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SPRING 2020 OUTLINE PERRIN CAMERON FOX

Introduction to Criminal Law.......................................................................................................................................................................2

Context and Challenges...........................................................................................................................................................................3

Sources of Criminal Law..........................................................................................................................................................................3
Constitution Act, 1867:........................................................................................................................................................................3
Constitution Act, 1982.........................................................................................................................................................................3
Statute.................................................................................................................................................................................................3
Common Law.......................................................................................................................................................................................4
Interpreting Criminal Law........................................................................................................................................................................4
System and Procedure.................................................................................................................................................................................5

Burden and Standard of Proof................................................................................................................................................................5

The Neutral and Impartial Trier...............................................................................................................................................................7
Role and Responsibilities of Crown Prosecutor......................................................................................................................................7
Role and Responsibilities of Defence Counsel........................................................................................................................................8
Classification Of Offenses........................................................................................................................................................................8
Pre-Trial and Trial Procedure..................................................................................................................................................................9
Prohibited Conduct (Actus Reus)...............................................................................................................................................................10

Contemporaneity..................................................................................................................................................................................10
Voluntariness.........................................................................................................................................................................................10
Acts and Omissions...............................................................................................................................................................................11
Status Offenses......................................................................................................................................................................................12
Consequences and Causation...............................................................................................................................................................13
Factual Causation...............................................................................................................................................................................13
Legal Causation..................................................................................................................................................................................13
Intervening Act..................................................................................................................................................................................14
Mental Fault (Mens Rea)...........................................................................................................................................................................16

Intention and Knowledge......................................................................................................................................................................16

Recklessness And Deliberate Ignorance...............................................................................................................................................18
Criminal Negligence...............................................................................................................................................................................19
Absolute and Strict Liability...................................................................................................................................................................20
Mental Fault – Constitutinal Issues.......................................................................................................................................................21
Modes of Criminal Liability........................................................................................................................................................................22

Principal Offenders................................................................................................................................................................................22
Aiding and Abetting...............................................................................................................................................................................24
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Common Intention................................................................................................................................................................................27
Attempts................................................................................................................................................................................................29
Actus Reus of Attempts......................................................................................................................................................................30
Mens Rea of Attempts.......................................................................................................................................................................30
Impossibility.......................................................................................................................................................................................31
Defenses:...................................................................................................................................................................................................31

Mistake..................................................................................................................................................................................................32
Mistake of Fact..................................................................................................................................................................................32
Mistake of Law...................................................................................................................................................................................32
Oficially Induced Error.......................................................................................................................................................................33
Defence of Person/Defence of Property...........................................................................................................................................34
Necessity............................................................................................................................................................................................36
Duress................................................................................................................................................................................................37
Intoxication:.......................................................................................................................................................................................39
Not Criminally Responsible on Account of Mental DIsorder.............................................................................................................42
Sentencing.................................................................................................................................................................................................45

Process...............................................................................................................................................................................................45
Purposes............................................................................................................................................................................................45
Principles............................................................................................................................................................................................45
Options..............................................................................................................................................................................................46
Constitutional COnsiderations..............................................................................................................................................................47
Indigenous Offenders............................................................................................................................................................................48
Victims...................................................................................................................................................................................................49

INTRODUCTION TO CRIMINAL LAW

Criminal Justice System:
- Apprehends, prosecutes, defends, and sentences those who are accused or convicted of criminal activity
- Is shared by federal (criminal law, jails), provincial/territorial (administration of justice, police, jails), and municipal
governments (police)
Purposes of Criminal Law:
- Denunciation of unlawful conduct
- Deterrence
- Public safety (separation of offender from society)
- Rehabilitation of offenders
- Reparation for harm done to victims/the community
- Promoting a sense of responsibility in offenders
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CONTEXT AND CHALLENGES

Although crime is decreasing and most Canadians feel safe from crime, the CJS faces many challenges:
- Under-reporting of crime
- Delays, inefficiencies, rising costs
- Discrimination and systematic institutional bias (particularly indigenous women)
- Increasing disproportionate rates of incarceration for Indigenous Canadians
National Inquiry into Missing and Murdered Indigenous Women and Girls (2019):
- Call to immediately implement principles of Aboriginal Justice Inquiry of Manitoba (1999)
- Call to transform and fund indigenous policing, give nations self-determination, increase indigenous representation in legal
system
- Call to expand non-jail sentencing options, separate victim support systems
- Call to establish Indigenous-led civilian oversight bodies
- Call to establish Gladue reports as a right

SOURCES OF CRIMINAL LAW

CONSTITUTION ACT, 1867:

Federal Parliament:
- S. 91(27): Criminal law and procedure
- S. 91(28): Penitentiaries (over 2 years)
Provincial Legislatures:
- S. 92(14) Administration of justice. Organization of courts, victim services, youth programs.
- S. 92(6) Reformatory prisons (less than 2 years)
- S. 92(7) Asylums
- S.92(15) Power to make regulatory offenses and impose punishments

CONSTITUTION ACT, 1982

Charter:
- S.1: Justification – Can save infringements if justified
- S. 2: Fundamental freedoms
- S. 7: Some defenses recognized as constitutional rights
- SS. 7-15: Rules of trial, evidence, rights of accused, prohibition of cruel or unusual punishment, etc.
- General principles (democratic society, fundamental justice) inform defenses and practices

S.52(1): Laws incontinent with constitution of no force of effect to extent of inconsistency.

STATUTE
Criminal Code:
- Source of all criminal offenses in Canada
- Subservient to Constitution, Charter
- Therefore requires interpretation by Courts

R v Malmo-Levine (Simple cannabis possession) [2003] SCC Pg. 1.2-3

- Challenge to criminal penalties for simple possession of cannabis

- “3 Ps” test for criminal law: A prohibition, backed by a penalty, for a valid criminal purpose.
- The protection of public health and safety, as well as the protection of vulnerable groups (drug users), is a valid criminal
law purpose, as long as it is more than “legal moralism” and reflects “societal values beyond the simply prurient or
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prudish”

COMMON LAW
- Common law offenses are not punishable in Canada (CC S.9), except for contempt of court
- Common law defenses may still be used (SS S.8(3)) and created (Amato)

Amato v The Queen (Hair dresser entrapment) [1982] SCC Pg. 1.2-11

- Random hairdresser badgered and arguably threatened into selling him cocaine by a police information who was getting
paid per conviction
- Criminal Code says that existing common law defenses can be used, but entrapment hasn’t been used before

- A allowed to use defense, the common law is always speaking, courts can recognize new common law defenses

INTERPRETING CRIMINAL LAW

Interpreting Criminal Law:

- First, plain meaning of provision
o Look at CC S.2 definitions
o Use annotated code to see related provisions
- If unclear, apply Modern Purposive and Contextual Approach (Bell ExpressVu)
- If still ambiguous, resolve in favour of accused (Bell ExpressVu)

Historically, the Doctrine of Strict Construction was the primary mode of interpreting criminal law. This doctrine was developed in
the time of incredibly strict penal codes and harsh punishments.
- Requires all ambiguities in law to be resolved in the favour of the accused
- Today, it survives, but only as a tie-breaker rule when there is genuine ambiguity remaining after the modern purposive
and contextual approach is used.

R v Pare (Rape and murder – Interpretation of “while committing” – Single transaction) [1987] SCC Pg. 1.3-1

- A sexually assaulted a young boy, held him down, and killed him about two minutes after the assault was complete
- Definition of first-degree murder in Criminal Code: “when death is caused by that person while committing [indecent
assault]”
- Court must interpret meaning of “while committing” in criminal law context

- Purposive and Contextual approach:

 Text: May suggest crimes must happen simultaneously
 Purpose: Seems pretty unlikely that Parliament wanted the two minutes Pare spent contemplating the murder
to make the crime less punishable
 Context: First degree murder offenses have a common logic of domination of the victim
- Therefore, after a proper interpretive approach, there’s no real ambiguity to resolve in favour of A.
- “While committing” = “Temporal and causal connection,” “events part of a single transaction”

Bell ExpressVu Ltd v Rex Et Al (Modern approach authority) [2002] SCC Pg. 1.3-11

- Authority for all criminal law interpretation

- Driedger’s modern approach cited

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 Words in grammatical + ordinary sense

 Context of act
 Purpose of legislation
 Scheme of act
 Intention of Parliament
- Only, if, after applying this approach, there is still genuine ambiguity (provision reasonably capable of more than one
meaning) do we apply strict construction and resolve in favour of A (lower courts disagreeing does not prove ambiguity)

SYSTEM AND PROCEDURE

- Essential elements of the offense must be proven by the Crown beyond a reasonable doubt (Lifchus)
o Is there a reverse onus? Violates presumption of innocence (Downey)¸ even if related to a defense (Whyte)
o Is the reverse onus saved under S.1? (Oakes, Keegstra)
- Are there trial issues?
o Crown must disclose relevant information (Stichcombe)
o Jury misdirection? (JHS, Boucher)
o Incompetent counsel? (Meer)
o Length of trial (Jordan)

BURDEN AND STANDARD OF PROOF

Common Law Presumption of Innocence: The Burden of Proof always lies on the Crown, meaning they must prove the guilt of the
accused beyond a reasonable doubt.
- This principle originally developed to mitigate the harshness of the criminal law, but an important modern consideration is
the power imbalance between the crown and the accused.
- Accused not required to prove their innocence or introduce any evidence (although they may)

Woolmington v DPP (1935): The Golden Thread (Authority for presumption of innocence, Crown burden)

All homicide was presumed to be murder, defendant was required to show that it wasn’t (Crown was required to prove AR, but
not MR)

Viscount Sankey: “Throughout the web of the English Criminal Law one golden thread is always to be seen, that it is the duty of
the prosecution to prove the prisoner's guilt subject to what I have already said as to the defense of insanity and also subject to
any statutory exception…the principle that the prosecution must prove the guilt of the prisoner is part of the common law of
England.”

The presumption of innocence was constitutionalized in the Charter:

11. Any person charged with an offence has the right […]
(d) to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent
and impartial tribunal;

Hover, note that 11(d) is subject to S. 1:

R v Oakes (Intent to traffic drugs presumed – Oakes S. 1 test) [1986] SCC Pg. 2.1-2

- A was found with hash oil and cash. Charged with trafficking under S. 8 of the Narcotics Control Act, which presumed
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that all possession was for the purposes of trafficking and required accused to prove otherwise.

- This presumption definitely violates S.11(d) of the Charter. Is it saved by S.1?

- Oakes Test for Charter infringement [II]
 First, is there an objective of sufficient importance?
 Must be related to “pressing and substantial” concerns in a free and democratic society
 Second, does it pass the proportionality test?
 Are the measures rationally connected to the important societal objective?
 Do they impair the freedom as little as possible?
 Is there proportionality between the effect of the measures and the object of the policy (more severe
effects = objective must be more important)?
- Provision in question fails this test, therefore presumption unconstitutional and provision of no effect

R v Whyte (Test of 11(d) infringement same for defenses) [1988] SCC Pg. 2.1-11

- Irrelevant if we’re talking about elements of the offense, or excuses that A is being asked to raise. If it’s possible to
convict despite a reasonable doubt, it violates 11(d)
- If the accused is required to prove anything on a balance of probabilities to avoid conviction, it’s a “reverse onus” and
violates 11(d)

R v Keegstra (Holocaust denier – Truth defense – Infringement of 11(d) saved by S.1) [1990] SCC Pg. 2.1-11

- Holocaust denying high school teacher charged with promoting hate speech
- There is a “truth defense” to hate speech, but it requires the accused to prove the truth of their statements beyond a
reasonable doubt.

- This definitely violates S.11(d), since A can be convicted despite existence of reasonable doubt (Whyte)
- But reversing the onus of proof is justified under S.1 in this case. There are important free speech reasons why there
should be a truth defense, but only requiring the accused to raise a reasonable doubt would compromise the whole
point of the offense.

R v Downey (Summary of 11(d) Jurisprudence) [1992] SCC Pg. 2.1-14

- The presumption of innocence is infringed whenever the accused is liable to be convicted despite the existence of a
reasonable doubt. (Woolmington)
- If by the provisions of a statutory presumption, an accused is required to establish, that is to say to prove or disprove, on
a balance of probabilities either an element of an offence or an excuse, then it contravenes s. 11(d). Such a provision
would permit a conviction in spite of a reasonable doubt. (Whyte)
- A statutory presumption will be valid if the proof of the substituted fact leads inexorably to the proof of the other.
However, the statutory presumption will infringe s. 11(d) if it requires the trier of fact to convict in spite of a reasonable
doubt.
- A permissive assumption from which a trier of fact may but not must draw an inference of guilt will not infringe s. 11(d).
- A provision that might have been intended to play a minor role in providing relief from conviction will nonetheless
contravene the Charter if the provision (such as the truth of a statement) must be established by the accused (Keegstra).
- It must of course be remembered that statutory presumptions which infringe s. 11(d) may still be justified pursuant to s.
1 of the Charter. (Oakes, Keegstra)

R v Lifchus (Meaning of “beyond a reasonable doubt” – Authority for charge standard) [1997] SCC Pg. 2.1-15

- How do you explain “beyond a reasonable doubt” to a jury?

- Definition includes:
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 Fundamental principle of justice that burden rests on crown

 Based on reason and common sense, not sympathy or prejudice
 Logically connected to evidence
 Does not require absolute certainty of guilt
 More than “probably”
- Judges should avoid:
 Describing “beyond a reasonable doubt” as an ordinary expression with no special meaning
 Equating with “moral certainty,” or “sure.”
 Qualifying “doubt” with words like “serious” or “haunting”
 Asking jurors to apply same standard as they use in other life tasks

R v JHS (Contest of credibility) [2008] SCC Pg. 2.1-18

- Sexual assault case turns on credibility of accused and complainant

- How to explain “proof beyond a reasonable doubt” in such cases?

- W(D) test:
 Believe the accused = must acquit
 Don’t believe the accused but have reasonable doubt= must acquit
 Accused leaves no doubt – still must consider the evidence you do believe – Convinced beyond a reasonable
doubt by it?
- Jury must know that burden never shifts from Crown to accused

THE NEUTRAL AND IMPARTIAL TRIER

Section 11(d) and (f) of the Canadian Charter of Rights and Freedoms recognize the importance of a neutral and impartial trier of fact
and law:
11. Any person charged with an offence has the right […]
(d) to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and
impartial tribunal; […]
(f) except in the case of an offence under military law tried before a military tribunal, to the benefit of trial by jury where
the maximum punishment for the offence is imprisonment for five years or a more severe punishment;

Judicial Independence: Judges are free from political interference or improper consequences for their decisions (accomplished via
life tenure). Salaries are decided by an independent commission. Allows judges to ask hard questions, criticize the law, and make
unpopular decisions.

However, there are rare cases where we need a way to sanction judges. The Canadian Judicial Council is made of other judges and
has its own procedures. Only it can recommend that a judge be removed from the bench, which Parliament must then vote on.
Example case: Robin Camp – conduct was found to undermine public confidence in the independence and impartiality of the
judiciary by “getting into the fray” and asking questions to a witness that demonstrated a lack of knowledge about sexual assault

Judicial Impartiality: Judges must be, and be seen to be, objective and impartial. Judges do not comment on cases, participate in
politics, or socialize with lawyers connected to cases they hear.

ROLE AND RESPONSIBILITIES OF CROWN PROSECUTOR

The Crown Prosecutor is an independent officer of the court. Their job is not to “win,” it’s to ensure a fair trial is had (Boucher, see
also BC Law Society Code of Professional Conduct (2.3-2))

Boucher v The Queen (Crown implies it is neutral) [1954] SCC Pg. 2.3-1
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- Crown made a statement made to the jury which implied that the Crown was a neutral investigator, and would only
proceed with a case if it had already determined guilt

- This is misleading – the role of the Crown is a public duty, not a matter of winning or losing. Implying otherwise could
“colour the consideration of the evidence by the jurors”
- “It cannot be over-emphasized that the purpose of a criminal prosecution is not to obtain a conviction, it is to lay before a
jury what the Crown considers to be credible evidence relevant to what is alleged to be a crime. Counsel have a duty to
see that all available legal proof of the facts is presented…The role of prosecutor excludes any notion 'of winning or
losing; his function is a matter of public duty…to be efficiently performed with an ingrained sense of the dignity, the
seriousness and the justness of judicial proceedings”

R v Stinchcombe (Crown duty to disclose) [1991] SCC Pg. 2.3-3

- Crown withholds evidence they had that was favorable to A

- This impedes the ability of the accused to make a defense.

