. and is reckless whether death ensues or not. doesn t recall it. y Note the SC is trying to find a way to convict him. y I . Claimed that he believed she consented.how low a degree of awareness has to exist to deem a murder reckless y R . y Wilful Blindness: One who has become aware of the need for some inquiry declines to make the inquiry because he does not wish to know the truth. There must be a likelihood or higher probability because the statute raises the recklessness level for murder. not just that accused foresee simply a danger of death (Sansregret). or assists that person y I to be accessory to murder. cannot use negligence as the standard. so taken to have knowledge. just didn t get final confirmation. Trial judge acquitted based on lack of MR. On prior occasion did same thing so although he refrained from asking here. nevertheless does it anyway. Culpable homicide is murder where the person means to cause death. His belief was corroborated by the victim and believed by the judge. On appeal. what do you have to know? y C guilty y R Accused deliberately failed to inquire although he had suspicion.Accused threatened the life and raped his girlfriend. y I the law did not say what MR was required. SANSREGRET (SCC 1985) y F . convicted. Victim said her strategy was to calm things down and save her life. so how to decide this y C upheld conviction y R used doctrine of WB to convert WB into knowledge of non-consent. V. R. DUONG (OCA 1998) y F allowed person who was wanted for murder to stay in his apt. or means to cause bodily harm that he knows is likely to cause death. 229(a)(ii) murder. you either actually know he committed it. R.

where there is ambiguity we must be in favour of a requirement of some degree of mental blameworthiness if such an interpretation is available. L Heureux-Dubé objective test. education (a subjectified objective test) y Wilson. There is an important distinction between murder and manslaughter for deterrence and denunciation purposes. Dickon. will assume that the accused was aware and shift to BOP to accused to prove that s/he wasn t aware/reckless. still undetermined today. y I whether the criminal negligence provision requires recklessness or negligence in the common law sense i. but adds that you need to make a generous allowance for factors which are particular to the accused. Charged with s. On other hand. punishing evil. R. Page | 246 .should for manslaughter. Duty here was s. and shifts burden so practical result is probably little to no difference with McIntyre. S. y Mandel the difference btw the judgments is ideological more than practical.236 R. not mental state y Lamer agrees with McIntryre. 222(5)(b) manslaughter by s. the requisite level of recklessness must be concurrent with the level of stigma attached. On one hand. 219 .e. Because the stigma for murder is so high. such as youth. CRIMINAL NEGLIGENCE (OBJECTIVE OR SUBJECTIVE STANDARD?) S. 219 defines criminal negligence anyone who does/omits to do anything that it is his duty to do. no binding decision y Rs McIntyre. TUTTON AND TUTTON (1989 SCC) y F parents caused death through omission to administer insulin to diabetic child who died as a result.212(a)(ii) the intent to be demonstrated is (a) subjective intent to cause bodily harm and (b) subjective knowledge that the bodily harm is of such a nature that it is likely to result in death y Mandel . shows wanton or reckless disregard for the lives or safety of other persons. Duty means duty imposed by law. But Wilson lowers the recklessness degree to almost 0%. Harding (2002) OBJECTIVE STATES OF FAULT y recklessness/intention/purpose are called subjective states of MR y negligence is called objective MR what one OUGHT to have known y in Mandel s diagram. La Forest there must be a minimum degree of recklessness. y Ratio .to convict under s. it is found at 0% knowledge.v. whether subjective or objective state is sufficient y C 3-3 split. 219 criminal negligence. If you ought to have been aware. 215 failing to provide the necessities of life. mental development. protection of victims. Believed that depriving him of insulin would cure him.Recklessness usually means a possibility but in this case it is probability (foresight of a probable death). Note in Sansregret common law required a very very low level of recklessness. V.

CREIGHTON (1993. Personal factors are not taken into account. Same split as Tutton. Accordingly. 269 could apply to any statute or a provincial legislature including an absolute liability offence. Page | 247 . HUNDAL (1993. SCC) y F.the accused. MR FOR DANGEROUS DRIVING IS OBJECTIVE TEST .e. 269. s. y I was trial judge s charge to jury that criminal negligence involved subjective and objective element wrong? y C agreed it was wrong. Charged with causing death by crim neg. y MR FOR MANSLAUGHTER IS OBJECTIVE TEST . SCC) y y F ± Driving overloaded dump truck went thru a red light and killed another driver. y I . what the reasonable drug user would have done. Charge: Dangerous driving causing death. DeSOUSA (1992) (PAGE 549) R. An appeal by the Crown to the Ontario Court of Appeal was allowed and the case remitted to the trial court.what is the mens rea element for manslaughter? y C convicted (trial judge found that accused knew of danger.v. The reasonable person with their frailties.Lamer reiterates his views from Tutton to inject subjective characteristics of the accused into the objective reasonable person test. the incapacitated). V WAITE (1989.R. so subjective MR existed anyway) y R McLachlin (majority) The standard to be used is the objective one. v. R Used objective test. V.R. 269 violated the principles of fundamental justice as guaranteed by s. The trial judge held that the offence under s. In the course of a fight the accused threw a bottle that shattered and a glass fragment struck the victim. i. Charged with manslaughter. Things that may affect their capacity should be taken into consideration. y Dissent (Lamer) . but for different reasons y R -. even if they do not incapacitate people. V. R. 7 of the Canadian Charter and the indictment was quashed. injected an unknown amount of cocaine into the deceased after which she had a heart attack and choked on her own vomit.accused intoxicated. SCC)IMPORTANT y F .R. Desousa Facts: The accused was charged with unlawfully causing bodily harm contrary to s. The mens rea for the offences of dangerous driving should be assessed objectively but in the context of all the events surrounding the incident.e. Uniform among all only bring in individual factors where person is shown to lack the capacity to appreciate the nature and quality or consequence of his/her acts (i. who is an experienced drug user. killed 4 children while driving.

he still is doing something wrong. we don t need perfect symmetry. 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. You look to see what the starting point gives you. So interpreted. For an unlawful act to be the predicate for 269. Page | 248 . the term "unlawfully" in the context of s. near dwelling house. Night is just a decision rule. 269 meets the requirements of fundamental justice guaranteed by s. we reach the point where court refines the analysis. say if the guy says it 850pm instead. require proof of fault based on a subjective standard. 269 requires that the unlawful act be at least objectively dangerous. There is no constitutional requirement for subjective foresight of all consequences which comprise part of the actus reus of an offence. We then have a bunch of circumstances. due to its stigma and penalty. and at night. every actus doesn t need a mens rea. 269 of the Criminal Code Properly interpreted. Section 269 is not one of those offences which. whether reasonable people would foresee some harm from this conduct. In addition. we just have to make sure the mens rea attaches to the core evil. This is the same test in manslaughter. arbitrarily designate the time periods. 7 of the Canadian Charter of Rights and Freedoms. Example loitering/prowling act voluntary you can t read out the mens rea for this because it is the primary building block of responsibility. whether that underlying act is a criminal or non-criminal offence. Now. The act must be unlawful and one that is likely to subject another person to danger of harm or injury. the term "unlawfully" refers only to provincial or federal offences and would not include any underlying offence of absolute liability.night: 9pm to 6am we know this doesn t count because if we read out this cause. The fact you don t know the time period is insufficient because you are still doing something that is a core evil. s. the accused must know they are present or be wilfully blind.Validity of s. Dangerousness requirement: The unlawful act must be inherently dangerous. we have to assess whether it is dangerous. from the Crown you start seeing what you can drop out without losing the notion of moral blameworthiness. Symmetry tells us that for all 3 of the circumstances. on another s property. In this case: y y dwelling house: must know its dwelling on another property: must know its someone else s property Read out: .

accomplice shot and killed person. Lamer upholds Martineau decision Page | 249 . SCC). y In Sit v.Majority: The essential role of requiring subjective foresight of death in the context of murder is to maintain proportionality between the stigma and punishment attached to a murder conviction and the moral blameworthiness of the offender. Someone should only be regarded as murder when morality in the general public would see them as this and there must be proof beyond a reasonable doubt. notwithstanding that he desires to effect his object w/o causing death or bodily harm to any human being. s. V. The Queen (1991. McIntyre (dissent) . 212 & 213 now ss. 213(d) prima facie violated s. SCC) y F armed robbery in pool hall. escaped.Parliament has chose to term a killing arising in these circumstances (where firearm involved) here as a murder Ratio . the burden of proving beyond a reasonable doubt that the accused had subjective foresight of the death.CONSTITUTIONAL CONSIDERATIONS . since people are committing another heinous crime at the same time. This section defines culpable homicide as murder where a person causes the death of a human being while committing or attempting to commit a range of listed offences. can be recklessness. THE QUEEN (1987. struck down R (Lamer) It is a principle of fundamental justice that a conviction for murder cannot rest on anything less than proof beyond a reasonable doubt of subjective foresight. from a deterrence perspective.s. Section expressly removes from the crown. 229 & 230 (murder in commission of offences) felony murder .. 212(c) culpable homicide is murder where a person for an unlawful object (i. y A murder conviction must be reserved for those who either intend to cause death or who intend to cause bodily harm that they know will likely cause death y Dissent: finds it constitutionally valid.VAILLANCOURT V. MARTINEAU (1990. y Note: Only in murder and attempted murder have a statute of the CC have been struck down due to the constitutionality of it. 213(a) at issue. S. 7 and s. y Ratio: minimum constitutional requirement for MR in murder is proof of subjective foresight of death due of the stigma. SCC) y F .victims deliberately shot by accused s accomplice during a robbery y I . Esp.e. Murder is one of the few crimes that the MR should reflect the stigma attached.must have subjective MR for murder charge due to the stigma y y y y y R. in the commission of another offence) does anything that he knows or OUGHT TO KNOW is likely to cause death.STIGMA FOR MURDER MR FOR MURDER IS SUBJECTIVE . Accused charged with murder ss. 11(d) because it can catch an accused who causes death but who would otherwise been acquitted of murder because he did not foresee and cud not have reasonably foreseen that death would likely to be a result (which he takes to be an essential part of the offence). whether or not the person means to cause death or whether or not he or she knows that death is likely to ensue if that person means to cause bodily harm for the purpose of facilitating the commission of the offence or flight after committing or attempting to commit the offence. y C law unconstitutional y R . and thereby causes death to a human being. I was provision unconstitutional? C unconst.

SEXUAL ASSAULT R. there must be evidence upon which the defence can rest. THE QUEEN (1985. CHASE (1987. Trial judge applied Pappajohn and acquitted based on defence of mistake of fact. evidence is corroborated by victim. Over-ruled Pappajohn in this regard: where there are two diametrically opposed stories. Here.old rape laws y R .A mistake of fact need not be reasonable as long as it is honestly held and corroborated to have an air of reality (subjective and not objective.e. Also. (McIntyre) Before any obligation arises as to defence of mistake of fact. I is mistake of fact a defence for MR element of lack of consent? Is it by objective or subjective basis? R the trial judge would have been right to withhold if there was no air of reality to accused s evidence. the defence can still arise (5-4 decision). 265(4) violated presumption of innocence. Ratio . y Note: this case narrows the mistake of fact rule in Pappajohn but does not overrule it OSOLIN V. you have perfect defence for mistake of fact. the defence of mistaken belief is not available. What is req d is evidence beyond the assertion of mere belief but it can still come from the accused. V. SCC) what is sexual in nature . The belief need not be objectively reasonable. there must be something supporting accused s testimony) to give it an air of reality (evidential burden on the accused). y SANSREGRET V. so what he knew earlier should not matter to what he did now). THE QUEEN (1980. SCC) y Whether mistake of fact s. Ct unanimous that it did not.The test to be applied in determining whether the impugned conduct has the requisites sexual nature is OBJECTIVE reasonable observer CONSENT AND MISTAKE OF FACT PAPPAJOHN V. SCC) old rape laws y y y F Accused had sex with the complainant. evidence has to be independent of the accused). Page | 250 . there is no requirement that there be evidence independent of the accused in order to put the defence to jury. Evidence must be beyond the mere assertion of belief in consent by the accused (i. y R found wilful blindness (see earlier discussion). y Ratio Where the accused is wilfully blind to weather or not the victim is consenting. THE QUEEN (1993. Court applies the earlier events on the whole the evidence shows he was willfully blind (but need coincidence btw MR and AR. Only when there is enough evidence should the defence be allowed. SCC) y F see above. She claimed lack of consent.

11(d). V.2 Note the apparent transformation in MR from honest mistake to honest and reasonable mistake i. accused must show: (1) that he believed the victim affirmatively communicated consent to the sexual activity in question. SCC) y F . so the amendment is not successful in imposing a negligence standard R. 7 and s. POST-SEABOYER y y y y 1993: Women's groups said lets take advantage of this law being struck down. but after they go into the trailer and he makes unwanted sexual advances.e reasonable belief (what he ought to have known). Complainant clearly said no. Attempt to make mistake of fact defence more like negligence This is contrary to Pappajohn and Seaboyer.R. EWANCHUK (1999. were a constitutional violation of s. and anything that she did was out of fear. y C rape shield provisions struck down (7-2) y R the provisions might interfere with the defence of reasonable mistake. For instance.273. (2) he had taken reasonable steps given the circumstances known to him at the time to discover whether the victim consented to the sexual activity in question Page | 251 y . DARRACH (1998. 277 also excludes evidence. by making a better law (s. McLachlin strikes down the law. y ct goes on to say that they don t think the amendment eliminated the subjective element. V. 276 may exclude some evidence which is relevant to the defence. means there could be a reasonable mistake as long as SOME steps were taken. SCC) y I whether rape-shield provisions which prevented some types of evidence from being admitted. SEABOYER (1992. possible to take some reasonable steps but have an unreasonable mistake y Ratio: MR is subjective in the way that you only need to take some reasonable steps and can still make an unreasonable mistake and be acquitted. R. A woman s sexual history is admissible in certain circumstances. but does not infringe the right to a fair trial b/c there is no logical connection between a woman s sexual reputation and whether she is a truthful witness.There is no defence of implied consent for a defence of mistaken belief in consent to succeed. Interview conducted well. V.17 yr old complainant goes for job interview in back of defendant s van. with mistaken belief the basis of this honest belief may be sexual acts performed by the complainant at some other time or place.273)Section 273.1 . since it might result in the conviction of an innocent person. OCA ALSO WENT TO SCC) y charter challenge on the basis of the new reasonable elements y accused challenges that you cannot make sexual assault a crime based on the new standard due to the stigma attached. S. the new law is still largely subjective with an objective standard y do not have to take ALL reasonable steps. R . Ct agrees MR must be subjective. This subjective standard satisfies the stigma of this crime. y S.

CORNEJO (2003) (page 662) R. D calls her at home 3x. Victim wakes up and says no.2(b) of the mistake of fact unless the accused takes reasonable steps in the circumstances known to him at the time to ascertain whether the complainant was consenting to the activity in question combines subjective and objective fault elements the accused s obligation to take reasonable steps is only based on what he subjectively knows at the time. The test is whether there is evidence on the record upon which a properly instructed jury acting reasonably could acquit. Page | 252 .2(b) requires the accused to act as a reasonable person would in the circumstances by taking reasonable steps to ascertain whether the complainant was consenting. The complainant and Cornejo were co-workers. Air of Reality Test: a trial judge has a duty to keep from the jury any defences lacking an evidentiary foundation or an air of reality. Davis (1999) (page 617) R. On the other hand. the trial judge must consider the totality of the evidence and assume the evidence relied upon by the accused to be true. Trial judged erred in concluding in these circumstances that the movements of the complainant s pelvis were a sufficient evidentiary basis to allow the defence to go to jury. lets himself in through an unlocked door. Decision: Appeal Allowed. that the accused have been mistaken in this belief. Honest but mistaken belief in consent contains 2 elements as a defence: 1. Cornejo Facts: D acquitted at trial on the basis of defence of honest but mistaken belief. This was an error in law because there was no air of reality to that defence. v.v. new trial ordered.R. 273. Further. sec. D argues.v. On night in question. 2. The denial in section 273. complainant was drunk. repeatedly tried to initiate a relationship with complainant but she always denied him. and attempts to have intercourse with her. that the accused honestly believed the complainant consented. she had consented because she lifted her pelvis in the removal of her clothing. eventually goes over there.

