Crim (Perrin) - 2018 Courtney Gibbons

CRIMINAL LAW
COURTNEY GIBBONS
SPRING 2018
EXAM CODE: 6075
Table of Contents
BURDEN AND STANDARD OF PROOF.............................................................................................................................................. 3
CROWN PROSECUTION.................................................................................................................................................................. 4
DEFENCE COUNSEL........................................................................................................................................................................ 4
DELAYS.......................................................................................................................................................................................... 4
ACTUS REUS.................................................................................................................................................................................. 5
VOLUNTARINESS..........................................................................................................................................................................................5
CONTEMPORANEITY.....................................................................................................................................................................................5
ACTS AND OMISSIONS..................................................................................................................................................................................5
CONSEQUENCES AND CAUSATION...................................................................................................................................................................6
INTERVENING CAUSES...................................................................................................................................................................................7
MENS REA..................................................................................................................................................................................... 8
REGULATORY OFFENCES AND MENS REA.........................................................................................................................................................8
STRICT LIABILITY..........................................................................................................................................................................................9
SUBJECTIVE LEVELS OF MENS REA..................................................................................................................................................................9
RECKLESSNESS AND DELIBERATE IGNORANCE..................................................................................................................................................10
OBJECTIVE FAULT OFFENCES:......................................................................................................................................................................10
AIDING AND ABETTING................................................................................................................................................................ 11
COMMON INTENTION.................................................................................................................................................................. 13
DEFENCE OF ABANDONMENT.......................................................................................................................................................................14
ATTEMPTS................................................................................................................................................................................... 14
DEFENCES.................................................................................................................................................................................... 16
AIR OF REALITY TEST:.................................................................................................................................................................................16
MISTAKE OF FACT........................................................................................................................................................................ 16
MISTAKE OF LAW......................................................................................................................................................................... 16
OFFICIALLY INDUCED ERROR........................................................................................................................................................................17
SELF DEFENCE.............................................................................................................................................................................. 18
DEFENCE OF PROPERTY................................................................................................................................................................ 19
DEFENCE OF NECESSITY................................................................................................................................................................ 20
DURESS....................................................................................................................................................................................... 21
STATUTORY DEFENCE FOR PRINCIPAL OFFENDERS (SECTION 17):......................................................................................................................21
COMMON LAW DEFENCE OF DURESS FOR PARTIES TO AN OFFENCE (RYAN)........................................................................................................23
INTOXICATION............................................................................................................................................................................. 23
NOT CRIMINALLY RESPONSIBLE................................................................................................................................................... 26
SELF-INDUCED INTOXICATION AND NCR IF YOU’RE ANYWHERE BUT QUEBEC........................................................................................................27
(R V BOUCHARD-LEBRUN):.........................................................................................................................................................................27
SELF-INDUCED INTOXICATION AND NCR IF YOU’RE IN QUEBEC (R V TURCOTTE):..................................................................................................27
SENTENCING................................................................................................................................................................................ 28
PLEA AGREEMENTS....................................................................................................................................................................................28
SENTENCING AND SECTION 12.....................................................................................................................................................................30
SENTENCING: MANDATORY MINIMUMS.......................................................................................................................................................31
SENTENCING: INDIGENOUS OFFENDERS.........................................................................................................................................................32
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VICTIMS....................................................................................................................................................................................... 32
Burden and Standard of Proof

Section 11(d) of the Charter: “Any person charged with an offence has the right to be presumed innocent until
proven guilty according to law in a fair and public hearing”
Section 1 of the Charter: Guarantees the rights and freedoms set out in it subject only to such reasonable limits
prescribed by law can be demonstrably justified in a free and democratic society.
Application:
- Presumption of innocence: whether the presumption arises in relation to a defence or an element of the
offence, it will violate 11(d) if it gives rise to the possibility that the accused will be convicted despite
the existence of a reasonable doubt (R v Whyte).
- If the accused is required to prove or disprove on burden of proof an element of the offence, or an
excuse, that provision violates s. 11(d) (R v Downey)
- The reversal of burden of proof is saved by s 1 when provision reflects fundamental importance to
society, is rationally connected to parliament’s objective, means chosen is proportional to objective, and
a minimal infringement on Charter rights (R v Keegstra).
- What the burden of proof is (R v Lichfus):
o Always intertwined with the presumption of innocence
o Burden always rests with the Crown
o A doubt has to be rooted in evidence or lack of evidence
o Not an absolute certainty, nor proof beyond any doubt
o Based on reason and common sense, not sympathy or prejudice
o Higher than a balance of probabilities – probable guilt, must acquit
- Questions involving credibility in relation to reasonable doubt take this formulation (R v JHS):
o If you believe the evidence of the accused, then acquit them
o If you do not believe the testimony of the accused, but are left in reasonable doubt by it, then
acquit them
o Even if you are not left in doubt by the evidence of the accused, ask whether, on the basis of the
evidence which you accept, you are convinced beyond a reasonable doubt by that evidence of the
guilt of the accused
If Section 11(d) is infringed:

Infringement of s 11(d) can only be justified under s 1 when
1. The objective of the law must be fundamentally important to society
2. The infringement must be:
a. Rationally connected to the objective of the law
b. Minimally impair the charter right
c. The benefits and drawbacks must be proportional
Analogize:
Reversal of onus under a Narcotic Control Act provision. R v Oakes:
- Oakes was caught with a small amount of hash oil and charged with possession under s 4(2) of the
Narcotic Control Act. Under Act, mandatory assumption that possession implies the intent to traffic.
Accused is required to rebut this presumption.
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o S. 8 establishes a rebuttable mandatory presumption, which places a legal burden on accused to
disprove purpose of trafficking on balance of probabilities. Violates 11(d) unless saved by s. 1.
- Conclusion: S.8 of the NCA is inconsistent with Section 11(d) of the Charter, not saved by s. 1, and is
therefore of no force or effect.
Reversal of burden of proof saved by s. 1. R v Keegstra:
- Keegstra was charged with hate speech under s 319(2) of the Code for teaching hatred of Jews to his
students. He argued that 319(3)(a) violated s 11(d) by burdening him with the onus to prove the truth of
his statements.
- Conclusion: Section 11(d) was infringed, but it is saved by s. 1.
Crown Prosecution
Boucher v The Queen: The purpose of crown counsel is not to obtain a conviction, but to have a neutral
attitude and lay before a jury all credible evidence relevant to the alleged crime. Public duty, rather than
winning a competition.
Disclosure (R v Stinchcombe):
- Crown has a legal obligation to disclose all relevant information to the defence
- Crown does have limited discretion with respect to timing, privilege, and relevance of information
Defence Counsel
Everyone has the right on arrest or detention to retain and instruct counsel without delay and be
informed of that right.
Defence counsel’s conduct must be so poor that it results in a miscarriage of justice for a new trial to be
ordered (R v Meer).
Delays
Any person charged with an offence has the right to be tried within a reasonable time (Section 11(d) of
the Charter).
Presumptive Ceiling for Time it Should Take to Bring an Accused Person to Trial (R v Jordan):
- 18 months for cases going to trial in provincial court
- 30 months for cases going to trial in superior court
Test to establish unreasonable delay and/or justification (R v Jordan):

Defence must establish that:
1. It took meaningful steps to expedite the process
2. The case took longer than it should have
Two defences to delay:
1. The accused waived the inclusion of time periods in the overall assessment of reasonableness
2. Delay caused by conduct of the defence
Exceptional Circumstances
1. Reasonable unforeseen or unavoidable
2. Crown cannot reasonably remedy the delays that thereby result
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Actus Reus
Introduction Pre-write: In order for the actus reus of an offence to be established, contemporaneity, physical
voluntariness, and the act (or omission) must all be proven. Consequences and causation must also be proven
for certain offences.
Voluntariness
Pre-Write: Consisderations of voluntariness seek to decide whether the accused had a conscious mind and
controlled body in the commission of the offence (R v Ruzic). The accused must have a willing mind at liberty
to make a definite choice – whether the accused knew or not that the action in question was prohibited by law
(R v King).
Application:
Physical voluntariness with deportation. R v Larsonneur:
- Accused was put on a boat after deportation, and returned to place she was deported from an arrested.
o Accused did not have control over her return to the country. No voluntariness.
Physical voluntariness and anesthetic. R v King:
- Anesthetic causes amnesia and unpredictable effects. Defendant got into his car and drove, colliding
with parked vehicle.
o No voluntariness – accused did not have a willing mind at liberty to choose course
Question of moral involuntariness. R v Ruzic:
- Accused was charged with possession of drugs and use of a false passport. A man had threatened to
harm her mother if she did not do so.
o Similar to physical involuntariness, accused was not acting autonomously. Protected under s. 7
of the Charter. Requires a guilty mind. Defence of duress applies here.
Contemporaneity
Pre-Write: The principle of contemporaneity requires that there is a temporal overlap between the actus reus
and mens rea. At some point, the actus reus and mens rea must coincide (Fegan). This may occur either in
continuing action or single transaction (Pare).
Acts and Omissions
Undertakings
- In order for an act to be an undertaking that gives rise to a legal duty to follow through, there must be a
binding commitment with clear intent to follow through (R v Browne).
o Application: In R v Browne, accused’s girlfriend began over overdosing and accused says he
will take her to the hospital. Calls a taxi instead of an ambulance and she dies.
Statutory Duty of Care

