CRIMINAL LAW

2019 Final Outline

Kiyani

Samrah Mian
CONTENTS
JUDICIAL INTERIM RELEASE .............................................................................................................................................. 6
BASIC BAIL CONCEPTS ............................................................................................................................................... 6
GROUNDS FOR RELEASE UNDER S. 515(10) ................................................................................................................... 6
R v Morales (1992) SCC ................................................................................................................................................................ 6
R v Hall (2002) SCC ....................................................................................................................................................................... 6
R v St-Cloud (2015) SCC ................................................................................................................................................................ 7
EXCEPTIONS ................................................................................................................................................................. 7
Reverse Onus For s. 515(6) Offences ......................................................................................................................... 7
R v Pearson (1992) SCC ................................................................................................................................................................ 7
Reverse Onus and Review of Automatic Detention for s. 469 Offences ....................................................................... 8
CONDITIONS ................................................................................................................................................................. 8
R v Antic (2017) SCC ..................................................................................................................................................................... 8
Systemic Issues ......................................................................................................................................................... 9
ACTUS REUS ................................................................................................................................................................... 10
VOLUNTARINESS ......................................................................................................................................................... 10
ACTS OR OMISSIONS ................................................................................................................................................... 10
Positive Acts ............................................................................................................................................................ 10
Omissions ............................................................................................................................................................... 10
R v Browne (1997) ONCA ........................................................................................................................................................... 11
R v Thornton (1991) ONCA ......................................................................................................................................................... 11
R v Mabior (2012) SCC ............................................................................................................................................................... 11
CIRCUMSTANCES ........................................................................................................................................................ 12
CAUSATION ................................................................................................................................................................ 12
Factual Causation .................................................................................................................................................... 12
R v Winning (1972) ON CA ......................................................................................................................................................... 12
Legal Causation ....................................................................................................................................................... 13
General Causation (Smithers/Nette).......................................................................................................................... 13
Smithers v The Queen (1978) SCC.............................................................................................................................................. 13
R v Cribbin (1994) ON CA ........................................................................................................................................................... 13
R v Nette (2001) ON CA .............................................................................................................................................................. 13
Pagett v the Queen (1983) Eng CA ............................................................................................................................................ 13
Harbottle Causation................................................................................................................................................... 13
R v Harbottle (1993) SCC ............................................................................................................................................................ 13
Special Rules ........................................................................................................................................................... 14
Joint Endeavors ......................................................................................................................................................... 14
R v JSR (2008) ON CA .................................................................................................................................................................. 15
Thin Skulls .................................................................................................................................................................. 15
R v Blaue (1975) Eng Ca ............................................................................................................................................................. 15

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 Intervening Causes .................................................................................................................................................. 15
R v Maybin (2012) SCC ............................................................................................................................................................... 15
Criminal Code Provisions ......................................................................................................................................... 16
MENS REA ...................................................................................................................................................................... 17
DEGREES OF MENS REA CHART ................................................................................................................................... 17
Subjective Mens Rea ............................................................................................................................................... 17
Intent ......................................................................................................................................................................... 17
R v Hibbert (1995) SCC ............................................................................................................................................................... 18
R v Buzzanga & Durocher (1979) ON CA ................................................................................................................................... 18
R v Steane (1947) ENG KB .......................................................................................................................................................... 18
Knowledge ................................................................................................................................................................. 18
R v Théroux (1993) SCC .............................................................................................................................................................. 18
Wilful Blindness ......................................................................................................................................................... 18
R v Briscoe (1985) SCC ................................................................................................................................................................ 18
R v Sansregret (1985) SCC .......................................................................................................................................................... 19
Recklessness .............................................................................................................................................................. 19
Objective Mens Rea ................................................................................................................................................ 19
Criminal and Penal Negligence .................................................................................................................................. 19
R v Hundal (1993) SCC ................................................................................................................................................................ 19
R v Creighton (1993) SCC ........................................................................................................................................................... 20
R v Beatty (2003) SCC ................................................................................................................................................................. 20
R v Roy (2012) SCC...................................................................................................................................................................... 20
R v J.F. (2008) SCC ...................................................................................................................................................................... 20
Extended Liability ...................................................................................................................................................... 20
R v Thatcher (1987) SCC ............................................................................................................................................................. 21
R v Pickton (2010) SCC ............................................................................................................................................................... 21
R v Greyeyes (1997) SCC............................................................................................................................................................. 21
R v Dunlop (Dunlop and Sylvester v The Queen) (1979) SCC .................................................................................................... 22
R v Nixon (1990) BCCA ............................................................................................................................................................... 22
R v Popen (1981) ONCA.............................................................................................................................................................. 22
Strict and Absolute Liability ....................................................................................................................................... 22
R v Beaver (1957) SCC ................................................................................................................................................................ 23
R v Pierce Fisheries (1971) SCC .................................................................................................................................................. 23
R v Wholesale Travel Group (1991) SCC .................................................................................................................................... 23
R v Sault Ste-Marie (1978) SCC .................................................................................................................................................. 24
Levis v Tetrault (2006) SCC ......................................................................................................................................................... 24
Contemporaneity .................................................................................................................................................... 24
Fagan v. Commissioner of Metropolitan Police (1969) Eng. QB .............................................................................................. 24
R v Miller (1983) Eng CA............................................................................................................................................................. 24