32(1) discharges or deposits or causes discharge or deposit of any material of any kind into any water course which carried with it the possibility of fine and conviction. MARIE (1978 SCC) y F . CITY OF SAULT ST.37. saying that s. Marie hired a disposal company to get rid of garbage. Touching (objective sufficient for crown to prove accused¶s touching was voluntary) 2. Knowing of. Could lead to up to 5 yrs imprisonment. a lack of consent on the part of the person being touched. Absolute Liability ± what used to be strict liability. (a) the act or omission giving rise to the offence with which he is charged was the result of error. y R created intermediary strict liability offence 1. WHOLESALE TRAVEL GROUP INC. under s. Defence available if the accused (1) reasonably believed in a mistaken set of facts which. (1991 SCC) F misleading advertising charged retail prices but said they were wholesale. No defence of DD. y DD involves consideration of what the reasonable person would have done in the circumstances. V. Sexual Nature of the Contact (objective crown need not prove that the accused had any MR with respect to the sexual nature of his/her behaviour) 3. Absolute and Strict Liability CREATION OF STRICT LIABILITY (R. Intention to Touch 2. True Crime . Assume PWO are prima facie strict liability and have DDD R. y Corporation challenging constitutionality of due diligence offence.The city of Sault Ste. 2.3(2) No person shall be convicted of an offence under s. y I Was there some MR to be included in the offence? They claimed that they took reasonable care.37(2) violated ss. recklessness.crown must prove actus reus. y S.mens rea with positive state of mind (intent.SEXUAL ASSAULT 3 elements of AR of assault: 1. which they released into the waters. defendant then proves defence of due diligence 3. (b) he took reasonable precautions and exercised due diligence to prevent the occurrence of such error. would render the act/omission innocent. They were charged under the Ontario Water Resources Act. V. or (2) if he took all reasonable steps to avoid the particular event. if true. knowledge) must be proved by the prosecution. What is reas can take into account industry standard. Absence of Consent (subjective in the mind of the complainant) 2 elements of MR: 1. y Do not assume that PWO are AL unless the legislature has made it clear that guilt would follow merely from the prescribed act. 36 if he establishes that. or being Reckless of or wilfully bind to. Strict Liability .36(1). 7 & 11 of the charter y Page | 253 . Charged under Competition Act (federal offence): misleading advertising s.

Imprisonment when there is only negligence iii. y Dissent (Lamer) . through negligence breaches regulations and exposes his employees to pollutants. whether or not the defendant knew of the prohibition or suspension y the SC concluded that the offence could allow the morally innocent to be punished. especially those who are particularly vulnerable. makes important point: certain problems with the punishment and moral blameworthiness of the RO vs. SCC)(NOT REFERRED IN THE SYLABI) y F accused driving car while license suspended (which is an absolute liability offence by legislation). License was suspended automatically.e.Statute survives 5-4. Regulatory crimes are not inherently wrong. y Ratio: reverse onus provision (requiring the accused to establish defence of due diligence beyond a balance of probabilities) is justified. (rather than strike down all these laws) R V. The stigma of this offence requires subjective mens rea. but wasn t aware of this. and suggested that a better alternative would have been to allow the accused a defence of due diligence or lack of negligence once the Crown proved the prohibited act of driving with a suspended license y since this was just a reference. is the single mother who steals a loaf of bread to sustain her family more blameworthy than the employer who. PONTES (1995. True crimes: i. Re-affirms that regulatory offences do not have the same stigma as true crimes because they are based on a different concept of fault (Deterrence vs. retribution/denunciation) y Significance constitutionalizes Sault St. but prohibited because unregulated activity would result in dangerous conditions being imposed upon member s of society. y C . Maintains distinction btw true criminal offences and regulatory offences y CONSTITUTIONAL CONSIDERATIONS REFERENCE RE S. SCC) y the legislature clearly stated that the offence of driving without a license was an absolute liability offence in which guilt is established by proof of driving.Challenge is on 3 grounds: i. 7 of the Charter. 94(2) OF BC MOTOR VEHICLE ACT (1985.the availability of imprisonment cannot withstand the shift in the burden of proof y Cory J. defence is required by fundamental justice. Lamer dissenting y R .Due diligence survives. Every provision which combines imprisonment with absolute liability will have strict liability read in.1. Page | 254 . Unfair to shift burden of proof ii. and could not be justified under s. Marie decision. Distinction between true crimes and regulatory offences: Regulatory offence are designed to protect those who are unable to protect themselves. they struck it down. Requiring the crown to disprove due diligence BARD would make it very hard to prove regulatory offences only the accused has knowledge of whether due diligence was taken. but can either strike down or read in DDD y Ratio: absolute liability offences when combined with imprisonment violated s.

C. but she was given an y absolute discharge (no criminal record) as a punishment. Women had been assured by her boss that a trial judge said that nude did not equal immoral.Transport Robert. s.The reason why these provisions are constitutionally valid is due to the general provision in B. If upon all the evidence. y Normally. y Ratio: even a reasonable mistake of the law is not an excuse. it can be inferred that the accused acted under a genuine misconception of fact or law. Note that cannot argue that didn t know theft was a crime.. R/v/ Williams Cameroon (2003) (page 408) R.She is found to be guilty even though she had a reasonable mistake.v.Is a person driving with suspended license is automatically and without notice prohibited from driving for 12 months unconstitutional? y C sections upheld y R . R. B/c the prohibition is automatic. y This is a follow-up case to BC Motor Vehicle Reference. There is the tendency to give the minimum penalty for ignorance of the law. They claim that they took it away and kept it and that they thought they had the right to do it. OCA) y y y y y F: Towing company thought they had the right to keep the car until the money was paid. AB DIST. Smillie (1998) (important).y I .19 of CC and in CL) MISTAKEN BELIEFS ABOUT THE LAW R. but that didn t know what one was doing was theft. C . CAMPBELL AND MLYNARCHUK (1972. Ignorance of the Law General Rule: not knowing that is was illegal is not a defence or an excuse (s. 94 prevents an accused who is unaware of the prohibition from raising a DDD (this must be available for a strict liability offence).v. he is effectively denied DD. s legislation that provided that no one could be in prison for violation of an absolute liability offence. HOWSON (1966. y In other words. but where the sanction of imprisonment is unavailable.Nude dancing. when the only possible defence he can make is ignorance of law that that is no excuse. Page | 255 . Ratio: A legal error about who owns property may afford a defence to theft because theft affords a defence of colour of right. R. it is still ignorance of the law. V. V. CT) y F . I: was this theft? C: He honestly believed he had colour of right in that circumstance. there would be no offence of theft. the provisions can stand. absolute liability coupled with imprisonment is unconstitutional.

V. there was no defence open to him. NGUYEN (1990) (PAGE 678 IMPORTANT) R. SCC) y y y y y y Aboriginal bingo had no authorization.MISTAKE OF FACT AND MISTAKE OF LAW y y y y If somebody didn t know that their license was suspended. then can be an excuse JONES AND PAMAJEWON V. R. y y The distinctions in Molis and MacDougall are arbitrary and cannot be made but majority split on what precedent should be maintained. PONTES (1995. DEFENCE OF OFFICIALLY INDUCED ERROR ³Officially-induced error´ is an exception to ignorance of the law rule. the only possible defence an accused can forward is his ignorance of the fact that his license has been suspended by the provisions of the provincial statute. Since DD does not apply to mistake of law. is this mistake of law or mistake of fact? Driving while your license is suspended is the AR If it was a mistake of law. Reasoning: DD does not apply to mistake of law. Page | 256 . The defence of officially induced error has not been widely accepted for true crimes. In these circumstances the offence must be characterized as an AL(absolute liability). V. HESS. the accused is effectively denied the DDD(due diligence defence). not an excuse If mistake of fact. There would have been a mistake if there was a mistake about possessing a valid bingo permit. Facts: License is suspended automatically. This case stands for that were there is no express exception there is no exception Colour of right = ignorance of the law = feeling that it is right Ratio: there is no defence for a mistake of fact thinking that the law does not apply to you. on trial for a provincial offence. R.V. which constitutes a mistake of law and is therefore not available as a defence. Court: could they still not be guilty if they believed that they had the right to hold the bingo Sovereign territory. The accused did not know his license was suspended and this was a mistake of law. The fact that he diligently tried to ascertain the state of law is not a defence. SCC) Charge: Driving with license suspended which is an absolute liability offence by legislation. Ratio: Where. colour of right that can be have bingo. THE QUEEN (1991. This was his only defence available and since mistake of law is not a defence.

The accused must show that a) he relied on the opinion and b) that the reliance was reasonable. CANCOIL Facts: accused charged with unsafe machinery but it had passed inspector s test Decision: not guilty Reasoning: This is a case of officially induced error for a provincial offence. The trial judge found that the crown had to prove that the accused knew that the dominant characteristic of the videos was the exploitation of sex and that film board approval was not a justification or legal excuse. telling someone else to do it. Since the defence of officially induced error was not properly raised. the accused had to know that the exploitation in the videos was undue. the position of the official who gave the advice and the clarity. definitiveness. The defence is available to an alleged violation of a regulatory offence when the accused has reasonably relied on the advice of an official who is responsible for the administration or enforcement of the particular law. The reliance by the accused on the film board approval did not negate the mens rea of the offence and was irrelevant to the Issue of knowledge. V. the phone call can become the crime. the majority did not assess this case on those grounds. Page | 257 . reasonableness of the advice given. just regulatory ones. Even if it does not go anywhere. counselling. V. R. They were convicted of knowingly selling obscene material. There was no evidence that the accused knew that these videos involved the undue exploitation of sex. These videos had been approved by the Ontario Film Review Board. Ratio: Where an accused has reasonably relied upon the erroneous legal opinion/advice of an official responsible for the administration or enforcement of the particular law. Conclusion: Acquitted Reasoning:. In order to knowingly sell obscene material.24 of the CC. the complexity or obscurity of the law.R. Ratio: He did not know what was in them so it did not matter that he relied on the censor board. Cannot be used with criminal offences (or it hasn t yet). JORGENSEN Facts: He and the co-accused operated an adult video store. a mistake of fact excuses but not a mistake of law OTHER WAYS OF COMMITTING A CRIME Inchoate/Incomplete Crime 3 Inchoate crimes: y y y attempts s. Reasonableness depends on: the efforts he made to ascertain the proper law. So just a phone call can be a crime. conspiracy : the agreement (to the AR or to the MR) In itself is the crime.

6) When the first step is taken. This distinction is for the actus reus not the mens rea. Mandel . For deterrence purposes. CLINE (1956. Ratio: Only steps are considered part of the AR and are punishable. It was necessary only to lure a victim into a secluded place. He was wearing a disguise.The following principles are used to guide: 1) There must be mens rea and actus reus to constitute a criminal attempt. 3) Such evidence may be advanced by the prosecution. there is no doubt the crime would have been committed. He was ready to embark on the course of committing the intended crime. we should not have to wait until the last act Page | 258 . Steps are proximate while preparation is too remote. 2) Evidence of similar acts is admissible to establish a pattern. OCA) y y y F . trying to lure him to go somewhere with him. 4) It is not essential that the actus be a crime or a tort or even a moral wrong or a social mischief.Cline approached a boy several times. V. 5) The actus reus must be more than mere preparation.guilty of attempted indecent assault R . If the boy had been successfully lured.real test should be when there is no doubt that the D would have gone ahead with the completion of the crime and there is virtual certainty that it would have occurred but for some intervention (this justifies prevention). this will be the actus reus. but the criminality lies primarily in the intention. y y y y In this case. C . 24 OF CC y y y y actus reus and mens rea for attempts (actus reus is different for complete crime and for the attempt) AR for attempt more controversial of the two Actus reus of attempt is complete when they have gone SO far that you know the offence is inevitable to result Actus reus is subordinate to the mens rea in attempt (evidentiary) First Step Preparation Steps I_______________________I____________________I I Too Remote I Proximate I Completed Plan R.ATTEMPT ± S. he had finished preparing.

So if they found that one of them shot the gun they are found to attempted murder and the others would be charged with aiding and abetting I How do you convict of attempted murder when you don t know who fired the gun? Ratio . MENS REA (R. It did not matter that he offered the job or not. SCC) y y y y F . Mens rea for attempted murder is the same as that of murder because of the same level of stigma. So could not have negligent MR for attempted murder constitutionally.Indirectly.Was the D in the stage of preparation or was he taking steps towards the commission of the crime? Trial judge said that there was no attempt if there was not an offer of employment. robbery). so they are charged with attempted murder and otherwise aiding and abetting. Gun went off accidentally and nearly hit her boyfriend. Page | 259 . He was charged with attempting to procure female persons to have illicit sexual intercourse with another person contrary to s. ANCIO.Variety store. LOGAN (1990. V. SCC) y y y y y F Placed advertisement in newspaper for secretary. THE QUEEN (1986.AR could be holding out large financial rewards in an interview for a job in which a necessity would be to have sex with clients. He was charged with attempted murder and originally found guilty. SCC) y y y F . 212(1)(a) of CC. This does not mean it applies to other crimes (e.Subjective foresight is the minimum constitutional requirement. Held that the test for the change from preparation to attempt is qualitative and requires evaluation of the proximity of the nature of the act and the nature of the underlying offence. Intent=intention Significance . There was evidence of 3 women and policewoman that during interview accused indicated that part of job woman would be required to have sexual intercourse with clients. C guilty R . V. Following this case. Note: Just b/c subjective foresight is required with attempted murder. Ratio: The intent (mens rea) required for attempted murder cannot be less than the specific intent to kill (this applies just to murder). There should be a higher mens rea where the actus reus is not complete.DEUTSCH V. Court of Appeal and SCC ordered a new trial. I . manager put in wheel chair after being shot. this case dealt with the common law mens rea of all attempts. LOGAN) ANCIO (1984.Ancio drives over to estranged wife s house with a gun to force his wife to leave. Ratio .g. 195(1)(a) now s. it has been accepted that full intention is the mens for all attempts (regardless of what mens rea is for the completed crime). When the actus reus is diminished MR should be heightened. Many accused but they did not know who did it. R.

The U.IMPOSSIBILITY NOT A DEFENCE TO ATTEMPT U.S. SCC) y I: was it a criminal conspiracy? y C: there can be no attempted conspiracy. SCC) y F: Accused was charged with attempted money laundry in the U. Ratio: There is no difference between legal and factual impossibilities. Further.S. V.A. Because the person has the requisite mens rea and actus reus. and intention to put the common design into effect and carry out the agreement The agreement itself is a crime. So you can still be guilty of the attempt. The completion was impossible because the completed offence was impossible because the money had not been obtained by crime. A person cannot be a conspirator if he merely pretends to be. extradited R: Impossibility is not a defence. even if the crime was impossible. R.v.Gralewicz (1980) (page 1051) R.S. y y y y CONSPIRACY ± S . AR: Agreement by two or more people to carry out the complete offence MR: intention by two or more persons to agree. DYNAR (1997.v.465(1) OF CC. it would be unjust to not to punish simply because they could not complete the crime simply because of chance.S. unless it was an imaginary crime . Innocente(2004) (page 1059) Page | 260 . It is not a defence to a conspiracy charge that the crime was impossible to commit. I: Is impossibility a defence? What is the difference between legal and factual impossibility? C: guilty.2 in CCC). asked for an extradition back. So just joking does not matter. DYNAR (1997. Not only intention to agree but intention to put the common design in effect. Either you agreed or you didn t. V. then there is no conspiracy. Only allowed to extradite if the crime also exists in Canada. There must be a common intention to commit the crime and both parties have to be active in the conspiracy. U. 462. the conspirators must have a genuine to participate in the agreement.A (s.