- Section 180 imposes a statutory duty of care: “a nuisance that endangers the life or health of the public,
or causes damage to a person, is liable for an indictable offence”
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o Application: R v Thornton, accused knew he had HIV and chose to donate his blood. The
statutory duty of care was thus breached.
Consent – Implicit Duty to Obtain

Fraud will vitiate consent where there is (R v Mabior):
1. A dishonest act
2. Deprivation of knowledge
3. Plausible risk of actual harm resulting from that deprivation
**No legal duty to disclose if there is no plausible risk
- Application: in R v Mabior, the Accused has HIV, had unprotected sex with multiple women and didn’t
tell them. No one contracted HIV.
o Because the Mabior’s viral load was very low, he did not vitiate consent. There needs to be a
realistic possibility that HIV will be transmitted, otherwise consent is not vitiated.
- Application: R v Hutchinson, accused poked holes in condoms used during sex with girlfriend
o Needed to ask:
1. Was there consent to engage in sexual activity in question? No.
2. Were there any circumstances that may vitiate the consent provided? Yes.
o Consent was vitiated by fraud
Consequences and Causation
Principles:
1. There must be a factual causation linking the conduct to the prohibited consequence (R v Winning)
o Application in Winning: Defendant applied for credit at Eatons and lied about income. She provided
name and address. Store issued card without looking or relying on income.
 Credit was not obtained under false pretenses because store did not even look at the information
she provided falsely.
2. There must legal causation – should the accused be held responsible?
o At minimum, the unlawful act only needs to contribute in some way to the prohibited consequence.
Thin Skull: Accused must take victim as they find them, regardless of foreseeability of ailment
(Smithers v the Queen).
o For homicide more serious than manslaughter, not including 1st degree murder, the unlawful act
must be a “significant contributing cause” (R v Nette).
o Where there are numerous accused acting in concert with others to commit the offence, they will be
liable as co principals, regardless of who delivered the “killing blow” (H(LI))
 Application in Smithers: Deceased and accused were playing hockey and got into a fight. Victim
died from malfunctioning epiglottis after being kicked in the stomach.
 Causation has nothing to do with intention or foresight. It is enough that the kick was a
contributing cause beyond de minimis, it does not have to be the only cause.
 Application in Nette: old lady was robbed and left hog-tied on her bed. She died.
 Offenders were a significant contributing cause of death in second degree murder – held
to have caused her death
3. For first degree murder, the appropriate test is the Substantial Cause Test: accused may only be convicted
if the accused commits an act that was substantial and integral cause of death (usually active physical role)
(R v Harbottle)
o Application in Harbottle: accused forcibly confined a woman while his friend strangled her to death.
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 Not considered an integral cause of death.
4. If a victim acted in a reasonable attempt to escape the violence of the accused, the death of the victim was
caused by the act of the accused (Pagett v the Queen). The accused is taken to assume any consequential
risk objectively within the ambit of the danger created (SRJ, Menezes).
o Application in Pagett: Police came to rescue a woman being held hostage. Accused held a gun to the
victim’s head. He starts shooting. Police return fire and accidentally kill girl.
 Pagett is guilty of causing the victim’s death.
Intervening Causes
Test for intervening act severing the chain of causation (R v Maybin):

1. Was risk of the intervention reasonably foreseeable as consequence of the accused actions?
2. Was the intervening act an independent factor overtaking the accused actions in contributing to
the consequences?
Consider:
- If the intervening act is a direct response or is directly linked to the accused’s actions, then the accused
cannot be said to be blameless in regards to the consequences (Maybin)
- A supervening cause of death is an interrupting event that removes culpability (Reid & Stratton)
Application
- In R v Reid & Stratton the victim fell unconscious during a bar fight. Poorly-executed CPR caused her
death.
o New trial ordered. Decision acknowledges possibility of CPR attempt breaking chain of
causation.
- In R v Maybin the accuseds punched victim multiple times in the head. Bouncer administers an extra hit
to victim’s head after victim was unconscious. Pathologist unsure whether bouncer’s blow was fatal
strike.
o Even if the bouncer’s blow was the fatal strike, it may not have been an independent factor
because it could be reasonably foreseeable as a consequence of the accused’s actions.
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Mens Rea
Case Provision Offence Subj/Obj MR
Beaver True Crimes Subj Full MR
Theroux Fraud Subj Subj knowl of proh’d act/depriv (recklessness
enough)
Tutton, JF s. 215(2) Failing to provide the necessities of Obj Marked departure from RP
life
Tutton s. 220(b) Crim Neg causing death Obj Marked and significant departure
JF Manslaughter by crim neg Obj Marked and substantial departure
Hundal s. 233 Dangerous driving causing death MOT Marked departure from RP (in context)
(now s. 249)
Beatty s. 249(4) Dangerous operation of MV causing MOT Marked departure from RP (no personal
death characteristics)
Roy Dangerous driving causing death MOT Marked departure from RP
ADH s. 218 Child abandonment Subj Based on what accused actually knew
Vaillancour s. 230(d) Felony Murder Obj Objective Foresight of Death (repealed)
t (repealed)
Raham s. 172(1) of HTA Stunt driving/racing SL Strict liability: Crown proves AR; BoP on D to
show DD (new trial for D to raise due diligence)
SS Marie s. 32(1) of ON Discharging pollution into water SL Strict liability: Crown proves AR; BoP on D to
Water Resources source (provincial statutory offence) show DD
Act
Chapin s. 14(1) of Regulatory offence SL Strict liability: Crown proves AR; BoP on D to
Migratory Birds (hunting on private property) show DD
Regulations
DeSousa s. 269 Unlawfully causing bodily harm Obj Obj FS of bodily harm (consequence) (+MR of
predicate O)
(displaces Beaver presumption of subj MR for
true crime)
Creighton s. 222(5)(a) Unlawful act manslaughter Obj Obj FS of death (do NOT pers’ze) (+MR of
unlawful act)
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Regulatory Offences and Mens Rea
Principles:
- Objective mental fault is presumed for regulatory offences (R v Pierce Fisheries/Sault Ste. Marie)
- The default level of mental fault for regulatory offences is strict liability (Levis v Tetrault)
o The language of the statute would have to explicitly indicate absolute liability
- Negligence is the minimum level of fault acceptable if a conviction is going to cause imprisonment due
to s. 7 of the Charter (R v Wholesale Travel Group)
- Absolute liability and imprisonment cannot be combined – this will always offend the principles of
fundamental justice (Re Section 94(2) of the BC MVA)
Strict Liability
Principles:
- The default level of mental fault for regulatory offences is strict liability (Levis v Tetrault)
o The language of the statute would have to explicitly indicate absolute liability
- Absolute liability and imprisonment cannot be combined – this will always offend the principles of
fundamental justice (Re Section 94(2) of the BC MVA)
Test (R v Sault Ste Marie)

1. Has the Crown proven the actus reus beyond a reasonable doubt?
a. If no, acquitted
b. If yes, proceed to 2
2. Has the accused proven on a balance of probabilities that they exercised due diligence?
a. If no, convicted
b. If yes, acquitted
Application
- In Sault Ste Marie, The City was charged with pollution under a provincial regulatory statute, which
states such pollution requires a guilty verdict and, on summary conviction, is liable for fine and/or
imprisonment.
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o Offences with higher penalties should require that the defendant prove they had taken reasonable
care not to cause the offence.
- R v Pierce Fisheries: The relevant regulation prohibits catching, fishing, killing, or possessing a lobster
less than a certain size.
o It’s a regulatory offence – we don’t care if you didn’t know that the fish were too small.
Subjective Levels of Mens Rea
Subjective Levels of Mens Rea

Intention Intention to bring about certain consequences
Knowledge Accused is aware of the nature of his or her conduct or is “practically certain”
his or her conduct will cause the prohibited consequences
Recklessnes Persisting in a course of conduct while knowing the risk one is creating
s
Deliberate Knowledge of the need to inquire as to the consequences and deliberate failure
Ignorance to do so
Principles:
1. Substantial discretion is left to the trial judge on how to charge the jury on the continuum of relevance of
the particular motive or absence of motive (R v Lewis)
o Motive: that which precedes and induces the exercise of the will. Absence or presence of motive
is not legally relevant, but is factually relevant.
o Intent: the exercise of a free will to use particular means to produce a particular result.
2. Criminal offences are assumed to have subjective mental fault (R v Buzzanga and Durocher; R v
ADH)
3. A person who forsees 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. (R v Buzzanga and
Durocher)
o This is made on a common sense inference
4. An accused may be held to intend the commission of the offence if they knew the probable
consequences of the actions, even if they did not desire the consequences (R v Hibbert)
5. War crimes require intention due to stigma and penalty (R v Finta).
Recklessness and Deliberate Ignorance
Test for Wilful Blindness (R v Sansregret):