- The “element of a surprise” being a valid tool was abolished long ago in civil trials in favour of full disclosure. Time to do
the same for criminal trials.
- Prosecution is not the police’s lawyer. They do not own the evidence. The police gather evidence to ensure that justice is
done.
- Crown now has a duty to disclose all relevant evidence, subject to:
 Discretion about timing and manner
 Duty to protect witnesses
 Should not “snow in” defense with mountains of documents, but should err on the side of disclosure.
- All this can be reviewed by the court

ROLE AND RESPONSIBILITIES OF DEFENCE COUNSEL

The defense counsel is also an officer of the court, and cannot mislead it. They still have responsibilities to both the client and the
administration of justice. However, unlike the Crown, they are entitled to take an entirely adversarial role (Stinchcombe).

Charter S. 10 Everyone has the right on arrest or detention […]

(b) to retain and instruct counsel without delay and to be informed of that right;
BC Law Society Code of Professional Conduct (2.4-1):
- Defense may not mislead or offer false evidence.
- Defense should endeavor by all fair and honorable means to obtain every benefit and remedy for the client within the
bounds of the law. (Not a “hired gun”).
- Defense may defend a person regardless of whether they are guilty or innocent. However, if the accused admits to the
client that they did something, for the lawyer to suggest that someone else did it would be lying.
- Defense must not seek to influence the Crown or any regulatory authority without permission (eg, can’t promise that
settling a civil suit will result in dropped charges, however may seek such a deal on client’s behalf).
- Defense can only enter into a plea agreement if client gives informed consent
- Defense may not assist or encourage any crime, dishonesty, or fraud. Must be vigilant to avoid becoming unwitting aid to
criminal activity (eg, fraud, money laundering).
- Lawyer must not counsel or participate in concealment, destruction, or alteration of evidence. Must be very careful about
receiving evidence.
- Rules about when a lawyer can withdraw from a case due to non-payment of fees (can’t withdraw if no time for another
lawyer to prepare).
- Lawyer must withdraw without prejudice if fired by client, or continuously being advised to break the rules.
- Privilege and confidentiality belong to the client, and they can waive it.

R v Meer (Incompetent Counsel) [2016] SCC Pg. 2.4-12

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- Incompetent defense lawyer didn’t obtain any handwriting samples, when the case turned on it

- Standard for overturning verdict due to incompetent counsel: “a miscarriage of justice resulted”

CLASSIFICATION OF OFFENSES

Summary Conviction: Less serious crimes, less than two years in jail. Simpler and more expedited trial procedure, held in Provincial
Court. Eg: Nudity
- Default maximum in CC (S.787) is $5000 fine or six months in jail,
- Some “super summary” offenses can go as high as 18 months.

Indictable Offenses: More serious, penalty above two years in jail. Can only be created by Parliament. May be heard in Provincial or
Supreme Courts if a jury is involved. Eg: Arson

Hybrid Offenses: Prosecutors get to choose how to proceed. Indictable by default. Eg: disarming a peace officer

PRE-TRIAL AND TRIAL PROCEDURE

1. Arraignment - Formal reading of the charge to the accused.

2. Plea Entered – If “Guilty,” accused is sentenced. If “Not Guilty”,
go to step
3. Crown Case - The Crown calls a witness to give evidence. After
the Crown has examined (questioned) the witness, the Defence may
cross-examine the witness. This process is repeated with all Crown
witnesses. Documentary and real evidence (e.g. a gun) may also be
entered as evidence.
4. Crown Case is closed.
5. The Defence may choose to make a Motion for Directed Verdict,
arguing that the Crown has led insufficient evidence, which even if
believed, could not support a conviction. The Crown may reply to
the motion. If the judge rules in favour of the motion, the accused is
acquitted and the trial is over. If the judge denies the motion, the
defence may go to step 6 or may choose not to call evidence and go
to step 7.
R v Anthony-Cook (Joint sentencing submission rejected) [2016] SCC Pg.2.6-5
6. Defence Case - The Defence calls a witness to give evidence. After the Defence has examined (questioned) the witness, the Crown may cross-
- Under what circumstances should a judge reject a joint sentencing agreement between the Crown and defense?
examine the witness. This process is repeated with all Defence witnesses. Documentary and real evidence (e.g. a photograph) may also be
entered as-evidence.
Sentencing agreements serve a lot of valuable functions. How should we decide when to reject them? Court reviews a
7. Defence Casefew standards, and decides that the correct on is the public interest test [IV]:
is closed.
 A trial judge should not depart from a joint submission on sentence unless the proposed sentence is so out of
8. Closing Arguments - If thelineDefence
with the expectations
called of a step
evidence under reasonable personwill
6, the Defence that they
make its would view it as first.
closing arguments a breakdown in the
If the Defence didproper
not call
functioning of the criminal justice system, would cause
evidence, but skipped to step 7, the Defence makes its closing argument last, after the Crown. public to lose confidence in the courts, or is otherwise
contrary to the public interest
9. Judge’s (or Jury’s) Ruling - Guilty
This or Not Guilty.
is supposed to beInaavery
jury high
trial, the Judge will
threshold, providesentence
because the jury with instructions.
agreements If Guilty,
bring the accused
benefits to bothwill be (also
sides
sentenced by the Judge after hearing sentencing submissions,
because the system is overloaded) receiving any victim impact statements, and giving the accused an opportunity to
address the court. We will address sentencing in detail later in the course.
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R v Jordan (Presumptive ceilings for unreasonable delay) [2016] SCC Pg. 2.6-6

- When does a trial delay take so long that it violates the accused’s S.11(b) Charter rights “to be tried within a reasonable
time”?

- Creates a framework of presumptive ceilings, beyond which delays are presumptively unreasonable [V]
 18 months for provincial court
 30 months for superior court or provincial court with preliminary inquiry
 Actions of defense aimed at causing delay excluded from calculation
- If length of trial exceeds presumptive ceiling, there is a presumption of unreasonable delay. Crown can rebut by showing
exceptional circumstances (reasonably unforeseen, Crown could not reasonably remedy)
- If length does not exceed presumptive ceiling, defense can rebut the presumption of reasonableness by showing a
reason why the case took markedly longer than it reasonably should have.
- Not relevant – seriousness of offense
- If shown to exceed ceiling without reason, charges stayed

- This ruling was unexpected and resulted in hundreds of charges being withdrawn. As a result, police are now waiting as
late as possible before laying charges

PROHIBITED CONDUCT (ACTUS REUS)

A criminal offense is not committed unless two components are proven: prohibited conduct and mental fault.
For example, theft is the intentional taking of another’s property. If I accidentally take home the wrong criminal code, I have
committed the actus reus of the offense, but lacked the required intention to make it a morally blameworthy offense.

CONTEMPORANEITY

The two elements must be contemporaneous. This means the actus reus and mens rea occurred at the same point in time.
Fagan v Metropolitan Police Commissioner (Parked on Cop’s Foot) [1969] Eng QB Pg.

- F: Accused accidentally parks his car on a cop’s foot (actus reus). After discovering this, he takes his sweet time before
removing it.
- I: The actus reus and the mens rea, the intention to inflict the prohibited force, appear not to have occurred at the same
time

- R: The accidental parking was not the assault. The assault occurred when the accused became aware, but chose not to
continue to apply the force (actus reus and mens rea were contemporaneous at that point)

VOLUNTARINESS

Ruzic Voluntariness Test: behaviour that is the product of a free will and controlled body.

 Physical voluntariness –> essential part of actus reus, burden on Crown

 Moral voluntariness –> involuntariness may be an excuse; burden on accused

Ruzic 3.2 – 9 : “It is a principle of fundamental justice that only voluntary conduct – behavior that is the product of a free will and a
controlled body, unhindered by external constrains – should attract the penalty and stigma of criminal liability”

To be morally blameworthy, an offense must be both psychically and morally voluntary

Physical voluntariness requires the act to be the result of a conscious mind and a controlled body
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- Part of AR so must be proven by Crown

- Reflexes, sleepwalking, genuine accident would not be included
R v Larsonneur (Deportation/Physical Involuntariness) [1933] UK CA Pg. 3.2-1

- French citizen’s UK visa expires. She leaves for Ireland, but is deported back to UK.
- Charged with overstaying visa when she lands in UK

- Convicted, but case considered wrongly decided today because A lacked physical voluntariness, which should have been
considered an essential element of the offense

R v King (Driving under anesthetic) [1962] SCC Pg. 3.2-2

- A put under anesthetic at dentists office. Drug had an effect of making people feel find when they weren’t. A not told
this and charged with impaired driving

- Acquitted for lack of voluntariness: “there can be no actus reus unless it is the result of a willing mind at liberty to
make a definite choice or decision”

Moral voluntariness requires the act to be an exercise of free will (Ruzic)

- However this is a defense that must be made out by the defendant

R v Ruzic (Drug mule under duress) [2001] SCC Pg. 3.2-3

- Accused threatened with harm if she does not smuggle heroin into Canada
- Pleads duress as a S.7 Charter right

- Excused of offense. “It is a principle of fundamental justice that only voluntary conduct – behavior that is the product
of a free will and a controlled body, unhindered by external constrains – should attract the penalty and stigma of
criminal liability” (3.2-9)

ACTS AND OMISSIONS

Types of Omission Offenses:
Specific Omission Offenses General Omission Offenses Implicit – General Liability by Omission

A particular offense establishes a
specific statutory duty
Offense refers to a legal duty
generally
Duty must be found in Criminal Code,
other statute, or common law
Offense doesn’t mention legal duties or failure
to act, but there is a reason why the offense
can be committed by omission.
Only in very clear cases where the offence, as
interpreted, leads to the possibility of omission-
based conduct can accused be held liable

I.e. aggravated sexual assault

Eg: S. 129b – Failure to assist a peace
officer when ordered to do so
S. 215 – Providing necessaries of life
(code explains when the duty exists)
Eg: S. 219(1)(b) – Criminal negligence Eg. If someone omits to tell their partner that
causing death by omission they have HIV, that can be sexual assault by
way of fraud (omission) (R v Currier)

Although most criminal conduct takes the form of an action, some offenses can also be committed via omission – a failure to do
something. The common law defaults against punishing people for not doing things, so to be punishable, there must be a legal duty
to act.
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R v Browne (Taxi called for ODing partner – General Omission – Legal duty?) [1997] ON CA Pg. 3.3-2

- A and V are drug dealers. V swallows a bag of cocaine when the cops pull up. Later, she starts ODing. A says he will take
her to the hospital, but calls a taxi instead of an ambulance.
- Charged with S.219 criminal negligence causing death, which is a general omission offense, so duty must be “plugged
in”:
 Crown goes with S. 217 “anyone who undertakes to do an act is under a legal duty to do it if an omission to do
the act is or may be dangerous to life”
 Argues that A saying he will take V to hospital is such an undertaking

- Acquitted
 When criminal penalties are at stake, duties must be interpreted very strictly (3.3-5)
 The “mere expression of words indicating a willingness to do an act” is not enough for this narrow
interpretation
 Therefore, no S.217 undertaking means no S.219 omission offense

R v Thornton (HIV+ blood donation – Common law duty - Outdated HIV law) [1991] ON CA Pg. 3.3-6 [1993] SCC Pg. 3.3 - 12

- HIV+ A donates blood without disclosing – No clear law prohibiting this

- Charged with S. 180 Common nuisance endangering lives of health of public

- Trial court convicts by finding a common law duty to refrain from conduct that may injure another person
- Supreme Court hesitant to uphold – Modern understanding of HIV makes this bad law

R v Maboir (HIV+ Sexual Assault – Convicted for unprotected only) [2012] SCC Pg. 3.3-12

- HIV+ A has sex with women not disclosing his HIV status. Sometimes used condoms, sometimes didn’t
- Charged with S.265 sexual assault by fraud and S. 273 aggravated sexual assault by endangering life
- Test at the time, Currier [1998]: dishonest act + exposes V to serious risk of significant bodily harm

- More modern knowledge of HIV transmission = Currier test only met if women were exposed to realistic possibility of
harm
- Convicted only in cases where A did not use condom.

R v Hutchinson (Current test for fraud vitiating consent) [2014] SCC Pg. 3.3-18

- A pokes holes in condom before otherwise consensual sex

- Charged with S.265 sexual assault by fraud

- Test for consent in sexual assault by fraud cases:

 Was there voluntary agreement to engage in the activity in question?
 Were there any circumstances that vitiate apparent consent?
- Condom sabotage obviously serves to vitiate consent, A convicted.

STATUS OFFENSES
Criminalizing a state of being instead of an act or omission (Eg, being a member of a terrorist organization)

Difficult both practically and ethically: How do you prove the AR of a thing that you have always been? Instead, Canada makes it
illegal to “participate in” or “contribute” to a terrorist organization.

Policy note: Drug legalization activists would say that drug criminalization basically amounts to a status offense against drug users
 13

CONSEQUENCES AND CAUSATION

Causation Test:
1. Did the accused do (or omit to do) the thing?
2. Did the prohibited consequence occur?
3. Factual Causation: Was the accused’s action/omission a technical or diagnostic cause of the consequence?
- Would it have happened “but for” the action of the accused? (Winning)
- Did the accused contribute in some way?
4. Legal Casusation: Should the accused be held responsible for casusing the consequence?
- All except 1st degree murder: Was the accused’s conduct a significant contributing cause of the consequence?
(Nette)
- 1st degree murder: Was the accused’s conduct an essential, substantial, and integral part of the killing?
(Harbottle)
- Note: Dfference is not that the Harbottle standard requires A to “cause more” the death – it’s a greater
degree of participation needed to raise the level of culpability

General Notes:
- Causation is not restricted to a search for the most proximate, primary, or only cause of death (Menezes)
o However, act must be more than “merely the setting in which another cause operates”
- Intervening events can break the chain of causation (Reid and Stratton)
o But a more immediate cause doesn’t mean no legal causation (Pagett)
- Thin skull rule – Doesn’t matter if result unexpected, as long as A caused it (Smithers)

Some criminal offenses will have, as an essential element, that the accused caused some prohibited consequence.
- Eg: Culpable homicide is to cause the death of another
- Some statutes will have “cause” written explicitly, but not all (Eg: public incitement of hatred’s AR is “saying something
likely to lead to a breach of the peace”
- Note that the criminal standard of causation is stricter than in tort
To make out a causation offense, both factual and legal causation must be established beyond a reasonable doubt

FACTUAL CAUSATION
Factual: The technical cause of the consequence – Was it the conduct of the accused that led to it?
R v Winning (Credit card application fraud) [1972] ON CA Pg. 3.5-2

- A makes false statements on credit application. False information is not relied on my the company in their decision.
Charged with obtaining credit by false pretenses

- Not guilty – Lack of factual causation. Credit was not given “but for” the false information she provided

LEGAL CAUSATION
Legal: Normatively, should the person be held responsible? Eg, when you kill in self-defense, you are held to have not legally caused
the death, but you of course did factually/technically
 Test for all causation offenses except first degree murder: Was the accused’s conduct a significant contributing
cause of the prohibited consequence? (Nette)
 Test for first degree murder: Accused’s conduct was an essential, substantial, and integral part of the killing
(Harbottle)
14
 Note that the difference between these two isn’t that the Harbottle standard requires A to “cause more” the
death – it’s a greater degree of participation needed to raise the level of culpability (Nette 3.5-23)

Smithers v The Queen (Hockey fight – fluke death) * [1978] SCC Pg. 3.5-2

- In a fight after a hockey game, A kicks V hard in the chest. V dies due to a rare medical fluke triggered by the kick

- A still guilty of manslaughter:

 Kick was a “contributing cause of death, beyond the de minimis range”*: Unlawful act may not have caused
the death on its own, but it is a legal cause “so long as it contributed in some way to the death”
 Authority for thin skull rule: Just because death was unexpected and V’s reaction not foreseen, does not relieve
A

R v Harbottle (Assisting murder – Substantial causation test) [1993] SCC Pg. 3.5-8

- A holds down V while his friend strangled her. Charged with 1 st degree murder
- Was this degree of causation enough for 1st degree murder conviction?

- Yes
 Since 1st degree murder is so serious, it should have a stricter test for causation than in the Smithers
manslaughter case
 Test should be “actions of the accused form an essential, substantial, and integral part of the killing” (3.5-11)
 A must play an active role – but locking someone in a cupboard while someone else sets it on fire is still an
active role – This POS still guilty

R v Nette (Tied up victim – General legal causation test) [2001] SCC Pg. 3.5-12

- Robbery victim left hog-tied on her bed, dies at some point afterward after falling
- A charged with second degree murder – was the jury charged correctly?