Mere recklessness is insufficient. R. If the only thing to convict on is the mens rea. Issue: What is the MR and AR for counselling indictable offences not committed? Decision: new trial ordered. but one of the conspirators never meant to carry it out (client) but cannot have attempt to conspire or attempt to counsel (cannot pile these inchoate offences on top of one another) the conduct of the respondent should be viewed as a step preparatory to committing the substantive offence of fraud and. So you don t have to intend it but if you know that it is likely to happen then you are guilty (recklessness to a high degree suffices). The AR doesn t have to include that offence counselled be committed. constructing bombs. V. Dissent: The MR is not expressly set out in s. 464 OF CC AR: proof that the materials or statements made or transmitted actively induces or advocate. Trial judge erred by confusing accused s motive with his intent. The MR is nothing less than an accompanying intent or conscious disregard of the substantial and unjustified risk inherent in the counselling. Accused was charge with counselling for fraud offences which were not committed. . visa hacking). there was an agreement. and do not merely describe.Cannot attempt to conspire Page | 261 . either of an intention that the offence counseled be committed. Some of the files contained material related to committing crimes (breaking and entering. HAMILTON (2005. The more demanding standard of subjective MR must apply. SCC) Facts: Accused sold a package of files to 20 people over the internet. or knowingly counselling the commission of the offence while aware of the unjustified risk that the offence counselled was in fact likely to be committed as a result of the accused s conduct.conspiracy to defraud the law society. not merely describing the commission of the offence. MR: proof. It is enough that you counsel the person to do it. R.COUNSELLING OFFENCE THAT IS NOT COMMITTED ± S. The fact that the accused s motive was mercenary does not negate MR. in that sense. V. the mens rea requirement must be the highest level of mens rea (there was no actus reus since no crime was committed). It is the deliberate encouragement of the commission of the crime. Reasoning: Definition of counselling: AR = actively induce or advocate. what he did would be too remote to constitute an attempt. 464. the commission of an offence. But the counselor must at the very least intend to persuade that person to commit the crime. DUNGEY(1979) .

if you aid and abet murder but the murderer gets away you still get charged) all the definitions of the CC apply to any other federal enactment. SCC) y y y present at gang rape. charged with aiding and abetting rape not guilty. e.v. An innocent agent is one who is clear of responsibility because of infancy.g. his presence at the scene will not suffice to render him liable as an aider and abettor. conviction overturned If there is no evidence of encouragement by a person. BERRYMAN) y y Ratio: doctrine of innocent agent . Ratio: a person is not guilty merely b/c he is present at the scene of a crime and does nothing to prevent it. y y R..Acting through an innocent agent creates principal liability even though the actus reus is being committed by an innocent agent. insanity or lack of mens rea.g. Presence at the commission of an offence can be evidence of aiding and abetting if accompanied by other factors. aiding and abetting. such as prior knowledge of offender s intention to commit the offence or attendance for the purpose of encouragement. delivering beer. Laurencelle (1999) (page 1002) Page | 262 . accessory after the fact. 23. organizational liability (aspect of vicarious liability) secondary liability always assumes a crime has been committing. In this case.judge said could have properly been charged with counselling/incitement Secondary Liability y y y y y s. 22. AIDING AND ABETTING y y aiding = helping abetting = encouraging DUNLOP AND SYLVESTER V. THE QUEEN (1979. the competition act PRINCIPALS (R. there is nothing more than presence and mere acquiescence. and makes one party to a crime committed the perpetrator of the completed crime doesn t have to be convicted of it (e. V.21(1). counselling offence that is completed. 21.23(1).

KIRKNESS V. THE QUEEN (1990, SCC) y y y y y two parties conspire to B&E, sexual assault and murder; one party says stop it you ll kill her accused was a principal in the B&E, whether he aided and abetted the rest. accused charged with manslaughter (co-conspirator charged with murder and sexual assault) under s. 21(2). accused wants to argue that he abandoned the conspiracy, but conspiracy complete as soon as they agreed. The defense of abandonment cannot be used in inchoate offences but can be used in party offences. In an abandonment defence, there must be timely and unequivocal communication of the intent to abandon the common purpose. The accused will be held to a different standard depending upon the degree of his participation in the crime. There must be timely communication of the intention to abandon the common purpose for those who wish to dissociate themselves from the contemplated crime to those who desire to continue in it. Where accused aids and abets killing, requisite intent must be same as that required of person who actually did the killing. The aider and abettor of the crime must intend that death ensue or intend that he or the perpetrator cause bodily harm of a kind likely to result in death and be reckless whether death ensues or not. If intent insufficient to support conviction for murder, then party may still be convicted of manslaughter if the unlawful act which was aided and abetted is one he knows is likely to cause some harm short of death

y

y

R. V. NIXON (1990, BCCA) y y y y y senior officer, guilty of aggravated sexual assault by aiding and abetting. Had a legal duty (under CC and Police Act) to protect those in his charge and was present when another beat prisoner up. His failure to intervene amounted to encouraging the assault and went beyond mere presence (Dunlop, Where there was a duty to act and an accused did not act (Popen), it was open to the court to infer that the purpose of the failure was to aid in the commission of an offence. So far two main ways you can be A&A by omission o Where you have a duty to act (Popen, Nixon) o Where your omission encourages

R.v. Portillo ((2003) (page 1010)

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COMMON INTENTION S. 21(2) enlarges the scope of who is a party to an offence beyond those who knowingly aid or abet. Thus, a person who forms a common unlawful attempt (ex. robbery) is a party to the other offences that he/she knew or ought to know would probably occur (i.e. forcible confinement and manslaughter). AR: must be a formation of a common intent to assist each other in carrying out an unlawful purpose but not necessarily any act of assistance. MR: 1. Formation of the common unlawful purpose 2. Subjective or objective foresight that the actual offence would be a probable consequence of carrying out the unlawful purpose. ought to have known for high MR crimes you cannot use this objective level (Logan)

Before: Paquette, person who drove others to a robbery had not formed a common unlawful purpose to assist them in robbery because they were forced at gunpoint to co-operate

Now: Hibbert, rejects the latter interpretation. 21(2) only requires a common intent to commit the offence and not a mutuality of motives and desires between the party and the principal. According to Hibbert in Paquette the MR would be present but there would be a defence of duress. R. V. KIRKNESS (1990 SCC) y was there common intention btw the two accused (K argues abandonment) y TEST: CC deems a party criminally liable for the acts of the principle offender when: o the commission of the ultimate offence has to be probable o the accused must know or ought to have known of this probability y note: Common intention need not be pre-planned in anyway and it is sufficient such intention arise just prior to or at the time of the commission of the offence. y For murder s.21(2) does not apply since it requires subjective foresight (Logan) y For manslaughter there must be objective awareness of foreseeability of harm (Davy) y in light of these cases, K would not be able to be charged for murder without subjective foresight of death but could be charged for manslaughter under objective standard y . Mandel thinks you shouldn t be forced to go to police to argue this defence.

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R. V. LOGAN (1990, SCC) y y y y Several accused charged with an attempted murder and aiding and abetting (s. 21(2) parties to offence) after robbing a Becker s and seriously injuring cashier. Issue was whether the parties to offence provisions of s. 21(2) of CC infringe s. 7 and 11.d)? Ratio: In a party offence for murder, it is constitutionally required that the party to the offence has to have the same mens rea as the principal (subjective foresight of death). Note: In other provisions, you can have different levels of mens rea for principal offenders and parties. e.g. for party to manslaughter, objective foresight sufficient.

Corporate Liability y y y Vicarious Liability Only applies to CC and some federal offences One of the members of the organization must be guilty of the crime, since the organization is a separate entity from its members. More difficult to convict of criminal offence than a regulatory offence since they must find an individual in the organization that is liable (with enough authority and prove beyond a reasonable doubt the MR).

CANADIAN DREDGE AND DOCK CO., LTD. ET AL. V. THE QUEEN (1985, SCC) y y y Facts: Dredging companies colluded when making bids and decided amongst themselves which the lowest would be (bid-rigging). It was fraud, but it did benefit the corporation. Decision: Guilty. Reasoning: In Canada, we use the doctrine of identification or the directing mind which is a modified and limited vicarious liability. The identity doctrine merges the board of directors, the managing director, the super-intendant, the manager etc. and the conduct of any of these is attributed to the corporation. Where there is pure fraud (detriment to corporation), there is no corporate liability. Corporations remain liable if acts were by design or result partly for the benefit of the corporation. Estey on Corporate Liability for AL and SL provincial offences Corps have automatic primary responsibility for AL or SL offences committed by their employees The corporation commits the AR when one of its employees commits the AR Note: This case set down the Identification Theory which asks the court to consider who has been left with the decision making power in a relevant sphere of corporate activity.

y y y y

s.22.1 (objective offences) offences of negligence for organizations) Organizational negligence; 2 elements: y the representative must have been acting the scope of their authority y the representative who is responsible for that area of the orgn¶s actitivites departs markedly from the standard of care that could reasonably be expected to prevent the representative from being a party to the offence. (i.e. not simple negligence or lack of due diligence)

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y

Must be a µsenior officer¶ who manages an important aspect of the org¶n activities, not just corps but public bodies, unions, firms, co.s, partnerships, municipalities.
ex. so under this new law the safety Kleen truck driver might be held liable since he did manage an important aspect of the corp s activities.

y

This objective test cannot be applied to such crimes as murder and attempted murder that constitutionally require subjective fault.

s.22.2 (subjective offences) for offences other than negligence
Intent to at least partly benefit the orgn and acting within scope of the authority. One officer must have the fault not a group. Senior officer can also be guilty if they aid, abet, counsel, or knew or ought to have known about. Where the corporation does not get anything from it they will not be liable, so just using the corporate vehicle is not a crime. Ex. So even if he officer is defrauding the corp if the corp receives any benefit they will be criminally responsible. (Canadian Dredge) The corporation has primary liability when an employee does a prohibited act and they cannot claim ignorance or say that they ordered the crime not committed. (Canadian Dredge) unless they acted totally in fraud of the corp. (codified in s.22.2(c)). See sec. 467.1(1)+(2)+ 467.11- 467.13 cc - participation in criminal organization. y
SEE SEC. 83.18 CC

THE NEW STATUTORY PROVISIONS FOR ORGANIZATIONAL LIABILITY Definitions now contained in s. 2 of CC: y organization - means: a) a public body, body corporate, society, company, firm, partnership, trade union or municipality, or b) an association of persons that 1) is created for a common purpose, 2) has an operational structure, and 3) holds itself out to the public as association of persons

y y y

under the new law, organizations are held responsible for not only for the actions of their senior officials, but also of their representatives ³Representative´, in respect of an organization, means a director, partner, employee, member, agent or contractor of the organization they have expanded the definition of ³senior officer´ so that the new law requires the prosecution to prove that only that those who control the operation of the organization were criminally liable and not those who set policy (before it was the ³directing mind´, i.e. a C.E.O., but now it is anyone with authority)
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y

a senior officer may play an important role in the framing of policies OR is responsible for managing an important aspect of the organization¶s activities

Defences y y does not deny the AR and MR, it provides a reason for it (what would otherwise be a motive) I did it, I meant to do it, but I did it because of this ____ recognized justification or excuse.e.g. defence of person and/or property, necessity, duress, provocation, automatism, mental disorder, intoxication,defence of mistake of fact . y s. 9 only statute a source of offences y s. 8(3) of CC says common law also becomes a source for defences, but parliament rules e.g. the necessity defence is common law y on the other hand, there are a lot of defences that have been codified statutory defences found in the general part of CC, start at about s. 13

y

Burden of Proof The accused has to overcome a threshold evidential burden by pointing to some evidence that justifies consideration of the particular defence in other words, the accused has to establish that there is an air of reality that justifies instructing the jury about the defence (this requires some evidence as to the existence of all the elements of the defence including both their objective and subjective components .the sufficiency of the evidence is then left to the jury). Then the burden shifts back to the crown to disprove the defence beyond a reasonable doubt.

SELF-DEFENCE y y Complete defence if successful, accused is acquitted. Must be disproved by the Crown beyond a reasonable doubt as part of its burden to prove guilt beyond a reasonable doubt.

34(1) - 37 2 elements of: the force used is not intended to cause death or grievous bodily harm and it is no more than necessary to enable the accused to defend him/herself. So will be acquitted if a jury finds: I. Accused was unlawfully assaulted, Accused did not provoke the assault, Force used was not intended to cause death or grievously bodily harm, Force used was no more than necessary to enable him to defend himself. - could be a defence to manslaughter if the accused caused death but did not mean to do so y all of these are subject to the element of mistake it is about whether the accused BELIEVED it was happening, not whether it happened, but the belief has to be reasonable y the subjective and objective elements to each so 6 elements in total. (Cinous) y for deterrence and denunciation the subjective element is most important.

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R. V. CINOUS (2002, SCC) y y y y Facts: Heard he was going to be killed, so when they stopped at gas station he got out and shot Mike in the head. Issue: Claimed self-defence.? Decision: Defence should not have been allowed, air of reality (essentially evidential burden) not satisfied Reasoning: It should not have been given to the defence in the first place since it lack some evidential points. The burden had not been shifted yet from the defendant to the crown. There was not enough evidence since 5 of the 6 elements of the defence were there but the last was not. 3 elements: o existence of an unlawful assault o a reasonable apprehension of a risk of death or grievous bodily harm o a reasonable belief that it is not possible to preserve oneself form harm except by killing the adversary 6 elements in total: of the 3 elements there are the subjective and objective elements to each: what he believed and whether this was on reasonable grounds. His belief that he had no way out was not reasonable. He had a way out: calling the police, running. It is not the reasonable sociopath or criminal but the reasonable person. They do not subjectify the reasonable person at all.

y

y y y

R. V. LAVALLEE (1990, SCC) y y y y y y y Facts: Shot her abusive boyfriend while his back was turned Decision: Not guilty Subjective reasonable person standard: Reasonable person test should be extended to include the reasonable battered woman Allow the fact that she is in battered women s position but do not care that the other guy in Cinous is in the criminal subculture that is his own fault. We accept the battered women s view but no the hardened criminal s point of view Ratio: Where BWS(Battered Woman Standart) evidence available, reasonable person test should be extended to include such evidence NOTE: case is reconciled with CREIGHTON in HIBBERT by saying that the Reasonable person is subjectified for defences but not for MR.