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 R v Cooper (1983) SCC ................................................................................................................................................................ 24
R v Bottineau (2006) ON CA ....................................................................................................................................................... 25
R v Williams (2002) Sask QB ...................................................................................................................................................... 25
CORPORATE LIABILITY .................................................................................................................................................... 26
R v Metron Construction Corp (2013) ONCA ............................................................................................................................. 27
INCHOATE OFFENCES ..................................................................................................................................................... 28
USA v Dynar (1997) SCC ............................................................................................................................................................. 28
R v Kerster (2001) BCSC .............................................................................................................................................................. 28
R v Forcillo (2006) ONCA ............................................................................................................................................................ 28
Proving Attempts .................................................................................................................................................... 29
R v Cline (1956) ONCA ................................................................................................................................................................ 29
Deutsch v the Queen (1986) SCC ............................................................................................................................................... 29
R v Sorrell and Bondett (1978) ONCA ........................................................................................................................................ 29
R v Ancio (1984) SCC .................................................................................................................................................................. 29
R v Logan (1990) SCC ................................................................................................................................................................. 30
ASSAULT AND SEXUAL ASSAULT...................................................................................................................................... 31
SEXUAL ASSAULT ........................................................................................................................................................ 31
History .................................................................................................................................................................... 31
Typology of Sexual Assault....................................................................................................................................... 32
R v Chase (1987) SCC .................................................................................................................................................................. 32
Consent .................................................................................................................................................................. 33
R v Ewanchuk (1999) SCC ........................................................................................................................................................... 33
R v JA (2001) SCC ........................................................................................................................................................................ 33
Mistake of Fact........................................................................................................................................................ 34
Pappajohn v The Queen (1980) SCC .......................................................................................................................................... 34
Historical Records and Evidence .............................................................................................................................. 35
Sexual History ............................................................................................................................................................ 35
R v Seaboyer (1991) SCC ............................................................................................................................................................ 36
Third Party Records ................................................................................................................................................... 36
POLICING INDIGENOUS COMMUNITIES .......................................................................................................................... 37
DONALD MARSHALL INQUIRY: UNDERLYING FACTS ..................................................................................................... 37
Analysis ................................................................................................................................................................... 37
ROLE OF PROSECUTORS .............................................................................................................................................. 38
ETHICAL PRINCIPLES FOR JUDGES ............................................................................................................................... 39
R v S (RD) (1997) SCC .................................................................................................................................................................. 39
PUBLIC INQUIRY INTO THE ADMINISTRATION OF JUSTICE AND ABORIGINAL PEOPLE (MANITOBA) ............................... 39
“DON’T FENCE ME IN” BY MARY-ELLEN TURPEL LAFONDE ........................................................................................... 40
JURIES ............................................................................................................................................................................ 41
JURY SELECTION ......................................................................................................................................................... 41

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 Purpose .................................................................................................................................................................. 41
General Process ...................................................................................................................................................... 42
R v Kokopenace (2015) SCC........................................................................................................................................................ 42
Exclusion of Jurors ................................................................................................................................................... 42
Peremptory Challenges ............................................................................................................................................. 43
Cause ......................................................................................................................................................................... 43
HOMICIDE ...................................................................................................................................................................... 44
SENTENCING............................................................................................................................................................... 44
GENERAL OFFENCE ..................................................................................................................................................... 44
Rules of Causation ................................................................................................................................................... 45
MANSLAUGHTER ........................................................................................................................................................ 46
R v Popen (1981) SCC ................................................................................................................................................................. 46
INFANTICIDE ............................................................................................................................................................... 47
R v Borowiec (2016) SCC ............................................................................................................................................................ 47
R v LB (2011) ONCA .................................................................................................................................................................... 47
Law Reform ............................................................................................................................................................. 47
MURDER..................................................................................................................................................................... 48
Second Degree Murder ........................................................................................................................................... 48
S. 229(a)(i) Means to cause death or (a)(ii) means to cause bodily harm likely to cause death and is reckless ........ 48
Meli v the Queen (1954) PC ....................................................................................................................................................... 49
R v Simpson (1981) ONCA .......................................................................................................................................................... 49
S. 229(B) Transferred Intent ...................................................................................................................................... 49
s. 229(c) Unlawful Object .......................................................................................................................................... 49
R v Shand (2011) ONCA .............................................................................................................................................................. 49
R v Vasil (1980) SCC .................................................................................................................................................................... 49
S. 230 - Murder in the Commission of Offences ........................................................................................................ 50
Vaillancourt v The Queen (1987) SCC ........................................................................................................................................ 50
R v Martineau (1990) SCC .......................................................................................................................................................... 50
First Degree Murder ................................................................................................................................................ 50
s. 231(2) – Planned and Deliberate ........................................................................................................................... 50
R v Nygard (1989) SCC ............................................................................................................................................................... 50
s. 231(4) – Murder of Peace Officers ......................................................................................................................... 50
R v Collins (1989) SCC ................................................................................................................................................................. 50
s. 231(5) to (6.1) – Deemed Murders ........................................................................................................................ 51
R v Paré (1987) SCC .................................................................................................................................................................... 51
R v Russell (2001) SCC ................................................................................................................................................................ 51
SELF-DEFENCE ................................................................................................................................................................ 52
R v McIntosh (1995) SCC ............................................................................................................................................................ 52
People v Goetz (1986) NY ........................................................................................................................................................... 52

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 Impact of the New Legislation ................................................................................................................................. 52
ELEMENTS OF THE DEFENCE ....................................................................................................................................... 53
R v Cinous (2002) SCC ................................................................................................................................................................. 54
INTIMATE PARTNER VIOLENCE .................................................................................................................................... 54
Challenges............................................................................................................................................................... 54
R v Lavallee (1990) SCC .............................................................................................................................................................. 54
Adaptations for the Self-Defence Test ..................................................................................................................... 54
R v Malott (1998) SCC ................................................................................................................................................................ 55
SENTENCING .................................................................................................................................................................. 56
PURPOSE .................................................................................................................................................................... 56
OPTIONS ..................................................................................................................................................................... 56
Proportionality ........................................................................................................................................................ 56
Non-Custodial Sentences......................................................................................................................................... 57
Custodial Sentences ................................................................................................................................................ 57
R v Proulx (2000) SCC ................................................................................................................................................................. 57
Credit for Pre-Sentencing Custody ........................................................................................................................... 57
Mandatory Minimum Sentences.............................................................................................................................. 58
R v Latimer (2001) SCC ............................................................................................................................................................... 58
R v Ferguson (2008) SCC ............................................................................................................................................................ 58
Discharge ................................................................................................................................................................ 58
Pardons................................................................................................................................................................... 58
Expunging ............................................................................................................................................................... 58
GLADUE REPORTS ....................................................................................................................................................... 59
R v Gladue (1999) SCC ................................................................................................................................................................ 60
R v Ipeelee (2012) SCC ................................................................................................................................................................ 60
CRITIQUES OF OUR SENTENCING REGIME ................................................................................................................... 60