Wilful blindness/deliberate ignorance is equivalent to knowledge where an accused:
1. Suspected the fact
2. Realized its probability
3. Refrained from the final confirmation because he wanted to deny knowledge
**Wilful Blindness = knowledge (R v Briscoe).
Recklessness
- Recklessness occurs when one is aware that conduct could bring about the prohibited
consequence, but persists despite the risk. Lower standard – could happen rather than likely to
happen (R v Sansregret)
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Objective Fault Offences:
Types of objective fault offences (R v ADH):

1. Dangerous conduct; ie. dangerous driving. Require a marked departure.
2. Careless Conduct; ie. careless storage of firearms. Require reasonable precautions.
3. Predicate offences; ie. unlawful act manslaughter, unlawfully causing bodily harm. Require a finding of
the mental element for the underlying offence but only objective foresight of harm flowing from it.
4. Criminal negligence. Conduct that shows wanton or reckless disregard for the lives or safety of other
persons. Proof of intention or actual foresight of a prohibited consequence is not required. It requires a
marked and substantial departure from the conduct of a reasonable person.
5. Duty-based offences
Applies in Criminal Negligence Where:

“the risk 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.” (ADH)
Mens Rea for Unlawful Act Manslaughter (R v Creighton):

Is comprised of:
1. The mens rea of the underlying offence
2. Objective foreseeability of the risk of bodily harm that is neither trivial nor transitory, in the
context of the dangerous act
Foreseeability of death is not required.
Constitutional Consideration for this test: manslaughter is not one of those offences which because of its
gravity or the stigma attached to it requires proof of a minimum mens rea of foreseeability of death to comply
with s. 7 of the Charter. Thus, “thin skull” rule also does not violate s. 7 in regard to this offence.
Context for Creighton: Charged with unlawful act manslaughter. Injected cocaine into girlfriend who then
died of an overdose.
Dangerous Driving Causing Death

Principles:
- The test for the required mens rea of dangerous driving is a modified objective test: the accused
actions must be a marked departure (R v Beatty)
o The objective test must be modified to give the accused the benefit of any reasonable doubt
about whether the reasonable person would have appreciated the risk or could have done
something to avoid creating the danger. Personal attributes are not relevant.
Application
- In R v Beatty the accused was charged with dangerous driving causing death because they dozed off
while driving and an accident resulted. Court found that considering all the circumstances, the operator
was driving dangerous.
- In R v Roy, In snowy and foggy conditions the accused pulled out in front of an oncoming tractor
trailer, resulting in the death of his passenger.
o The decision to pull onto highway was consistent with a simple misjudgement and could not
reasonably support an inference of a marked departure.
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Aiding and Abetting
Criminal Code S. 21(1):
“Everyone is a 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”
Principles:
1. Aider gets the same charge as the principal although sentencing may vary (Thatcher).
o Application: In Thatcher, the accused purchased a gun, borrowed a car, was on site  killed or
aided someone else in killing ex-wife.
2. In an offence conducted in concert, all parties are liable for causing the end result depending on
mental fault – they are joint principals/co-principals (H(LI))
a. Joint principals: Section 21(1)(a) when more than one person is present during the commission
of an offence and does some act towards it, each of them commits the offence together
 Apply Nette test to whole group: did overall offence constitute significant cause of
death?
o Application: In H(LI) a group of kids assaulted victim. They were found to be joint principals, all
liable, reglardless of who delivered killing blow.
3. An accused cannot escape liability by claim of no principal offender. A person who commits an
offence by means of an instrument or innocent person is equated with the primary offender of that
offence (Berryman).
o Application: Accused knowingly collected false passport information and forged signatures but
had another innocent party complete the passport production. Court determined accused was
principal.
4. The actus reus of “doing or omitting to do anything that assists or encourages a PO in committing a
crime” must be something more than mere presence (Dunlop and Sylvester).
a. “Something” could be based on cumulative effect of circumstantial evidence (Jackson) such as:
i. Facilitation of commission (Dunlop)
ii. Keeping watch (Dunlop)
iii. Preventing escape (Dunlop)
iv. Being ready to assist (Dunlop)
v. Prolonged and unexplained presence (Jackson)
vi. Attendance for the purpose of encouragement (Dunlop)
vii. Prior knowledge of crime (Dunlop, seen in Briscoe)
viii. Omission to act (Nixon)
 This does not mean that a duty is needed for party omission offence
 Merely that mere presence without a duty to act is not sufficient (Jackson
dissent)
 Not doing something for the purpose of aiding in the commission of the offence
o Application: In R v Briscoe, the accused selected location, drove to location, opened trunk, told
victim to shut up, and provided weapon to killer. The Court decided this was sufficient actus reus
for an aider.
o Application: In R v Dunlop & Sylvester, the accused visited location of attack with beer but no
evidence of any involvement. This was not sufficient to establish the actus reus.
o Application: In R v Jackson, the Accused was found on site of a grow op, along with an
accumulation of evidence and prolonged unexplained presence. This was decided by the majority
as sufficient actus reus.
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 Dissent: this was not sufficient to prove beyond a reasonable doubt that he was actually
involved in the criminal activity
o Application: In R v Nixon, a police officer merely present at the time of attack was sufficient for
actus reus as he had a statutory and common law duty to act (to prevent harm to victim/inmate)
o Application: In R v Hibbert, the defendant aided in getting the victim down from his apartment
to the lobby where he knew the killer was.
5. The requisite mens rea for aiding and abetting is knowledge or wilfil blindness of principal’s
intention to commit crime, and acting with intention of assisting in its commission (R v Briscoe)
o Application: In R v Briscoe, the accused argued that he did not know with certainty that the
principal offender would kill the victim.
 The Court said that wilful blindness as to the principal’s intent is not an excuse 
equated with knowledge where accused’s suspicion is aroused to the point where they see
the need to inquire but deliberately choose not to
o Application: In Heldson, having ought to have reasonably foreseen publication ban and failure to
do so was a marked departure  this was held not to be sufficient to ground party liability
o Application: In Palombi, knowledge of child abuse was not sufficient. Intent to aid in abuse
must still be inferred from knowledge based on a common sense inference (Buzzanga).
 There was evidence countering that inference here – she had been a caring mother
 The more likely the consequences are to follow from the knowledge, the easier it
is to draw that inference.
6. If subjective fault is not met for murder, the charge will be manslaughter (R v Creighton) if a
reasonable person in all the circumstances would have appreciated that bodily harm (not death) was the
foreseeable consequence of the dangerous act which was being undertaken/aided.
7. The accused need not desire the commission of the offence, only intend to assist in it (Hibbert).
8. The accused need not know how the offence is to be committed (Kirkness).
9. Someone who assists a purchase of illegal drugs aids the possession and not the trafficking
(Greyeyes)
10. An aider can be guilty of unlawful act manslaughter based on objective fault as it is a lesser an
included offence, but subjective fault is still required for the predicate offence (Jackson 1993)
o A reasonable person in the position of A must have foreseen bodily harm as a result of the
unlawful act (objective) but they must have intended to do the unlawful act (subjective)
Common Intention
Criminal Code S. 21(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 probable consequence of
carrying out the common purpose is a party to that offence.”
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Plain English: Section 21(2) of the Criminal Code provides that a person who forms an intention to carry out
an unlawful purpose in common with other persons is a party to an incidental offence committed by one of
those other persons to the same extent as the person who actually committed it.
Statutory Test for Common Intention:

1. Two or more people
2. Form an intention in common (meeting of the minds)
3. To carry out an unlawful purpose
4. To assist one another in doing it
*If the parties enter into an agreement to do something illegal, either party is on the hook if the other goes rogue
and does something that the one party knew would be a probable consequence.
Common Law Test for Common Intention (Kirkness):