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Imminence must only be weighed in considering if the accused had a reasonable apprehension of the danger and a reasonable belief that the only way to extricate herself from the attacker was to kill him. Ratio: the battered women must still act in a reasonable manner. The threats prior to the day were an integral part of the circumstances on which the accused might have based her perception. Ratio: In determining the reasonableness of the belief the jury could consider prior threats/violence received by the accused from the victim. Charge: second degree murder and attempted murder Issue: Was this self-defence or revenge? Battered women can kill for other reasons than self-defence Decision: Found that it was not self-defence but revenge Reasoning: defence was not reasonable even though she was a battered woman. V.R. R. After consuming a small amount of drugs she shot him and shot and kills his drug partner.. MALOTT (1998. V. By limiting the relevance of the threats the jury might determine what an outsider would have done in the same situation as the respondent. Page | 269 . frequently threatened her and beat her daughter. Issue: did the judge err in telling the jury that the previous threats did not matter when deciding if there had been an assault at the time question Decision: New trial Reasoning: in a case involving self-defence it is the accused s state of mind that must be examined and it is the accused who must be given the benefit of the reasonable doubt. there must be an air of reality to self-defence. the presence of children to care for. it must still be reasonable. Although the perspective of women needs to be incorporated into the objective reasonable person in relation to selfdefence. Environmental factors may also impair the women s ability to leave: lack of job skills. So she attacks tormentor and the tracks down and shot his girlfriend. fear of retaliation by the man etc. SCC) Facts: Was assaulted before so she thought that it was reasonable. There need not be an actual assault at the time to have selfdefence. Following Lavallee the danger need not be imminent. SCC) Charge: second degree murder Facts: guy lived with Petel. PETEL (1994.

which takes into account the particular circumstances and frailties of the accused (modified objective). While it is true that someone who lies generally does with the intent of being believed. Issue: Can duress be used to negate mens rea? Decision: SCC upheld the reversal of the acquittal. Convicted of perjury. Ratio: Duress may be used to establish whether there was requisite mens rea for the crime. these actions remain Page | 270 . he would be shot. conviction set aside. -Reasoning: Safe avenue of escape is analogous to the necessity requirement that compliance with the law be demonstrably impossible. New trial ordered. y applies to principals only (Paquette) y if is an objective standard subjectified to a certain extent for the defences. Claimed that several tough looking motorcycle gang members were present in court and harassed him with their threats. THE QUEEN (1989. THE QUEEN -Facts: Accused was forced to lure victim down to lobby where victim was shot and was threatened that if he did not. The court gave the accused a new trial so that the affects of the threat could be considered in determining whether he had the mens rea required for perjury. SCC) Facts: Quebec notary who was convicted of perjury. 17 defence of duress (necessary because he was a principal and not a party) because he was not threatened by immediate death or bodily harm. it is not impossible. it was established that people are held to an objective standard.DURESS S. if a person fails to foresee the probable consequences of their freely chosen actions. In Creighton. HIBBERT V. Charged under 21(1)b aiding and abetting -Issue: Can mens rea be negated by duress? What is the standard for determining a reasonable avenue of escape? -Decision: Appeal was allowed. though it may e exceptional for a person to deliberately lie without intending to lie. The mental element of perjury requires more than a deliberate false statement. Whether a safe avenue of escape existed is assessed on an objective basis. The statement must also have been made with the intent to mislead. Reasoning: There was no s.17 Duress: accused must only think that the threats will be carried out and does not need a reasonable basis for this belief. Significance: This case is over-ruled by Hibbert because it seems to imply that mens rea can be negated by duress. y Threats of death or bodily harm against the accused s family may be considered (Ruzic) HEBERT V.

Defence of duress is judged to be unconstitutional. A modified objective standard is used in defences but not in offences. Applies the common law defence to a perpetrator (we re eroding s. Claimed defence of duress. Page | 271 . Thus. Hibbert is the binding case on issues of mens rea. y R. presence doesn t matter. 17) -Mandel: Common law defence might now be more restrictive because it imports a standard of reasonableness whereas the statutory defence does not. V. 17 infringe the principle of involuntariness and as such infringe the charter? -Decision: She was acquitted of smuggling heroin. duress actions are involuntary (in a normative sense).17. In contrast. 17 because her charge was an excluded charge under s. -So we can say immediacy doesn t matter.17 is left with only the excluded offences. The modified objective standard is used to determine whether a safe avenue of escape existed. -Issue: Do immediacy and presence requirements in s. RUZIC -Facts: Accused smuggled heroin into Canada. -Ratio: The requirement of immediacy and presence of s. S. She could not use s. what matters is the involuntariness -Notes: Ruzic is about the principal offender trying to use defence of duress (unlike the other cases we ve seen so far). It is a judgment of parliament of the limits of defence of duress. 17 and had to rely on the common law defence.17 is more rigid than the common law (requires immediacy of threats). 17 must be struck down since they are unconstitutional -s. Ratio: Immediacy and presence requirements are unconstitutional because they are tantamount to punishing a morally involuntary action. -Ratio: Situations where duress will negate mens rea are exceptional. she has to rely on s. Threats do not need to have the requirements of immediacy and presence. Structure: o Mens Rea we don t consider the frailties of the accused (OBJECTIVE TEST) o Defences we do consider the frailties of the accused Why? B/c of the voluntariness thing --Significance: In Canada. In determining whether an accused was operating under such constrained options.voluntary. his/her perceptions will be highly relevant to the determination of what was reasonable and thus excusable. Charged with possession and use of a false passport.

challenges the wrongfulness of an action which technically constitutes a crime. had to stop since the storm threatened their life and they have to stop on the trip form S. o Justification: is was right. Page | 272 . now there cannot be a conviction after a jury acquittal.A. SCC) Admitted that he performed the abortion and the defence of necessity was left to the jury and he was acquitted. -Issue: 1) Should the defence of necessity have been left to the jury? -Decision: The defence of necessity did not apply.A said that evidential burden was not met.C. 8(3) allows it MORGENTALER V. Min.e.: Defence of necessity is an excuse not a justification. Necessity only justifies non-compliance in urgent situations of clear and imminent peril when compliance with the law is demonstrably impossible. Evidential burden not met since morgentaler did not try to obtain the therapeutic abortion certificate.NECESSITY . it is based on moral/normal involuntariness. He did not have evidence that he tried to follow the law.decided while the prosecution of 2nd morgentaler was going on . Maj.: it can be both o Excuse: conceding the wrongfulness of the action and asking for forgiveness. THE QUEEN (1984. Q. THE QUEEN (1975. to Alaska Charge: drug trafficking and possession Decision: Jury acquitted On appeal : overturned since the judge did not ask if there was a legal way out. but not back then there could be. LATIMER V.but they knew it was going to set a precedent to apply to abortion Facts: Caught in BC with a lot of drugs on a boat. Given MR and AR and no defence offered. There must be the attempt to find a legal alternative i. they could have saved their lives by not importing drugs.purely common law offence but s. so there is no need for new trial . THE QUEEN -Facts: Accused killed his daughter with severe cerebral palsy. a legal way out Defence of necessity will be not accepted where more harm was done than necessary to stop the evil or the evil done is greater than the evil prevented. SCC) . just convict him. - PERKA V. SCC upholds this.

HILL (1986) (PAGE 939) Components of Provocation: Sec 232 y y Sudden provocation. The murder outweighed any harm avoided in the form of pain from the operation. standard) (3) proportionality between harm conflicted & harm avoided (obj. you can t provoke somebody by discharging a legal operation or mandate for instance. Page | 273 .V. Sec 232(2) 3 requirements y Bedder Case: -wants jury to consider his impotence would a reasonable person suffering from impotency lose self-control? We have to ask the question this way or else it wont make sense being ridiculed about things you don t possess is meaningless. -Necessity: 3 elements : (1) imminent peril or danger (modified objective standard) (2) no reasonable legal alternative (mod. all of the alternatives open to Latimer would have kept the situation as it was.allowing Tracy to continue suffering was not a legal alternative -the court feels that it is hard to decide if a case of homicide could ever satisfy the proportionality requirement PROVOCATION SECTION 232 CC R. No air of reality to defence of necessity. Provocation can come from an insult or wrongful act. They had a reasonable legal alternative to continue caring for her.-Reasoning: Neither Latimer or his daughter was in imminent peril. but it can t be an act or an insult that you have a legal right to do. obj. (means. (sudden is key here). throwing someone out of a bar can t provoke you). standard) -Ratio: The court confirmed that a modified objective standard that takes into account the situation and characteristics of the accused should be used for determining: -imminent peril -a reasonable legal alternative -BUT not for determining proportionality (purely objective) -Mandel disagrees with the courts finding that: -there was a legal alternative available because a legal alternative is one that solves the -problem whereas in this case.

as to the loss of self-control by the accused is determined by the evidence from the surrounding facts (subjective test). in short. as a result. it is reasonable that the jury would have already inferred this. you have to show that you actually did lose self-control (thick-skinned individual . you have to understand the context of it.Daniels Case: woman being horribly mistreated by her husband. and is told to fuck off. His version of events were he was subject of unwelcome homosexual advances by Pegg (deceased). Race These are limited because these are things you see. only three features: 1. Pegg threatened to kill Hill so he then stabbed in twice in the chest. Age 3. To understand the nature of the insult. take into account subjective features if they are relevant to the insult if its racial your race is relevant if its gender gender is relevant But he s not opening up the analysis. 2. Thus. you don t have to be told on the provocation charge whether an ordinary 16 year old boy because they will unconsciously do this this opens it up a little bit. idiosyncrasies. or the drunkenness). looks for husband. Dickson J. R. the trial judge did not err in not specifically directing the jury to incorporate these factors. She was convicted Court of Appeal says this is far too narrow a perspective. you can t just tell the jury to look at the immediate events. or in a state of drunkenness. Hill Facts: Hill charged with first degree murder. Determined through the facts Page | 274 . pugnacious. confronts mistress. v. would a reasonable person. temperament. Just because a reasonable person would lose self-control. Claimed self-defence and provocation. the proper way to tell the jury is. we will on the ordinary person test. Was the accused s response sudden and before there was time for his or her passion to cool? a. husband a cheater in deciding whether this is a provocation in law how would a reasonable person react by being told to fuck off when looking for their husband. Age race and sex if that s what the insult is about. The ordinary person test is determined by objective standards reasonable person test not exceptionally excitable. he hit him in the head with a hatchet. 3. it only takes on meaning when you open up the narrative and you know the context. instead. Sex 2. but these are kind of obvious. Did the accused in fact act in response to those provocative acts. whose husband cheats. you see Hill. but not much just assumes juries will ask the question without being told in this case. background. was he or she provoked by them whether or not an ordinary person would have been? a.character. The second test. Test For Provocation: 1. Would an ordinary person be deprived of self-control by the act or insult? a. see him as young.

he is male and young. it is none of your business was the act or insult which caused the accused to be deprived of self-control. and this had a special importance to him because of his Vietnamese upbringing. Dissent: Judge erred when he gave instructions to the jury tantamount to excluding age as a relevant actor in their consideration of the first leg of the provocation test. but claimed provocation on the grounds that his wife s suspected infidelity had caused him to lose face and honour . was to be an ordinary person of the same age and sex of the accused. In all likelihood. the jury understood that the objective test excluded consideration of age while the subjective test no longer restricted them. Age: we expect young people to have different reactions than young people young people don t have the capacity of adults. Ly Facts: Ly strangled his wife. Decision: in applying the objective test. It was not necessary to direct the jury that the ordinary person means an ordinary person of the same age and sex as the accused. R. Judge s direction: The ordinary person is the ordinary. Camplin Test: the ordinary person. for the purposes of the objective test of provocation. KEY: The jury must be instructed to put themselves. the trial judge told the jury that they should not take into consideration on the first question the reaction that an average Vietnamese male would have as a result of his cultural background to infidelity on the part of his wife. SCC on 1st leg of test: in terms of other characteristics of the ordinary person. not this particular accused man. I would therefore allow the appeal and restore the conviction. members of the Jury. it seems to me that the collective good sense of the jury will naturally lead it to ascribe to the ordinary person any general Page | 275 . Don t ask. as the embodiment of the ordinary person. In short. and makes it appear that it is a far more significant insult.Note: We can use Wilson as a defence position that puts the insult into context. they must conceptualize an ordinary person who is male and young. reasonable person represented by you. in the accused s shoes to the extent that they perceive themselves as confronted with a remark that has the same insulting effect on them as the actual remark has on the accused. v. Appellant argues the trial judge erred by not including the aspects of his background for the first round of test. This would allow a particular physical attribute such as the accused s age to be taken into account for the purpose of evaluating the gravity of the provocation. The accused is before them.

THIBETRT (1996) (PAGE 951) R. in light of the past history (daniels) deprive an ordinary person of the same age and sex. V. jury members will quite naturally and properly ascribe certain characteristics to the ordinary person . PARENT (2001) (PAGE 962) AUTOMATISM INSANE AND NON-INSANE AUTOMATISM AND EMOTIONAL BLOWS (VOLUNTARINESS) Automatism: involuntary behaviour. test R. v.this is basically Wilson J.V. Thibert Case: The wrongful act or insult must be on the could. The fact that the husband was Vietnamese and came from a certain cultural background might have been relevant to the first question if a racial slur had been involved. D alleges provocation from words used by the victim in the context of terminating the relationship. is not conscious of what he is doing. R. . the words may have shocked him.characteristics relevant to the provocation in question. NAHAR (2004) (PAGE 955) R. two forms of automatism (automatism = impaired consciousness) are recognized at law a. the state of a person who. by the time they were leaving the apartment for the 2nd time. but that is not the case. The evidence shows the victim had been repeating much the same thing to Young over the previous four hours or more. the shock effect had evaporated through repetition. Initially. The ordinary person standard is adopted to fix the degree of selfcontrol and restraint expected of all in society. Young Facts: Young stabbed his girlfriend 20 times after she told him their on-again-off-again relationship was firmly over. Simply by applying their common sense to the factual determination of the objective test. Decision: Appeal dismissed Ordinary disappointments in life argument: Even if the appellant s version is accepted the victim s words do not constitute a wrongful act or insult that is of such a nature as to be sufficient to deprive an ordinary person of the power of self-control.non-insane automatism Page | 276 . and sharing with the accused other factors that would give the act or insult in question a special significance.V. though capable of action.

He had been under a lot of stress with work and sleep disorders ran in his family. THE QUEEN (1980) Facts: The accused hit the victim over the head with a rock after he found out (read a note in her book) that she considered him ³a nothing´ and ³just a friend.g. the presumption is that it¶s internal (goes with the policy of protecting society) Ratio: Accused went into automatistic state after being exposed to the ordinary stresses of life. Page | 277 .arises where involuntary action does not stem from a disease of the mind and entitles the accused to an acquittal. sent back for a new trial Issue: The central issue was whether a dissociative state constituted a "disease of the mind". Lamer wants to ensure that this doesn¶t happen again by having some type of probationary order. having its source in his psychological or emotional make-up a successful defence of insane automatism will trigger s.´ It was argued that this was a psychological blow that induced a state of automatism. Decision: rejected the defence of non-inane automatism. He can¶t do this b/c under non-insane automatism. could still be a ³disease of the mind´ in the right circumstances. Sleepwalking. Reasoning: y The ordinary stresses and disappointments of everyday life are an external cause (noninsane).16 of the CC and result in a verdict. b. Decision: Not guilty by reason of non-insane automatism Reasoning: His illness is a sleep-disorder. therefore the dissociated state must have had its source in the accused¶s psychological make-up. V. The dissociate state produced by the psychological blow must have its source primarily in the accused¶s makeup (insane automatism) y If a normal person would not be so affected = disease of the mind y If a normal person would be so affected = not a disease of the mind y If we don¶t know. Concussion). at law. insane automatism     arises only where involuntary action is found. PARKS (1992) Facts: While ³sleepwalking´ Parks drove 23 km to his in-laws house and killed his mother± in-law and seriously injuring his father-in-law. making it a disease of the mind (insane automatism). this is something ordinary and is not a disease of the mind.  malfunctioning of the mind which is the transient effect produced by some specific EXTERNAL factor (e. accused may be retained for life in a mental institution RABEY V. He had no motive for doing so. however. SLEEPWALKING ± R. to result from a disease of the mind and is subsumed by the defense of mental disorder malfunctioning of the mind arising from some cause that is primarily INTERNAL to the accused. there is an absolute acquittal.