- Majority: Standard of causation from Smithers is correct, Harbottle only added the higher degree of culpability needed
for 1st degree convictions
 Causation standard is “significant contributing cause” (replaces the “de minimis” standard from Smithers)
- Concurrence: L’Hereux-Dube agrees with the outcome, but Smithers “not insignificant” standard is not the same as
Harbottle “significant” standard
 She’s right about this, but the majority’s formulation remains the clearest elaboration and leading authority
for all non-1st degree causation offenses.

R v Menezes (Street race – Intervening Act – Inducement) [2002] ON SC

- A slows down to pull out of street race. V keeps going anyway, crashes and dies

- A not guilty of crim neg causing death – Had withdrawn from race, so no longer inducing V
- Example of intervening act breaking chain of causation
- However, inducement can be a significant contributing cause per Nette. If A had kept going and V died, he could be
found guilty by way of inducement. “Causation is not restricted to a search for the most proximate, primary, or only
cause of death”

R v SRJ (2008) ON CA – Gangsters get in a gunfight on a crowded street. They’re all responsible for the death of bystander V, they
all inducted each other, and the result was within the ambit of risk that they all created
 15

INTERVENING ACT
Pagett v The Queen (Human shield case) [1983] Eng CA

- A uses V as human shield in shootout with police

- A still caused the death. An intermediate cause does not necessarily mean lack of causation

R v Reid and Stratton (Death by botched CPR) [2003] NS CA Pg. 3.5-28

- Victim knocked out in a fight, friends attempt to perform CPR

- V almost certainly would have been fine, and it was the botched CPR that killed him
 S. 225 says that if a person gives another dangerous injury, they are liable for death even if its medical care
given in good faith that kills V
 Not applied because injury was not dangerous

- Not guilty
 The CPR was sufficiently independent to interrupt the causal effect of the action
 A good way to explain causation to the jury might be R v Hallett , where a man is left unconscious on a beach
below the high tide line. If he downs when the tide comes in, A surely caused that. But can we say A caused the
death if V is left above the high tide line and a tsunami hits?

R v Maybin (Bouncer throws punch in bar fight) [2012] SCC Pg. 3.5-36

- V on the way down when the bar bouncer hits him as well
- Impossible to say which punch killed V, does bouncer getting involved break chain of causation?

- No
 Fact that it’s impossible to prove a single cause of death not relevant, A’s actions still a significant contributing
cause per Nette
- Court addresses some analytical aids that may be used to help understand causation (not tests)
 Was the intervening event a reasonably foreseeable result of the act?
 Was the intervening event a result of a third party acting independently?
16

MENTAL FAULT (MENS REA)

Based on the principle that only morally blameworthy conduct should be punished, there must be the requisite level of mental fault
present at the time of the offense.
Highest Subjective Levels of Mental Fault – Most criminal offenses require this level. Crown must prove A had it.

Intention Wanted to do or cause the thing Hibbert, Buzzanga

Knowledge Aware that thing was certain or practically certain to result Buzzanga

Recklessnes Aware that thing will probably happen, proceeds anyway Sansreget (Defines)
s

Deliberate Formerly “willful blindness.” Aware of need to make inquiry, but choses not Briscoe
Ignorance to. Conceptually less than knowledge, but legally acts as a substitute for it.

Objective Levels of Mental Fault – Based on “reasonable person.” Constitutionally, this is a very sharp line.

Criminal Crown must prove “marked and substantial departure” from reasonable Failure to provide
Negligence person. Lowest level of fault for criminal offenses necessaries of life

Strict Guilt on commission of act alone, but can use due diligence as an offense. Possessing undersized
Liability Presumed standard for regulatory offenses. Would violate Charter to have lobster
criminal offense with this level

No Mental Fault – Even regulatory offenses presumed to be above this level

Absolute No mental fault, guilt based on commission of act alone, no due diligence Speeding tickets
Liability defense

Lowest

INTENTION AND KNOWLEDGE

R v Lewis (Man claims he was tricked into mailing kettle bomb – Motive not needed) [1979] ON CA Pg. 4.4-1

- A convicted of murder for mailing kettle bomb to Vs

- Claims no motive to commit crime, judge erred by not including “motive” in charge to jury

- Conviction upheld, Crown does not need to prove motive, even for subjective fault crimes
 Motive is of course often quite important to the theory of the case, and the Crown will want to show it
 Necessity of including motive in jury charge depends on circumstances. If case is otherwise purely
circumstantial, should be included in jury charge.
- In the criminal law context, motive and intent are different things: intent is the exercise of free will that is needed to
make out the MR, motive is just the thing that brings about the intent

R v Hibbert (Forced accomplice to friend’s murder) [1995] SCC Pg. 4.4-3

- A is forced at gunpoint to lure his friend down into the lobby

- Party liability charge requires act or omission “for the purpose of” aiding the commission of the offense

- A still acted with intention, so the presence of duress does not negate the MR
 17

 Offense doesn’t care what the motive is, it cares what the purpose of the act was. Purpose is not desire
- A will instead have to raise duress as a defense

R v Buzzanga and Durocher (Francophone pamphlets – Common sense inference) [1979] ON CA Pg. 4.4-7

- Two Franco-Ontarian activists put up some fake anti-French pamphlets

- Charged with a causation offense – “willfully promoting hatred”

- Offense is silent on level of mental fault, so we presume subjective

- Common sense inference: “As a general rule, a person who foresees that a consequence is certain or substantially
certain to result from an act which he does in order to achieve some other purpose, intends that consequence”
- Therefore, A has to have had either:
 Conscious purpose of promoting hatred
 Subjective foresight that promoting hatred was substantially certain to result
- This means that if A had not intended to promote hatred, and also did not foresee that promoting hatred would result,
they would not have the MR.

R v ADH (Baby in Walmart toilet – Interpreting fault level – Subjective presumption) [2013] SCC Pg. 4.4-10

- A gives birth in Walmart bathroom. Didn’t know she was pregnant, thinks baby is dead, so leaves it.
- Charged with S.218 child abandonment “so that child’s health is endangered…”
- Question is therefore whether this is a subjective or objective fault level – guilty only if objective fault

- Standards for interpreting fault level of an offense:

 Default presumption in criminal law is subjective fault (weaker than presumption of strict liability in Sault Ste
Marie)
 Purpose and breadth of offense
 Text of offense - any language parliament normally uses to indicate objective fault?
 Scheme of criminal code – types of objective fault offenses
 Dangerous, regulated conduct (like driving)
 Careless conduct in situations that requires reasonable precautions (careless storage of a firearm)
 "Predicate offenses", where some of them require objective fault [59]
 Criminal negligence - "wanton and reckless disregard" with no proof of intention required
 Duty-based offenses - There are objective standards that society imposes
- Applying the interpretive test:
 Start with assumption of subjective fault
 No language to suggest objective fault in text of law
 Not one of the types where objective fault usually found - “duty to preserve life” is a separate offense
 Law is broad and doesn’t relate to duty, so we want a higher fault requirement to protect too many people
from getting caught up in it
- Therefore, subjective offense, A not guilty
- “Reasonable” is an objective assessment

- Case also provides some useful definitions:

- Penal negligence: "That the risk to the child resulting from the accused's acts would have been foreseeable by a
reasonable person in the same circumstances and, that the accused's conduct was a marked departure from the conduct
expected of a reasonable person in those circumstances" [15]
- Levels of subjective mental fault:
 "Intention to bring about certain consequences"
18
 "Knowledge that the consequences will occur"
 "Recklessness = that the accused persisted in a course of conduct knowing of the risk which it created"
 "Willful blindness = Knowledge of the need to inquire as to the consequences and deliberate failure to do so"

R v Levigne (Child luring law) [2010] SCC Pg. 4.4-16

- S.172.1(3) makes it a crime to communicate with a person whom the accused believes to be underage for the purpose
of facilitating sexual offence.

- The bait represented to A that “she” was underage, so there is a presumption, rebuttable by the defense, that the
accused believed that
- Point of this case = there can be crimes where the AR and MR are fused

RECKLESSNESS AND DELIBERATE IGNORANCE

R v Sansregret (“Consensual” sex to calm down assailant) [1985] SCC Pg. 4.5-1
Recklessness: Becoming aware of a risk + proceeding with conduct that creates risk anyway (Sansregret)
- A breaks into ex-girlfriend’s house, threatens her with knife. She has sex with him to calm him down but complains of
- Valid even if prohibited consequence does not happen
rape after
- Reasons: Preventative purpose of criminal law, some harms are so serious that even being reckless about them is
- A does the same thing again a month later and V uses same tactic– A convicted of everything but the rape, on apparent
morally blameworthy
mistake of fact
Deliberate
- Ignoranceon
Convicted (“Willful
basis ofBlindness”): Becoming
“willful blindness” aware
(now of deliberate
called the need toignorance)
make inquiries, but declining
– A, being to do happened
aware of what so as not to
last
have knowledge (Sansgregret)
time, cannot possibly say that he did not know the consent wasn’t genuine.
-  Troubling
Theoretically less thanquestion: couldbut
knowledge, heahave beenthat
doctrine convicted
allows of the first rape?
knowledge Evenrequirement
standard an unreasonable
to be mistake
satisfiedof fact is a
(Briscoe)
- defense,
A is subjectively if the
aware of mistake
need to is honestly
inquire, butheld (Pappajohn)
deliberately chooses not to do so so as to avoid knowledge (Briscoe)
 CC has since been amended, belief in consent is no defense if belief arises from self-induced intoxication, willful
blindness or recklessness, authority or fraud, failure to take reasonable steps to ascertain consent
- Willful blindness distinguished from recklessness [VI]
 Recklessness: Knowledge of a danger or risk, and persistence in a course of conduct which creates a risk that
the prohibited result will occur, even if it does not actually happen
 “Willful Blindness”: Person is aware of the need to make some inquiry, but declines to do so because he does
not wish to know the truth

R v Briscoe (Golf course murder, deliberate ignorance) [2010] SCC Pg. 4.5-7

- A drives a car that the assailants use to pick up their victims. Something was obviously up but A doesn’t want to know.
Charged with S.21(1)(b) “does or omits to do anything for the purpose of aiding…”

- “Purpose” means intent for party liability, not desire. Doing something to assist a crime with knowledge of the perp’s
intention is intent to assist.
- Question is therefore a subjective one of A’s knowledge:
 A was obviously aware something was up, and chose to remain ignorant so that he could deny knowledge. This
is cheating the administration of justice.
 “Willful blindness can substitute for actual knowledge whenever knowledge is a component of mens rea”
 “The doctrine of willful blindness imputes knowledge to an accused whose suspicion is aroused to the point
 19

where he sees the need for further inquiries, but deliberately chooses not to make those inquiries”
 Test: “Did the accused shut his eyes because he knew or strongly suspected that looking would fix him with
knowledge?”
- Also, “deliberate ignorance” is probably a better term for this doctrine.
20
CRIMINAL NEGLIGENCE

Criminal offenses with objective fault level – How can they be made acceptable?
- ADH gives us the rules for interpreting offenses to find objective fault
- The standard may be an objective one (departure from standard of care of reasonable person, foreseeability of harm)
- But there must always be some room for subjective facts as a defense (eg, A lacked capacity) (Creighton)

Test: Beatty Modified Objective Test:

- Deviation from norm can satisfy AR requirement
- But proving MR requires Crown to show marked departure from the standard of care expected from a reasonable
person under the circumstances (Objective)
o Some offenses may have higher “marked and substantial departure” standard (JF)
- As a defense, A can raise a reasonable doubt that they had some reason why they couldn’t meet that standard
- (Incapacity to appreciate, mistake of fact). Therefore, there is still room for the subjective

Criminal offenses can occur on an objective fault basis if the accused fails to live up to the standard of a reasonable person in
similar circumstances

AHD gives us the types of presumed objective fault offenses:

- Dangerous, regulated conduct (like driving)
- Careless conduct in situations that requires reasonable precautions (careless storage of a firearm)
- "Predicate offenses", where some of them require objective fault [59]
- Criminal negligence - "wanton and reckless disregard" with no proof of intention required
- Duty-based offenses - There are objective standards that society imposes

R v Creighton (Care not given to OD) [1993] SCC Pg. 4.6-1

- A injects cocaine into V. V begins to OD. A convinces his friend not to call 911 and leaves. All involved experienced drug
users
- Charter challenge: Does manslaughter require subjective fault level?

- No – Manslaughter has developed separately from murder and has a lower penalty for a reason. Objective fault level
acceptable
- There is a single, uniform legal standard of care for negligence – subject only to the exception of incapacity (person not
capable of appreciating risk)
- Personal characteristics don’t matter unless they relate to person’s incapacity to appreciate risk – A blind person can’t be
faulted for it, but they can be expected to refrain from driving.

R v Beatty (Lapse of attention – Car crash – Modified objective test) [2008] SCC Pg. 4.6-10

- Momentary lapse of attention leads to car crash. Charge of dangerous driving causing death. Issue is whether
momentary lapse is sufficient to make out charge

- Modified Objective Test laid out:

 The AR in this charge is falling below the standards of a reasonably prudent driver (civil negligence standard)
 But the MR is a marked departure from the norm (penal negligence standard)
 This is made out on an objective test, but where the defense can raise a reasonable doubt about
whether a person in their position would have been aware of the risks
 Thus, defenses of incapacity and mistake of fact can still be raised – necessary for principles of justice
 21

R v JF (Illogical jury verdict) [2008] SCC Pg. 4.6-16

- Confusing case where the jury convicts on a S.219 “marked and substantial departure” charge but acquits on a S. 215
“marked departure” charge for the same incident. Something obviously went wrong, new trial ordered.

- Point: The default standard for objective fault offenses is “marked departure,” but some also have the higher “marked
and substantial” requirement.

ABSOLUTE AND STRICT LIABILITY

It is a criminal or regulatory offense?

If regulatory, presume strict liability (Sault Ste Marie)
- Express statutory language to contrary can raise or lower fault level (Tetreault)
- If jail time possible, must be at least strict liability (Re BC Motor Vehicle Act)
Absolute liability -> Crown must prove AR, no defenses available
Strict liability -> Burden on A to prove due diligence on BoP

A regulatory offense is a prohibition on conduct that may not be morally blameworthy, but because if unregulated it would result in
a dangerous condition
In the past, regulatory offenses would only require proof of MR. If a law was found to be regulatory, absolute liability was presumed:
R v Pierce Fisheries (Undersized lobsters – Absolute liability) [1971] SCC Pg. 4.3-1

- A tiny fraction of lobsters caught on a boat were undersized. Charged under fisheries regulations

- Conviction on basis of absolute liability upheld – mens rea “not an essential ingredient”:
 This is not a criminal law with jail time or criminal stigma
 Requiring proof of subjective fault would make it too hard to convict
- Bad law, but absolute liability offenses do still exist today.

However, this came to be seen as unfair, so the Supreme Court created a third position between absolute liability and criminal
negligence: Strict Liability
R v City of Sault Ste Marie (Strict liability) [1978] SCC Pg. 4.3-3

- Regulatory offense (allowing river to be polluted)

- Supreme Court says that while there are reasons for absolute liability to exist (regulatory efficiency, some activities come
with an expected high standard of care), there is also a problem with punishing the morally innocent.
- However, requiring the Crown to prove subjective fault in regulatory offenses would be too difficult
- Therefore, doctrine of strict liability created:
 Crown must prove AR
 But A can, on a balance of probabilities, establish a defense of due diligence (reasonable care under the
circumstances)
 This is to be the presumed standard for regulatory offenses, but lower (and higher) fault levels can still be used
with express statutory language

Levis (City) v Tetreault [2006] SCC: Absolute liability offenses still exist, but they have become the exception, and require clear
proof of legislative intent. “The intent can be deduced from various factors, the most important of which being the wording of
the statute”

Re BC Motor Vehicle Act (NO JAIL TIME WITHOUT MENTAL FAULT) [1985] SCC Pg. 4.3-7
 22
- Statute imposes jail time for driving with suspended license on basis of absolute liability
- Charter is new. Does jail time on absolute liability violate S.7?