1. There must be the formation of an unlawful purpose
2. The commission of the ultimate offence has to be probable
3. The accused must know or ought to have known this probability
- Does the principal offence require subjective mental fault?
o If so, the words “ought to have known” are inoperative (R v Logan)
Consider:
*Does not need to be pre-planned purpose (Kirkness)
*The nature of the unlawful purpose – this will be determinative of whether an accused will be held responsible
for the subsequent acts of the principal (Kirkness)
Analogize:
Application of Common Intention Provision (Kirkness):
- The majority thought that because the appellant did not know before entering the building that the
principal would sexually assault or kill the victim, he did not have common intention
- The dissent correctly believes that this reasoning ignores the “ought to have known” standard – this does
not require subjective mental fault, and he should have known the crime was likely to occur. (1)
unlawful purpose: break and enter to comment theft, with violence if necessary; (2) violence to those
found inside probable
Application of “ought to have known” being unconstitutional (R v Logan)
- This case dealt with attempted murder, and the possibility that a party to an attempted murder could be
convicted without proof of subjective intent
Defence of Abandonment
Common law defence of abandonment may be raised if the evidence shows (R v Gaulthier):
1. That there was an intention to abandon or withdraw from the unlawful purpose
2. That there was timely communication of this abandonment or withdrawal from the person in question
to those who wished to continue
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3. That the communication served to those who wished to continue was unequivocal
4. That the accused took, in a manner proportional to his or her participation in the commission of the
planned offence, 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.
R v Whitehouse: mere communication is not enough – requires accused to show he or she took reasonable
steps to neutralize the effects of his or her participation
Analogize:
Application of test for Defence of Abandonment. Gaulthier:
- The defence did not have an air of reality because there was insufficient evidence that the accused
changed her mind in committing the murder/suicide
o She could have done more to neutralize the effects of her participation
Attempts
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.
Plain English: For an accused to be guilty of an attempt they must intend to commit the completed offence and
have done some act toward the accomplishment of that objective (R v Ancio)
(2) The question whether an act or omission by a person who has an intent to commit an offence is or is not
mere preparation to commit the offence, and too remote to constitute an attempt to commit the offence, is a
question of law.
Plain English: The judge decides whether the act or omission has gone beyond mere preparation. See Deutsch
v The Queen.
Consider:
- An attempt requires a specific subjective intent to carry out the crime, even if the completed offence
requires a lesser intent (R v Colbourne)
- The actus reus does not have to be itself a crime, tort, moral wrong, or social mischief (R v Cline)
- The actus reus must be more than mere preparation to commit a crime (R v Cline)
- A person can be liable for an attempt regardless of the impossibility of the completion of the crime,
except in cases of imaginary crimes (USA v Dynar)
- The judge decides whether the act or omission has gone beyond mere preparation (Provision)
- Evidence of similar acts done by the accused before the offence with which he is charged, and also
afterwards if such acts are not too remote in time, is admissible to establish a pattern of conduct from
which the Court may properly find mens rea (R v Cline)
- Just because further acts are required to commit the offence does not mean that the accused has not gone
beyond mere preparation (Deutsch v The Queen)
- Compare the nature and quality of conduct of the accused, and the nature of the completed
offence (Deutsch v The Queen)
o Is there proximity in time between the accused and the commission of the completed crime?
o Is there proximity in time between the accused and the location of the completed crime?
o Are there acts under the control of the accused that have yet to be completed? (What more would
you have to do to complete the offence? – The more you have to do, the less likely that you will
be convicted.
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- The mere presence of equivocal evidence of subjective intention may be insufficient to establish intent.
Extrinsic evidence that is sufficiently proximate may be sufficient (R v Sorrell & Bondett)
Analogize:
What is the distinction between an attempt and mere preparation? Deutsch v The Queen:
- Appellant was charged with attempting to procure a person to have illicit sexual intercourse. He
advertised and interviewed women for a position of secretary, duties included intercourse with clients.
o LeDain J said that actually offering someone a job would be a commission of an attempt for sure
o Holding out 100 000 inducement could be seen as going beyond mere preparation
o Steps left: job needs to be offered, accepted, secretary must be put in contact with client, offer of
sexual intercourse must be communicated to the client
o Case sent back to trial
Does impossibility constitute a defence to a charge of attempt? USA v Dynar:
- Dynar was the subject of a sting operation conducted by the FBI in the US; he was charged with
attempting to launder money and conspiracy.
o Sufficient evidence was produced to show that Dynar intended to commit the money-laundering
offences, and that he took steps beyond mere preparation in order to realize his intention. It does
not matter that it was a sting operation and he could not be successful. This is sufficient to
establish the defence.
Attempted Murder Considerations:

- The completed offence of murder involves a killing. The intention to commit the complete offence of
murder must therefore include a specific intention to kill (Ancio).
- Because of the seriousness of the stigma associated with attempted murder, the mens rea for the offence
is subjective foresight of death (R v Martineau)
Penalty:
Section 463. General approach – half of what the penalty is for the completed offence.
- Indictable offence where life imprisonment is possible: 14 years max.
- Indictable offence where penalty is 14 years or less: up to half of the maximum penalty (ie. max penalty
is 10 for completed offence, max penalty would be 5 for an attempt to commit that offence.
- Summary convictions: s. 787 – 6 months, $5000
- Hybrid offence: Court will elect either indictable or summary
- There are exceptions: attempt to murder (up to life)
Defences
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Air of Reality test: only put defences to jury if they’re reasonable. Evidence must be reasonably capable of
supporting the necessary inferences in respect of each of the elements of the defence. Protects the accused
because every legally viable defence should be put to the jury. It’s not enough to identify some evidence or any
evidence. Must be capable of supporting the necessary inferences. Don’t give the jury an option that can’t be
legally valid.
- Protects juries in two ways
o From giving them only the legally available choices
o We don’t want to overburden the jury: focuses on efficiency and focusing on the available
options
If Air of Reality is made out, it is put to the jury and the Crown has to disprove it beyond a reasonable doubt for
most offences (Except NCR).
Mistake of Fact
Also called Colour of Right. Common Law Defence.
When and How it Operates:

- Happens when an accused holds an honest belief in a set of circumstances that, if true, would otherwise
entitle them to an acquittal by negating a fault element (ie. Taking a jacket thinking it’s your own)
- Negates a fault element
Burden of Proof:
Crown: has to prove the mens rea and actus reus of the offence beyond a reasonable doubt. Defence raises
defence.
Judge: Air of Reality? If yes  put it to the jury
Jury: has the defence established each element on a balance of probabilities? If yes  Burden shifts to Crown
Crown: has to disprove self-defence beyond a reasonable doubt
Test: Defence is available whenever an accused holds an honest belief in a set of circumstances that, if true,
would otherwise entitle them to an acquittal
Constitutional Issues:
- If a statutory provision with a subjective fault requirement does not allow mistake of fact as a defence,
there is a potential Charter 11(d) violation
Mistake of Law
In general, a person cannot rely on a mistake of law as a defence (Section 19 of the CC).
Exceptions:
- Non-publication: if it was impossible to ascertain that something is illegal, you’re not responsible
- Officially induced error
Consider:
- If it’s a mistake as to the legal consequences of a given situation, that is considered to be a mistake of
law
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Analogize:
Mistake of law, not fact. R v Jones and Pamajewon:
- The appellants were convicted for unlawfully conducting a bingo without a license. They believed that
the CC did not apply to them because they were on a reserve.
o The mistake is a mistake of law, not fact. Therefore, not defence is available
Mistaking legal consequences is a mistake of law. R v MacDonald:
- The accused had a restricted, registered, and loaded gun in Halifax. He had a license to have his gun in
his home in Alberta. Says he didn’t know that the license did not extend to Halifax.
o If the Crown was required to prove that MacDonald knew that his possession was unauthorized,
it would amount to requiring the Crown to prove that the accused knew the law
o It is not relevant to mental fault for the offence that you know your license covers your
possession in that place – he made a mistake about the legal consequences of his actions
Officially Induced Error
Common law. Operates as an excuse.
Burden of Proof:
defence.
Test (LaVie) to be put to the judge:

1. Error of law or mixed fact/law was made
2. Accused considered the legal consequences of his/her actions
3. Obtained advice from an appropriate official
4. Advice from official must be reasonable in circumstances
5. Advice obtained must have been erroneous
6. Accused must show they reasonably relied on the advice
Consider (Canada v Shiner):