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JUDICIAL INTERIM RELEASE
BASIC BAIL CONCEPTS
Charter of Rights and Freedoms
11(e). Any person charged with an offence has the right… not to be denied reasonable bail without just cause;
There is a presumption that the accused should not be held unless there is a just cause. However, there is a trend towards
detaining them which is evidenced by the number of people held prior to the trial in comparison to after sentencing.
The accused should be able to challenge their detention within 24 hours of being detained. At times, courts have been
reprimanded for delays even when the accused is presented in front of a judge or justice of the peace within 24 hours of
being detained.
GROUNDS FOR RELEASE UNDER S. 515(10)
The burden is on the Crown to demonstrate that just cause exist.
Justification for detention in custody
515(10) For the purposes of this section, the detention of an accused in custody is justified only on one or more of the following grounds:
(a) where the detention is necessary to ensure his or her attendance in court in order to be dealt with according to law;
(b) where the detention is necessary for the protection or safety of the public, including any victim of or witness to the offence, or any person under the age of 18
years, having regard to all the circumstances including any substantial likelihood that the accused will, if released from custody, commit a criminal offence or interfere
with the administration of justice; and
(c) if the detention is necessary to maintain confidence in the administration of justice, having regard to all the circumstances, including
(i) the apparent strength of the prosecution’s case,
(ii) the gravity of the offence,
(iii) the circumstances surrounding the commission of the offence, including whether a firearm was used, and
(iv) the fact that the accused is liable, on conviction, for a potentially lengthy term of imprisonment or, in the case of an offence that involves, or whose subject-
matter is, a firearm, a minimum punishment of imprisonment for a term of three years or more.

Ensure their attendance in court in order to be dealt with according to law

Protection or safety of the public

•'Public interest' was struck out as per Morales

Maintain confidence in the administration of justice, which includes...

•The strength of the prosecution's case
•Gravity of the offence (the more serious the crime, the more the tertiary ground can be relied upon)
•The circumstances surrounding the commission of the offence (including use of firearms)
•The length of the imprisonment (or minimum punishment of imprisonment if a firearm is included)
•"Or any other just cause" was struck out as per Hall

R V MORALES (1992) SCC

Facts Accused was arrested for trafficking as he was considered to be involved in a major cocaine network.
At the time, s. 515(10)(b) allowed the court to deny bail on the grounds of public interest or public safety. He was denied bail under
this ground.
Issue Do the provisions above conflict with s. 11(e) of the Charter?
Ratio The term "public interest" was too vague and imprecise to act as a guide for defining the circumstances justifying pre-trial detention.
Holding While the public safety component is valid, the public interest component is unconstitutional. It was too vague to be justified under s.
1 of the Charter or under the Oakes test.
Public safety grounds were sufficiently narrow, they could include:
o Substantial likelihood the person will commit an offence while on bail
o Person might interfere with the administration of justice while on bail
o Release of the accused endangering the public in some way

R V HALL (2002) SCC

Facts S. 515(10)(c) was added as a response to Morales which allowed denial of bail for “any other just cause.”
The accused was charged with first degree murder and denied bail. The murder was violent and caused significant public concern and
fear.
Issue Do the provisions conflict with s. 11(e) of the Charter?

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 Ratio The phrase “any other just cause” being shown violated the Charter as it permitted detention by virtue of a vague legal provision, but
the remainder is permissible as it is specific enough
Holding The remainder that required the maintenance of confidence in the administration of justice was allowed.
Dissent The tertiary ground is too vague and easily abused → bail can be denied under (a), (b) or (c) subjective fears can form sole basis for
denial of bail

R V ST-CLOUD (2015) SCC

Facts St-Cloud was accused of aggravated assault after a video system recorded him and two others assaulting a bus driver.
The trial judge his detention thought was necessary to maintain confidence in the administration of justice under s. 515(10)(c), noting
the victim's severe medical condition.
Issue Do the provisions conflict with section 11(e) of the Charter?
Ratio S. 515(10)(c) was not necessarily limited to exceptional circumstances i.e. to the most heinous of crimes or to certain classes of
crimes.
Holding The scope of s. 515(10)(c) had unduly been restricted by the courts.
The question whether a crime is “unexplainable” or “unexplained” is not a criterion under this section.
The infrequent application of the tertiary ground as a basis for detention is not a precondition to its application.

EXCEPTIONS

REVERSE ONUS FOR S. 515(6) OFFENCES

Order of detention
515(6) Unless the accused, having been given a reasonable opportunity to do so, shows cause why the accused’s detention in custody is not justified, the justice shall
order, despite any provision of this section, that the accused be detained in custody until the accused is dealt with according to law, if the accused is charged
(a) with an indictable offence, other than an offence listed in section 469,
(i) that is alleged to have been committed while at large after being released in respect of another indictable offence pursuant to the provisions of this Part or
section 679 or 680,
(ii) that is an offence under section 467.11, 467.111, 467.12 or 467.13, or a serious offence alleged to have been committed for the benefit of, at the direction of,
or in association with, a criminal organization,
(iii) that is an offence under any of sections 83.02 to 83.04 and 83.18 to 83.23 or otherwise is alleged to be a terrorism offence,
(iv) an offence under subsection 16(1) or (2), 17(1), 19(1), 20(1) or 22(1) of the Security of Information Act,
(v) an offence under subsection 21(1) or 22(1) or section 23 of the Security of Information Act that is committed in relation to an offence referred to in
subparagraph (iv),
(vi) that is an offence under section 99, 100 or 103,
(vii) that is an offence under section 244 or 244.2, or an offence under section 239, 272 or 273, subsection 279(1) or section 279.1, 344 or 346 that is alleged to
have been committed with a firearm, or
(viii) that is alleged to involve, or whose subject-matter is alleged to be, a firearm, a cross-bow, a prohibited weapon, a restricted weapon, a prohibited device, any
ammunition or prohibited ammunition or an explosive substance, and that is alleged to have been committed while the accused was under a prohibition order within
the meaning of subsection 84(1);
(b) with an indictable offence, other than an offence listed in section 469 and is not ordinarily resident in Canada,
(c) with an offence under any of subsections 145(2) to (5) that is alleged to have been committed while he was at large after being released in respect of another
offence pursuant to the provisions of this Part or section 679, 680 or 816, or
(d) with having committed an offence punishable by imprisonment for life under any of sections 5 to 7 of the Controlled Drugs and Substances Act or the offence of
conspiring to commit such an offence.
For the cases mentioned in this section, the burden shifts and the onus is on the accused. These situations include the
following:
→ An indictable offence committed while on bail – s. 515(6)(a)(i)
→ Participating in, recruiting to, benefitting a criminal organization – s. 515(6)(a)(ii)
→ Terrorism or communicating with terrorist organizations – s. 515(6)(a)(iii)
→ Weapons trafficking – s. 515(6)(a)(vi)
→ Violence with a firearm or prohibited weapon – s. 515(6)(a)(viii)
Pearson is one of a long line of cases that upheld the constitutionality of the reverse onus.
R V PEARSON (1992) SCC
Facts The accused was charged with a narcotic offence under the Controlled Drugs and Substances Act and denied bail.
Issue Does s. 515(6)(d) conflict with section 11(e) of the Charter?
Ratio The reverse onus required under this section is constitutional because the special rules are appropriate for trafficking offences.
Holding S. 11(e) has two distinct elements: the right to reasonable bail and the right not to be denied bail without just cause.
For trafficking offences, the accused must show on balance of probabilities that they should be released. These are specific and