- Yes, absolute liability cannot exist for crimes that carry jail time
 Absolute liability doesn’t violate S.7 per se
 But anything that carries jail time must require fault,
 Administrative expediency does not save this law under S.1

R v Wholesale Travel Group [1991] SCC: Suggests that minimum level of fault for jail time to be constitutional is “negligence,” but
not clear if strict liability offenses can be considered negligence for this standard

MENTAL FAULT – CONSTITUTINAL ISSUES

Section 7 requires that certain offences have a constitutionally required minimum subjective fault level

- Finta determines by doing a stigma/penalty analysis

S.7 of the Charter – people cannot be deprived of life/liberty/security of the person except in accordance with the principles of
fundamental justice. No S.7 violation has ever been justified under S.1
- Eg, BC Motor Vehicles: No jail time on an absolute liability basis
- The Supreme Court has ruled, in some other cases, S. 7 requires that there be a subjective level of mental fault for an
offence ("It is a principle of fundamental justice that the moral fault of the accused be commensurate with the gravity of
the offense and its penalty" - McLachlin in Creighton)
- To find these offenses, all we can do is look at what’s been decided and reason by analogy:

Stigma/penalty analysis (Creighton/Finta):

1. Use ADH to interpret fault level for the underlying offence (eg, theft has a fault requirement built in)
2. If objective, use analysis to determine if the offense requires a subjective fault level under S.7:
a. Stigma: How much “social opprobrium” is associated with the label?
i. Eg, genocide not just “a series of murders” – it’s something more and worse than that – the person must know or
intend to exterminate an entire population
b. Penalty
i. Look in the Criminal Code
1. S. 787- Penalty for summary convictions if not specified
ii. Argue based on actual penalties imposed in practice? (only done in Creighton)
c. How to solve? Look at the cases we have, and reason by analogy:
i. Successful (subjective MR required):
1. Finta – Crimes against humanity
2. Martineau – Murder
3. Vaillancourt – Attempted murder (same stigma, quite high penalties)
4. NB: Theft offenses don’t work with this – Crimes of “dishonestly” were historically seen as having serious stigma
(policy thought – does this still make sense today? Any who gets to decide? Domestic violence used to have very
little stigma)
ii. Unsuccessful (subjective MR not required):
1. Durham – Careless use of a firearm – Court: All convictions carry some stigma, not high enough here
2. Finley – Careless storage of a firearm
3. Hundal – Dangerous driving – Even the 14 year maximum penalty not high enough
4. Creighton – Unlawful act manslaughter– manslaughter is a broad label, and the typical penalties imposed are far
less than for attempted murder (only known case where court goes beyond the language of the provision alone)
 23

R v Finta (STIGMA/PENALTY ANALYSIS & WAR CRIMES AS AN EXAMPLE) [1994] SCC Pg. 4.7-1

- Accused is an officer at a WWII concentration camp. Trial judge tells the jury that he has to be aware of the crimes
against humanity going on. He is acquitted by the jury. (There are huge problems with the international law aspects of
this case, but the stigma/penalty analysis is good law).

- Stigma/penalty analysis:
 Being a war criminal has the greatest stigma imaginable (even more so than being a murderer)
 In other to justify this, there must be some subjective fault element to distinguish war crimes from even the
underlying offenses (eg, had to know/be willfully blind about what was going on at the camp)

- The Supreme Court got a lot of things about international law wrong

 Genocide is the intention to destroy a national ethnic, racial, or religious group as such.

 Crime against humanity of murder: The intentional killing of a population, but not of a genocidal way

 War crime of willful killing: Perpetrator was aware of the protected status of the victim (civilian, prisoner of war,
etc)

- These crimes therefore all have a subjective MR requirement, so the Supreme Court was right about that much.

MODES OF CRIMINAL LIABILITY

Note: A person convicted under s.21 is not guilty of a separate offence (“aiding a robbery”), but rather of the same offence.

Criminal Code s. 21:

21 (1): Every one is party to an offence who
(a) actually commits it;
(b) does or omits to do anything for the purpose of aiding any person to commit it; or
(c) abets any person in committing it.

(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, in carrying out the common purpose, commits an offence, each of them who knew or ought
to have known that the commission of the offence would be a probably consequence of carrying out the common
purpose is a party to that offence.

- Both the principal offender and the aider/abettor are equally culpable, although there are differences with the fault
level/actus reus to be noted (Thatcher)

- In cases of group crimes, we apply the Nette test to the conduct of the group, and all can be convicted at co-principals (H
(L.I.))

- A person who commits an offence by means of an instrument “whose movements are regulated” by him actually commits
the offence themselves – “doctrine of innocent agency” (Berryman)
 - Any offence can be aided or abetted, by acts or omission
24
- MROFFENDERS
PRINCIPAL = Knowledge of the PO’s intention to commit the crime, and intention to assist (aiding) or
support/encourage/instigate (abetting) (Briscoe)
A principal offender is the person
o Knowledge who
does notactually commits the
prove intention, the jury
offence
can in question.
make However this
a common-sense definition
inference can be interpreted
(Buzzanga broadly:
and Durocher),
but it can always be rebutted on the evidence (Palombi)
R v Thatcher (PO OR A/A CASE - MODE OF LIABILITY LEGALLY IRRELEVANT) [1987 SCC Pg. 5.2-1
o Why? Because as the person’s involvement becomes “more peripheral,” it makes sense to require a higher fault
]
level (Helsdon)
- o Exception:
Evidence Aiding/Abetting
is that A either murder
shot his wife can be
personally, orreduced to manslaughter
hired someone and convicted on an objective fault level
to shoot her
- (Jackson that
Jury is instructed 1993)
they can convict if they believe either was the case – Issue is that it could be possible for a
conviction without jury unanimity on the facts
- AR = Must be more than mere presence (Dunlop and Sylvester). However, “presence plus” is fairly easy to prove:
- Conviction upheld – there is no need for jury unanimity on the mode of liability. Under s.21(1), both a principal offender
o Attendance with knowledge and for the purpose of encouragement (Briscoe)
and an aider/abettor are equally culpable, it is therefore legally irrelevant.
o “Prolonged and unexplained presence” can be evidence of intention (Jackson 2007)
- Policyo note
Omitting to doisapre-Charter.
– This case duty for purpose
Modeofofaiding (Nixon)
liability is still relevant for Crown burden & sentencing. Different facts
could conceivably lead to different outcome.

Under section 21(1)(b), an accused is a party to an offence if they do or omit to do anything for the purpose of assisting another
R v H (LI) (MULTIPLE CO-PRINCIPALS – BLOW OF ONE IS BLOW OF ALL) [2003 SCC Pg. 5.2-7
person in committing the offence. The actus reus for aiding is therefore to do anything that may provide assistance to the offender
]
in committing the offence, while the mens rea of “purpose” has been interpreted to require knowledge of the accused’s intention
to commit
- Inthe crime,
a group combined
assault, therewith
are intention to assist (Briscoe).
multiple accused, but no evidence about who struck the fatal blow

Under- section
There21(1)(c), an accused
may be multiple is a party
people to an offence
who “actually if they
commit” thedocrime
or omit toknowing
- not do anything
whofor the purpose
actually of encouraging
struck the fatal blow is does
another person to commit
not preclude the offence.
conviction The actus reus for abetting is required to be more than mere presence at the scene of the
as co-principals.
offence
- (Dunlop
There isand Sylvester),
no need but canconduct
to separate be made out“principal”
into from a wideandrange of factors including
“aiders/abettors”. prior
Instead, knowledge
they can all beof the offence
convicted or
as co-
offering some form of encouragement or support to the offender (Dunlop). The mens rea of “purpose” in the provision has been
principals.
interpreted to require knowledge
In such of the accused’s
party offenses, intention
we apply the to commit
Nette test to the the
jointcrime, combined
conduct with intention
of the group when they to are
assist (Briscoe).
acting in
concert.
 “When several persons act together toward a common criminal object, with the “requisite intent,” and any of
them jointly or severally achieves the common object, all who are present at the commission of the crime
commit the crime as joint principal offenders. This principle has been pithily stated in concrete terms that “the
blow of one is, in law, the blow of all of them” [19].

R v Berryman (DOCTRINE OF INNOCENT AGENCY- CAN’T ESCAPE BECAUSE NO PO) [1990 BC Pg. 5.2-12
] CA

- A works at passport office. Submits falsified forms, knowing that it would cause a fake passport to be made. Can A be
convicted of forgery? Can’t be aiding/abetting, because the person who made the passport didn’t commit a crime,
- Doctrine of Innocent Agency – A is deemed a principal offender because “a person who commits an offence by means
of an instrument whose movements are regulated by him, actually commits the offense himself” [33].

AIDING AND ABETTING

S. 21(1) (b) and (c) make it possible for a person to be convicted of an offense for aiding the principal offender.

- This can be accomplished via acts (being the lookout) or omissions, even when there is no legal duty (leaving the door
unlocked to facilitate a robbery)

- However, the act or omission must be done for the purpose of aiding/abetting the offence.
 25

o Exception: Aiding and abetting murder, without intention, can lead to a conviction for manslaughter on an
objective fault basis (Jackson 1993).

o Exception: Assisting with the purchase of illegal drugs is aiding/abetting possession, not trafficking (Greyeyes)

- Mere presence at the scene of a crime will not be sufficient for a conviction (Dunlop and Sylvester), but pretty much any
additional action/factor will be enough (eg, prior knowledge of crime, contributing to intimidation by standing there)

R v Briscoe (MR FOR AIDING = KNOWLEDGE OF PO’S INTENT + INTENT TO ASSIST) [2010 SCC Pg. 5.3-1
]

- A assisted in commission of crime. Issue is whether he had sufficient Mens Rea for aiding/abetting conviction

- The purpose requirement of S.21(1)(b) “should be understood as essentially synonymous with intention.” The MR for
aiding/abetting is therefore “the accused intended to assist the principal in the commission of the offence” [16].
 This does not mean that the aider/abettor has to desire the crime be completed, as long as they intend to assist
in it [16].
 The aider must have knowledge of principal’s intent to commit the crime, and act with intention to assist [18].
 Precise knowledge of details not required. The common sense inference (Buzzanga) can be used to get from
knowledge to intention [17].
- The intention to assist in the crime, and the actual assistance rendered must be contemporaneous to satisfy the MR
requirement [17].

R v Dunlop and Sylvester (MERE PRESENCE NOT SUFFICIENT FOR A/A CONVICTION) [1979 SCC Pg. 5.3-5
]

- Two As are present at the scene of a gang rape. They allege that they showed up with no prior knowledge and did
nothing to assist.

- “Mere presence at the scene of a crime is not sufficient to ground culpability. Something more is needed” [31].
- “Presence at the commission of an offence can be evidence of aiding and abetting if accompanied by other factors, such
as prior knowledge of offender’s intention or attendance for the purpose of encouragement”
 Examples of something more: Encouraging, keeping watch, preventing escape, preventing intervention, having a
duty to act (Nixon – cop beating case), “prolonged and unexplained presence” (Jackson 2007 – grow op).
 However no evidence of any of these in this case – acquitted [43].

R v Jackson 2007 (PROLONGUED AND UNEXPLAINED PRESENCE) [2007 SCC Pg. 5.3.-14
]

- A is convicted of growing cannabis. He was found camping at a remote grow-op in the forest but there was no direct
evidence that he actually participated in the growing

- Dunlop is clear that mere presence is not enough – but this was prolonged and unexplained presence plus other
circumstantial factors. The accused was there for long enough that they must have gained knowledge at some point and
therefore become guilty in aiding/abetting
- Strong dissent in this case. Prof agrees, thinks there are better ways to deal with issue than party liability – why not make
“being present at a grow op” a crime?
- Authority that mere presence is not guilt, example of conviction under “presence +”
26

R v Nixon (COP BEATING – A/A LIABILITY BY OMISSION) [1990 BC Pg. 5.3-18

] CA

- A is senior officer present when a suspect is assaulted in custody. No proof that A participated, but is convicted of
aiding/abetting on basis of failing to act under his legal duty to prevent

- When omission is being used for A/A, the accused must have and fail in their duty, but also must have knowledge of the
risk incurred if they fail to act in order to find purpose [61].
- In this case there was clearly duty + failure + knowledge = omission for purpose of aiding. This is a clear 21(1)(b) case
[67].
- Note one does not have to have a duty to be liable for aiding by omission.

R v Helsdon (MUST BE SUBJECTIVE FAULT, REGARDLESS OF UNDERLYING OFFENCE LEVEL*) [2007 ON CA Pg. 5.3-24
]

- A is a journalist who submits an article to his newspaper about a sexual assault case that had a publication ban.
- The newspaper publishes it, and is convicted of the actual offence on an objective fault standard. Can A be convicted of
aiding an objective fault level offence on an objective fault standard?

- No – acquitted

 S. 21(1)(b) is very clear that the act/omission be for the purpose of aiding another – this means there must be
a subjective fault level (arguably less than “intention”, but definitely still subjective [29].

 21(1)(c) doesn’t specify purpose, but it should be read the same [43]

 There are good policy reasons for having a high fault level when the accused did not commit the offense – the
“more peripheral” someone’s involvement is to the actual completed crime, the more sense it makes to require
a subjective MR (Roach) [35].

- Note two exceptions to this rule:

 Jackson 1993 – An A/A to murder can be convicted of manslaughter on an objective fault standard [36]

 Greyeyes – For policy reasons, a person who A/As a drug purchase should be convicted of A/Aing possession,
not trafficking.

R v Palombi (INTENTION MUST BE FOR PURPOSE OF ASSISTING) [2007 ON CA Pg. 5.3-32

]

- A is convicted of aggravated assault and failing to provide necessaries of life after her child is discovered abused. She
doesn’t seem to have participated in it, but knew about it.
- Trial judge tells jury that if she knew about the abuse, they can convict under A/A using a common-sense inference – did
not mention purpose of action/omission requirement.

- Judge erred in charging jury – jury had reason to conclude that she failed to act for purposes other than assisting the
principal [25].
- Tools like deliberate ignorance/common-sense inference are not presumptions. They are inferences that can be rebutted
by contrary evidence (love of child).
 -
S. 21(2) allows for conviction of parties who form a common intention to commit an unlawful purpose, and then one of
them, in carrying out the unlawful purpose, commits an offence that they knew or ought to have known would be a 27
probable consequence of the unlawful purpose.
o “Probable consequence” is more permissive language than Nette causation standard
COMMON INTENTION
o Characterization of unlawful purpose essential, and can be expanded (eg, Kirkness)
o NB: Fault level of unlawful purpose can be lower, but must be common intention to assist
o NB: Cannot be convicted on “ought to have known” basis when there is a constitutionally required minimum
subjective fault level (Logan, Finta is authority for test)

- The defence of abandonment (Gauthier) (air of reality):

S. 21 (2): Where
o two or more
Intention topersons
abandonform an intention
or withdraw frominthe
common
purpose to carry out an unlawful purpose and to assist each other
therein and any
o one of them,
Timely in carrying out
communication thewithdrawal
of the common purpose, commits
to the other an offence, each of them who knew or ought to have
parties
known that the commission of the offence would be a probable consequence
o Communication served unequivocal notice to those who wished of carrying out the common purpose is a party to that
to continue
offence." o Accused took, in a manner proportional to his or her participation in the commission of the planned
- Mens reaoffence/unlawful purpose,
for ultimate offence can bereasonable
objective, steps in the circumstances
but formation of unlawful either
purposeto neutralize or otherwise
requires intent. cancel out
Note language the
is “an
offence”.effects of his or her participation or to prevent the commission of the offence.
- There does not need to be advance planning – the common intention can be formed at the moment of the crime (Kirkness).
Under section 21(2) of the Criminal Code, a person can be convicted as a party to an offence if they have formed a common
We can infer common intention from facts (parties aiding = obvious common intention)
intention with the principal offender to carry out an unlawful purpose, where the person know or ought to have known that the
- We are not applying a Nette or Pare causation standard for the offence that flows – the language of “probable
offence would follow as a probable consequence of the unlawful purpose. In order to secure a conviction via this mode of liability,
consequence” is more permissive.
the Crown will be required to prove both that the accused intended to carry out an unlawful purpose with XXX, and that the XXX
- The unlawful purpose can be expanded while underway (Gauthier).
was an objectively foreseeable consequence of that unlawful purpose (Kirkness).
- Common issue will be what the scope of the common intention was, as this relates to what the probable consequences are.
o Thethat
In order to establish wider
thethe scope
result of the
of XXX wascommon intention,
a foreseeable the more the
consequence, foreseeable a crime
Crown will would
seek to be.
characterize the unlawful purpose
o If
as broadly as possibleyou know your partner is violent, that can relate to the scope of the unlawful purpose (Kirkness dissent).