- Officially induced error can only succeed in the clearest of cases
- Depending on the circumstances, there need not be direct communication between the accused and the
officials furnishing information or advice
- The failure of a regulatory body to enforce a regulation cannot constitute a representation as to the
legality of the conduct in the issue
- The requirement that reliance on advice be objectively reasonable imports a due diligence standard. The
accused must establish that reasonable efforts and inquiries were made respecting the legality of the
conduct at issue.
Relevant factors in the assessment of objective reasonableness of the advice and reliance include:
i. D’s efforts to obtain information
ii. The clarity or obscurity of the law
iii. The position and role of the advising official
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iv. The clarity, definitiveness and reasonableness of the information or opinion
D must be diligent in his/her efforts to obtain information. Passive ignorance is not a defence, nor is it sufficient
to assist reliance on officially induced error.
Analogize:
Officially induced error available as a defence to regulatory defences. R v Cancoil Thermal:
- A safety inspector examined piece of unsafe machinery, with apparent approval.
o Officially induced error available as a defence to regulatory offences. The accused is
undeserving of punishment, so defence operates as an excuse.
Officially induced error available in an “obscene publication” case. R v Jorgensen:
- The defendant relied on a film review board’s approval
o Acquittal entered because there was no evidence the accused had knowledge of the contents of
the videos that would make them obscene
Self Defence
Statutory Defence.
Burden of Proof:
defence.
34 (1) A person is not guilty of an offence if

a) they believe on reasonable grounds that force is being used against them or another person or that a
threat of force is being made against them or another person;
b) the act that constitutes the offence is committed for the purpose of defending or protecting themselves or
the other person from that use or threat of force; and
c) the act committed is reasonable in the circumstances.
34 (2) In determining whether the act committed is reasonable in the circumstances, the court shall consider the
relevant circumstances of the person, the other parties and the act, including, but not limited to, the following
factors:
a. the nature of the force or threat;
b. the extent to which the use of force was imminent and whether there were other means available
to respond to the potential use of force;
c. the person’s role in the incident;
d. whether any party to the incident used or threatened to use a weapon;
e. the size, age, gender and physical capabilities of the parties to the incident;
f. the nature, duration and history of any relationship between the parties to the incident, including
any prior use or threat of force and the nature of that force or threat;
(f.1) any history of interaction or communication between the parties to the incident;
g. the nature and proportionality of the person’s response to the use or threat of force; and
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h. whether the act committed was in response to a use or threat of force that the person knew was
lawful.
No Defence:
34 (3) Subsection (1) does not apply if the force is used or threatened by another person for the purpose of
doing something that they are required or authorized by law to do in the administration or enforcement of the
law, unless the person who commits the act that constitutes the offence believes on reasonable grounds that the
other person is acting unlawfully.
Test:
1. Reasonably believe force/threat of force (subjective/objective
2. Accused intended to defend or protect themselves or another person (subjective)
3. Act was reasonable in the circumstances (objective)  see list of statutory factors to determine
Analogize:
Application of s. 34. R v Urquhart:
- Urquhart refused to let McBride speak at a meeting, which angered him, so he left in a huff. Urquhart
followed him out into the parking lot with violent language. McBride pushed him on the shoulder to
warn him to back off, and then proceeded to beat him up.
o The blows to McBride were not for a defensive or protective purpose
o The nature and proportionality of the defendant’s response to McBride’s shoulder push,
specifically the number of blows to an incapacitated man on the ground, were excessive and not
objectively reasonable
Defence of Property
Burden of Proof:
defence.
35 (1) A person is not guilty of an offence if

a. they either believe on reasonable grounds that they are in peaceable possession of property or are
acting under the authority of, or lawfully assisting, a person whom they believe on reasonable
grounds is in peaceable possession of property;
b. they believe on reasonable grounds that another person
i. is about to enter, is entering or has entered the property without being entitled by law to
do so,
ii. is about to take the property, is doing so or has just done so, or
iii. is about to damage or destroy the property, or make it inoperative, or is doing so;
c. the act that constitutes the offence is committed for the purpose of
i. preventing the other person from entering the property, or removing that person from the
property, or
ii. preventing the other person from taking, damaging or destroying the property or from
making it inoperative, or retaking the property from that person; and
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d. the act committed is reasonable in the circumstances.
No Defence
35 (2) Subsection (1) does not apply if the person who believes on reasonable grounds that they are, or 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 entitled to its possession by law.
35 (3) Subsection (1) does not apply if the other person is doing something that they are required or authorized
by law to do in the administration or enforcement of the law, unless the person who commits the act that
constitutes the offence believes on reasonable grounds that the other person is acting unlawfully.
Analogize:
Application of s. 35. R v Caswell:
- The defendant struck the complainant because she was going after his TV. His defence is that he was
protecting his personal property and used reasonable force.
o Carswell was in possession of the property in question
o The complainant had damaged his property before, told him she was going to, and prepared to do
so
o Carswell did what he did for the specific purpose of preventing Ms. Thomas from carrying out
her intended purposes
o He did not use excessive force, he only struck once
o Perrin thinks that hitting a woman over a TV is not proportional, but this judge found the
defendant not guilty
Defence of Necessity
Common law.
Burden of Proof:
defence.
Operation:
Actus reus and Mens rea are fully present. Operates as an excuse.
Happens When:
There are urgent circumstances of clear and imminent peril where the accused has no safe and legal avenue
of mistake. Law is broken out of necessity.
Test (R v Perka):
- Urgency: the situation must be so emergent and the peril so pressing that normal human instincts cry out
for action and make a counsel of patience unreasonable
- Demonstrably impossible: there must be no reasonable legal alternative
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- Proportionality: the harm inflicted must be less than the harm sought to be avoided
Considerations:
- Involvement in criminal activity does not disentitle the accused to the defence of necessity (Perka)
- Contributory fault, where the necessitous situation was clearly foreseeable, and the actor contemplated
or ought to have contemplated that his actions would likely give rise to an emergency requiring the
breaking of the law, should be considered in the availability of the defence. This goes to the requirement
of urgency (Perka)
- “no system of positive law can recognize any principle which would entitle a person to violate the law
because on his view the law conflicted with some higher social value” (Morgentaler)
Duress
Duress is a statutory defence for principal defenders and a common law defence for parties (ie. aiders/abetters,
common intention).
Operation:
- As an excuse – relieves a person of criminal liability only after he has been found to have committed
prohibited act with the relevant mens rea
If you’re confused about Duress and Involuntariness:

- R v Hibbert: Duress does not negate mens rea, but may result in moral involuntariness to operate as a
defence, or mitigating factor at sentencing
Statutory Defence for Principal Offenders (Section 17):
Duress is available to a person

1. Who commits an offence
2. Under compulsion by threats of immediate (struck out in Ruzic) death or bodily harm
3. From a person who is present when the offence is committed (struck out in Ruzic)
4. If the person believes that the threats will be carried out
5. If the person is not a party to a conspiracy or association whereby the person is subject to compulsion
Doesn’t apply for:

1. High treason
2. Treason
3. Murder – likely not, see Aravena
4. Piracy
5. Attempted murder
6. Sexual assault
7. Sexual assault with a weapon
8. Threats to taking
9. Robbery
10. Assault with a weapon or causing bodily harm
11. Aggravated assault
12. Unlawfully causing bodily harm
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13. Arson
14. Abduction and detention of a young person
Test for Principal Offenders (R v Ryan):

1) An explicit or implicit threat of death or bodily harm against accused or third party.
Degree of harm is dealt with at the proportionality stage.
2) Accused must believe the threat will be carried out (must be reasonable – modified objective
test)
3) Offence not listed as excluded (but consider possible s. 7 Charter challenges)
4) Accused not party to conspiracy/criminal organization subject to compulsion
5) No safe avenue for escape (modified objective)
6) Close temporal connection between the threat and the harm threatened (modified objective)
7) Proportionality between the harm threatened and the harm inflicted by the accused
(modified objective) (what society expects people to resist + the harm threatened is equal to
or greater than the harm caused)
Constitutional Considerations
- Consider the constitutionality of an excluded offence, no matter what your position. Ruzic flagged
exceptions for s. 7 consideration in future cases.
o If defence: make an argument why the offence should not be included on the list, a
proportionality argument. If convicted argue for substantial mitigation of sentencing.
o The list is both over and under inclusive – it is arbitrary
- Ruzic says to use these principles to pursue a section 7 argument:
o R v Sault Ste. Marie: criminal responsibility should be attributed only to an act that is the result of
the deliberation of a free and conscious mind (re: speaking to absolute liability)
o Re BC Motor Vehicle Act: “a law that has to potential to convict a person who has not really done
anything wrong offends the principles of fundamental justice and, if imprisonment is available as a
penalty, such a law then violates a person’s right to liberty under s. 7 of the Charter.”
o R v Bernard: (explaining Re BC MVA and Vaillancourt) “Criminal offences… must have as one
of their elements the requirement of a blameworthy mental state. The morally innocent ought not to
be convicted.”
o R v Perka: an excuse acknowledges the wrongfulness of the accused’s conduct. Moral
involuntariness is not the same as moral innocence.
o Relationship to physical voluntariness: both are underpinned by the critical importance of
autonomy in the attribution of criminal liability. The treatment of criminal offenders as rational,
autonomous, and choosing agents is a fundamental organizing principle of our criminal law.
o Reason + Choice = moral justification to impose criminal responsibility and punishment on
offenders.
o Lebel: “although moral involuntariness does not negate the actus reus or mens rea of an
offence, it is a principle which, similarly to physical involuntariness, deserves protection under
s. 7 of the Charter.”
o It is a principle of fundamental justice that only voluntary conduct – behaviour that is the
product of a free will and controlled body, unhindered by external constraints – should attract
the penalty and stigma of criminal liability.
- Aravena set precedent relevant to the common law defence of duress. However, in obiter the judge said
that the statutory exception to murder in s. 17 must be found unconstitutional because in a “to kill or be
killed” situation, moral involuntariness would be overwhelmed.
Analogize:
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Application of Charter considerations. R v Ruzic:
- Ruzic was charged with unlawful importation of narcotics and possession and use of a false passport.
Ruzic testified that a man in Yugoslavia assaulted her, stalked and harassed her, and threatened to harm
her mother. Ruzic did not think she could trust the authorities in Yugoslavia and so followed the man’s
orders so she could protect her mother. Future or third-party threats seem excluded in the requirements
for duress in s. 17 of the code.
o Ruzic is a principal offender, committed the actus reus, and knew what she was importing
o The threats were made against a third party, not here. They were not immediate. S. 17
beforehand would be unable to afford her the defence of duress. This would be unconstitutional
because:
 She is not morally blameworthy
 She has no realistic alternatives
 She lacks agency
 Proportionality: trafficking offence vs. her mom dying
 She has no moral voluntariness
Defence of Duress not available. R v Ryan:
- Ryan was a victim of domestic abuse. She had contacted the police about the violence but they
disregarded it as a civil matter. The husband threatened to burn down the house with she and her
daughter inside. She contracted a hit man who ended up being an undercover cop, and she was charged
with counselling for the purposes of murder.
o Duress is not available because it should only be available in situations where a specific offence
is forced
o The court ordered a stay of proceedings, stating that the law was uncertain and the Crown
changed their position between trial and appeal which denied Ryan opportunity to change her
arguments. Perrin says it was actually because the state had a significant role in the commission
of the offence and that the Court felt bad for her.
Common Law Defence of Duress for Parties to an Offence (Ryan)