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 narrow enough to be an acceptable violation of s. 11(e).
Dissent There is no distinction between large- and small-scale traffickers. As such, there is no just cause.
Notes This is substantiated R v Bray (1983) SCC found that the reverse onus was a reasonable provision even if it conflicted with s. 11(e) since
it would be justified under s. 1.
R v Pugsley (1982) NS CA found that the reverse onus was inconsistent with the Charter but this was reversed in R v Sanchez (1999) NS
CA.

REVERSE ONUS AND REVIEW OF AUTOMATIC DETENTION FOR S. 469 OFFENCES

Court of criminal jurisdiction
469 Every court of criminal jurisdiction has jurisdiction to try an indictable offence other than
(a) an offence under any of the following sections:
(i) section 47 (treason),
(ii) [Repealed, 2018, c. 29, s. 61]
(iii) section 51 (intimidating Parliament or a legislature),
(iv) section 53 (inciting to mutiny),
(v) section 61 (seditious offences),
(vi) section 74 (piracy),
(vii) section 75 (piratical acts), or
(viii) section 235 (murder);
For the cases mentioned in this section, the burden shifts and the onus is on the accused. In addition, the initial judge or
justice of the peace does not have jurisdiction to release the accused and, thus, they will always be required to ask for a
review of the initial decision.
CONDITIONS
Release on undertaking with conditions, etc.
515(2) Where the justice does not make an order under subsection (1), he shall, unless the prosecutor shows cause why the detention of the accused is justified, order
that the accused be released
(a) on his giving an undertaking with such conditions as the justice directs;
(b) on his entering into a recognizance before the justice, without sureties, in such amount and with such conditions, if any, as the justice directs but without deposit of
money or other valuable security;
(c) on his entering into a recognizance before the justice with sureties in such amount and with such conditions, if any, as the justice directs but without deposit of
money or other valuable security;
(d) with the consent of the prosecutor, on his entering into a recognizance before the justice, without sureties, in such amount and with such conditions, if any, as the
justice directs and on his depositing with the justice such sum of money or other valuable security as the justice directs; or
(e) if the accused is not ordinarily resident in the province in which the accused is in custody or does not ordinarily reside within two hundred kilometres of the place in
which he is in custody, on his entering into a recognizance before the justice with or without sureties in such amount and with such conditions, if any, as the justice
directs, and on his depositing with the justice such sum of money or other valuable security as the justice directs.
Idem
515(3) The justice shall not make an order under any of paragraphs (2)(b) to (e) unless the prosecution shows cause why an order under the immediately preceding
paragraph should not be made.
The right under s. 11(e) of the Charter contains two aspects: (1) the right not to be denied bail without "just cause" and
(2) the right to "reasonable bail." Conditions pertain to the latter.
In Antic, the SCC confirmed that the standard should be that people are released on bail - if they are not released, all
conditions and demands should be justified by the Crown (ladder approach). Generally, people should be released with
conditions to mitigate risks but this doesn’t happen in practice.
A surety is a person who comes to court and promises to a judge or a justice of the peace to supervise an accused person
while they are out on bail. A surety also pledges or promises an amount of money to the court by signing a type of bond
called a recognizance.
The more onerous the conditions, the more likely they will be breached and the accused will go to jail (and at such
instance, they will be burdened with the reverse onus → compounding problem (i.e. difficult to stop associating with
people implicated in crime, drug and alcohol prohibitions for users).
R V ANTIC (2017) SCC
Facts The accused was an Ontario resident but spent time in the United States.
Antic was denied judicial interim release at his initial bail hearing in the Ontario Court of Justice.
Challenged the constitutionality of s. 515(2)(e) of the Criminal Code, which permitted a judge or a justice to require both a cash
deposit and surety supervision as conditions of release if an accused ordinarily resided out of the province or more than 200 km away
from the place in which he or she was in custody.
Issue Did s. 515(2)(e) of the Criminal Code infringed the right not to be denied reasonable bail without just cause under s. 11(e) of the
Charter?

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 Ratio A justice or a judge cannot impose a more onerous form of release solely because he or she speculated that the accused would not
believe in the enforceability of a surety or a pledge.
A cash deposit amount should not be set beyond the readily available means of the accused and his or her sureties.
Holding The ladder principle, which required that the form of release imposed on an accused be no more onerous than necessary. This
principle was codified in the bail provisions of the Criminal Code, including s. 515(3), which prohibited a justice or a judge from
imposing a more onerous form of release unless the Crown showed why a less onerous form was inappropriate.
Parliament included cash in the most onerous "rungs" of the ladder for added flexibility, not because cash was more effective than
other release conditions in ensuring compliance with bail terms.
Once the accused had satisfied the bail review judge that new circumstances justified vacating the detention order, the ladder
principle ought to have guided the judge in fashioning a release order.
The bail review judge failed to apply the ladder principle properly by insisting on a cash requirement despite the existence of other
forms of release, including a recognizance with sureties.
The quantum that the bail review judge set for Antic's cash bail essentially became his "de facto prison."

SYSTEMIC ISSUES
Report on Justice and the Poor (National Council of Welfare, Justice and the Poor):
• More likely to be detained by police if black
→ In April 1995 the law was changed to empower police at their discretion to release accused people on
specific conditions
→ This led to a decrease in unconditional releases
• More likely to be denied bail and jailed until the next court appearance if black
• Less likely to be convicted of the offence(s) if black
• Practice of "bail bargaining" where police threaten to detain or oppose bail in order to extract information from
suspects → more often done if black
• Reverse onus is difficult to comprehend for those without legal representation
• Judges are patronizing and more forgiving of women for fit stereotypical notions of femininity but are also likely
to detain young girls for their own protection
• Law Society of BC condemned criminal justice system for attempting to fill gaps in child welfare policy
• Judges are not consistent with sentences
Report of the Commission on Systemic Racism in the Ontario Criminal Justice System (1996) in Roach:
• Pre-trial custody rate of black people was twice their sentences admission rate
• Exceptions for charges laid under the CDSA/NCA contributes to disproproportionate imprisonment due to charges
laid against minor actors in the drug trade.