Judges who want control over the sentencing will likely opt for insane automatism This case calls into question the external/internal cause theory b/c this would clearly be internal (insane) but they must have wanted to acquit. Trial judge decides if there is evidence capable of convincing a jury that the accused acted involuntarily on a balance of probabilities 4. y Corroborating medical history of automatistic-like dissociative states y Whether there is motive for the crime y Whether the alleged trigger of the automatism is also the victim of the automatistic violence 3. Defence claims automatism 2. Accused found guilty of manslaughter and was sentenced to 7 years in jail. (if not disease in the mind.´ etc. trial judge decides then the disease of the mind inquiry (Stone): Page | 278 . Policy driven case. including: y Expert psychiatric testimony (mandatory) y The severity of the triggering stimulus y Documented medical history of automatistic-like dissociative states y Corroborating evidence of bystanders that accused was ³glassy-eyed. Defence adduces evidence of automatism/unconsciousness. If there is. Only then can the issue be put to the jury. Reasoning: y Burden of proof: Previously. after she insulted him. Now the defence must satisfy the trial judge that there is evidence upon which a properly instructed jury could find that the accused acted involuntarily on a balance of probabilities. Their solution is to say it¶s a bit of both (but that¶s true in all cases) in order to escape rule. Decision: Convicted of manslaughter. the defence must prove involuntariness on a balance of probabilities (expert evidence must corroborate this). then non-insane automatism ± acquittal) Mandel: y y y Seen as a transitional case ± now judges have more leeway. it is a sleep-disorder. STONE (1999) Facts: Accused stabbed his wife 47 times. the burden for non-insane was the same as for regular defences The defence must simply raise the issue (evidentiary burden) and then the Crown must disprove it beyond a reasonable doubt. In other words. the judges did not want to convict him of insane automatism because that would require detention so they made an arbitrary decision between mental disorder and sleep disorder R V. not just 2 stark options (absolute discharge or insane asylum).Ratio: Sleep-walking is not a disease of the mind. Procedure: 1.

Issue: What is the meaning of "wrong" in a legal context? Decision: Appeal allowed. They were acquitted. 16(1) ± no person is criminally responsible for an act committed or an omissions made while suffering from a mental disorder that rendered the person incapable of appreciating the nature and quality of the act or omission or of knowing that it was wrong Facts: Chaulk and Morissette entered a home. plundered it for valuables and stabbed and bludgeoned its sole occupant b/c he was a ³loser. Anything else than this should be presumed to be caused by an internal factor of the accused and thus be a mental disorder. epileptics and sleepwalkers are not mental disorders. CHAULK AND MORRISSETTE ± KNOWING THAT THE ACT IS WRONG . changes burden. R. Internal cause theory 1. o Existence of an internal cause is more relevant in cases where a psychological blow caused automatism. would a normal person have reacted to the alleged trigger (psychological blow) by entering into an automatistic state? If not then it might be a disease of the mind. Continuing danger theory: o o Any condition which is likely to present a recurring danger to the public should be treated as a disease of the mind. 3.y Start from the position that condition is a disease of the mind. 2. V.1. public policy reasons: o the need to protect the public through indeterminately detention or conditions. Page | 279 R. Accused convicted and appealed. then work through: 1.´ Claimed that they suffered from paranoid psychosis which made them believe that they had the power to rule the world and that the killing was a necessary means to that end. changes def¶n of disease of mind so it returns to Rabey Ratio: legal burden in cases involving automatism is on defence to prove involuntariness on a balance of probabilities ± this is justified under s. but not both defences with the trier of fact y Reaffirms judgement in Rabey y Note: judge determines whether its insane or non-insane y 3 reasons why significant: redefines automatism. SWABY (2001) (PAGE 304) MENTAL DISORDER y s. o A psychological blow would have to be a extremely shocking to in order to make a normal person act automatistically. o How absurd would the result be of letting accused go? y Trial judge leaves one or the other. If the trial finds evidence that there is a likelihood of recurrence of violence. So diabetics. in particular the psychiatric history of the accused and the likelihood that the trigger alleged to have caused the automatistic episode will recur.

what we are asking is the MR. Also stands for the proposition that as long as you understand nature and quality. Said he suffered from hypomania.´ While the existence of disease of the mind is a necessary condition of insanity. even though the lack of these feelings stems from a disease of the mind. Page | 280 . its existence alone does not constitute insane unless it exists to an extent that renders the accused incapable for appreciating the nature and quality of his acts. He knew what he was doing was wrong.. SIMPSON (1977 OCA) Reasoning: The term ³disease of the mind´ is a legal concept. Issue: How do you define the nature and quality of one¶s acts? Is there a defence of irresistible impulse? Decision: new trial ordered Reasoning: A delusion which renders a person incapable of appreciating the penal sanctions (see facts thought the law did not apply to him) attached to the commission of the crime does not go to the mens rea of the offence and does not render him incapable of appreciating the nature and quality of the act. Martin J. Could you claim the insanity defence? Appreciation is physical consequence. It is the function of the psychiatrist to describe the accused¶s mental condition and how it is considered from the medical point of view.. that it is wrong but they lack human empathy. Also thought he was irrevocably committed to the task ("irresistible impulse"). COOPER V. V. They do not know the impact it has on the victim. MR or the intention of as to the consequences of an act is a requisite element in the commission of a crime. Ratio: Moral wrong is not to be judged by the personal standards of the offender but by his awareness that society regards the act as wrong. Was found not guilty at trial. When asking if he appreciated the nature and quality of his act. His inability to "appreciate" the nature of the legal consequences is irrelevant to the question of legal insanity. but he believed that he would be protected from punishment (by some external force).: accused does not need feelings and the absence of the feelings does not matter in criminal conduct. ABBEY (1982 SCC) Facts: Charged with importing cocaine. you don¶t have to have appropriate feelings of guilt or remorse.16 defence. wrong means morally wrong. So an accused who is unable to appreciate the physical consequences of his actions because of a mental disorder will have a valid s. THE QUEEN (1980 SCC) -He knew that he was choking but did not know that he was killing. It is for the judge to decide whether the condition described is comprehended by the term ³disease of the mind. Insanity defence does not apply to these people. R. R. A person may be aware that an act is contrary to law but by reason of disease of the mind is at the same time incapable of knowing that the act is morally wrong. V. Psychopathy: know what they are doing. Wrong must mean more than simply legally wrong.

However. it may be proof that he didn't know what he was doing). Issue: Did the disorder render the accused incapable of appreciating the nature and quality of the act or knowing that it was wrong? Decision: Appeal allowed. but rather whether the accused b/c a mental disorder at the time deprived him of the capacity for rational perception and choice between right and wrong (not his general intellectual ability to know right from wrong but his belief at the time the crime was committed). o Wrong = immoral .e. may be a symptom or manifestation of a disease of the mind which may give rise to a defence of insanity (i. He knew that society in general would regard his acts as wrong even though subjectively he did not believe his act to be wrong. OOMMEN (1994 SCC) Facts: The accused suffered from a paranoid delusion and believed that the woman he shot was part of a conspiracy to kill him. o inability to have appropriate emotions about the effect of the act does not result in a defence (simpson) o inability to apprecaite the moral consequences does result in the defence (Landry) OR 2)incapable of knowing that it was wrong. Ratio: While the concept of appreciating the nature and quality of the act requires an understanding of the consequences of the act. Significance: irresistibility is not recognized as a defence but the case allows it into the evidence because it could be relevant in determining whether an accused qualifies for a mental disorder defence (appreciated the nature and quality of their acts). o Even if generally capable of knowing that killing was wrong could have an insanity defence if his paranoid delusion "at the time of the act deprived him of the capacity for rational perception and hence rational choice about the rightness Page | 281 . V. R. Did not know that it was morally wrong according to the standards of reasonable members of society. Convicted. however. not illegal.There is no such defence as "irresistible impulse" (dissent in Borg). jury is not entitled to infer that he is insane. this refers to the physical consequences of the act. If there is medical evidence of disease of the mind and the only symptom is irresistible impulse. even if they were capable of knowing that the act was legally wrong. new trial ordered Reasoning: The question is not whether a reasonable person would have sensed a threat to life and a need to use force. An irresistible impulse. (Chaulk)--> there is a distinction between the accused's moral code and his ability to know society's moral standards. the jury may conclude that he is insane. Must suffer from a mental disorder and which renders them either: 1)incapable of appreciating the nature and quality of the act or ommission o An understanding of the consequences of that act (Cooper) o inability to appreciate the penal consequences of action so does not mean that one does not appreciate the physical consequences of ones actions (Abbey).

This becomes Daviault position in 1995.BERNARD(1988) (PAGE 805) R. evidence of intoxication. Daviault Facts: Sex assault of an old woman . Page | 282 . ROBINSON (1996) (PAGE 841) EXTERME INTOXICATION R." (Oommen) --> this might expand the defence too far by allowing psychopaths who assert their own moral code over society's. was relevant and admissible in determining whether the requisite mental element was present. likes what the Australians do no special rules juries are sensible.intoxication was irrelevant for sex assault (general intent) Bernard Case sex assault. for general intent we will allow intoxication to be introduced if it is extreme akin to automatism or insanity.D claims he blacks out after drinking a bottle of brandy estimating his blood alcohol at 400-600 mg only reason Daviault can consume this much is because he has the higher tolerance from being an alcoholic this is a case of extreme intoxication as Wilson J. identified as a possible automatism claim. Dickson J.V.or wrongness of the act. R.V. DAVIAULT (1994) (PAGE 826) Leary Rule . whether self-induced or not. v. just let the jury hear the evidence they can figure out if intoxication impacts mens rea. lawyers say way crimes are divided into specific/general intent violates principles of fundamental justice by a narrow margin Leary rule was upheld but half court wondered whether the rule should be changed. The O Connor Case: concluded that for all offences requiring proof of a mental element. post-charter.V. INTOXICATION SECTION 16 CC R. **Wilson J. for policy reasons we need to keep the distinction for specific/general now.

be established by the accused on a balance of probabilities. Relevant for murder/attempted murder/party liability.e. MR can be proven in 2 ways: 1) Can infer MR from AR (persons presumed to intend the natural consequences of their acts). This will undoubtedly require the testimony of an expert. since the person is presumed to have intended the natural and probable consequences of his actions. he was in a state of extreme intoxication akin to automatism or insanity. like insanity. 33. Differ in whether intoxication can go to general intent offences McIntyre (½ MAJORITY): Drunkenness is only relevant for specific intent offences (if it raises a RD as to the specific intent). Offences where there is an element of assault. that he was in a state of extreme intoxication that was akin to automatism or insanity at the time he committed the offence. For general intent offences. or an interference of bodily integrity. The accused must bear the burden of establishing. In these offences. and verified by expert evidence.Drunkenness is not a true defence. if the accused were permitted to establish that. it may be of significance and applicable in a specific intent offence when the accused is so intoxicated that he lacks the capacity to form the specific intent required to commit the crime. he stopped. on the balance of probabilities that he was in that extreme state of intoxication (persuasive burden). Drunkenness could not be a relevant factor in offences requiring only a general intent. Bernard v. Conclude strict application of Leary Rule offends sec. OR 2) where accused so drunk as to raise reasonable doubt as to voluntariness. be inferred from the actus reus itself. Extreme intoxication akin to automatism or insanity should. we will let that intoxication to be considered to determine if they formed the mens rea in a general intent. Page | 283 . CANNOT substitute MR of self-intoxication for MR of general intent offence (i. HELD: Both ½ majorities hold that sexual assault is a general intent offence. however. if drunkenness raises a RD as to MR of general intent. 7 and 11(d) of the Charter. at the time of the offence. Thus it is appropriate to place an evidentiary and legal burden on the accused to establish. Not unconstitutional b/c they are not morally blameless Wilson (½ MAJORITY): Although Crown will be able to prove MR by inference from actions in most cases of general intent offences. New Intoxication Rules: For ordinary intoxication that doesn t result in dissociation we apply the Leary Rule. proving voluntary self-intoxication will be enough. as a rule. If the level of intoxication is extreme. on a balance of probabilities. 33(1) response to Daviault codified response self-induced intoxication put the Leary Rule into the code. then should acquit). Although these people are not morally blameless. AFTERMATH: Sec. The Queen (1988) SCC (sexual assault and intoxication) FACTS: Drunk accused forced complainant to have sex he said when he realized what he was doing. punishing them for crime is disproportionate to their moral blame of getting drunk. TEST: The Charter could be complied with in crimes requiring only a general intent.1 returns to the general intent assault is general intent drinking makes you at fault. the mens rea can. and we prove extreme intoxication on a balance of probabilities.

33. but have to be linked (cannot substitute intent to drink w/ intent to commit sexual assault s.1 if they can sneak around s. v.7 liberty and not in accordance w/ PFJ and also s. Should let jury decide (if it raises a RD as to intent.33.If Parliament wanted to. Penno (1990) Intoxication is not a defense to intoxicated driving (i. where intoxication is part of the offence). doesn t matter whether it is general or specific intent).1 Self induced intoxication not relevant to any violent general intent offences R.7 and only find violation of s.e. which would be OK b/c no substitution would be needed DISSENT: Self-intoxicated people are blameworthy enough to satisfy PFJ (Creighton rejected symmetry as constitutional principle) NOTE: Parliament very quickly responded s. a general intent property offence) This amendment still needs to survive a Charter challenge (if it doesn t.Dickson (DISSENT): Should get rid of dichotomy b/w general and specific intent offences. violent general intent offences) Daviault defense would therefore still apply to non-violent general intent offences (e.g. .Accused would have to prove this on BOP (unlike most defences where just have to raise RD similar to mental disorder defense which also requires BOP).11(d) (b/c minimal to violent offences) Page | 284 .2(a)(i) now makes self-induced intoxication not relevant consent in sexual assault s. they could enact an offence like assault while drunk .Have to introduce expert evidence b/c accused must be INCAPABLE of forming the general intent (goes against Robinson which says capacity irrelevant but different b/c talking about general intent. then it will be a defense by negating MR or voluntariness (needed for AR) .1 codifies that this substitution is OK). Daviault (1994) SCC (really drunk sexual assault) FACTS: Accused extremely intoxicated when he sexually assaults complainant. may have to enact new drunken assault offence) Could uphold under s. True that more acquittals will occur w/ specific intent. but that is b/c of nature of the MR (juries will come to correct decision on their own) NOTE: s.33.Don t have to have perfect symmetry b/w fault element and external element. Extreme Intoxication and General Intent R. v. Brings constitutional challenge to Leary rule that intoxication cannot negate MR for general intent (s. .11(d) b/c can convict w/o MR BRD) HELD: IF AND ONLY IF intoxication reaches point where a person is in a state akin to automatism or insanity.e.1 Self-induced intoxication is NOT a defense to offences that include as an element assault or any other interference or threat of interference by a person with the bodily integrity of another person (i.273. not specific intent) .

being entrenched by sec 1-32 of the Constitution Act( 1982) + section 52 of the Constitution Act: Page | 285 . Ratio: The pith and substance of the act is clearly to enhance public safety. 2. a. Principles of sentencing The limits of Criminal Law Constitutional Division of Powers Introduced Reference re Firearms Act (Can) [2001] (SCC) Facts: Federal Gov amends the CC via the Firearms Act (1995).Criminal procedure 1.rights subject to reasonable limits . Gov. of AB challenges on the grounds that the Feds are regulating property and civil rights. Issues: What is the pith and substance of the act and under whose jurisdiction does it fall. a provincial head of power (92(13)). In addition.presumption of innocence Sec 1 . the intrusion of the law into provincial jurisdiction is not so great as to upset the balance of Federalism. b. The Canadian Charter of Rights and Freedom (1) General See Canadian Charter of Rights and Freedoms (1982). Obiter: Parliament are within their rights to pass legislation to attempt to prevent immoral acts or to use the criminal law to regulate activities with little relation to morality. Any regulatory aspects are secondary to its criminal purposes. especially: Sec 7 -right to life and liberty Sec 11(d) . Decision: The Act is upheld as Constitutional.