Example: In an
Importantly, armed robbery,
however, A isofgoing
the nature to be the
the offence lookout,
of XXX B is
brings going to look intimidating,
a constitutional considerationand C is
into going
play to Crown
if the use a gun to threaten
chooses to
people.
proceed under section 21(2). In Logan, the Supreme Court ruled that if an offence has a constitutionally mandated minimum
subjective fault
o level, thenprincipal
C is the an accused cannotAbe
offender, andconvicted as aand
B are aiding party to the offence
abetting. They allon an objective
have a commonfault basis. to
intention Therefore, the
commit armed
words “ought to have known” from section 21(2) will not apply XXX, and the Crown will instead be required to prove that the
robbery.
accused actually had subjective
- Now say C shoots a teller foresight of XXX
in the foot, unbeknownst to A and B
o A and B are not parties to the assault under S. 21(1) – they did not agree/intend to assist in it
In this case, the
o accused
Under S. may wishA to
21(2), raise
and thebe
B can defence of abandonment,
convicted of the assault as arguing
long asthat
thethey
Crownhadcansufficiently
prove thatwithdrawn
the assaultfrom
wasthe
a
unlawful purpose probable
by the time of XXX (Gauthier). In order to make out this defence, the accused will
consequence of the armed robbery that they either knew or ought to have known about. be required to show the
following elements, one  ofWaswhich the Crown
C known to bemust disprove
violent? beyond
If yes, easier atoreasonable doubt
convict A and in order to
B. (Kirkness deny the defence to the accused.
dissent)
First, the accused must demonstrate that they had an intention to abandon or withdraw
If the teller dies, the words “ought to have known” don’t apply - Logan from the unlawful purpose XXX. Next, they
must- demonstrate
Why is thisthat
fair?they communicated their withdrawal from the unlawful purpose to the other parties, and that this
communication served unequivocal
o It is morally upon those
blameworthy who wished
to participate to continue.
in planned crimesFinally,
with as affirmed
people, andintoGauthier, the Itaccused
assist them. must
is morally present
correct to
evidence that they took, in a manner proportional to XXX degree of participation unlawful purpose, reasonable steps in the
hold people responsible for any reasonably foreseeable harm that results from their crime.
circumstances to neutralize or otherwise cancel out the effects of XXX participation, or to prevent the commission of the offence.
o There is a charter issue for the “ought to have known” piece, see Logan.

R v Kirkness (DIFFERENT SCOPE OF COMMON INTENTION LEADS TO DIFFERENT OUTCOMES) [1990 SCC Pg. 5.4-1
]

- A breaks into a house with his friend, with the common intention of committing armed robbery
- When PO finds a woman is home, he rapes her while A steals things and jams the door shut with a chair
- PO then starts to strangle her, which A objects to but doesn’t do anything to stop. Can A be a party to the murder?

- Majority frames the common intention narrowly and acquits – he had common intention to commit armed robbery,
and was probably party to the sexual assault too. But since he had no reason to know that death might result from the
armed robbery/sexual assault, the scope of the common intention was not expanded enough to make him a party to
the murder.
 Wilson J dissent says that unlawful purpose expanded, this approach later picked up.
28
- Wilson J Dissent – It was at least open to the jury to decide that A was a party to the murder
 There was definitely a common intention for the break and enter (“where one has aided or abetted in the
commission of an offence, there can be little doubt that a shared intention to effect an unlawful purpose
existed”) [73].
 There was probably also a common intention for the sexual assault – it may not have been pre-planned, but
advance planning is not a requirement – A jury could have found that A acquiesced to this common intention
once it became clear what PO was doing (ie, the unlawful purpose expanded) [77].
 From a common intention to commit sexual assault, it’s not hard to imagine a jury deciding that the murder
was a probable consequence of that common intention.
- Abandonment: What is necessary for the defense of abandonment depends on the degree of participation in the crime,
jury could have found A’s objection was not enough. More in Gauthier.

R v Logan (CONSITUITONALLY REQ’D SUBJD MR – ALSO REQ’D FOR COMMON INTENTION) [1990] SCC Pg. 5.4-10

- Challenge to the S. 7 Constitutionality of common intention conviction on objective fault standard (“ought to have
known”.
- A is party to an armed robbery where the clerk unexpectedly ends up getting shot. Can he be convicted on an objective
fault standard that an attempted murder was a probable consequence of the robbery?
 Vaillancourt says that certain offences (eg murder) require a subjective fault standard to be constitutionally
permissible (stigma-penalty analysis). See also Finta for how to perform analysis.

- It is not a principle of fundamental justice that Parliament cannot enact different fault levels for principals and parties
(although it seems like a generally sound idea) because the sentencing scheme is flexible [14].
- However, if the offense is one which constitutionally requires a subjective fault level after doing a stigma/penalty
analysis, then that must also apply to party liability
 Therefore, the words “ought to have known” in S.21(2) are read out for offenses where it is constitutionally
required that there be subjective fault

R v Gauthier (DEFENSE OF ABANDONMENT) [2013] SCC Pg. 5.4-13

- A is involved in a suicide pact that ends with the death of her husband and children. She obtained the lethal drugs, but
then said she didn’t want to go through with the plan.

- Wilson J dissent in Kirkness picked up – new test for defense of abandonment created and failed [50]:
 Intention to abandon or withdraw from unlawful purpose
 Timely communication of this abandonment or withdrawal from the person in question to those who wished to
continue
 Communication served unequivocal notice upon those who wished to continue
 New element: Accused took, in a manner proportional to his or her participation in the commission of the
planned offence/unlawful purpose, reasonable steps in the circumstances either to neutralize or otherwise
cancel out the effects of his or her participation or to prevent the commission of the offence.
 What this actually looks like depends on the case. Sometimes mere communication will be enough. In
this case, she should have taken the drugs away, or hid her children, or called the police, or even
convinced her husband not to do it. Other applications: Kirkness, Menezes
 Key concepts are “proportionality” and “reasonableness”
 There is a point where it is no longer possible to abandon an offence.

ATTEMPTS

Criminal Code s. 24:

24 (1): Every one who, having an intent to commit an offence, 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.
 29

- This is a general provision that applies to any offence in the Criminal Code. Attempts also existed in the common law.
- Why? Because it still morally blameworthy to commit acts with a criminal attempt. There are also matters of deterrence.
 This can raise policy arguments. How long should the police have to wait before a terrorism plot is put into action?
At what stage of building a bomb to people exceed “mere preparation”? Why should a failed shooter benefit from
his bad aim?
- Attempts are generally punished less severely than completed offences (s. 463). Penalty for attempted murder is up to life,
but with no minimum penalty (unless a firearm is used) and a reduced parole ineligibility period.
- Criminal code requires intent for attempts, constitution requires subjective MR for attempts when the completed offence
also requires (Logan).
- Deutsch: Comparing nature and quality of completed offence with nature and quality of the actions of the accused (time,
place, acts remaining)

ACTUS REUS OF ATTEMPTS

R v Cline (GUILT COMES FROM MR – ACT DOESN’T HAVE TO BE ILLEGAL) [1956] ON CA Pg. 5.5-2

- Example of the court reviewing the common law and working through an attempts issue
- Not the current test, but authority for intent + more than mere preparation

- In attempts, the MR is of primary importance, while the AR is a necessary element [27].

 “The criminality of the misconduct lies mainly in the intention of the accused” [36(1)].
- The AR does not need to be illegal or wrong
 “It is not essential that the actus reus be a crime or tort of even a moral wrong or social mischief” [36(4)].
- The AR must be more than mere preparation [35(5)].

Deutsch v The Queen (ACTS BEYOND MERE PREPARATION & TEST) [1986] SCC Pg. 5.5-4

- A is charged with attempting to procure a person to have illicit sexual intercourse after he advertises a secretary
permission with big money, interviews candidates and informs them they will be required to have sex with the clients
when necessary.
- But he never actually offered the job to any of them – what is the test for “acts beyond mere preparation”?

- The distinction between preparation and attempt is qualitative and contextual. Factors [27]:
 Relationship between the nature and quality of the act in question and the nature of the complete offence
 Relative proximity of the act in question to what would have been the completed offence (considering time,
location, acts under the control of the accused remaining to be accomplished)
- These are not clear yes/no factors, so this doesn’t always give a clear answer – It is very contextual, with room for
argument and ambiguity.
 In this case, the inducement/persuasion was an important act for the crime of procurement, and it would have
been open to the jury to find necessary intent for a conviction

MENS REA OF ATTEMPTS

R v Ancio (ATTEMPTED MURDER REQUIRES SPECIFIC INTENT, EVEN FOR OBJECTIVE MURDER) [1984] SCC Pg. 5.5-11

- A breaks into his wife’s lovers house with a shotgun, apparently with the intent of taking her back. The gun goes off but
misses.
- S. 213 makes homicide while in the course of attempting to commit forcible confinement culpable on an objective fault
standard (recklessness). A is charged with attempted murder under this section. Can he be convicted for having the fault
30
level for the completed offense but not specific intent?

- No. The fault level for attempts is specific intent to commit the completed offence. So, even if the complete offence can
be committed on an objective basis, in this case, there must be specific intent to kill. You cannot intend to commit an
unintentional killing [32].
 Court works from first principles. Attempts developed in the law distinctly, and are only blameworthy if they are
accompanied by criminal intent [30-31].

R v Logan (CONSTITUTION REQUIRES SUBJECTIVE MR) [1990] SCC Pg. 5.5-17

- Armed robbery case from common intention section. Can A be convicted of attempted murder on an objective fault
standard? (Was the decision in Ancio a constitutional requirement, or just a product of the common law/way the
criminal code was written?)

- Stigma/penalty analysis: S. 7 of the Charter requires subjective fault for attempted murder [23]:
 Stigma for attempted murder is the same as murder, and the punishment is usually very severe
 Therefore the stigma/penalty analysis requires some subjective fault. This is a minimum level. Parliament could
make it anything subjective, even a subjective level lower than intention without violating S. 7

Class Cases:

- R v Sorrell and Bondett [1978] ON CA:

 Two armed accused walk up to the door of a restaurant with ski masks on. Shopkeeper sees them standing there
and says “sorry we’re closed”. They turn around and leave.
 Acquitted of armed robbery – court says that act was equivocal and was not accompanied by evidence of specific
intent:
 Prof thinks this case was wrongly decided because conduct was not equivocal
 “When the accused’s intention is otherwise provided, acts which on their face are equivocal, may none the less, be
sufficiently proximate to constitute an attempt. Where, however, there is no extrinsic evidence of the intent with
which the accused’s acts were done, acts of the accused, which on their face are equivocal, may be insufficient to
show that the acts were done with intent to commit the crime.”
 If all you have is conduct, and the conduct is equivocal, you must acquit, because the guilt of attempts
flows from mental fault
 If you have equivocal conduct and evidence of intention, you can convict.
 Eg, even if I know you’re allergic to peanuts, I can’t be convicted of attempted murder for offering you
some, unless there is evidence that I intended to cause your death (and wasn’t just reckless)
- R v Colbourne:
 Attempts require specific intent to carry out the crime, even if the completed offence requires a lesser intent.
Why? Because a person cannot intend to commit unintentional crimes.

IMPOSSIBILITY
United States of America v Dynar (FACTUAL/LEGAL IMPOSSIBILITY IRRELEVANT) [1997] SCC Pg. 5.5-19

- There is a distinction in the law of attempts between factual and legal impossibility. Factual impossibility is attempting to
steal from an empty safe. Legal impossibility is that the act wouldn’t have been a crime, even if completed
- Accused got caught attempting to launder money in an FBI sting. He is facing extradition, but argues that it was legally
impossible for him to have completed the offence, since the money wasn’t actually dirty.

- Under the law of attempts, it doesn’t matter is the act was factually or legally impossible, as long as the guilty mind is
the same [73]:
 31

 The distinction doesn’t really make sense. The point of attempts is that the MR is present, and some steps have
been taken toward the commission of the AR. Why is an attempt to do the possible more blameworthy than
an attempt to do the impossible? [67] Why have a defence of mistaken belief? [63]
- Instead, the only thing not covered are imaginary crimes – attempting to do something that you think is a crime, but
isn’t [65].
- A had the guilty mind, and took steps toward the commission. It does not make him less guilty that the money was US
taxpayer dollars, not the proceeds of crime.

DEFENSES:

Defences are technically “circumstances excluding criminal responsibility”

A true defence operates after the AR and MR have been shown. The Crown will be required to prove BARD that at least one of the
elements of the defence was not present

Other “defences” exclude criminal responsibility by negating one of the required elements of the offence (eg, mistake of fact
negates the MR).

“Air of Reality”: Could a properly instructed jury ever find the accused to have made out the defence? (Urquhart)

MISTAKE

MISTAKE OF FACT
When and How Does it Operate?
- Available whenever the accused holds an honest belief in a set of circumstances that, if true, would otherwise entitle them
to an acquittal
- Operates by negating a (usually subjective) fault element (eg, can’t be theft if I thought it was my umbrella)

Burden of Proof:
- If there is an air of reality, judge must instruct jury that this is in play. If there is an air of reality, the Crown must prove
BARD the absence of at least one of the elements defence in order to prevent the defence from applying (Urquhart)

Test:
- Did accused hold an honest belief in a set of circumstances that, if true, would otherwise entitle them to an acquittal?

Issues/Considerations:
- NB: Must show that the offence requires subjective MR about that thing – check the statute!

MISTAKE OF LAW
Criminal Code S.19: "Ignorance of the law by a person who commits an offence is not an excuse for committing that offence."

When and How Does it Operate?

- Doesn’t (knowledge of the law is not usually part of the MR), other than some exceptions:
 Officially Induced Error (discussed below)
 Can’t charge people under unpublished laws
32
 Offence defined in a specific way so that the accused’s mistake of law can negate the MR : The MR for theft is
“taking without colour of right,” so the accused being mistaken about their legal entitlement to the property is an
excuse that negates an essential element.
 In one case, a person was acquitted because they had a mistake about what their parole conditions were
 See MacDonald for example of importance and difficulty

Issues/Considerations:
- Why not? (discussed in Jorgensen)
 Would incentivize ignorance of the law / Would create different standards for different people
 Would be practically impossible to disprove
 Laws are supposed to reflect moral intuition and societal values, so people should be capable of ascertaining what
the law is
 Ignorance of the law its itself blameworthy
- Critique: The law is always changing, it’s not clear, it’s unreasonable to assume that a responsible citizen will have
comprehensive knowledge of the law.

R v Jones and Pamajewon (MISTAKE OF LAW NO EXCUSE) [1991] SCC Pg. 6.2-2

- Two A’s run a bingo game on a native reserve, having passed a resolution purporting to renounce the jurisdiction of
federal and provincial gaming laws

- No, this is a mistake of law, not fact. This is not a “without colour of right” offence. Guilty per S.19.

R v MacDonald (IMPORTANCE OF INTERPRETING PROVISION) [2014] SCC Pg. 6.2-13

- A answers the door brandishing his gun. He was licensed to own it in Alberta, but not in Nova Scotia. He didn’t know this
was a term of his licence. Court of Appeal interprets the provision, and concludes that part of the MR was knowledge of
the conditions

- SCC interprets differently: breaking the condition is the AR, knowing you had the gun is the MR.
 This wasn’t obvious from the outset. Example of Canada’s idiosyncratic approach to interpreting fault levels.
- Therefore, since A knew he had the weapon, his mistake about the conditions of his licence is a mistake of law, and
cannot be a defence [57].
 Otherwise C would have to prove that every gun owner had knowledge of all their conditions in order to secure
a conviction.

OFICIALLY INDUCED ERROR

When and How Does it Operate?
- A common law defence developed by courts over the years and affirmed by the Supreme Court in Levis.
- An excuse. Results in a stay of proceedings.

Burden of Proof:
- Burden is on the accused to make out on a balance of probabilities.

Test (from dissent in Jorgensen, affirmed as correct in Levis).

1. An error of law or mixed error of fact and law was made

2. The accused considered the legal consequences of their actions, and sought advice
a. Can’t just be that A assumed their conduct was permissible
 33

3. Accused obtained advice from an appropriate official

a. Test for this is what a reasonable person in A’s position would have thought
b. Failure to enforce a regulation is not a representation as to the legality of the conduct: Canada v Shiner [2007 NL
CA]
4. The advice received was reasonable in the circumstances
a. This is presumed, unless the advice appears utterly unreasonable
5. The advice was erroneous
a. A does not need to prove this
6. The accused must demonstrate reliance on the advice
a. Eg, by showing that it was obtained before A went and did the thing
b. The reliance must be objectively reasonable on a due diligence standard: Canada v Shiner

Issues/Considerations:

- Emerged from lower courts in the context of regulatory offenses (R v Cancoil [1986 ON CA]), example of new common law
defences still emerging, consistent with Charter principles
- Theoretically supported by fact that we want people to make an effort to follow the law, and it is unjust to punish and
accused if their fault is a result of this effort
- A fairly narrow carve-out, there is no defence of “reasonable mistake of law”

R v Jorgensen (LAMER ARGUES SHOULD BE DEFENCE OF OIE) [1995] SCC Pg. 6.2-4

- A’s films are approved by the Ontario Film Review Board. He is charged with selling obscene material, which technically
isn’t contingent on what provincial review boards say.
- Majority acquits on the basis of knowledge (he didn’t watch the films), but Lamer says this is a good time to create the
defence of officially induced error.