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ACTUS REUS

Mental
awareness,
Commission of
intention,
a fault Lawful defence Crime
and/or
(actus reus)
knowledge
(mens rea)

There are two types of offences:

1. Criminal offences (usually in the Criminal Code) where the criminal
process must be procedurally fair or it could be a Charter violation.
2. Regulatory offences which are enacted by federal parliament,
provinces or municipalities i.e. traffic violations.
CRIMINAL LIABILITY
There is liability in non-criminal regulatory offences (strict liability offences require the accused to
establish a defence of due diligence or lack of negligence after the state has proven the prohibited act
beyond a reasonable doubt).
Other regulatory offences, known as absolute liability offences, only require proof of the prohibited
act and do not allow any defence of due diligence or require proof of any fault.
VOLUNTARINESS
It is wrong to hold someone criminally responsible for something that they did not voluntarily do.
There is no definition for voluntariness in the Criminal Code so the basis is judicial precedence:
R v Larsonneur (1933) Eng CA: Accused was involuntarily returned to the United Kingdom despite not being allowed to be
there. The case was criticized for ignoring the voluntariness requirement.
Kilbride v Lake (1962) NZ: Charged with operation a motor vehicle without a registration displayed. It had flown away.
Disregarding any mental elements of an offence, a person cannot be criminally responsible for an act or omission unless it
was done or omitted in circumstances where there was some other course open to him.
If the actus reus of the offence is committed involuntarily, then the defendant cannot be convicted.
R v King (1962) SCC: Accused was given anesthetic post-dental surgery which caused him to slip into unconsciousness. He
was not aware this would happen.
There can be no actus reus unless it is the result of a willing mind at liberty to make a definite choice or decision. There
must be willpower to do an act for the actor to be convicted.
R v Ruzic (2001) SCC: Accused was forced into trafficking drugs from Belgrade to Toronto under threats to her mother.
It is a principal 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
ACTS OR OMISSIONS

POSITIVE ACTS
This requires a finding of the definition of the act. This will often be found in the Criminal Code.
There will be a definition within the general provision i.e. general assault + aggravated assault.
Definitions sections can also provide definitions i.e. firearms in Part III of the Criminal Code.
This can also be found in case law.

OMISSIONS
There is criminal liability when there is a duty required by the individual and they fail to undertake those duties. For
instance, in some jurisdictions, Good Samaritan laws require people to assist when someone is facing harm.

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Individuals are only liable for omissions when they are subject to a legal duty → a duty found in statute or common law.
There are three types of omissions:
Self-Contained Omissions
These are found explicitly within the
Criminal Code:
s. 129 concerns those who resist,
obstruct, don’t assist a peace officer
and previously
s. 252 where there was a failure to
stop at the scene of an accident
General Omissions Status Offences
These are found within provision of Criminalization for possessing a status
the Criminal Code: or being something i.e. terrorism
s. 180 on common nuisance includes where someone is criminalized for
“failure to discharge a duty” their beliefs and association with
s. 219 on criminal negligence includes those committing criminal acts.
“omitting to do anything that it is his
duty to do” in the context of s. 220 on
causing death and s. 221 on causing
bodily harm
The requirement to fulfill an
undertaking under s. 217 (Browne)
Legal duties and duties imposed by
law can only arise by statute, not
common law (Thornton)
Disclose of HIV+ status (Mabior)

R V BROWNE (1997) ONCA

Facts The deceased overdoses and the accused calls a taxi to take her to the hospital. During the time, he promises to take care of her.
He was charged with the following:
s. 217 Every one 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.
s. 219(1)(b) Every one is criminally negligent who… in omitting to do anything that it is his duty to do… shows wanton or reckless
disregard for the lives or safety of other persons.
s. 219 (2) For the purposes of this section, duty means a duty imposed by law.
The trial court found that he filed to do a duty as he did not follow through with his undertaking.
Issue Did the accused undertake to do an act in this situation?
Ratio The undertaking must be made with clearly binding intent
Holding Since the penalty for this violation is so high, undertake needs to be constructed narrowly and, in this situation, it does not meet the
standard since he promised to protect her from theft but made no promise to take care of her health.
No special commitment was found or relationship under s. 215 was found.

R V THORNTON (1991) ONCA

Facts A person who knows they are HIV+ positive donates blood and he is charged with endangering the life, health and safety of the public.
There was no provision in the Criminal Code that prohibited the donation of tainted blood so he was charged with common nuisance
→ “every one commits a common nuisance who does an unlawful act or fails to discharge a legal duty”
Issue Can a legal duty (in s.180(2)) be one that arises at common law or must it arise under statute?
Ratio A legal duty may be imposed at common law (the SCC did not agree, stating that the legal duty must arise by statute, but upheld the
decision)
Holding The accused was guilty under s. 180 surrounding common nuisance → a breach of legal duty which arose from the common law.
The court decided that there is the “legal duty” in s. 180 was the "duty to refrain from conduct which is reasonably foreseeable could
cause serious harm to other persons."
SCC An individual cannot be found guilty of a crime for violating a common law duty as laid out in s. 9 of the Criminal Code; an individual
must violate a duty imposed by statute.
However, he is criminally liable under s. 216 which concerns the duty of persons undertaking acts dangerous to life.
Notes This decision expands the scope by which people can be criminalized.

R V MABIOR (2012) SCC

Facts Accused charged with aggravated assault after failing to disclose HIV+ status to four partners none of whom contracted HIV.
He claimed that the duty to disclose did not arise since the risk of transmission was low or negligible at the time and there was no
significant risk of transmission.
Issue Is there a duty to disclose HIV+ status?
Ratio There is a duty to disclose status where there is a reasonable risk of transmission.