1. Explicit or implicit threat of death or bodily harm against accused or third party
2. Accused must reasonably believe the threat will be carried out
3. No safe avenue for escape
4. Close temporal connection
5. Proportionality (but no list of excluded offences) (what society expects people to resist +
the harm threatened is equal to or greater than the harm caused)
6. Accused not party to conspiracy/criminal organization subject to compulsion
Considerations:
- There is no list of excluded offences
- Proportionality (R v Aravena)
o Harm you cause must be less or equal to the harm avoided
o Must accord with what society expects for a reasonable person similarly situated (objective
standard)
- With murder, it will be difficult to meet the proportionality test – the second step will be strictly limited.
- The common law defence of duress remains available to persons charged as parties to murder
(Aravena)
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Intoxication
Statutory defence.
Operation:
- Involuntary intoxication may provide a complete defence
- Voluntary intoxication may provide a complete defence for general intent offences where there is
extreme intoxication and a marked departure
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 the voluntariness required to commit the offence, where the
accused departed markedly from the standard of care as described in subsection (2).
Criminal fault by reason of intoxication:

33.1(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 where the person, while in a state of
self-induced intoxication that renders the person unaware of, or incapable of consciously controlling, their
behaviour, voluntarily or involuntarily interferes or threatens to interfere with the bodily integrity of another
person.
Application:
33.1(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.
Pre-Write:
A defence of self-induced intoxication may be claimed where the completed offence is a specific intent offence,
or a general offence not on the list of section 33.1(3). This means that if the offence is a general intent offence
and has an element of assault, interference, or threat of interference with the person of another, the defence of
self-induced intoxication is not available. The defence also requires that the accused be in a state of extreme
intoxication if the completed offence is a general intent offence, and at minimum advanced intoxication for
specific intent offences.
How to Tell Between General and Specific Intent Offences (R v Tatton)

1. Look at the existing jurisprudence. If there is no precedent, proceed to the next step.
2. Look at the mens rea for the offence, and the complexity of thought and reasoning it requires:
- Complexity of thought and reasoning process that make up the mens rea of an offence.
Start by looking at the mens rea for the offence.
- Thought and reasoning for general intent crimes are more straightforward – minimum
degree of consciousness
- Thought and reasoning for specific intent offences require more sophistication
- General intent crimes:
o Thought and reasoning is straight-forward
o mental elements relates to the performance of an illegal act – do not require an
intent to bring about certain consequences outside of the actus reus; ie. assault,
force is intentional, but injury is not.
o They do not require knowledge of certain circumstances or consequences.
- Specific intent crimes: *heightened mental element.
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1) Requires the accused to intend and bring about certain consequences, if the formation
of that intent involves complex thought and reasoning processes; and/or
2) Requires that the accused have actual knowledge of certain circumstances or
consequences, where the knowledge is the product of more complex thought and
reasoning processes; and/or
3) Requires the accused to not only intend to do the act that constitutes the actus reus, he
must also act with an ulterior purpose in mind.
- If there is no clear answer, go to step 3:
3. Policy Considerations
- Is alcohol consumption habitually associated with the crime in question? If it is, then
relying on intoxication could seem counterintuitive. Where self-induced intoxication
rarely, if ever, plays a role in the commission of an offence, preventing an accused from
relying on it makes less sense.
- Presence of a lesser included general intent offence in the main offence. The intoxicated
offender will not escape punishment altogether.
- Presence of judicial sentencing discretion.
Mild Intoxication Advanced Extreme Intoxication

Intoxication
Specific Intent Irrelevant May raise reasonable May negate physical
Offence: hate crime, doubt on mens rea for voluntariness for any
terrorism, murder, a specific intent specific intent
possession of stolen offence  yet could offence – balance of
property, assault to result in conviction probabilities
assist arrest, for lesser included
possession of stolen general intent offence
property (eg. For murder, it
would be
manslaughter)
General Intent Irrelevant Irrelevant May negate general
Offence : intent or physical
manslaughter, assault voluntariness (per
causing bodily harm, Daviault) – balance
all objective fault of probabilities,
offences, arson except per s. 33.1(3)
Criminal Code
Consider:
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- For a murder charge, the defence of intoxication will only be available to negate specific intent so as
to reduce the charge to manslaughter.
Analogize:
Application of Self-Induced Intoxication to arson. R v Tatton:
- Defendant was extremely drunk. He left the stove on high and drove to get coffee. When he returned 20
minutes later, the house was on fire.
o Section 434: every person who intentionally or recklessly causes damage by fire or explosion to
property is liable
o Not extremely intoxicated: able to cook bacon and drive to Timmies
o S 434 Mental Element: the actus reus is damaging property by fire. The mental element is
intention or reckless performance of the cause of damage. No additional knowledge or purpsoes
is needed. No complex thought is required.
o S 434 Policy: arson involves damage to property. Damage to property is often associated with
alcohol consumption.
- Conclusion: S. 434 is a general intent offence, intoxication short of automatism may not be considered.
Constitutional Considerations
- R v Daviault: Leary rule was found to violate the Charter. Extreme intoxication could in rare cases be a
defence to general intent offences such as assault or sexual assault. Defence only applies if the accused
is extremely intoxicated.
- Section 33.1: amended the Code so that those with a Daviault defence would be convicted of violent
general intent offences. Defence is only available for offences that do not include an assault or
interference.
- R v Robinson: the Court held that the Beard rules violated s. 7 and 11(d) of the Charter because they
required the jury to convict even if they had a reasonable doubt about the accused’s actual intent.
- To convict when they lacked the requisite mental fault offends the principles of fundamental justice
- If you’re the Crown, argue for substituted blameworthiness – you are blameworthy because you put
yourself in a state where you were unable to control yourself
o Parliament is allowed to supply defences so long as they comply with the Charter
o You want to protect the public from people who commit violent crimes when they’re intoxicated
Not Criminally Responsible

Statutory. Not a true defence.
Operation:
- A special verdict – it is not a finding of guilt, nor an acquittal.
Burden of proof: Balance of probabilities on whoever raises the issue.
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.
Pre-Write: The defence of Not Criminally Responsible on Account of Mental Disorder is available when an
accused is responsible for committing an offence while suffering from a mental disorder that prevented them
from appreciating the nature and quality of the act or omission or of knowing that it was wrong (CC S. 16.1)
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The presumption is that an accused does not suffer from a mental disorder (this presumption was upheld as
Constitutional by being justified under s. 1 – R v Chaulk), until the contrary is proven on a balance of
probabilities. The burden of proof that an accused was suffering from a mental disorder is on the party that
raises the issue – this includes the Crown, for it is their duty to see justice done.
Step One Pre-Write: First, we must determine if the accused was suffering from a mental disorder at the
material time. A mental disorder was defined in Cooper as being any illness, disorder, or abnormal condition
which impairs the human mind and its functioning. It excludes self-induced states by alcohol and drugs and
transitory states such as hysteria or concussion. Simply because a mental disorder is listed in the DSM5 does
not mean it is by necessity within the scope of the statutory defence.
Step Two Pre-write: Secondly, we must determine whether the mental disorder was of the intensity or severity
to render the accused incapable of appreciating the nature or quality of the act, or knowing it is wrong (Cooper).
R v Oomen clarifies that the inquiry is to whether the accused lacks the capacity to rationally decide whether
the act was right or wrong, and subsequently make a rational choice to complete the action or not. For instance,
in Oomen, the accused was suffering from paranoid delusions that various groups were plotting to murder him.
Thinking his girlfriend was a party to this conspiracy, he shot and killed her. The Court decided that on the
night of the killing, Oomen’s delusions deprived him of being able to know the difference between right and
wrong, because he was doing what he thought was right or necessary.
Tools to Assist a Judge in Their NCR Analysis (Turcotte):