- First, discusses why ignorance of the law is no excuse [5], but notes narrow exceptions already exist in cases where it
would produce manifestly unjust outcomes [6].
- Then, notes that allowing this exception will not undermine the purposes of the rule (doesn’t encourage ignorance,
doesn’t create evidentiary problems due to shifted burden) [7]
- Lays out above test from [28-35], would be available in this case.

Levis (City) v Tetreault (SUPREME COURT AGREES) [2006] SCC Pg. 6.2-16

- Two regulatory offence cases. (1): A is charged with driving without insurance after insurance renewal reminder mailed
to wrong address. (2): A is charged with driving without a licence because he believes his expiry date was a payment due
date.

- Consistent with the principles of Sault Ste Marie, most regulatory offences are presumed to have the defence of due
diligence. When criminal offences involve strict liability, the same principles apply, and the defence of officially induced
error should apply.
- Court affirms Lamer’s formulation in Jorgensen, and fails the cases on it. (1) Did not consider consequences/seek advice,
and (2) Was just dumb, not seeking out advice.

DEFENCE OF PERSON/DEFENCE OF PROPERTY

The law in this area is ancient and universal, but has recently been reformed and placed within a new statutory regime.
34
When and How Does it Operate?
- True defence – operates to justify accused’s conduct after AR and MR have been proven, results in an acquittal

Burden of Proof:
- If there is an air of reality, the Crown must prove BARD the absence of at least one of the elements defence in order to
prevent the defence from applying (Urquhart)

Test: (Related provisions: Excessive force S.26, preventing offences S.27, use of force on aircraft 27.1)

Defence of Person (S.34, replaces old 34-37) Defence of Property (S.35, replaces old 38-42)
Requirement: Requirement:
1. A person is not guilty of an offence if 1. A person is not guilty of an offence if
a. they believe on reasonable grounds that force is being used against them or a. they either believe on reasonable
another person or that a threat of force is being made against them or grounds that they are in peaceable
another person; possession of property or are acting
- Believe on reasonable grounds = subjective/objective under the authority of, or lawfully
- Personal factors (A’s past victimization) come in at reasonableness stage, not assisting, a person whom they believe on
apprehension stage reasonable grounds is in peaceable
b. the act that constitutes the offence is committed for the purpose of possession of property;
defending or protecting themselves or the other person from that use or - Inquiry is reasonableness, so a
threat of force; and mistake does not kill a defence of
- Subjective intention property claim
c. the act committed is reasonable in the circumstances. b. they believe on reasonable grounds that
- Objective contextual test, with reference to below and other factors another person
i.  is about to enter, is entering or has
- Theoretically can be invoked in relation to any offence entered the property without being
- Protection of another used to require a close relationship, this has been removed entitled by law to do so,
ii.  is about to take the property, is
Factors:
doing so or has just done so, or
2. In determining whether the act committed is reasonable in the circumstances, iii.  is about to damage or destroy the
the court shall consider the relevant circumstances of the person, the other property, or make it inoperative, or
parties and the act, including, but not limited to, the following factors: is doing so;
a. the nature of the force or threat; - All points in time covered on a
b. the extent to which the use of force was imminent and whether there were reasonableness basis
other means available to respond to the potential use of force; c. the act that constitutes the offence is
- This used to be determinative (requirement of no safe way out). Now it is committed for the purpose of
just a factor, but a very significant one i. preventing the other person from
c. the person’s role in the incident; entering the property, or removing
- We want to know all the events. Did the person claiming self-defense that person from the property, or
provoke it? ii. preventing the other person from
d. whether any party to the incident used or threatened to use a weapon; taking, damaging or destroying the
e. the size, age, gender and physical capabilities of the parties to the incident; property or from making it
- Not determinative, just a factor inoperative, or retaking the property
f. the nature, duration and history of any relationship between the parties to from that person; and
the incident, including any prior use or threat of force and the nature of
Factors:
that force or threat;
i. (f.1) any history of interaction or communication between the d. the act committed is reasonable in the
parties to the incident; circumstances.
- Battered spouse? Consider Lavalle discussed below - An objective inquiry
g. the nature and proportionality of the person’s response to the use or threat - Probably informed by the S.34(2)
of force; and factors
- Obviously this is pretty important, the force must be proportionate to - Presumably, factors such as the
be reasonable. value of the property are also
- The inquiry is generally only into what is necessary under the relevant
circumstances Exceptions:
h. whether the act committed was in response to a use or threat of force that
the person knew was lawful. (2) Subsection (1) does not apply if the person who
- Note the knowledge requirement, technically possible to use self- believes on reasonable grounds that they are, or
defense on an undercover cop who is believed on reasonable grounds to be, in
peaceable possession of the property does not
have a claim of right to it and the other person is
 35

- Other factors could be: where/when did this happen? Was A approached alone entitled to its possession by law.
at night in a park? Was A allowed to own the weapon they used? (3) Subsection (1) does not apply if the other
Exceptions person is doing something that they are required
or authorized by law to do in the administration or
(3) Subsection (1) does not apply if the force is used or threatened by another person
enforcement of the law, unless the person who
for the purpose of doing something that they are required or authorized by law to do in
commits the act that constitutes the offence
the administration or enforcement of the law, unless the person who commits the act
believes on reasonable grounds that the other
that constitutes the offence believes on reasonable grounds that the other person is
person is acting unlawfully.
acting unlawfully.
Issues/Considerations:
- Recent reform means that old case law is of little assistance, we don’t have great case law on the new rules
- Policy reasons: proportional conduct in defence of the self is not morally blameworthy
- Lavallee and battered spouse syndrome: In R v Lavallee [1990 SCC], expert evidence was used to establish why women stay
in these relationships, and may feel that killing is the only way to save their life. Accused able to use law of self defence
after shooting husband in the back. Courts now take judicial notice of these situations, so law of self-defence is modified in
this way.

R v Caswell (NEW LAW APPLIES RETROACTIVLY, AND EXAMPLE APPLICATION*) [2013] SK PC Pg. 6.3-3

- A and V are in an on-again/off again relationship. V’s favorite debate tactic is to smash A’s stuff. This time, she picks up a
tray and threatens his TV. A hits her in the shoulder, causing her to drop the TV.
- This happened in 2012. Does A get the benefit of the new law? Yes, the general presumption of non-retrospectivity is
rebutted because the law of defence is remedial, reflects society’s most current views / is the most current iteration of
parliament’s intent, and clears up a messy area of the law. A should get the benefit of it [6-11]

- Application of new provisions*:

 Reasonable grounds to believe he was in peaceful possession of the property, and there was a threat to it? Yes
 Act undertaken for purpose of protecting it? Well, A just has to raise a reasonable doubt, so Yes.
 Objectively reasonable under the circumstances? Judge finds yes, he didn’t do anything else to her that nigh.
Perrin not so sure. There was a history of violence in the relationship, and he ripped the phone cord out of the
wall before this happened.

R v Urquhart (AIR OF REALITY PUTS D IN PLAY – BUT C PROVES BARD THAT A WAS NOT) [2013] BC PC Pg. 6.3-10

- A and V get into a fight (the facts of this case are pretty funny if you have time). A is claiming that V came toward him
and responded in self-defense. Witnesses say he continued hitting even while V was on the ground. Facts are highly
disputed and A is not especially credible.

- Example of air of reality putting defence into play – possible that A can prove, so C must prove BARD that the elements
of the defence do not apply.
 Even if V had a subjective belief that he was acting in self-defense, he provoked the assault and was excessive,
therefore C has proven that the response was not reasonable, so defence not available.

NECESSITY
When and How Does it Operate?
- True defence, air of reality basis
- An excuse based on lack of moral voluntariness (wrong, but should not be punished)

Burden of Proof:
36
- If there is an air of reality, the Crown must prove BARD the absence of at least one of the elements defence in order to
prevent the defence from applying (Urquhart)

Test (Perka):
- Urgency: “At a minimum the situation must be so emergent and the peril must be so pressing that normal human instincts
cry out for action and make a counsel of patience unreasonable” [40].
 The conduct at the time of peril being negligent or illegal doesn’t disqualify, but the necessitous situation being
clearly foreseeable does [54].
 Must be inevitable, unavoidable, and afford no reasonable opportunity for an alternative legal course of action
[62]
- No legal means of escape: If there is any reasonable legal way to get out of the peril? The importance of this cannot be
overstressed [41].
 Only applies in “circumstances of imminent risk where the action is taken to avoid a direct and immediate peril”
 R v Nelson [2007 BC CA]: Two above elements assessed on a modified objective standard
- Proportionality: The harm avoided must be greater than the harm caused by the illegal act [44].
 This is assessed on a pure objective standard
- Prof: Is the choice “comply with the law, or suffer grave harm/die,” to the point where it’s arguable that there isn’t free will
at all?

Issues/Considerations:
- Historically this was never accepted, but Charter principles (ie, the S.7 principle that morally involuntarily conduct should
not be punished) make this another example of new common-law defenses being found.

R v Perka (DEFENCE OF NECESSITY) [1984] SCC Pg. 6.4-1

- Drug smugglers run into problem off the coast of Van Isle. They pull into a cove and offload the ku$h to save the ship
from capsizing.

- Supreme Court says there should be a defence of necessity:

 Theoretical: Utilitarian argument that it is justifiable to break the law if it results in less net harm, humanitarian
argument that it is excusable to break the law if compliance would impose an intolerable burden.
 Rationale: Just like we don’t punish physically involuntary conduct for fairness reasons, and because it’s
pointless from a deterrence point of view, so let’s extend this principle and excuse moral involuntariness [34].

DURESS
Here be dragons. Tread carefully – there are both statutory and common law duress defences, that apply in different situations.
Follow below flowchart carefully, and note incoherences as policy point.

When and How Does it Operate?

- True defence, results in acquittal, air of reality basis. Burden on Crown to disprove one element BARD
 Does not negate MR, but is a defence based on moral involuntariness: R v Hibbert [1995 SCC]

Test (as surviving, modified by common law, and vulnerable to future Charter challenges):
Criminal Code S. 17: "A person who commits an offence under compulsion by threats of immediate death or bodily harm from a person who is
present when the offence is committed is excused for committing the offence if the person believes that the threats will be carried out and if the
person is not a party to a conspiracy or association whereby the person is subject to compulsion, but this section does not apply where the offence
that is committed is high treason or treason, murder, piracy, attempted murder, sexual assault, sexual assault with a weapon, threats to a third
party or causing bodily harm, aggravated sexual assault, forcible abduction, hostage taking, robbery, assault with a weapon or causing bodily harm,
aggravated assault, unlawfully causing bodily harm, arson or an offence under sections 280 to 283 (abduction and detention of young persons)"

Since the statutory defence (S. 17) is so restrictive, the Supreme Court has interpreted it narrowly and read it down:
 37

1. Is the Is the accused a principal offender, or a party?

a. If principal offender, statutory defence applies
b. If party (aiders/abettors, common intention), the common law defence applies: R v Paquette [1976 SCC]

2. Is the offence one of the above excluded?

a. If offence is not excluded, difference between statutory and common law defence not so relevant (but note
incoherence in law anyway)
b. If the offence is excluded, the distinction is important
i. Principal offender and excluded offence = Need to make Charter challenge to exclusion (see step 4)
ii. Party offender and excluded offence = Note how strange it is that they are able to use the common law
defence when the principal will not be

3. Apply the elements of the relevant defence (Ryan):

a. Differences (most important if offence is excluded) [83]
i. Statutory applied to principals, while common law available to parties
ii. Statutory has exclusions, but “unclear” if any exist in the common law
iii. Where there are gaps in the statutory defence, the common law “supplements” and “clarifies” [44].
iv. Immediacy and presence requirements from statutory read out and supplemented with common law
requirement of close temporal connection (Ruzic)
b. Similarities (Ryan – both defences interpreted and applied “in light of” each other):
i. Explicit or implicit threat of death or bodily harm against the accused or the third party, including of
future harm
1. How “grievous” the threat is is no longer a necessity, but instead comes in at the proportionality
stage [60]
ii. Reasonable belief that threat will be carried out
1. Modified objective test [64]
iii. No safe avenue of escape
1. Modified objective standard – would a reasonable person think there was means of escape [65]
2. Replaces immediacy and presence requirements read out in Ruzic
iv. Close temporal connection between the threat and the harm threatened
1. Modified objective standard
2. Does not preclude future harm, but must be sufficient to conclude that there is “no safe avenue
of escape” and that the act was truly involuntary [68].
3. Linked with above, and also became important after immediacy and presence requirements were
read out in Ruzic
v. Proportionality between the harm threatened and the harm inflicted
1. Modified objective standard
2. Harm caused must be “equal to or no greater than” harm threatened + general moral judgement
about what society expects a reasonable person to do in that circumstance [73]
3. The harm must be sufficiently serious to make an act morally involuntary. Sell this weed or I’ll
give you a papercut might not be enough, even if the harm is “equal or lesser” [62]
4. Why? Because only a “proportionally grave threat, resisted with normal fortitude, can be
considered morally involuntary” [54]
vi. Accused cannot be party to a conspiracy or criminal organization such as the person is subject to
compulsion and actually knew that the threats and coercion were a possible result of this
activity/conspiracy/organization.
1. This is not in the common law, so it’s borrowed from the statute
2. Subjective standard – must have known was possible result [80]
38
3. Why? Because the voluntary assumption of risk is consistent with the principle of moral
involuntariness [77]

4. Discuss policy
a. Immediacy and presence requirements struck out in Ruzic as being violation of PFJ that involuntary conduct should
not be criminally punished
i. Provision was basically written to cover “gun to your head” situations only. Arguably not consistent with
Charter values (as demonstrated by reading out)
b. Excluded offences vulnerable to Charter challenge:
i. Principle that only voluntary conduct should attract the stigma and penalty of criminal liability (S.7) should
be applied to all criminal offences. Does proportionality requirement from common law not serve this
purpose? (Eg, committing arson with a gun to your head vs committing murder because of a future threat
to a third party)
ii. R v Aravena [2015] ON CA: Murder is not automatically excluded from the common law defence, but will
be extremely difficult to make out on the proportionality basis.
iii. R v Willis [2016] MB CA: Constitutional challenge to exclusion of murder fails, but incredibly
unsympathetic defendant and facts.
c. General incoherence of having two duress defences and difference based on principal/party – called
“unsatisfactory” and “incoherent” in Ryan at [83].
d. Similarity with necessity: why not have a single defence of “moral involuntariness”?
i. Why is proportionality in necessity purely objective, but modified objective for duress? (Ryan at [74])

R v Ruzic (IMMEDIACY AND PRESENCE REQUIREMENTS READ OUT – LACK OF MORAL [2001] SCC Pg. 6.5-1
VOLUNTARINESS IS A PRINCIPLE OF FUNDAMENTAL JUSTICE)

- A is caught smuggling heroin into Canada. She had been approached by a gangster back home in Sarajevo, who
threatened her and her family if she didn’t smuggle the drugs.
- The language of S.17 demands that the threat be “immediate,” and the threatener “present when the offence is
committed.” There is a Charter challenge to these limits on the defence of duress.

- Yes, Parliament is allowed to restrict or deny certain offences, but this is subject to constitutional review with defence
[23-26] (Eg., the removal of intoxication as a defence to drunk driving was not a S.7 violation)
- It is a PFJ that only voluntary conduct should be criminally punished because the stigma and penalty of criminal
responsibility is based on voluntariness and the assumption that humans are rational and autonomous. Conduct that
isn’t the result of reason and choice should not be punished [42-45]
- Court says the provisions are a violation of S.7 because the strict conditions allow for persons acting involuntary to be
punished. Instead, the analysis should be informed by the common law principles of absence of moral choice.