Gonthier then deals with underbreadth argument (if we allow alcohol and cigarettes. Malmo-Lavine. must also allow marijuana) by stating it is not the place of the courts to define the outer limits of legislation and the priorities of Parliament. Therefore. The courts will uphold Parliament s decision on grounds of legal moralism as laid out in the obiter of Butler. to the extent of the inconsistency. Separation of powers: SCC agrees with the CA finding that there is a group of people who are vulnerable to harm from marijuana. Appeal was also dismissed by BCCA. it is within Parliament s discretion to legislate to protect groups (in this case vulnerable people) from self-inflicted harm even though it is legal moralism. The prohibition does not violate s. Gonthier proceeds to show all three tests fail. (If leg.(1) The Constitution of Canada is the Supreme law of Canada. societal consensus that they are fundamental to the way the system ought to operate o 3) They must be identified with some precision. 1? Decision: Prohibition of marijuana is not beyond the Constitutional powers of the Federal government. Caine (2003) (SCC) Facts: Pre-trial motion arguing that relevant sections of the Narcotics Control Act are unconstitutional. Is the prohibition of possession of marijuana beyond the Constitutional powers of Parliament (i. S. v.7 Challenge (Charter analysis): Gonthier admits that liberty is violated but addresses question of whether or not the harm principle is a PFJ. no law left to prosecute with). if there is no criminal harm. Page | 286 . See page 39-40 (case book) (2) What can be made Criminal R. is struck down. 7 of the Charter? If so is it justified under s. and any law that is inconsistent with the provisions of the Constitution is. Ratio: Ratio in two parts: separation of powers argument and charter analysis. then the Feds cannot legislate against it)? Does the prohibition violate s. Of no force or effect. o o Dissent: Arbour says harm principle is a PFJ. Based on BC Motor Vehicles Act (PFJs are internal to legal system) and the following 3 part test for PFJs set out by Sopinka in Rodriguez: 1) They must be core legal principles 2) There must be sig.e. Issues: (Based on the two distinct arguments of the defendant). Determines it is not. R v. 7 of the Charter.

criminal law is generally made up of a blend of harm-based and morals-based legislation. Decision: Since Labaye s conduct did not meet the outlined test. but in Labaye. people had to be members.Code: Malmo is very precise and so cannot rewrite using the Charter as in Sharpe. Issue: Were the acts committed. Also. they reject harm principle as having constitutional status. theft. Basic ratio of Malmo-Levine: harm principle is NOT a principle of fundamental justice nor is it a requirement of the exercise of criminal power. risk of harm to individuals or society in a way that undermines or threatens to undermine a value reflected in the Constitution or similar fundamental laws by. appeal dismissed by QCA. Labaye (2005) SCC Facts: Labaye owned a bar to permit couples to meet for group sex. some crimes like murder. it is not the only basis on which to legislate crime (moral as well. group sex only took place on 3rd floor. the conduct at issue presents a sig. Page | 287 . o 2. -they didn t say parliament can t legislate on the basis of harm. Malmo-Levine. while harm principle used in majority of cases. -somewhat ironic result: 2003. But this does not mean that it isn t a perfectly reasonable basis upon which parliament can legislate. the appeal was allowed and the conviction was quashed. Essentially saying Parliament s intent was to enact the harm principle. Accused charged under s. 210(1) of CC (keeping a common-bawdy house for purpose of acts of indecency). o Code: Not a Charter challenge. v. they say harm-principle is very helpful in distilling parliament s intent. vague legislation. Another case of the courts bringing certainty to broad. had to go through a numeric key pad to enter. based on both principles). Found guilty at trial. for example: o a) confronting members of the public with conduct that sig. To do so. That the harm or risk of harm is of a degree that is incompatible with the proper functioning of society. acts of indecency as understood in the criminal law? Holding: McLachlin sets out two part test that the Crown must prove BRD in order to establish indecent criminal conduct. Court only rejected idea that it was the sole/exclusive basis of criminal legislation. 1) By its nature. Butler. interferes with their autonomy or liberty o b)predisposing others to anti-social behaviour or o c) physically or psychologically harming persons involved in the conduct. R.

The measures must be designed to met the objective o ii) Minimal Impairment . Fails rational connection test (2i) o o R. (3) section 1 . v. State¶s objective must be pressing and substantial 2. Also found not guilty under test set out in Labaye. The relative ease with which the accused may prove or disprove the presumed fact. For Oakes to win this case. TEST: Reverse Onus Justified If 1. The means chosen must be reasonable and proportional.Reasonable Limits R.Means should impair as little as possible the right in question o iii) Effects Balance . not traffic it. 1? Decision: Appeal allowed. The difficulty of the prosecution making proof of the presumed fact.8 of the Act violates 11(d) of the charter b/c they could be found guilty on a balance of probabilities. Issue: Is the reverse onus clause in s. or sec 212 pimping. such as B an E. Presumptions evidentiary shortcuts. Page | 288 . Lays out two part Oakes test: 1. 2. Reverse Onus. The clause violates s. 11(d) and is not saved under s. Issue: Does reverse onus of NCA violates section 11 (d) of the Charter? Reasons: The government of Canada places a persuasive burden on the accused to disprove the trafficking. 8. 11 (d) of the Charter? If so. the magnitude of the evil sought to be suppressed. an accused could be convicted of trafficking despite a reasonable doubt. if they do. 3. can it be saved under s. o i) Rational Connection . he would have to testify to show that he possessed the hash. 1.Proportionality b/w limiting measures and the objective. Oakes Facts: Oakes was in possession of eight 1-gram vials of cannabis resin in the form of hashish oil. accused must establish he was not in possession for the purpose of trafficking (reverse onus). and use it. 8 unconstitutional under s. v. Oakes (1986) (SCC) Facts: Oakes charged with possession of narcotics for the purpose of trafficking. Under Narcotic Control Act s. Found to be unconstitutional as there is no quantum of narcotics that shows the pressing need where reverse onus comes into effect. Had looser controls over the bar then Labaye. s. Kouri (2005) (SCC) Companion case to Labaye. v.R. which may be measured by the gravity of the harm resulting from the offence or by the frequency of the occurrence of the offence or by both criteria. crown only has to prove possession beyond a reasonable doubt. Violates right to burden of proof BRD (stems from not wanting to convict the innocent). As a result. Ratio: (Dickson): By creating a reverse onus on the accused.

possession to intention to traffic). c. The objective must be pressing and substantial before it can be characterized as sufficiently important to justify the restriction. Rational Connection The violation must be rationally connected to the objective (it must be necessary to achieve the government s objective) The measures adopted must be rationally connected to the achievement of the objective in question they must not be arbitrary. it is unconstitutional. Detriments versus Benefits The detriments of the violation must not outweigh its benefits (the solution must not be worse than the problem). If the legislation fails any of the above branches. In other words. TEST In order to establish that a limit is reasonable and demonstrably justified in a free and democratic society. should impair as little as possible. 1. unfair. we will accept a greater infringement for a greater objective. Sufficient Importance The government must show that its objective is sufficiently important to warrant a violation of a right or freedom. Minimal Impairment The means. Does the benefit to be derived from the legislation outweigh the seriousness of the infringement? The legislation may not produce effects of such severity so as to make the impairment unjustifiable. the proven fact must rationally tend to prove the presumed fact (ie. or based on irrational considerations. a.2nd Test: The rational connection test. even if rationally connected. b. 2. two criteria must be established. and reasonable and demonstrably justified in a free and democratic society. the right of freedom in question. We will not tolerate as much an infringement that is based on a meaningless objective. to be reasonable. but one that attempts to balance the interests at stake within a given context. OAKES TEST The Court has emphasized that the OAKES test is not a mechanical exercise. Otherwise it passes the Oakes test and remains valid. Proportionality The government must prove that the violation of the right or freedom is proportionate to its objective. Page | 289 . This involves a proportionality test where courts balance the interests of society with those of individuals and groups. The violation must minimally impair the right or freedom (the government did not go overboard in achieving its objective) Are there alternative modes of furthering Parliament s objective that infringe the right to a lesser extent? The legislation cannot be overbroad or unduly vague.

Correction and reasonable the problem words here Issues: Is s. Not to be applied to teenagers. Ratio: In the case of overbreadth the law is much too sweeping to achieve its objective. Canadian Foundation for Children. Heywood [1994] (SCC) (leading case on overbreadth) Facts: Accused charged under s. Ratio: On vagueness: o o o The purpose of the vagueness provision is to provide precision to delineate the zone of risk and prevent discretionary law enforcement. 179(1)(b) of the CC. s. 43 clearly states who can punish children and that they can do so only for corrective purposes. 43 of the CC authorizing use of force by parents and schoolteachers by way of correction toward a pupil or child if the force does not exceed what is reasonable under the circumstances. which made it an offence for a person with past sexual violence conviction to be found loitering in or near a school ground. Ignorance of the law is never an excuse. In this case the definition of geography. The rule of Law. the number of persons it encompasses and that the prohibitions may be enforced without notice make the offence overbroad. 7: VAGUNESS AND OVERBREADTH R v.3. and the Trial Process The Principle of Legality (1) Fair Notice ( and in Hall read on bail release) S. 2. Legal Principles. 161 of the CC (enacted after the CA ruling in this case). Issue then is the reasonableness of the force applied. AG Canada (2004) (SCC) Facts: s. 43 void because of vagueness or overbreadth? Decision: SCC majority upholds the legislation. the temporal aspect. McLachlin reads in limitations on the statute based on social science evidence (1. or Page | 290 . not to cause harm or raise a reasonable prospect of bodily harm. public park or bathing area. a. Look at whether or not the means are necessary to achieve the objective of the state. playground. Youth and the Law v. Do support s. (From Code: Both concepts of vagueness and overbeadth are rooted in libertarian ideals in that they ensure that not too many people are caught and have their rights restricted) Dissent: Restriction is directly related to prevention. Issues: Is the statute overbroad and/or too vague? Decision: The majority strikes down the provision as unconstitutional on the grounds of overbreadth.

the onus is on the Crown to prove the necessity to keep the accused in custody or to append conditions to his release 2. s. 3. unless prosecutor shows why another order should be made. of the courts as law makers and seemed to not approve). s. you increase scope of offence (McLachlin responds that it is the job of the courts to interpret statutes). o Therefore a consistent picture of s. Cannot involve slaps or blows to the head. Presumption is in favour of bail ( shall ) 515(6) qualifies this presumption by creating reverse onuses Page | 291 . taken before Justice (see above section) 515(1): order of release unless guilty plea by accused accepted. 5.children under two.Objects cannot be used. o (*Note: Code cites this as an ex. Charter rights: o 11(d) presumption of innocence o 11(e) right not to be denied reasonable bail without just cause qualified right! S.43 develops and so it is not overly vague. 515 (for all but 469 offences): in front of JP or ProvC judge .495 and its speedy release provisions are designed to help comply with these charter rights - - 2 kinds of bail hearings: 1. Bail: Judicial Interim Release Detention prior to trial involves a violation of the presumption of innocence. Teachers may use force to remove children or secure compliance but not as corporal punishment).the accused must justify his release and the hearing has to be in front of a superior court judge. This presumption involves: o An accused is deemed to be innocent prior to trial o An accused is entitled to a trial to test the accusations o The status of innocent is only removed if the state can prove their offence on a high standard Bail thus provides a means of abiding by the presumption of innocence. 4. Dissent: Arbour and Deschamps dissent that this is an inappropriate function of the courts and that by decreasing the scope of defence. accused shall be released on his giving an undertaking w/o conditions. Statutory Structure 503: where arrested without release. 522 (469 offences): reverse onus .

(b) don g leave territory.(iii) terrorism offences . (4.(b) indictable offence and not ordinarily resident of Canada . without sureties.(e) where not resident (200 km).522.522: same as 515 except in Sup Ct.1) prohibition on possessing firearms. 515(5): reasons must be given if detention is determined to be justified. 515(2): Generally. and reverse onus on accused to bring a bail hearing. the accused should be released unconditionally (giving undertaking) unless Crown can justify another order (no release. in any amount but without deposit .1: Variation of undertaking or recognizance With written consent the Crown can vary conditions where released by police or J after bail hearing 522: murder (s.469 offences. (2) automatic reverse onus on accused (4) no review of sup. or the addition of conditions). etc. v) security of official secrets offences .(ii) criminal organizations charge .(iv.2): right to appear by teleconference at bail hearing 515(4): conditions authorized (burden on Crown to request and justify): (a) report to officer. in certain offences: . cash deposit. bail under s.520. etc. the same types of release are available. not prov. . importing.1): power of justice to name particular persons as the sureties in the order 515(2. 8): if onus on accused per 515(6) and accused has been released. so that review is possible 515(6): Reverse onus on accused: justice shall order detention unless accused shows cause for no detention. .(d) recog without sureties. 515(2. (4.Exception for s. See provisions in s. witness. 515.(c) failure to appear or failure to comply with previous bail orders (any offence) .680.(b) recognizance.. cultivating 515 (7.2) prohibit communication with victim.(a) basic undertaking with restrictions . which are the exclusive jurisdiction of the Sup. with sureties. with or without sureties. ct. Ct. Key features: (1) is heard in Sup Ct.469) bail provisions.. The 515(10) substantive tests are adopted Page | 292 .(c) recognizance.(d) drug offences carrying a life in prison possibility: trafficking. but with deposit of any amount (on Crown consent) .(a)(i) charged with indictable offence while on release from a different indictable . ct. must go to CA per s. in any amount but without deposit . but accused must show why conditions shouldn t be imposed.

o Most problematic: presumes that the accused is the person who committed the offence . and judge may ask the accused questions on this whether or not he chooses to testify.The Substantive Test for Release (In cases of s. gravity & circumstances of offence. mandatory on application by the accused. including victims/witnesses. nature of offence and penalty. 518(b): the accused shall not be asked questions about the defence.522 reverse onus.(c) Tertiary: Public Interest: where detention is necessary in order to maintain confidence in the administration of justice. having regard to all circumstances. including apparent strength of Crown case. nature of offence and penalty (livelihood crime?). whether motive continues if released. 515(c)(iv) can be questions about the circumstances of the offence. discretionary on Crown application. accused must satisfy all of these Adjournment of Bail Hearings 516: justice has power to adjourn bail hearing for up to three days Publication ban 517: publication ban. v. Like the inquisitorial system. etc. & that this cannot be dealt with using bail conditions. strength of evidence. Hearsay will be admissible. Lasts until the prelim. Evidentiary Rules and Procedure in Bail Hearings 518(a): justice may make inquiries on oath or otherwise of and concerning the accused. o Factors include prior criminal record. prior non-compliance with bail. opportunity to tamper with evidence. Applied where accused is a flight risk. Allows hearsay. o broad construal struck down in Morales. . 518(c): character evidence relevant: Crown may lead various antecedents. unless by defence counsel. etc.(b) Secondary: Public Safety: to ensure the protection or safety of the public. Does not cover identity of the accused or outcome of the proceedings. having regard to all circumstances. Qualifies right to silence. In R. as he considers appropriate.522(1) applies on the same grounds) 515(10): justifications for detention in custody (& intrusive conditions upon release) (a) Primary: Risk of Flight: to ensure attendance in court. often relates to the 515(c) public interest rationale. 518(e): justice may determine what evidence he thinks is credible. and no cross-examination by the Crown of accused unless accused testifies about the offence. s. including substantial likelihood that accused will commit offence if released. o Factors include roots in community.469 indictables. history of risk to public. Hall (2002) any other just cause clause in the reenacted provision invalid but the where detention is necessary to maintain confidence in administration of justice clause was narrowly upheld *Crown must show that one of these elements can t be dealt with by bail conditions *If s. With Page | 293 .