1. The internal cause factor. Is the cause or trigger for the accused’s mental condition internal or external?
The judge must consider whether a normal person, placed in the same circumstances as the accused
would be likely to fall into a similar mental condition. If the answer is positive, the accused’s mental
condition will move away from the notion of disease of the mind and move toward that of a person who
is not suffering from a mental disorder.
2. The continuing danger factor. The greater the risk of a similar event recurring, the greater the chance
that there will be a recurrence independently of the exercise of the will of the accused, the more his
mental condition can be likened to a mental disorder.
3. Policy concerns. Did the accused’s mental condition require a particular treatment and did it constitute a
threat to others? In the negative, the courts will more easily come to the conclusion that the accused was
not suffering from a mental disorder at the time of the events.
Self-induced intoxication and NCR if you’re anywhere but Quebec

(R v Bouchard-LeBrun):
Pre-write: Where the defendant raises mental disorder when he was also intoxicated at the material time, a
court must consider the principles that govern NCR first, to see if it applies. If it does not apply, then the Court
can go on to consider the defence of intoxication in appropriate circumstances (R v Bouchard-LeBrun). This
offence occurred in ____, which is why the R v Bouchard-LeBrun standard applies to this case and not the R v
Turcotte standard, which is binding only in Quebec.
Test:
1) Is the defence of NCR available?
2) If not, is the defence of intoxication available?
Self-induced intoxication and NCR if you’re in Quebec (R v Turcotte):
28
Pre-write: This offence occurred in Quebec, and therefore the precedent set in R v Turcotte applies. This
decision held that intoxication does not necessarily render the defence of mental disorder inadmissible (contrary
to Bouchard le Brun, which would apply in other provincial/territorial jurisdictions). However, intoxication can
result in the exclusion of an NCR claim, depending on the effect the intoxication has on the accused’s mental
state. According to Turcotte, we must ask whether the mental disorder, or the intoxication, or a combination of
both, was the source of the respondent’s incapacity. If intoxication is the single source of incapacity, the NCR
claim fails. If it was a combination of both, the jury must examine the role each played: whether effects of
intoxication were actual source of the respondent’s incapacity or whether the mental disorder alone caused
incapacity.
Consider:
- The greater the effects of the intoxication, the less likely the acceptance by the jury of mental disorder
(Turcotte)
Bill C-14 (then C-54): Not Criminally Responsible Reform Act

1. Make public safety the paramount consideration in NCR dispositions
2. Creates High Risk Mentally Disordered Accused designation (review periods further apart, in order to
get released it has to go through judge)
3. Enhanced involvement for victims (ability to give impact statement at review boards)
Analogize:
The interaction between mental disorder and intoxication. R v Turcotte:
- The appellant became upset, and consumed a quantity of windshield washer fluid in an effort to kill himself.
Not wanting his children to find his body, he comes convinced he must kill them, which he does.
o It was the respondent’s burden to demonstrate that he suffered from an incapacitating disease of
the mind, unrelated to the intoxication-related symptoms. The judge did not draw the juror’s
attention to this distinction. Thus, there is a real risk that the jury found NCR based on the effects
of the intoxication as opposed to the mental disorder
o New trial ordered due to improper jury instruction
Sentencing
Summary Conviction Offences Max 6 months and/or $5000 fine. Less
serious. Most held in provincial court.
Indictable Offences Max varies, as does mode of trial. Some
indictable offences have minimum penalties.
Hybrid When the Crown has a choice to proceed
either summarily or by indictment. Max 5
years, summary not exceeding 18 months
Plea Agreements
29
Judges should in general submit to joint submissions to plea agreements unless they do not pass these tests (R v
Anthony Cook):
1. Fitness test: trial judges may depart from joint submissions if they think the sentence does not fit
2. Fitness test: the sentence proposed must be demonstrably unfit
3. Public interest test: proposed sentence would bring the administration of justice into disrepute, or is not
in public interest
4. Kind of the same: unreasonable joint submissions are also not in the public interest
Sentencing has the following objectives (one or more) (Section 718):

i. Denounce unlawful conduct and the harm done to victims or to the community
ii. Deterrence
a. General deterrence – deterrence for the public (not very well accepted as a principle by the SCC)
b. Specific deterrence – deterrence to the person – effective if immediate and consistent
enforcement
iii. Separate offenders from society, where necessary
iv. Rehabilitate offenders (newish objective)
v. Provide reparations for harm done to victims
vi. Promote a sense of responsibility in offenders (newish objective)
Certain offences will have different considerations of objectives; ie. goal of sentencing for sexual assault
will be denunciation and deterrence.
Proportionality (Section 718.1):

Sentence must be proportionate to:
i. Gravity of offence
ii. Degree of responsibility
Aggravating and Mitigating Factors (Section 718.2)

Court should consider:
a. A sentence should be increased or reduced to account for any relevant aggravating factors, including:
i. Offence motivated by bias, prejudice, or hate
ii. Spousal abuse
iii. Abuse of a person under the age of 18
iv. Abuse of a position of trust or authority
v. Impact on victim
vi. Offence committed for the benefit of, direction of or in association with a criminal organization
vii. Terrorism offences
viii. Offender being subject to a conditional sentence or parole
b. A sentence should be similar to sentences imposed on similar offenders for similar offences committed
in similar circumstances. Called the principle of parity.
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
e. All available sanctions, other than imprisonment, that are reasonable and consistent with the harm
should be considered for all offenders, with particular attention to the circumstances of aboriginal
offenders.
Mitigating Factors
- First-time offender
- Prompt guilty plea (shows you accept responsibility)
30
- Show you accept responsibility with a statement at the sentencing hearing. The longer you delay the less
this will be a mitigating factor.
- Rehabilitative prospects – thank about the racial backgrounds or other argument for rebutting presumptions
- Written apologies
- Voluntary reparations: give back what you stole, deal with economic consequences of the crime… so
much better than court-ordered restitution because it shows that you’re accepting responsibility
- Collateral consequences: what will be lost due to the sentence? Eg. Deportation, care for their children –
children should not suffer for parent’s actions as long as those actions don’t pose a risk to their children.
- Disadvantaged background
- Residual impacts of failed defences as a mitigating sentencing factor
- Age of person – the Court will recognize the difference between 5 years in prison for a 25 year old and 5
years in prison for an 85 year old. Imposing a sentence on a very young person will also have adverse
effects.
Principles According to R v Cam:

- The Code sets maximum terms of incarceration in accordance with the relative severity of the crime
- Numeric intervals of sentences: 1 year, 2 years, 5 years, 10 years, 14 years, and life imprisonment.
- In some instances mandatory minimum sentences are established by the Code (ie. min. life imprisonment for
1st and 2nd degree murder).
- Totality principle for consecutive sentences: Requires a sentencing judge who orders an offender to serve
consecutive offences for multiple offences to ensure that the cumulative sentence does not exceed the overall
culpability of the offender. Is it “just and appropriate” in total? Will it impose a “crushing sentence” not in
keeping with the offenders’ record and prospects?
o Courts have been reluctant to impose cumulative fixed-term sentences beyond 20 years.
Sentencing Options:
a. Imprisonment
o Available for all criminal code offences
o All other options should be exhausted before choosing this
o When sentenced to imprisonment, that’s when the Corrections and Conditional Release Act
kicks in
b. Fine
c. Probation (suspended sentence)
d. Conditional sentence (a form of house arrest)
o A term of imprisonment in the community
o An option where:
 There is no minimum prison term or excluded offence
 Sentence of less than two years of imprisonment would be appropriate
 Not a danger to community
e. Conditional or absolute discharge
f. Firearms prohibition
g. DNA databank order
h. Restitution (very rare, only in about 3% of cases)
i. Suspended sentence
j. Community service order
k. Prohibition order
Probation
Options:
31
- Probation order alone
- Probation plus fine
- Imprisonment for less than 2 years plus probation orders
- Could have a punch of conditions tacked onto it
Fine
- If there is a fine, there is a conviction and a criminal record
- Ability to pay must also be considered. If they can’t pay – then it can’t be ordered.
o The reason why is because if you default on the judgement then you can go to jail as punishment,
and punishing people for being poor is wrong.
Restitution
- Section 738
- From offender to victim for property damage or ‘readily ascertainable’ (something you could give a receipt
for) pecuniary losses
Absolute and Conditional Discharges