R v Ryan (COMMON LAW DEFENCE OF DURESS) [2013] SCC Pg. 6.5-25

- A is the victim of an abusive relationship. She pays an undercover cop to kill him, and is charged with murder. She is
acquitted at trial under the common law defence of duress.
- Supreme Court says no, duress must operate for the purpose of causing the person to commit the offence. Court
suggests she may have had an argument for self-defense, and orders a stay of proceedings (prosecution has become so
unfair that the court just won’t have anything to do with it, like in Stinchcombe).

- While they’re at it, Supreme Court clears up a few things about the law of duress:
 Self-defence is similar, but it’s a justification, and is therefore available in more cases
 Necessity and duress are excuses: moral involuntariness is not the same as moral innocence, and are only
applicable in cases of compulsion
 Since Ruzic, the statutory defence of duress remains for principal offenders, but as read-down, and informed by
common law principles. The common law defence, as informed by the statute, applies for party offenders.
 39

INTOXICATION:
When and How Does it Operate?
- Not a true defence, but rather a lack of capacity to form the necessary MR to commit the offence
Tests/Burden of Proof:
1. Determine of intoxication voluntary or involuntary
a. Involuntary – May provide a complete defence
b. Voluntary – Need to proceed with the analysis
2. Determine the degree of intoxication (Daley):
a. Mild – Relaxation of inhibitions and socially acceptable behavior
b. Advanced – Impairment of foresight into consequences of actions sufficient to raise a reasonable doubt about the
requisite MR
c. Extreme – “Akin to automatism,” extremely rare, probably can’t result from alcohol alone, accused may establish
on balance of probabilities
3. Determine the intention level of the offence (Tatton):
a. Overall
i. “Specific intent offences require the mind to focus on an objective further to the immediate one at hand,
while general intent offences require only a conscious doing on the prohibited act” [Daley at 35].
ii. Distinction lies in the complexity of the thought and reasoning processes that make up the mental
element of a particular offence, and the social policy underlying the offence” [Tatton at 21]
iii. Supreme Court notes that this area is confusing, leads to “arbitrary and inconsistent results,” and should
be cleared up by Parliament. Until then, here’s how we interpret: [22-25]
b. General
i. MR = “the minimal intent to do the act which constitutes the AR” [27]
ii. Since there is little thought and reasoning required, intoxication short of automatism will not deprive the
accused of mental fault.
iii. Policy reasons: these are “offences that persons who are drunk are apt to commit” [27]
c. Specific
i. MR = “a heightened mental element, for example the formation of ulterior motives and purposes” [28]
ii. Since there is more complicated thought and reasoning required, intoxication short of automatism may be
able to negate the required mental element
iii. Policy reasons: less pressing because drunk people are less likely to be able to commit these, often include
lesser, general intent offences
d. Interpretation (only proceed at each stage if previous step does not produce clear answer)
i. Existing jurisprudence
1. Specific:
a. Murder (Daley)
b. Robbery (Tatton)
c. Assault with intent to resist arrest (Tatton)
d. Possession of stolen property (Tatton)
2. General
a. Manslaughter (Daley)
b. Arson (Tatton)
c. Assault causing bodily harm (Tatton)
d. Sexual assault (Tatton)
ii. Statutory interpretation
iii. Mental fault element
40
1. How complex is the mental element? Is there need for an intent to bring about certain
consequences, external to the AR, or some special knowledge component? (Eg, assault with
intention to resist arrest, possession of stolen property)
iv. Role of policy [41]
1. Is alcohol habitually associated with the crime in question (sexual assault, property damage,
violence)? [42]
2. Is there a lesser, included general intent offence? [44]
3. Judicial discretion in sentencing (more discretion = more likely to be general) [45]
4. If intoxication extreme and offence general, apply S.33.1
a. Interpret elements of offence for assault, bodily interference, or threats of those
b. If yes, defence of intoxication unavailable, note possibility of Charter challenge
c. If no, defence available

Mild Advanced Extreme

General Irrelevant Irrelevant May negate general intent or physical voluntariness
– must be shown on balance of probabilities (Daley)
- This looks 11(d) suspect, but the Supreme
Court has said so.
But, subject to S.33.1 of the Criminal Code (can’t
excuse offences that involve violence).
Specific Irrelevant May be able to give rise to reasonable doubt May negate physical voluntariness for any specific
about whether necessary MR formed (Daley) intent offence – balance of probabilities
Could result in conviction for lesser included But, probably easier to just raise a reasonable doubt
general intent offense. about the MR

Criminal Code S.33.1:

When defence not available
33.1 (1) It is not a defence to an offence referred to in subsection (3) that the accused, by reason of self-induced
intoxication, lacked the general intent or voluntariness required to commit the offence, where the accused departed markedly from
the standard of care as described in subsection (2)
- Doesn’t matter what your fault level is, if you depart from the objective standard of care set out in (2), you will be denied
the defence
Criminal fault by reason of intoxication
(2) For the purposes of this section, a person departs markedly from the standard of reasonable care generally recognized in
Canadian society and is thereby criminally at fault when the person, while in a state of self-induced intoxication that renders the
person unaware of, or incapable of consciously controlling, their behavior, voluntarily or involuntarily interferes or threatens to
interfere with the bodily integrity of another person.
- You are deemed to be responsible for your conduct, even if you lack voluntariness, if you lack this voluntariness because of
your own self-induced intoxication. That is because getting that intoxicated is morally blameworthy in and of itself
Application
(3) This section applies in respect of an offence under this Act or any other Act of Parliament that includes as an element an
assault or any other interference or threat of interference by a person with the bodily integrity of another person.
- Violent offences: assault, homicide, uttering threats, pointing a firearm, kidnapping/forcible confinement.
- This section might be challenged under S.7, but it stands for now
Issues/Considerations:
 41

- Voluntary intoxication is morally blameworthy to some extent.

DPP v Beard (INTOXICATION MAY NEGATE SPECIFIC INTENT) [1920] UK HL Pg. 6.6-2

- Rape and murder case while A is voluntarily intoxicated.

- Historically, voluntary intoxication was not a defence, and was often in fact an aggravating factor.
- But, “where specific intent is an essential element in the offence, evidence of a state of drunkenness rendering the
accused incapable of forming such an intent should be taken into consideration in order to determine whether he had in
fact formed the intent necessary”
- If a person is, by reason of their intoxication, incapable of forming the intent to kill, they cannot be convicted of murder,
but can be convicted of the general intent offence of manslaughter

R v Daley (DEGRESS OF INTOXICATION – EXTREME MAY NEGATE ALL) [2007] SCC Pg. 6.6-2

- Accused has 30-40 drinks in a night. He is found passed out, with his wife stabbed to death. A remembers nothing.

- Review of the law of voluntary intoxication:

 Beard makes a distinction between specific and general intent crimes (modern test is from Tatton)
 Leary [1978 SCC] held that becoming voluntarily intoxicated was sufficient to supply the MR for a general intent
offence
 Daviault [1994 SCC] ruled that there are cases where a person can be so intoxicated that even a general intent
offence is not voluntary (very rare).
 Parliament responded to Daviault by passing S.33.1(no defence for general intent crimes that interfere with
bodily integrity of another)
 Current state of law for general intent offences is therefore that extreme intoxication is only available for
offences that do not have an element of interference with the bodily integrity of another [39]
 Current state of law for specific intent offences is that intoxication can negate the specific intent and reduce to
lesser general intent
- Reviews law around degrees of intoxication, above.
- Dissent disagrees that this was correctly explained to the jury – judge didn’t explain that Crown had to prove BARD that
A intended to kill, and that extreme intoxication would be a defence to that.

R v Tatton (THE BACON CASE – INTERPRETING GENERAL AND SPECIFIC INTENT) [2015] SCC Pg. 6.6-20

- Accused, alcoholic, is living in his ex’s house when she goes to visit a friend. He drinks 52 ounces of alcohol and leaves
her a voicemail about the house being on fire. He decides to make some bacon and puts a pan on the stove. Then he
forgets about it and drives (!) to Tim Hortons. He comes back to find the house on fire.
- Trial judge interprets the arson provision, and finds that it’s a specific intent offence. A’s extreme intoxication serves to
negate his MR for the crime (intentional or reckless), and he is acquitted.

- Court uses above criteria, determines that arson is a general intent offence, therefore A’s intoxication falling short of
automatism is not a defence (no need for special/complex thought).
- This test still isn’t perfect, four judges dissent from it.

NOT CRIMINALLY RESPONSIBLE ON ACCOUNT OF MENTAL DISORDER

- Not a true defence, may negate AR as well as MR, comes in before these elements are proven.
Operation/Burden of Proof:
- Different scenarios for use (R v Swain [1991 SCC]):
 Accused may plead NCR at outset of the trial
42
 Accused must prove on balance of probabilities that they had the disorder at the time of the offence
 Accused may choose to plead not guilty, and advance other arguments/defences
 If these fail and accused is found guilty, they may change their plea to NCR, and a hearing will be held
before a conviction is entered (same burden of proof as above)
 Crown may raise evidence of the accused’s mental disorder during trial, if the accused puts their mental state at
issue (eg, by raising evidence that they were seeing a psychiatrist at the time)
 Crown will have the burden of proof, on a balance of probabilities
 Crown has duty to consider this if evidence of mental disorder starts coming out during trial
 Crown may raise evidence of mental disorder after a finding of guilt is made, but before a conviction is entered
 Crown will have the burden of proof, on a balance of probabilities

- Judge must use Stone [1999 SCC] factors to see if defences exist on an air of reality
 Internal/external cause – More internal (would ordinary person in same circumstances have same reaction?) =
more likely NCR
 Continuing danger – More likely to happen again/need treatment = more likely NCR
 Public safety and policy – More dangerous = more likely NCR

- If overlap with intoxication, note Turcotte: Jury must find what the cause of the incapacity is.
Test:
Section 16:

Defence of Mental Disorder:

16(1) No person is criminally responsible for an act committed or an omission 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

- Note "act/omission" not offence, "while suffering" contemporaneity requirement, and two branches of test

Presumption
(2) Every person is presumed not to suffer from a mental disorder so as to be exempt from criminal responsibility so as to
be exempt from criminal responsibility by virtue of subsection (1), until the contrary is proved on the balance of
probabilities

Burden of Proof
(3) The burden of proof that an accused was suffering from a mental disorder so as to be exempt from criminal
responsibility is on the party that raises the issue.

Definition:

- “Mental disorder” is defined in S.2 as “disease of the mind.” This exists to important common law jurisprudence into the
definition.
- R v Cooper [1980 SCC]: “Disease of the mind” in legal sense “embraces any illness, disorder or abnormal condition which
impairs the human mind and its functioning, excluding., however, self-induced states caused by alcohol or drugs, as well as
transitory mental states such as hysteria or concussion…the disease must be of such intensity as to render accused
incapable of appreciating nature/quality of act or knowing it was wrong"
- Commentary:
 A person’s mental capacity can be affected by many things, but not all can lead to a finding of NCR
 With our modern knowledge of substance use disorders, is it still viable to say that self-induced intoxication is
never the outcome a mental disorder?
 43

 What’s up with the “transitory states” stuff? This seems a bit outdated since 1980, are some mental disorders
more “serious” than others
 The mental disorder but be “cognizable to science” and have a name/diagnosis
 Merely having a diagnosed mental disorder does not mean a person is MCR. Our prisons are full of people with
diagnosed mental health conditions

Branches of the Test:

1. “Incapable of appreciating the nature and quality of the act or omission”

a. Cooper v The Queen [1980 SCC]: To “appreciate” the nature and quality of an act, the person must “have the ability
to perceive the consequences, impact, and results of the physical act,” and not just be aware of the action itself.
i. Test is therefore “was the accused person deprived on the mental capacity to foresee and measure the
consequences of the act”
ii. Ie, it’s easier to prove that A couldn’t appreciate than having to prove they didn’t know

2. “Knowing it was wrong”

a. R v Oommen: This is not about a person’s general capacity to know right from wrong in the abstract, but rather the
capacity to apply that understanding in a rational way at the time of the act: “The crux of the inquiry is whether
the accused lacks the capacity to rationally decide whether the act was wrong and hence to make a rational choice
about whether to do it or not [26]”
b. R v Turcotte: If overlap with intoxication, jury must consider whether the loss of capacity was a result of the mental
disorder or the intoxication, or if the intoxication was a product of the mental disorder.

Dispositions and Policy:

- The result of a successful use of this defence* is that the person is found Not Criminally Responsible by Reason of Mental
Disorder (NCRMD).
- This is not a finding of guilt or an acquittal, but rather a special verdict that makes the person subject to the provisions of
Part XX.1 of the Criminal Code:
 Judge or Review Board may make one of the following dispositions (“taking into account the safety of the public,
which is the paramount consideration”):
 If accused it not found to be a “significant threat to the safety of the public,” absolute discharge
 If accused found to be a significant threat, discharge with conditions or an order of detention in a
psychiatric facility, to be reviewed by the Review Board
 Since the 2013 Not Criminally Responsible Reform Act, courts can declare persons a “high-risk accused”
where they are subject to automatic detention and less frequent reviews.
 Must be “substantial likelihood that the accused will use violence” or “the acts that constitute
the offence were of such a brutal nature as to indicate a risk of grave physical or psychological
harm”
 Note language is not “risk,” but “significant threat,” even after reforms
 Note that for certain minor offences, the accused may actually prefer to be found guilty. This is why either party
can raise (Crown’s job is to protect the public interest, not to secure convictions, and society is better served by
these people getting treatment than going to prison).
- Policy considerations:
 Fundamental justice – our modern understanding of psychology makes it hard to says that these crimes are
morally blameworthy
 Deterrence – these people aren’t thinking rationally, deterrence will not work
 Denunciation – we don’t want to say that people with mental illness are deserving of condemnation
 Humanity – putting mentally ill people in fail isn’t going to help them much
44
R v Oommen (“INCAPABLE OF KNOWING ACT WAS WRONG” NOT IN ABSTRACT) [1994] SCC Pg. 6.7-5

- A has insane delusions. He genuinely believes that his girlfriend has been recruited into the conspiracy to kill him, and
shoots her in “self-defense”.
- A is totally aware that murder is wrong – what does “incapable of knowing it was wrong” mean?

- Defence is available to the accused – history of the common law insanity provision reveals that the question is “whether
the accused lacks the capacity to rationally decide whether the act is right or wrong and hence to make a rational choice
about whether to do it or not” [26]. If an accused’s mental state is so disordered that they can’t apply right and wrong in
a normal way, they lack capacity.
- This isn’t the same as saying “judged it wrong in light of his own conscience” – It’s about a person’s capacity to apply
their knowledge

R v Turcotte (INTERACTION BETWEEN NCR AND INTOXICATION) [2013] QB CA Pg. 6.7-16

- A, depressed and suicidal, decides to kill himself by drinking windshield washer fluid. He gets extremely intoxicated from
the methanol in it and ends up killing his children. Is a defence of NCR available on an air of reality?

- First, when is there an air of reality to a disease of the mind?

 Is the trigger internal or external? If a normal person placed in the same circumstances would fall into a similar
mental condition= more likely to be external cause = less likely to be NCR
 Continuing danger factor – greater the chance of a recurrence “independent of the exercise of the will” = more
likely to be internal cause = more likely to be NCR
 Policy concerns – does the condition require a particular treatment? Is it a threat to others? Yes = more likely to
be NCR
 NB: These are factors for the judge to look at when deciding if the defence is in play. The jury then makes a
finding of fact
- How to apply to this case? Policy factors from R v Stone [SCC 1999] dictate when NCR has an air of reality
 Internal cause: expert evidence suggested that the mental disorder played a role in the crime
 Continuing danger: unclear, but not a determinative factor
 Policy: A was very clearly a threat to others
- So NCR is on the cards. How does the jury actually decide?
 The fact of voluntary intoxication does not render the defence of NCR unavailable. The jury must make a finding
of fact about what the cause of the lack of capacity was [82].
 Therefore, the case needs to go back to trial. The jury needs to answer whether the lack of capacity was result
of the intoxication, mental disorder, or both. If both, the intoxication can be a result of the mental disorder,
which would make the mental disorder the cause of the lack of capacity[86].
 Self-induced intoxication does not rule out the defence of mental disorder unless it is the sole cause of the
psychosis. However, the defence of mental disorder must not turn into another form of self-induced
intoxication. "Consequently, the jury must understand that, if it finds that there was a mental disorder, it must
continue its analysis and ensure that the source of the accused's incapacity was truly the mental disorder, in
spite of the intoxication. In this sense, as previously stated, the instructions must address the degree to which
the self-induced intoxication contributed to the incapacity, so that the greater the effects of the intoxication,
the less likely the acceptance, by the jury, of a defence of mental disorder" [118].