since reasons justifying conditions may change 521: same as 520. Bail Reviews Recall that 515(5) says reasons must be given. --. 515 (4)(f) Basket clause: Justice can impose any reasonable condition he/she wants .2) 515 (4)(a) report to police 515 (4)(d) not communicating with victim. re: change in circumstance etc. Can adduce fresh evidence.515. Release hearing: show compliance with conditions 519(1)(b): in addition to authorizing immediate release. this can be done on hearsay! Crown can addice any relevant evidence: prior criminal record. 520: gives accused right to appeal the 515 order in Superior Ct.1).broad. Must relate in some way to purpose for release/detention under s 515(10) (Keenan & Stalker). prior breaches of bail to show circumstances of alleged offence.. but not unfettered. if accused is misbehavin ) (b) prelim judge may modify or vacate order (e. except Crown brings application and bears onus.518(e).this is why you d want a 517 publication ban Conditions of Release: s. (8) accused permitted to bring successive review applications (30 day wait).g. if Crown s case looked good at bail hearing but is revealed to be weak) (c) any remand judge can also review the order with accused and Crown consent Page | 294 . discretion. but present is not necessary (JOP not lost) (7)(e) gives reviewing justice powers to make new orders under s. at any time before trial. justice can authorize release once certain conditions are fulfilled you get remanded if you can t show you ve complied. This is why. (4. cannot use schedule or simply defer to Crown (Major). (3) allows you to be present. 523(1): procedure: (1) bail order runs until the end of trial (2) continuously available bail review . (4.  Each case must be decided on the merits. etc. 515(4). witness.g.important power (a) judge may modify or vacate the order (e. Applicant bears burden of showing why change should be made.

816 : Where appeal after summary conviction.Detention not necessary for public interest s.Accused will surrender into custody following appeal . superior court serving as summary convictions appeal court is enabled to release accused on bail. the strength of the evidence. Note: accused always has incentive to seek own bail hearings in light of 11(b) CCRF. saying it was necessary to maintain public confidence in the admin of justice in view of the highly-charged atmosphere after the murder. Judge can t grant bail because of delays. however. which fall under s 680 (review by Superior Court) Bail Revocation Hearing upon Breach 524: bail conditions can be revoked. Case law R. or has committed an indictable offence. Bail Pending Appeal s. Review of Detention where Trial Delayed 525: automatic bail review if your case hasn t reached judge within 30 days for summary offences or 90 days for indictables. 679: where accused has been convicted . but certain portions severed. or police officer can arrest without warrant if RPG to believe conditions have been/will be breached. H charged with murder.no presumption of innocence. Hall (2002. as H was local and had never left town. These provisions do not apply to s 469 indictables. 261: Appeal court can stay conditions: allows CA to stay driving license suspension pending appeal of impaired driving condition. and other 515(10)(c) elements. Local media created significant public concern and fear that a killer was at large. done before an 11(b) breach happens. This is a prospective remedy. judge can issue warrant for arrest. Section unclear re: who bears onus. s. (9) judge can give directions to expedite trial where delay has occurred. Issue: does the wording of the new 515(10)(c) pass constitutional muster? Held: Yes. primary and secondary grounds were not of interest. SCC) maintain confidence is constitutional Facts: vicious murder in small town.Appeal non-frivolous . Page | 295 . Judge denied bail on tertiary grounds. onus on accused for obtaining bail pending appeal much higher: . v. At bail hearing.

Rex. Bell ExpresVu Ltd. This is not a mere catch-all. From Driedger¶s book: o o An ambiguity must be ³real.Reasons: McLachlin: The phrase involving any other just cause being shown is struck because it leaves too much room for untrammeled discretion. o 3) Statutory intent ± examine the broad principles Only after going through this test do you apply strict constructionism. The accused should have benefit of less restrictive provision. you re just resorting to some vague and imprecise notion of public fear. (2002) (SCC) Holding: Iacobucci sets out guidelines for statutory interpretation. where the Crown s case is strong and the crime heinous. Dissent: the tertiary ground is a proper factor. Further. there s four enumerated factors.´ There must be ³reasonably capable of more than one meaning. Without restricting the generality of the foregoing is struck as well. it s rationally connected and minimally rights-impairing. and once you re done those.´ 3 rules of interpretation: o 1) Plain reading ± read it as is. o Page | 296 . since it is much narrower than public interest and limited to reasonable community perception of the public interest. plain and grammatically. you give it the less restrictive meaning (ie there is a presumption that is more presumptive of liberty). 1) Interpretation Act (explicitly devoted to the subject of how we interpret these statutes.´ IE.1 analysis: this provision is not vague. but gives distinct and sufficiently precise reasons for denying bail. S. you try and look at the statute to interpret what Parliament means by the statute. 12: ³every enactment is deemed remedial and shall be given such fair. o 2) Contextual interpretation ± look at other statutes around it. The key section is s. but is subsumed and exhausted in the primary and tertiary factors. Try and glean the intent instead of what the words might exactly mean. This leaves necessary to maintain public confidence in the administration of justice . further. The provision s purpose is important in a case like this. Partnership v. - - - (2) Strict Construction 4: THE RULE OF STRICT CONSTRUCTION If a penal law provision is ambiguous (capable of more than one meaning). et al. It is not overbroad because the judge must determine whether denial of bail is necessary to a specific goal of maintaining public confidence. large and liberal construction and interpretation as best ensures the attainment of its objects.

Is charged by the Crown under s.) R. Other two made it clear. assault part of one continuous sequence of events. Issue: Does the word ³conceal´ in the above section of the CC refer to an active. or merely a lack of disclosure? Holding: The word conceals does refer to a positive act and not merely a lack of disclosure. Parliament must have meant the latter. so no need for strict constructionism. While holding his hand on Duranleau¶s chest. Duranleau tells Pare he plans to tell his mother. Under the CC. If the offence is committed as part of a continuous sequence of events. strict interpretation creates the following problems: How is the assault defined (he put his pants back on after ejaculating.´ ³disposes of´) which shows that the word ³conceals´ as intended by Parliament refers to a positive act of concealment. 1 degree doubles time served before st parole. Stevens that ³while committing´ could also refer to ³a close temporal and causative link between the two. CA acquits of first nd degree and substitutes 2 . though instinctively it should make it worse (or at least no less serious). Question as to whether it is 1 degree or 2 degree murder. must try to determine Parliamentary intent. narrow interpretation as the former. However points out in R.´ In determining which of the two to adopt. followed first step of Driedger¶s rules. Therefore adopt narrow interpretation. guilty of 1 degree murder ³while committing´ sexual assault. they didn¶t have to try and make it fit under 231(5)(b) when the first degree offence is already covered in 231(2) as pre-meditation and 231(5)(e) as forcible confinement. R v. then proceeded to a strict constructionist interpretation. Issue: What is the correct interpretation of ³while committing?´ Must the events be simultaneous? Holding: The murder and assault were part of a single. Goulis (1981) (OCA) Facts: When filing for bankruptcy. Mainly. v. Paré (1987) (SCC) Facts: Paré sexually assaults Duranleau. v. continuing transaction and therefore the appeal should be allowed and the conviction of 1st degree murder restored. Trial judge did first step. CA reaches this conclusion by going further then trial judge and looking at surrounding statutory language (³removes. then in constitutes ³while committing. o (*Note: Code has issues with reasoning. but kept his hands on the boy) o It would seem to say that thinking about murdering for two minutes before doing so makes the offence less.´ Ratio: (Wilson) Court concedes that a strict interpretation would indicate temporal simultaneity as necessary to convict of 1st degree murder.Mac (2001) (page 27) Page | 297 . the defendant did not disclose assets consisting of 1173 pairs of shoes. Then gets up and gets dressed.R. 350(a)(ii) of code for concealing with intent to defraud. positive act. but not other two. Pare forms intent and then murders the st nd st boy. Trial judge.

Defendant had met evidentiary burden of raising doubt. For a judge to instruct otherwise takes the decision out of the hands of a jury. it is logically connected to the evidence or a lack of evidence. It must not be based upon sympathy or prejudice. At the same time. R. that is not sufficient. The burden then shifted to the defendant to negative the intent to kill. (reasonable doubt) This case sets out what the standard of proof beyond a reasonable doubt is Held: A reasonable doubt is not an imaginary or frivolous doubt. as this is proof beyond a reasonable doubt. In the end. D. It is logically derived from the evidence or absence of evidence. it is based on reason and common sense.C. Even if you believe the accused is probably guilty or likely guilty. 118 C.(3) The Common Law Offences Look at Consent making act lawful (Jobidon and cuerrier) (b) Neutral and Impartial Adjudication (1) The Judge (2) The Jury See page 63-64 ( ) The Presumption of Innocence (Burdens of Proof and Presumptions) Woolmington v. (3d) 1 (S. A reasonable doubt is a doubt that is based on reason or common sense (not sympathy).C. Ratio: It is a ³golden thread´ of the Criminal Law that the duty of the prosecution is to prove guilt BRD (subject to any statutory exception).). to be Presumption of innocence is inextricably intertwined with proof beyond a reasonable doubt standard. Section 11(d) of the Charter provides that any person charged with an offence has the right presumed innocent until proven guilty according to law. In those circumstances Page | 298 . It does not require absolute certainty.P. Lifchus (1997). Rather. [1935] (House of Lords) (innocence) Facts: Woolmington convicted of murder. it requires more than probable guilt. v. Judge instructed jury that all the prosecutor had to do was prove the actus reus beyond a reasonable doubt.P. Issue: What is burden of proof? Holding: Prosecution must prove each element of the offence beyond a reasonable doubt.C. if the trier of fact is sure that the accused committed the offence then it should convict.C.

Arcuri 2001 The purpose of a PI is to protect the accused from a needless and improper exposure to public trial where the enforcement agency is not in possession of evidence to warrant the continuation of the process. but also BRD as. Judge must characterize proof BRD as not only being more than probability but less than absolute certainty. you are sure that the accused committed the offence you should convict since this demonstrates that you are satisfied of his guilt beyond a reasonable doubt. 537 (1. 539: Mandatory publication bans by the defence is given as a right and a Crown has to persuade. Such a standard of proof is impossibly high. V.1) Gives judge the power to end any questioning that is repetitive. 549: Option to waive Preliminary Inquiry S. R. abusive s. 550: Gives the Judge the power to make an order to direct the witness to appear in court Page | 299 . Issues: Was judge in error? What should the description of reasonable doubt be? Holding: Judge was in error. See also oaks (1986) (2b3) (burden of proof) (d) The Principle of a Case to Meet(The Preliminary Inquiry and Directed Verdict) R. being much closer to absolute certainty than to probability.you must give the benefit of the doubt to the accused and acquit because the Crown has failed to satisfy you of the guilt of the accused beyond a reasonable doubt. based upon the evidence before the court. v. At the PI the accused is afforded an opportunity to discover and to appreciate the case to be made against him at trial where the requisite evidence is found to be present. judge stressed it did not require proof of absolute certainty and that reasonable doubt had no special connotation. Charemski (1988) R. Starr [2000] Facts: In charge. The media is precluded from publishing a confession made at the Preliminary Trial S. 542. In short if. v. s. On the other hand you must remember that it is virtually impossible to prove anything to an absolute certainty and the Crown is not required to do so.

are entitled to a preliminary inquiry.those charged with s. and the offence is not one over which a provincial court judge has absolute jurisdiction under section 553. and such agreement will be filed with the court (ss. 469 offences must have a preliminary inquiry followed by a trial by judge and jury (ss.those charged with s. 471) unless the preliminary is waived on consent of parties (s.no entitlement. 540(7)). 536. 2) Parties can agree to limit the hearing to specific issues. they must have a trial in provincial court (but see s. 2) The requesting party must provide a statement to the court and the other party setting out the issues on which the requesting party wants evidence to be given (536. 536(4)). including hybrid offences where the Crown elects to proceed by indictment (s. after the information has been read to the accused. written reports etc.e. 549). 2) Credible and trustworthy evidence in written form (i. inciting to mutiny. 553 offences (absolute jurisdiction) . Crt Judge (s. seditious offences. 469.5). 536. intimidating Parliament or a legislature. Entitlement wrt Preliminary Inquiries: 469 offences . summary offences . or murder. other than 553. 536(2)).Recent Amendments: 1) For a preliminary inquiry to occur the accused or the Crown must now make a formal request.4(2) & 536. with reasonable notice (s. (1) Where an accused is before a justice other than a provincial court judge charged with an offence over which a provincial court judge has absolute jurisdiction under section 553. 536(2)). 540(8)). put the accused to an election in the following words: Page | 300 . 553 offences are not entitled to a preliminary inquiry. -. alarming Her Majesty. piracy. piratical acts.3).those charged with indictable offences.treason. trial in provincial court by Prov.) can be admitted (s. per the rules of the court (s. indictable offences . 536(2). 555(2)). other than an offence listed in section 469. 540(9)). but the opposing party may request that the court require the witness to appear for questioning (s. the justice shall. the justice shall remand the accused to appear before a provincial court judge having jurisdiction in the territorial division in which the offence is alleged to have been committed. (2) If an accused is before a justice charged with an indictable offence.

Gives the opportunity to show the accused that the witnesses will testify and that the case is sound therefore crown can have the leverage when negotiating a plea agreement. . ill. Preliminary trials tend is to encourage discovery (prior to Stinchcombe) and to provide a check against the Crown s case in order to assess the strength of the case. if you come off Gentle and kind you can get the client in a false sense of comfort. s. in this way you can make sure the client is confronted with the reality of the situation that he faces. Page | 301 . You would get more lenient sentences charges in provincial court. Crown will want it for evidence preservation. the provincial court judge shall put the accused to his or her election in accordance with subsection 536(2). such as testimony from a witness who may not show up at trial.548(1)(b)]       Reasons why Crown will want a Preliminary Hearing     Will allow the Crown to see the gaps in the case. to get an opportunity to attack the complainant.715 allows for preliminary testimony to be used at trial if it can be shown that the witness is . dies. ask gentle probing questions to get a complete roadmap to where the defence can turn in cross examination. and they may not want that witness to testify twice. absent from Canada. Every time a witness tells their story there is a tendency that it my have slight variations. the evidence establishes that the subject-matter of the offence is a testamentary instrument or that its value exceeds five thousand dollars. S. Crown may not want a PI b/c of limited funds. at any time before the provincial court judge makes an adjudication. time. Another reason to get a PI if a witness absconds. the strength of their witnesses. Better judges in Superior Court but higher sentences. so the prelim is an opportunity to commit the witness to their story and to impeach them on cross examination. may not want their witness to be subject to the vulnerable attacks of defence counsel. PI also useful to sober up the defendant as to their probable guilt if the crown has a strong case. An accused may choose to have a preliminary trial under 536(2): To avoid waiting for trial. and. You can paint the Crown s witnesses in a corner with regard to their story. Why Choose a Preliminary Inquiry for the defence  There are discovery benefits besides Stinchcombe.555. dead then you can read their testimony in. (2) Where an accused is before a provincial court judge charged with an offence mentioned in paragraph 553(a) or subparagraph 553(b)(i). Clayton Ruby for defence lawyers a preliminary trial is akin to what X-rays are to Doctors. Accused may be discharged of an offence if in the judge s opinion that on the whole of the evidence no sufficient case is made out to put the accused on trial for the offence charged or any other indictable offence [see.