11
 The law requires a low viral load and a condom to negate the reasonable risk as per above.
Holding The Court revisited the test set out in the Cuerrier decision, saying that, “A person may be found guilty of aggravated sexual assault
under s. 273 of the Criminal Code if he fails to disclose HIV-positive status before intercourse and there is a realistic possibility that HIV
will be transmitted."
Although he had a low viral load at the time of intercourse with three of the complainants, he did not use a condom which met the
test for a “realistic possibility.” For the fourth complainant, he had a low viral load and used a condom, therefore, he was acquitted.
Notes Controversial due to the scientific fact that medication and condoms can lower transmission rate to virtually nil, consent, privacy,
public disclosure of status in the process of investigation, singling out cultural panic surrounding HIV status.

PROBLEMS:
→ Generally, people may not know what duties apply to them. Some duties vary across provinces and, therefore,
people don’t know what obligations they are under. There are thousands of provincial statutes and are provinces
unwittingly creating law?
→ The legal duties could include those created by common law since, as the law changes, new duties can be
imposed (however, offences cannot be overly vague or overbreadth as per s. 1 of the Charter)
CIRCUMSTANCES
Most offences require that, in addition
to the act, certain circumstances be
present. certain
the act (i.e. circumstances Criminal
For instance, driving while intoxicated. driving) (i.e. being offence
impaired)
In other cases, the act will only be
considered an offence if it causes a
specific result (certain circumstances)
CAUSATION

General Special
Prove causation Rules
Prove legal Intervening Criminal
factual or •Joint
causation causes Code
causation harbottle endeavours
causation •Thin skulls

In some offences, the act must cause a certain outcome. For instance, under s. 229 “culpable homicide is murder where
the person who causes the death of a human being… means to cause his death, or… means to cause him bodily harm…”
The crown must establish factual causation and legal causation.

FACTUAL CAUSATION
Factual causation concerns whether some connection can be drawn between the accused’s conduct and the prohibited
circumstance. This is assessed in a medical, mechanical and physical sense.
For reliance, see Winning. For human shield, see Pagett. For a shootout, see JSR.
The following case is an example of whether moral blameworthiness exists:
R V WINNING (1972) ON CA
Facts Accused received credit from the bank for lying about her credit history
Issue Did the accused commit fraud?
Ratio There was no factual causal link between the lie and receiving credit
Holding She did not commit fraud since the bank didn’t use that information when assessing whether to give her the loan.
Notes Controversial due to the scientific fact that medication and condoms can lower transmission rate to virtually nil, consent, privacy,
public disclosure of status in the process of investigation, singling out cultural panic surrounding HIV status.

12
LEGAL CAUSATION
This tests whether the casual connection is sufficiently strong to support criminal liability.
There are two causation standards:
1. General Causation (Smithers/Nette)
2. Harbottle Causation

GENERAL CAUSATION (SMITHERS/NETTE)

This standard applies to most manslaughters and murders.
The accused’s actions are required to be a “significant” contributing cause (Nette) whereas it used to be “beyond de
minimis” (Smithers).
SMITHERS V THE QUEEN (1978) SCC
Facts There was a racially charged hockey game where the accused was the target of animosity.
The accused kicks one of the abusers in the stomach. The deceased suffered from a complication whereby his lungs were filled with
the contents of his stomach.
Issue Was there a sufficient causal link between the accused’s actions and the death of the victim?
Ratio Causation will be found if the accused's actions are a contributory cause that is not trivial or insignificant i.e. the de minimis test
(broader standard)
Holding The action is not required to be the sole cause of the result but, rather, only needs to contribute to it.
Although the loss of breathing may have been the result of an anomaly in the esophagus of the victim, the kick was the contributing
cause and the particular anatomy of the victim does not matter.

R V CRIBBIN (1994) ON CA
Facts The deceased was assaulted and robbed by a group of people. Subsequent to this, he loses consciousness and drowns in his own
blood.
Issue Was there a sufficient causal link between the accused’s actions and the death of the victim?
Ratio The contributing cause being required to be not ‘trivial or insignificant’ i.e. beyond de minimis, is constitutional
Holding Application of the Smithers test where he only died because he was lying on the ground as a result of the assault.

R V NETTE (2001) ON CA
Facts A group of people break into a home to rob it.
They tie up the deceased who resided there. She falls off the bed and asphyxiated.
Issue Was there a sufficient causal link between the accused’s actions and the death of the victim?
Ratio Reformulates the “beyond de minimis” requirement of Smithers to the positive “significant contributing cause”
The Harbottle standard does not apply to second degree murder.
Holding The accused being tied up was a significant contributing cause to her death.

PAGETT V THE QUEEN (1983) ENG CA

Facts The accused’s home was raided by police when he took a young, pregnant girl hostage. He used her as a shield and she was shot.
Issue Did the accused cause the death of the girl?
Ratio “a reasonable act performed for the purpose of self-preservation or done in performance of a legal duty, being of course itself an act
caused by the accused’s own conduct, does not operate as a novus actus interveniens.”
Holding The accused factually caused the death because he caused the situation that led to the shot being fired and the police were acting in
self-defence

HARBOTTLE CAUSATION
The Harbottle standard applies to a specific set of first-degree murders.
The standard is higher and requires that the act be a substantial cause; essential, substantial and integral part of the
killing.
R V HARBOTTLE (1993) SCC
Facts The accused and two of his friends had confined and sexually assaulted a woman. The accused held her legs while his friends strangled
her. They were all convicted of first-degree murder.
The accused appealed on the basis that he did not cause the murder.

13
 Issue Did the accused’s actions cause the murder?
Ratio In order to prove causation, the actions must be a substantial cause or essential, substantial and integral part of killing (a higher
standard)
Holding “When death is cause by that person” as per s. 231(5) is broad enough to include acts which assist in the actual killing, but that may
not directly contribute to the death itself.
SUBSTANTIAL CAUSE TEST – S. 231(5) AS PER HARBOTTLE:

There is no binding case which lists which types of offences require this standard, but the language is extrapolated from
Harbottle. The following provisions use the standard:
Hijacking, sexual assault or kidnapping
231(5) Irrespective of whether a murder is planned and deliberate on the part of any person, murder is first degree murder in respect of a person when the death is
caused by that person while committing or attempting to commit an offence under one of the following sections:
(a) section 76 (hijacking an aircraft);
(b) section 271 (sexual assault);
(c) section 272 (sexual assault with a weapon, threats to a third party or causing bodily harm);
(d) section 273 (aggravated sexual assault);
(e) section 279 (kidnapping and forcible confinement); or
(f) section 279.1 (hostage taking).
Criminal harassment
231(6) Irrespective of whether a murder is planned and deliberate on the part of any person, murder is first degree murder when the death is caused by that person
while committing or attempting to commit an offence under section 264 and the person committing that offence intended to cause the person murdered to fear for
the safety of the person murdered or the safety of anyone known to the person murdered.
Murder — terrorist activity
231(6.01) Irrespective of whether a murder is planned and deliberate on the part of a person, murder is first degree murder when the death is caused by that person
while committing or attempting to commit an indictable offence under this or any other Act of Parliament if the act or omission constituting the offence also
constitutes a terrorist activity.
Murder — criminal organization
231(6.1) Irrespective of whether a murder is planned and deliberate on the part of a person, murder is first degree murder when
(a) the death is caused by that person for the benefit of, at the direction of or in association with a criminal organization; or
(b) the death is caused by that person while committing or attempting to commit an indictable offence under this or any other Act of Parliament for the benefit of, at
the direction of or in association with a criminal organization.
Intimidation
231(6.2) Irrespective of whether a murder is planned and deliberate on the part of a person, murder is first degree murder when the death is caused by that person
while committing or attempting to commit an offence under section 423.1.

SPECIAL RULES
The two rules below apply to both the general causation and Harbottle causation standards.

JOINT ENDEAVORS
This doctrine applies when someone has not directly caused the death but has participated in it. These are not necessarily
situations where people are working together. For instance, street racing: R v Menezes (2002) ON SC cited in JSR:
Those at risk from the unreasonable and unjustified danger of an escapade of competitive
driving, whether a spontaneous or planned event, include the occupants of other vehicles,
cyclists, pedestrians, passengers in the racers’ autos, and the co-participants themselves.
There is one danger. Each driver bears equal responsibility for its continued life span subject to
withdrawal or [an] intervening event. As each driver in effect induces the other to drive in
an unlawfully unsafe manner, each is taken to assume any consequential risk objectively
within the ambit of the danger created. [Emphasis added.]
For an example surrounding a hostage situation, see Pagett.
For an example surrounding a shootout, see JSR.

14
 R V JSR (2008) ON CA
Facts Two street gangs had a shoot out on Boxing Day at Eaton Centre. A bystander was killed.
The accused did not shoot the bystander but was charged with homicide causing death.
Issue Is the accused criminally liable for the death?
Ratio The joint endeavor doctrine → if someone participates in the creation of an illegal/dangerous situation, they are responsible for the
consequences of it.
An analysis for ‘but for’ can be used to make a determination.
Holding s. 229(c) dictates culpable homicide being murder “where a person, for an unlawful object, does anything that he knows or ought to
know is likely to cause death, and thereby causes death to a human being, notwithstanding that he desires to effect his object without
causing death or bodily harm to any human being.”
Unlawful object → Killing the northbound shooter
Does anything → Engaged in a shootout on a busy street
Knows or ought to know is likely to cause death → discharged firearms multiple times into the street
Causes death to a human being → substantially contributed to the victim’s death by engaging in shootout

THIN SKULLS
This principle applies to state that the victim should be taken as they are.
In Smithers, the deceased’s anatomy was disregarded.
In Blaue, the deceased’s religious beliefs prevented them from accepting blood transfusions. This was disregarded.
R V BLAUE (1975) ENG CA
Facts The accused stabbed the victim four times which necessitated blood transfusions and surgery.
The victim was a Jehovah’s witness and refused the transfusions which caused death.
Issue Did the victim’s refusal of life-saving treatment affect the finding of causation?
Ratio The refusal of treatment did not constitute an intervening act.
The accused must take their victim as they find them.

INTERVENING CAUSES
Novus actus interveniens is when another party breaks the chain of causation. The following elements should be assessed:
1. Reasonable foreseeability
This will consider how reasonably foreseeable the event was, whether it was extraordinary or unusual etc.
In Maybin, a bouncer intervening in a bar fight was not an intervening cause.
2. Extraordinary or unusual acts
In R v Hallett (1969) SC AUS, the court held that a natural event may break the chain of causation if it is “extraordinary” (a
tidal wave), but not if it is the ordinary operation of natural forces (the tides). Roach says that “when the intervening acts
are natural events, they are more closely tied to the theory of foreseeability, and the courts ask whether the event was
‘extraordinary,’ as in Hallett.”
3. Independent acts of the accused (and the intervening party)
 Flowed from the initial act  Response to the initial act  Dependent on the initial act
As per Roach: “when the intervening acts are those of a person, exercising his or her free will, the focus is often on the
independence of the actions.” The court in Blaue found that refusing a blood transfer was not an intervening cause.
R V MAYBIN (2012) SCC
Facts The accused and his brother were in a fight with the deceased. He punched the deceased who fell over.
A bouncer intervened and hit the unconscious victim on the head when the accused told him that the victim started the fight.
It was medically unclear what caused the death of the deceased since he died from a brain bleed.
Issue Did the bouncer’s intervention act as novus actus interveniens?
Ratio Novus actus interveniens will be applicable only if the subsequent act or event is so strong or overwhelming that the accused’s
contributing act is now an insignificant contributing cause. Reasonable foreseeability and independent factors can assist in this
analysis.
Holding If the bouncer intervening was not objectively foreseeable, then it breaks the chain of causation.
If the bouncer’s intervention was an “interrelated series of events” then the accused would still be responsible for creating the
situation.

15
 The bouncer’s intervention was reasonably foreseeable.

CRIMINAL CODE PROVISIONS

Causation exists in common law but there are also some Criminal Code provisions where it is codified → chain of
causation. See below:
Death from treatment of injury
225 Where a person causes to a human being a bodily injury that is of itself of a dangerous nature and from which death results, he causes the death of that human
being notwithstanding that the immediate cause of death is proper or improper treatment that is applied in good faith.
Acceleration of death
226 Where a person causes to a human being a bodily injury that results in death, he causes the death of that human being notwithstanding that the effect of the
bodily injury is only to accelerate his death from a disease or disorder arising from some other cause.
Killing by influence on the mind
228 No person commits culpable homicide where he causes the death of a human being
(a) by any influence on the mind alone, or
(b) by any disorder or disease resulting from influence on the mind alone,
but this section does not apply where a person causes the death of a child or sick person by wilfully frightening him.