- Section 730, best interests of accused, not contrary to public interest
- An option where
o No minimum punishment proscribed
o Offence not punishment by 14 years or life imprisonment
Conditional Sentences (introduced in Bill C-51 to reduce reliance on incarceration)(R v Proulx):

- An alternative to incarceration for less serious and non-dangerous offences
- Strict surveillance
- Will be seen by judge if conditions broken, could be sent to jail for remainder of sentence
- Conditions such as house arrest or strict curfew should be the norm
- CS is meant to be directed towards people who would otherwise be in jail – the judge should be mindful of
this and seek to provide punishment
- No offences are excluded from the conditional sentencing regime except those with a mandatory minimum
sentence of imprisonment
- Two factors should be considered on the point of danger to the public:
1. Risk of offender re-offending
2. The gravity of the damage that could ensue in the event of a re-offence
Sentencing and Section 12

“Everyone has the right not to be subjected to any cruel and unusual treatment or punishment.”
Analogize:
No violation of s. 12:
- Lyons: indeterminate detention of dangerous offenders
- Luxton: penalty for first degree murder for “while committing” provision
- Morrissey: four year mandatory minimum for criminal negligence causing death with a firearm (nowadays
do a Lloyd analysis)
- Inglis: cancelling mother-baby program at women’s prison (but s. 7 infringed, not saved by s. 1)
Violations of 12, not saved by 1
- Smith: 7 year mandatory minimum for importing narcotics
- Joe: penalty of imprisonment for default on parking fine
Other possible s. 12 claims – Obiter from Smith
32
- Frequency and conditions of searches within prisons
- Dietary restrictions as a disciplinary measure
- Corporal punishment
- Surgical interventions including lobotomy and castration
- Denial of contact with those outside of the prison
- Imprisonment at locations far from home, family, and friends, amounting to an exile
Sentencing: Mandatory Minimums
See if any offences have mandatory minimums!!
Two steps to Determine Constitutionality (R v Nur):

1. Figure out what constitutes a proportionate sentence for the offence having regard to the objectives
and principles of sentencing in the CC.
2. Then ask whether the mandatory minimum requires the judge to impose a sentence that is grossly
disproportionate to the fit and proportionate sentence.
If the answer is yes, then the mandatory minimum provision is inconsistent with s. 12 and will fail unless
justified.
Consider:
- Sentence must be more than merely excessive – we must not stigmatize every disproportionate sentence as
being a constitutional violation (R v Smith)
- Keep in mind aggravating and mitigating factors
- You can use reasonable hypotheticals  this has been brought in over the objections of a vocal dissent
- McLaughlin in R v Lloyd: “Such MMPs will almost inevitably include an acceptable reasonable
hypothetical for which the mandatory minimum will be found unconstitutional. If parliament hopes to sustain
mandatory minimum penalties for offences that cast a wide net, it should consider narrowing their reach so
that they only catch offenders that merit the mandatory minimum sentences”  Perrin hates this
Charter Challenges Using Reasonable Hypotheticals

If you’re unable to make out a section 12 infringement on your set of facts, you could make out an argument on
a reasonable hypothetical.
1. What is a reasonable hypothetical? Can’t be far-fetched, imaginative, or speculative. How broadly does
the offence reach? Can make reasonable inferences. Many judges disagree over what is a reasonable
hypothetical. This is what cases are getting won and lost on.
2. What is met by gross disproportionality?
Analogize
Mandatory Minimum, Section 12, and the Reasonable Hypothetical. R v Nur:
- Nur and Charles were charged with weapons-related offences (prohibited weapon, no license or registration).
They were charged under Section 95.1, minimum sentence of 3 years in prison.
o Nur and Charles do not argue that the mandatory minimums are grossly disproportionate as
applied to them. They argue that they violate s. 12 as they apply to other offenders
o S. 95.1 foreseeably catches licensing offences which involve little or no moral fault and little or
no danger to the public. For these offences three years imprisonment is grossly disproportionate
to a fit and fair sentence
33
Sentencing: Indigenous Offenders
It’s an error of law not to apply s. 718.2 (e) in the case of an aboriginal offender (Gladue/Ipeelee)
Section 718.2 of the CC: 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.
Background considerations for aboriginal peoples (Gladue):

a) The unique systemic or background factors which may have played a part in bringing the particular
aboriginal offender before the courts; and
b) The types of sentencing procedures and sanctions which may be appropriate in the circumstances
because of his or her particular aboriginal heritage or connection
Consider (Gladue):
1. For this offence, committed by this offender, harming this victim, in this community, what is the
appropriate sanction under the Criminal Code?
2. What understanding of criminal sanctions is held by the community?
3. What is the nature of the relationship between the offender and his or her community?
4. What combination of systemic or background factors contributed to this particular offender coming
before the courts for this particular offence?
5. How has the offender who is being sentenced been affected by, for example, substance abuse in the
community, or poverty, or overt racism, or family or community breakdown?
6. Would imprisonment effectively serve to deter or denounce crime in a sense that would be significant to
the offender and community, or are crime prevention and other goals better achieved through healing?
7. What sentencing options present themselves in these circumstances?
Monkey Wrench from Ipeelee/Ladue:

- The Court says that those factors need not be tied in some way to the particular offender and offence. Unless
the unique circumstances of the particular offender bear on his or her culpability for the offence, they will
not influence the ultimate sentence.
o Perrin says this is problematic – so look at it broadly. There does not need to be a causal link, but
there has to be some small tie at minimum.
Evidence:
- Courts should take judicial notice of the effects of colonization – these do not need to be established on the
evidence (Ipeelee/Ladue)
- Counsel on both sides should adduce evidence. If counsel does not, it is incumbent upon the sentencing
judge to attempt to inquire information regarding the circumstances of the offender as an aboriginal person
(Gladue)
- The offender may waive the gathering of this information (Gladue)
Victims
34
Consideration of Victim Impact Statement
Pre-Write: Every victim has a right to submit a victim impact statement, and they have to be used at sentencing
as a form of evidence. While they are not supposed to include a recommendation for sentence, impact
statements should describe physical and emotional harm, property damage, or economic loss suffered by the
victim. The sentencing judge is supposed to ask if the victim would like to submit a statement. If they neglect to
ask, the court can adjourn.
35

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CRIMINAL LAW

Burden and Standard of Proof

If Section 11(d) is infringed:

Test to establish unreasonable delay and/or justification (R v Jordan):

Acts and Omissions

Statutory Duty of Care

Consent – Implicit Duty to Obtain

Consequences and Causation

Test for intervening act severing the chain of causation (R v Maybin):

Test (R v Sault Ste Marie)

Subjective Levels of Mens Rea

Subjective Levels of Mens Rea

Recklessness and Deliberate Ignorance

Test for Wilful Blindness (R v Sansregret):

Types of objective fault offences (R v ADH):

Applies in Criminal Negligence Where:

Mens Rea for Unlawful Act Manslaughter (R v Creighton):

Dangerous Driving Causing Death

Statutory Test for Common Intention:

Common Law Test for Common Intention (Kirkness):

Attempted Murder Considerations:

When and How it Operates:

Officially Induced Error

Common law. Operates as an excuse.

Test (LaVie) to be put to the judge:

Consider (Canada v Shiner):

34 (1) A person is not guilty of an offence if

35 (1) A person is not guilty of an offence if

If you’re confused about Duress and Involuntariness:

Statutory Defence for Principal Offenders (Section 17):

Duress is available to a person

Doesn’t apply for:

Test for Principal Offenders (R v Ryan):

Common Law Defence of Duress for Parties to an Offence (Ryan)

When defence not available:

Criminal fault by reason of intoxication:

How to Tell Between General and Specific Intent Offences (R v Tatton)

Mild Intoxication Advanced Extreme Intoxication

Not Criminally Responsible

Burden of proof: Balance of probabilities on whoever raises the issue.

Tools to Assist a Judge in Their NCR Analysis (Turcotte):

Self-induced intoxication and NCR if you’re anywhere but Quebec

Self-induced intoxication and NCR if you’re in Quebec (R v Turcotte):

Bill C-14 (then C-54): Not Criminally Responsible Reform Act

Sentencing has the following objectives (one or more) (Section 718):

Proportionality (Section 718.1):

Aggravating and Mitigating Factors (Section 718.2)

Principles According to R v Cam:

Absolute and Conditional Discharges

Conditional Sentences (introduced in Bill C-51 to reduce reliance on incarceration)(R v Proulx):

Sentencing and Section 12

Sentencing: Mandatory Minimums

See if any offences have mandatory minimums!!

Two steps to Determine Constitutionality (R v Nur):

Charter Challenges Using Reasonable Hypotheticals

Background considerations for aboriginal peoples (Gladue):

Monkey Wrench from Ipeelee/Ladue:

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