*** NOTE TO FUTURE OUTLINE USERS: ***

The below material was deleted from the course syllabus due to the COVID-19 pandemic. It was not taught or examined, and I am
therefore less certain of its thoroughness or accuracy. I have outlined it only for the sake of my own knowledge and reference. It
should not be relied upon on its own as I am only guessing what the ratio of each case is.

***SENTENCING ***
 45

PROCESS
The Criminal Code will, for a given offence, lay out the range of possible sentences for a given offence (always a maximum, and
sometimes a minimum). Within this range, the trial judge must fix a sentence that is proportionate to the gravity of the offence and
the blameworthiness of the offender (S. 718.1).

The trial judge will be guided by the factors listed in S. 718 of the Criminal Code, as well as the case law (eg, considering aggravating
and mitigating factors). The principle of parity (718.2(b)) dictates that a sentence should be “similar to sentences imposed on similar
offenders for similar offences committed in similar circumstances.”

Evidence related to sentencing (the accused’s past criminal record, evidence of attempts at rehabilitation) can be introduced by the
Crown and Defence at the sentencing hearing. The Crown must prove any additional facts BARD if not established on the trial
record.

The Crown and Defence may make a joint submission as to the appropriate sentence (usually the result of negotiations), but the final
decision is always with the judge. The only role for the jury to play in sentencing occurs in the case of second degree murder, where
the jury is asked to recommend a period of parole ineligibility.

PURPOSES
Purpose
S. 718: The fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to
respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the
following objectives:
(a) to denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct;
(b) to deter the offender and other persons from committing offences;
(c) to separate offenders from society, where necessary;
(d) to assist in rehabilitating offenders;
(e) to provide reparations for harm done to victims or to the community; and
(f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims or to the community.
 
Objectives — offences against children
718.01 When a court imposes a sentence for an offence that involved the abuse of a person under the age of eighteen years, it shall
give primary consideration to the objectives of denunciation and deterrence of such conduct.
 
Objectives — offence against peace officer or other justice system participant
718.02 When a court imposes a sentence for an offence under subsection 270(1), section 270.01 or 270.02 or paragraph 423.1(1)(b),
the court shall give primary consideration to the objectives of denunciation and deterrence of the conduct that forms the basis of
the offence. 

PRINCIPLES 
Sentencing Principles
718.1 A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.
 
718.2 A court that imposes a sentence shall also take into consideration the following principles:
(a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to
the offence or the offender, and, without limiting the generality of the foregoing,
(i) evidence that the offence was motivated by bias, prejudice or hate based on race, national or ethnic origin,
language, colour, religion, sex, age, mental or physical disability, sexual orientation, or gender identity or expression, or
on any other similar factor,
(ii) evidence that the offender, in committing the offence, abused the offender’s intimate partner or a member of the
victim or the offender’s family,
(ii.1) evidence that the offender, in committing the offence, abused a person under the age of eighteen years,
(iii) evidence that the offender, in committing the offence, abused a position of trust or authority in relation to the
victim,
46
(iii.1) evidence that the offence had a significant impact on the victim, considering their age and other personal
circumstances, including their health and financial situation,
(iv) evidence that the offence was committed for the benefit of, at the direction of or in association with a criminal
organization,
(v) evidence that the offence was a terrorism offence, or
(vi) evidence that the offence was committed while the offender was subject to a conditional sentence order made
under section 742.1 or released on parole, statutory release or unescorted temporary absence under the Corrections
and Conditional Release Act
shall be deemed to be aggravating circumstances;
(b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar
circumstances;
(c) where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh;
(d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and
(e) all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm
done to victims or to the community should be considered for all offenders, with particular attention to the circumstances of
Aboriginal offenders.

OPTIONS
Imprisonment: Only results in about one-third of guilty cases, and less than 4% of guilty cases result in detention in a federal facility
(for a sentence of more than two years). S. 718.2 (d) and (e) dictate that sentences of imprisonment should be avoided if less
restrictive sanctions are appropriate, especially for indigenous offenders.

R v M. (C.A.) (NO CONSITUTIONAL UPPER LIMIT ON LENGTH OF FIXED TERM SENTENCES) [1996] SCC Pg. 7.1-4

- A is convicted of eleven counts of sexual assault, incest, uttering threats, and physical and sexual abuse of children. None
of the individual offences carried a life sentence, but the judge says that these offences were, in total, as bad as anything
he’d seen and sentenced A to 25 years’ imprisonment.
- BC Court of Appeal says that the totality principle means that there is an upper limit of 20 years for fixed-term (not life)
sentences.

- Judges have wide discretion in determining what a "just and appropriate under the circumstances" sentence is [40].
There is no fixed limit, but sentences are limited by the totality principle that consecutive sentences for multiple offences
should not "exceed the overall culpability of the offender" [42]. Although it will be rare, a 25 year sentence can be just
and appropriate.

Conditional Sentence of Imprisonment (S. 742): An alternative to imprisonment for sentences of less than two years where there is
no danger to the community or mandatory minimum.

Meant to be an alternative to imprisonment (with the condition precedent of community safety), and is therefore more restrictive
than probation. Comes with strict surveillance in the community, remainder of sentence can be ordered to be served in jail if terms
are breached. It cannot be paroled out of early, so while it does reduce incarceration and hopes to be rehabilitative, it is not
necessarily much “lighter” than imprisonment.

There is no presumption for or against this sentence, but rather must be decided by the judge in light of the principles and purposes
of sentencing in S. 718.

R v Proulx (CONDITIONAL SENTENCE OF IMPRISONMENT PRINCIPLES AND APPLICATION) [2000] SCC Pg. 7.2-2

- A is convicted of dangerous driving causing bodily harm, had been drinking. Sentenced to 18 months imprisonment at
trial. The Court of Appeal substitutes a conditional sentence.

- The conditional sentence of imprisonment is specifically enacted to be more rehabilitating that imprisonment, and to
reduce the rate of incarceration. It has rehabilitative purposes similar to probation, but is distinguished by also having a
valid punitive purpose [33-34], strict surveillance in the community [36], being served in jail if conditions are violated
[39], and no parole [43]. It is therefore not necessarily much “lighter” than imprisonment.
 47

- In deciding whether to apply, the following must be satisfied:

 There must be no mandatory minimum imprisonment, and a sentence of less than two years is appropriate.
 Community safety is a condition precedent, considered in light of both the risk of re-offender, and the gravity of
harm that could result [127.6]
The judge must then consider whether such a sentence is appropriate, in light of the fundamental purposes and
principles of sentencing in S.718. If the purposes of denunciation and deterrence are pressing, incarceration may be the
only appropriate sanction [127.8]

Probation (S. 731): The most common type of sentence imposed on adults. Unlike a conditional sentence, probation is meant to be
solely rehabilitative, so punitive probation conditions may be struck down (Proulx).

Fines (S. 734): The offender is made to pay a fine, and can be imprisoned if in default on it. Money goes to the state, not the victim.
Ability to pay must be considered (S. 734(2), and there are provincial “Fine Option Programs” that allow offenders to work for credits
against the fine (S. 763).

Restitution (S. 737-39): If a victim has “readily ascertainable” pecuniary losses (property damage, lost income from injury), the
offender can be ordered to pay restitution.

Discharges (S. 730): When in the best interests of the accused, and not contrary to the public interest, court can order discharge
absolutely, or with conditions (eg, community service). Cannot be given when there is a mandatory minimum, or a 14-to-life
sentencing option.

***CONSTITUTIONAL CONSIDERATIONS ***

Charter S.12: “Everyone has the right not to be subjected to any cruel and unusual treatment or punishment.”

R v Smith (1987, SCC): “Section 12 is breached when the punishment or treatment prescribed is so excessive as to outrage standards
of decency"
Examples of S.12 violations:
- Solitary confinement in 24-hour light with 30 minutes exercise per day (McCann, under old Canadian Bill of Rights)
- Excessive mandatory minimums (Smith – seven years for importing narcotics, Nur – Three years for possessing restricted
firearm)
- Imprisonment for default on a parking ticker (Joe).
- Obiter in Smith – other examples could be
 Frequency and conditions of searches within prisons
 Dietary restrictions as a disciplinary measure
 Corporal punishment
 Surgical intervention including lobotomies and castration
 Denial of contact with those outside the prison
 Imprisonment at locations far from home, family, friends – virtual exile (this is relevant to female offenders due to
fewer federal penitentiaries for women)

Ruled not to be a S.12 violation:

- Indeterminate detention for dangerous offenders (Lyons) or first-degree murderers (Luxton)
- Non-excessive mandatory minimums (Morrisey – four years for criminal negligence causing death with a firearm, Ferguson
– four years for manslaughter with a firearm)
- Cancelling mother-baby program at women's facility (but was S.7 violation, Inglis)

R v Nur (MANDATORY MIMUMUM IS GROSSLY DISSPORTIONATE) [2015] SCC Pg. 7.3-1

- Is a three-year mandatory minimum sentence (if the Crown proceeds by indictment) for possessing a loaded restricted
firearm a S.12 violation?

- Yes.
48
 S. 12 violations must pass a high bar. A cruel and unusual punishment is more than merely excessive, but is
rather "grossly disproportionate to the punishment that is appropriate, having regard to the nature of the
offence and the circumstances of the offender." [39]
 The inquiry is therefore into what a proportionate sentence for either the offence at hand, or a reasonably
foreseeable hypothetical would be, and whether the mandatory minimum would be grossly disproportionate
with that. Thus, even though the mandatory minimum was not grossly disproportionate in this case, the court
could still rule it unconstitutional.
 A reasonably foreseeable hypothetical does not have to be likely, it just has to not be "remote or far-fetched."
Otherwise, a person in an uncommon situation will not know whether the mandatory minimum is constitutional
or not. We should look at reported cases to see the sort of conduct that actually comes within the scope of the
offence, and make reasonable inferences.
- The fact that the minimum did not apply if the Crown proceeded summarily, or the possibility of parole, did not save the
penalty from being deemed grossly disproportionate.

R v Lloyd (MAJORITY DOESN’T LIKE MANDATORY MINIMUMS) [2016] SCC Pg. 7.3-31

- One-year mandatory minimum for any person convicted of drug trafficking if they have a prior trafficking conviction in
the past ten years

- McLachlin Majority:
 Mandatory minimum penalties for broad offenses that capture a wide range of conduct are constitutionally
vulnerable because they will frequently capture a reasonable hypothetical for which the mandatory minimum
would be unconstitutional [35].
 If Parliament wants to sustain mandatory minimum penalties, it should either narrow their application, or build
in a "safety valve" for outlier cases
- Wagner Dissent:
 There is a very high threshold for infringements of S.12, and for good reason. Parliament has a legitimate role in
the sentencing process and the courts very rarely strike down mandatory minimums (only when they are
grossly disproportionate).

***INDIGENOUS OFFENDERS ***

Criminal Code S.718.2(e) - "All available sanctions other than imprisonment that are reasonable in the circumstances should be
considered for all offenders, with particular attention to the circumstances of aboriginal offenders." – A response to the massive
over-incarceration of Indigenous Canadians, added in 1996.

R v Gladue (INTERPRETATION OF S. 718.2(E)) [1999] SCC Pg. 7.4-1

- Aboriginal offender pleads guilty to manslaughter after stabbing her fiancée. There was a mixture of aggravating and
mitigating factors.
- Trial judge says that since O didn’t live in an aboriginal community, there is no unique circumstance to pay attention to,
and imposes a three-year sentence.

- Interpretation:
 S. 718.2(e) is remedial in nature, and there is a judicial duty to give full effect to its remedial purpose [34].
 There is a clear recognition that the circumstances of aboriginal offenders are unique: “there is something
different about aboriginal offenders which may specifically make imprisonment a less appropriate or less useful
sanction"[37].
 There is also a clear intention to "expand the parameters of the sentencing analysis for all offenders" in the
reforms, in response to a serious crisis of overincarceration [47].
 The fact that courts are called upon to consider these unique circumstances is not unfair to non-aboriginal
people. It just treats aboriginals fairly by "taking into account their difference" [87].
 There is no reason to restrict the application to aboriginals living in a community. The provision should apply at
least to everyone who comes within the scope of S.35 [92].
 49

- Application:
 Judges must undertake a holistic sentencing analysis in every case to determine a fit sentence. In the case of
aboriginal offenders, this means that the unique circumstances of aboriginal Canadians must be taken notice of.
These circumstances include the systemic factors affecting aboriginal people, and which may have played a part
in bringing the particular aboriginal offender before the court, as well as the priority given in their cultures to
restorative sentencing. The pre-sentence report should take into account additional case-specific information,
which may be gathered from the relevant aboriginal community.
 This does not mean that an aboriginal offender will necessarily get a lower sentence , especially as crimes get
more violent and serious [79]. Judges must be flexible, consider all of the circumstances, including the purposes
behind sentencing and the values of the community. But the provision means that judges have discretion and
flexibility in deciding what is just and appropriate for an aboriginal offender [81].

R v Ipeelee (GLADUE AFFIRMED AND CLAIRIFIED) [2012] SCC Pg. 7.4-25

- Two Os are caught breaching their long-term supervision orders and sentenced to prison. Their Gladue rights are
considered at sentencing, but the trial judges say that protection of the public is the primary consideration in these
cases, with the O’s aboriginal identity being of “diminished importance.”

- The overincarceration of aboriginal offenders has not subsided since the introduction of S. 718.2(e). In fact it has
arguably gotten worse. Some things about the application of Gladue to clear up:
 “To be clear, courts must take judicial notice of such matters as the history of colonialism, displacement, and
residential schools and how that history continues to translate into lower educational attainment, lower
incomes, higher unemployment, higher rates of substance abuse and suicide, and of course higher levels of
incarceration for Aboriginal peoples”
 There is not a need to prove a causal link between the background factors and the crime for them to be
considered. However, if they do not bear on the offender’s culpability, then there is no reason for them to
influence the ultimate sentence.
 The observation in Gladue that more violent and serious offences are more likely to have similar sentences does
not mean that the principles do not apply to serious offences (a category that doesn’t even exist in the Criminal
Code).
 Failure to apply Gladue to any case involving an aboriginal offender runs afoul of the Criminal Code.

***VICTIMS ***

R v B.P. [2015] NS PrCt: “The criminal justice system is frequently experienced by victims as alienating, confusing, and stressful.
Despite their intimate experience of harm and loss, victims have felt excluded, relegated to looking on as the case proceeds.”

There remain significant problems with how the criminal justice system treats victims, but the emerging body of Victim Law
addresses some of these issues and attempts to advance the rights and interests of victims. Seven core pillars:

1. Although the conceptualization of crimes as against the state is better than the bad old days of private prosecution, we
should avoid moving too far in the opposite direction and shutting victims out of the process completely. Instead, we should
recognize the interests and legal rights of victims as being greater than that of the society as a whole.
2. Prevents secondary victimization that can result from a complainant's experience with the criminal justice system,
especially in cases of sexual assault.
3. Supports victims in recovery, even beyond the criminal law process and in some cases regardless of a successful prosecution
4. Increases the likelihood that victims will report crime by addressing the reasons what they do not (eg, publication bans to
protect a complainant's identity). This is important because vulnerable victims being less likely to come forward undermines
the equal application of the law.
5. Encourages restorative justice, such as sentencing circles, mediation, and reparations, where appropriate. The inclusion of
"harm done to victims or the community" in the Criminal Code sentencing principles reflects this.
50
6. Facilitates the evidence of victims in criminal trials (eg, by allowing them to give videotaped statements if being on the
stand would not be possible).
7. Reconciles the rights and interests of victims and the accused/third parties (eg, via publication bans where appropriate).
This is not a hierarchical approach, but rather a balance (eg, the above testimonial aids still permit the witness to be cross-
examined).

The Canadian Victims Bill of Rights:

- Defines a victim widely: "an individual who has suffered physical or emotional harm, property damage or economic loss as
the result of the commission or alleged commission of an offence." – therefore includes anyone who suffers, not just a
direct victim, and doesn’t require a conviction or even a charge.
- Gives victims rights to information (status of investigation, plea agreements, parole reviews, release conditions), protection
(security and privacy, eg testimonial aids), participation (eg, right to make a victim impact statement and have it
considered), reparations (eg, right to have courts enforce restitution orders), and remedies (no independent cause of
action, but can file complains under the Victims of Crime Act).

Criminal Code S. 722: Victim Impact Statements:

- Used after conviction, when determining sentence
- Should "describe the physical or emotional harm, property damage or economic loss suffered by the victim."
- Court "shall consider" the statement in making its sentencing determination.