[Here the Crown can add new charges in the superior court if there is new evidence on the facts disclosed on the preliminary inquiry] Page | 302 .504 it s an information whether a summary or indictable offence. Evidence given on PI may lead the judge to conclude that there were charges that should be brought in addition to what the accused was charged for. If the police under-charges the client a judge may conclude that the charges are more severe and charge the accused with these charges instead. in addition to or in substitution for any charge on which that person was ordered to stand trial. sending an accused to trial in Superior Court without a preliminary inquiry (s. Once the accused is ordered to stand trial in the sup court. whether the charges were included in one information or not. But under (b) new charges may be added. Preferring the Indictment: Waiver of preliminary inquiry or committal will send case to Superior Court. the prosecutor may. (1) Subject to subsection (3). prefer an indictment against any person who has been ordered to stand trial in respect of (a) any charge on which that person was ordered to stand trial.Why would an accused choose NOT to have a PI   If there is a flaw in the crown s position the crown can get an opportunity to investigate further and make adjustments. [See s. 566(1)) Crown drafts ( prefers ) Indictment under authority of s. 577(b)) In the provincial court s. the crown will then file an indictment in superior court under s. or (b) any charge founded on the facts disclosed by the evidence taken on the preliminary inquiry. can include those offences that accused was committed to stand trial on (a) and any other charges founded on the facts disclosed by the evidence at the preliminary inquiry (b) Attorney General may personally prefer a direct Indictment. 574.548(1)(a)] The judge at the PI could add new charges if the evidence reveals so on the same transaction.574(1)(a) the prosecution is limited to what the accused was committed to stand trial on multiple information documents as long as the person is ordered to stand trial on that charge. 574(1). 566(1) Under S. where the information is replaced by Indictment which then serves as the charging document (see s.

Direct Indictments: [READ P.: CCC 548. Accused also had some witnesses testified to his being with them at around the time of the incident. 480] Generally the prosecutor is restricted to laying new offences based on evidence that arose on a preliminary inquiry too or based on evidence. R v. Accused appeals his conviction. Facts: Accused charged with 1st degree murder of Enio Mora who was to all appearances his close friend.C. I. the personal consent in writing of the Attorney General or Deputy Attorney General is filed in court. Witness saw a car similar to that of the accused parked near his farm and two men dumping clothes that had the deceased s blood on it. The entire Crown s evidence was circumstantial. The tracks at the murder scene in a nearby barn matched the accused s shoe size and the clothes were of his size. Arcuri (2001)S. if (a) in the case of a prosecution conducted by the Attorney General or one in which the Attorney General intervenes. 577. or (b) discharge the accused. [s. if in his opinion on the whole of the evidence no sufficient case is made out to put the accused on trial for the offence charged or any other indictable offence in respect of the same transaction Despite the language in s. Despite section 574.548 [ if in his opinion ]] RE: Preliminary Inq. in an effort to show that he didn t have opportunity to commit the murder.E whether on the evidence that no trier of fact could reasonably convict the accused.548 [if in his opinion] it is read more narrowly by the courts and the test is the same that applies at trial if an accused brings a motion for a directed verdict [in criminal proceedings] or a non suit [In civil proceedings]. an indictment may be preferred even if the accused has not been given the opportunity to request a preliminary inquiry. order the accused to stand trial. he shall (a) if in his opinion there is sufficient evidence to put the accused on trial for the offence charged or any other indictable offence in respect of the same transaction. Order to stand trial or discharge at a Preliminary Inq. a preliminary inquiry has been commenced but not concluded or a preliminary inquiry has been held and the accused has been discharged. or (b) in any other case.577 was in the case of Bernardo.C. a judge of the court so orders Example of use of s. (1) When all the evidence has been taken by the justice. Page | 303 .

or includes. the justice shall commit the accused to trial "if in his opinion there is sufficient evidence". circumstantial evidence. ANALYSIS OF R v. Shephard). if it were believed. namely: Whether or not there is any evidence upon which a reasonable jury properly instructed could return a verdict of guilty: (U. The test is the same whether the evidence is direct or circumstantial: Page | 304 . in the sense of assessing whether it is reasonably capable of supporting the inferences that the Crown asks the jury to draw. The judge must therefore weigh the evidence. could reasonably support an inference of guilt. including any defence evidence) to determine whether a reasonable jury properly instructed could return a verdict of guilty. v.that is. Dec: Appeal Dismissed.S. the judge must engage in a limited weighing of the whole of the evidence (i. Test: The question to be asked by a preliminary inquiry judge is "whether or not there is any evidence upon which a reasonable jury properly instructed could return a verdict of guilty": The question then becomes whether the remaining elements of the offence -. 548(1) of the Criminal Code is the same as that asked by a trial judge considering a defence motion for a directed verdict or an extradition judge considering whether to commit an individual for extradition. those elements as to which the Crown has not advanced direct evidence -. a preliminary inquiry judge must commit the accused to trial "in any case in which there is admissible evidence which could. Ratio: where the Crown's evidence consists of.A. The judge asks only whether the evidence. Under this test.e. Arcuri: Test for Committal of an accused to stand trial: S.Issue: Whether the evidence was sufficient to committing the accused to trial? Statute: Section 548(1) states that. if believed. after all the evidence has been taken. 548(1) The question to be asked by a preliminary inquiry judge under s. result in a conviction": Shephard.may reasonably be inferred from the circumstantial evidence. and discharge the accused "if in his opinion on the whole of the evidence no sufficient case is made out"..

an inferential gap between the evidence and the matter to be established. whether to commit the accused to stand trial] The nature of the judge's task. with circumstantial evidence. If proof of some elements depends on circumstantial evidence: The question then becomes whether the remaining elements of the offence may reasonably be inferred from the circumstantial evidence. By definition. by definition. could reasonably support an inference of guilt. Where the Crown's case is based entirely on direct evidence: The judge's task is straightforward. Page | 305 . the only conclusion that needs to be reached in such a case is whether the evidence is true. there is.The Test In Application: [I. Answering this question inevitably requires the judge to engage in a limited weighing of the evidence because. is limited. If there is direct evidence as to every element of the offence. varies according to the type of evidence that the Crown has advanced. The judge must therefore weigh the evidence. Nor does the judge draw factual inferences or assess credibility. Thus if the judge determines that the Crown has presented direct evidence as to every element of the offence charged. in the sense of assessing whether it is reasonably capable of supporting the inferences that the Crown asks the jury to draw. the accused must be committed to trial. however. the judge's task is complete. however. It is for the jury to say whether and how far the evidence is to be believed. The judge does not ask whether she herself would conclude that the accused is guilty. This weighing. if believed.e. The judge asks only whether the evidence.

it would be reasonable for a properly instructed jury to infer guilt.C. or includes. as by definition the only conclusion that needs to be reached is whether the evidence is true. The Parties and the System (a) The Prosecutor See page 172-175 + R. the judge's task is to determine whether. Stinchcombe [1991] S.. the preliminary inquiry judge does not draw inferences from facts.  Stinchcombe s former secretary gave evidence at the preliminary inquiry which was favorable to the defence but the content of the testimony was not before the TJ and not in the record. instead. injunction/prohibition. Page | 306 . regardless of the existence of defence evidence. Jack Abrams. to review the exercise of statutory authority of a decision maker. 4.Summary wrt committing an accused to stand trial: Where the Crown adduces direct evidence on all the elements of the offence. Task of "limited weighing" never requires consideration of the inherent reliability of the evidence itself. Stinchcombe (1991) = code of professional conduct R v.C Unanimous Facts: The appellant was a Calgary llb charged with appropriating certain financial instruments from a client. There is a supervisory jurisdiction vested in the superior courts to review the actions of the PI judge. v. In performing the task of limited weighing. Rather. However. It should be regarded. the judge must engage in a limited weighing of the whole of the evidence (i. the case must proceed to trial. or mandamus. if the Crown's evidence is believed. including any defence evidence) to determine whether a reasonable jury properly instructed could return a verdict of guilty. as an assessment of the reasonableness of the inferences to be drawn from the circumstantial evidence. where the Crown's evidence consists of. NB: If the judge errs or acts unfair at the PI the only remedy for the accused is to seek a prerogative writ: Certiorari-jurisdiction error. circumstantial evidence. Nor does she assess credibility.e.

While the Crown must err on the side of inclusion. the secretary was interviewed by the RCMP and a tape-recorded statement was taken but the Crown did not inform defence counsel of the content of the statement. Also. a later written statement was taken by another PO who interviewed her. The discretion of Crown counsel is reviewable by the TJ who on review should be guided by the general principle that information ought not to be withheld if there is a reasonable possibility that the withholding of information will impair the right of the accused to make full answer and defence. defence counsel learned conclusively that the Crown indicated that she would not be called as a witness.  After the prelim but b4 trial. Issue: What is the crown s obligation to make disclosure to the defence? Ratio: The Crown is under a general duty at common law to disclose to the defence all material evidence whether favorable to the accused or not. and this discretion extends both to the withholding of information and to the timing of disclosure. Defence then moves before the TJ for an order compelling disclosure or to have the W be called but the TJ dismissed the application. On the day of trial. discretion must also be exercised with respect to the relevance of information. it need not produce what is clearly irrelevant and has discretion wrt the case of disclosing information which may reveal the identity of informers. A request for disclosure of both statements was refused. All relevant information must be disclosed subject to the reviewable discretion of the Crown. Held: this obligation to disclose is not absolute. unless the non-disclosure is justified by the law of privilege 4 EXAM: The right to make full answer and defence is a principle of fundamental justice protected by s. [Need not produce what is clearly irrelevant].In the case of informers the Crown has a duty to protect their identity. 7 and it includes a right to disclosure Page | 307 . it is subject to the discretion of counsel for the Crown. The material must include not only that which the Crown intends to introduce into evidence but also that which it does not.

There is an obligation of the Crown to advise a self-represented of his obligation to disclose. conclude that the recognition of an existing privilege does not constitute a reasonable limit on the constitutional right to make full answer and defence and thus require disclosure in spite of the law of privilege. Failure to do so by counsel for the defence will be an important factor in determining on appeal whether a new trial should be ordered. The obligation to disclose will be triggered by a request by or on behalf of the accused. Subject to the discretion to the crown s discretion (wrt relevancy). Such a request may be made at any time after the charge. Page | 308 . Crown Disclosure Duty (per Stinchcombe): The right to make full answer and defence is a principle of fundamental justice protected by s. all statements obtained from persons who have provided relevant information to the authorities should be produced notwithstanding that they are not proposed as Crown witnesses. Initial disclosure should occur before the accused is called upon to elect the mode of trial or to plead. The Crown is required to disclose all relevant information in its possession to the defence. The obligation to disclose is a continuing one and disclosure must be completed when additional information is received.The trial judge might also. Counsel for the accused must bring to the attention of the trial judge at the earliest opportunity any failure of the Crown to comply with its duty to disclose of which counsel becomes aware. 7 and it includes a right to disclosure. Dec: Appeal allowed and new trial ordered at which the statements should be produced. There is no reciprocal obligation to disclose on the part of the defence. in certain circumstances.

Page | 309 .This obligation to disclose is on the state and as such the Crown is under a duty to seek it from the police and the police is under a duty to hand it over to the Crown. Right is triggered by a defence request.prosecutors are entitled to withhold or delay disclosure in certain limited circumstances: ‡ ‡ ‡ need not disclose what is clearly irrelevant.so that the defence may seek review.e. I. however. It is the trial judge s function to decide such disputes. NB: The decision to either withhold or delay must. Withholding disclosure . if no formal statements given. be disclosed . TLA] Relevance is a low threshold. police notes of statements or a will say statement setting out name of witness and anticipated evidence. may delay disclosure to protect an ongoing investigation. Form .should include all witness statements.disclosure should be provided before an accused is called on to elect his or her mode of trial or to plea. if something is logically probative of a fact in issue then it is relevant and must be disclosed. but the Crown must appraise unrepresented accused persons of the right and courts must not accept a plea from such an individual without inquiring to ensure that accused knows of right Timing . informant s identity etc. [R v. need not disclose privileged information.

9 para. if there is. Tort Liability for malicious prosecution: This is another check on prosecutorial action According to the Supreme Court of Canada.C. [2001] 3 S.R. [If none then the charges should b withdrawn] Second. Pursuing a criminal charge where this standard is not satisfied makes a prosecutor vulnerable to a malicious prosecution claim in tort. whether it would nevertheless be in the public interest to discontinue the prosecution. before deciding to pursue a criminal charge. Wording varies. whether there is a reasonable prospect of conviction. but standard is essentially the same: charges should not be pursued where there is no reasonable chance . in theory. Quebec. prospect . There is a huge cost award to the Crown if the accused loses an action malicious prosecution. 31.Crown Policy Standards: Charge screening is the subject of policy statements by the responsible ministries across the country. or likelihood of conviction. This is essentially the same standard adopted by the responsible government ministries across Canada. The Crown must have sufficient evidence to believe that guilt could properly be proved beyond a reasonable doubt Proulx v. NB: In Ontario. screening entails two inquiries by prosecutors: First. Page | 310 .

a judge without a jury or a court composed of a judge with a jury (sec 536 (2)) A an accused who does not elect a mode of trial will be deemed to have elected trial by judge and jury (sec 565(1)(c)). Page | 311 . Crown election offences In some instances the Crown may choose to try by way of summary conviction or indictment. the accused is entitled to be choose the mode of trial whether by a provincial court judge without a jury. and those triable on indictment or by way of summary conviction proceedings. The prosecutor should indicate the nature of the proceedings prior to trial. Sec 287 causing biodily harm. The Attorney General may also override an accused s decision and compel a jury where the offence is punishable by more than 5 years (sec 568). Offences triable on indictment Indictable offences are divided into three categories: the most serious offences are given into the exclusive jurisdiction (no other court can try these cases) of the superior Court of criminal justice (sec 468-469).the classification of offences (page 62-63) Today the code distinguishes between indictable offences. The least serious indictable cases are absolutely (it is not dependent on the accused s election) within the jurisdiction of a Magistrate (sec 553) The great bulk of indictable offences remaining. the Magistrate may decide that the matter should be proceeded with by a judge or jury (sec 555). recently amended provisions which allow an accused to change his mind and to reelect the mode of trial (sec 560-565)/ Summary conviction offences Part xxvii of the code .maximum penalty 2000 dollars or 6 month imprisonment or both (sec 787(1)).trial before a provincial judge without a jury and without a preliminary inquiry . those triable only by way of summary conviction proceedings. does the accused have the choice under sec 464. There are detailed. In 1994 the legislature increased the penalty for several hybrid offences when proceeded by way of summary conviction to 18 month (eg. Notwithstanding the election of the accused to be tried by a Magistrate. only when prosecutor elects to proceed by indictment.summary conviction offences procedure . sec 271 sexual assault .

page 62-63 Page | 312 .See question on page 63. The role of the victim Victims of Crime Act (relevant provisions) Victims Bill of Rights ( in my jurisdiction) Sec 722 Criminal Code of Canada The procedural frame work (5) Classification of offences .

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