SUMMARY:

Physical Voluntariness Act or Omission

•Willing mind at liberty to make choices? •Act: Positive action
•Within the Criminal Code provision or definitions
•Omission: A legal duty existed ss. 215-218 and was not met
(check annotations and case law)
•Self-Contained Omissions
•General Omissions
•Status Offences

Causation
Circumstances
• Factual: Some connection between the conduct and the prohibited circumstances
•In addition to the act, certain circumstances are • Legal
• Harbottle
present • General
• Special Rules
• Thin Skull
• Joint Endeavors
• Intervening Causes
• Reasonable foreseeability + Extraordinariness + Independent act of the accused

Contemporaneity Criminal Code Provisions

•Mens rea and actus reus must coincide •Ss 225, 226 and 228

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MENS REA
Mens rea inquires whether the accused has a guilty mind. The more serious the crime, the higher the standard to find
mens rea. The onus is on the Crown to show mens rea.
→ Usually, the Criminal Code will indicate the mens rea i.e. willfully, intentionally, knowingly, carelessly, recklessly or
negligently
→ Offences are presumed to have subjective mens rea (unless parliament makes it clear to the contrary, Crown has
to prove some sort of subjective fault element)
→ If there is no language surrounding the mens rea, it is presumed to be at least recklessness or willful blindness
→ Look at the maximum mens rea
DEGREES OF MENS REA CHART

Subjective Forms Objective Forms

Intent Knowledge Wilful Recklessness Criminal Penal Strict Absolute
“willful” or Blindness Negligence Negligence Liability Liability
“for the
purpose
of…”
Desired or Subjective “Arises when “Involves knowledge A marked and A marked Once the Once the
sought the knowledge of a person who of a danger or risk substantial departure from Crown Crown proves
prescribed some fact or has become and persistence in a departure the conduct of a proves actus actus reus
harm - direct state of affairs aware of the course of conduct from the reasonable person reus beyond beyond a
intent - or (Théroux) need for which creates risk conduct of a (Hundal) a reasonable reasonable
desired or some inquiry that the prohibited reasonable doubt, the doubt, liability
sought some declines to result will occur” person which accused can is attached
other end, make that (Sansregret) shows wanton raise a due and no
but it was inquiry and reckless diligence defences are
certain that because he disregard for defence permitted
the harm does not wish the lives or If the statute Not permitted
would be the to know the safety of is silent, this when the
result - truth” others is the default punishment
indirect (Sansregret) (Tutton) mens rea for involves a
intent a regulatory potential loss
(Hibbert) offence of liberty (BC
(Sault Ste. MVA)
Marie)
!!! If the statute is silent, the mens rea is satisfied by any of the above These cannot apply to “true
(Buzzanga & Durocher) crimes” (Hundal)
If the crime is a “stigma offence,” the mens rea has to be one of the
above (Vaillancourt; Martineau; Finta)

SUBJECTIVE MENS REA

Subjective mens rea occurs where the court is be satisfied that the accused possessed the requisite mental element
present in his or her mind at the relevant time (for purposely, knowingly, recklessly etc.).
The mens rea does not require that the accused be aware that what they are doing is a crime.
The principles of fundamental justice (within s. 7 of the Charter) require that “there be a proof a subjective mens rea with
respect to the prohibited act” (Vaillancourt)

INTENT
In order to prove intent, the Crown needs to establish that the person knew what they were doing and did the act
purposefully in pursuit of an object.
This is distinct from voluntariness or motive (ulterior intention which causes that exercise of will; although motive can
sometimes be helpful in determining intent; it is only required in terrorism).
The common-sense inference is a rebuttable presumption → it centers around the idea that people intend the natural

17
consequences of their actions.
R V HIBBERT (1995) SCC
Facts The accused lured the deceased into the vicinity and someone else (a drug dealer) shot him. He relied on the defence of duress.
Issue Can mens rea be found if the accused did not desire that the deceased die?
Ratio Direct and indirect intent are both intent for the purposes of mens rea → ‘Purpose’ is synonymous with ‘intention’; desiring the
outcome is not necessary
The words willful, purpose, or intent indicate the mens rea standard of intent
Holding It was certain or virtually certain that the client would die and, thus, intent was found
Duress cannot negate mens rea but it can be used as a defence.

R V BUZZANGA & DUROCHER (1979) ON CA

Facts Accused were charged with “wilfully promoting hatred” against francophones by using pamphlets to promote a francophone school
Issue Does willful require intentionality or is accidentally promoting hatred sufficient for intentional mens rea?
Ratio Wilfully means “with intention of promoting hatred” and does not include recklessness or negligence
Holding Accused may have reasonably been able to see the consequences but this was not their intention
They submitted evidence that they love French and were not promoting hatred of the language
There must be an intention to incite hatred, not merely an intention to create “controversy, furor and an uproar”
Mens rea is satisfied as long as the outcome was intended or achieved through recklessness
- Intention (doing something to produce a certain result) is different from recklessness (doing something to achieve some other
purpose but knowing that there is a risk of producing the prohibited result)

R V STEANE (1947) ENG KB

Facts Accused broadcast on behalf of nazis due to threats to his family (being sent to a concentration camp)
England charged him with “doing acts likely to help the enemy with the intent to assist the enemy”
Issue Did the accuse possess intent?
Ratio If a crime includes the word ‘intent’, it must be proved beyond a reasonable doubt
Holding There was no intention to assist the nazis

KNOWLEDGE
Proof of knowledge consists of proving that someone knows of a relevant fact. This can either be directly proven or
circumstantial.
R V THÉROUX (1993) SCC
Facts The accused was a developer who collected deposits and did not insure them. He held honest belief that the development would be
completed without issue.
He was charged with fraud.
Issue Did the accused possess the mens rea of knowledge?
Ratio The mens rea of fraud is established by proof of subjective knowledge of the prohibited act, and by proof of subjective knowledge that
the performance of the prohibited act could have as a consequence the deprivation of another
Holding Accused knowingly undertook the act.
Where the conduct and knowledge required by these definitions are established, the accused is guilty whether he intended the
deprivation or was reckless as to whether it would occur.

WILFUL BLINDNESS
If an individual’s suspicions have arisen but they chose not to inquire any further, they could be found criminally negligent
due to willful blindness. In Sansregret, the first incident was seen to be reckless but the second was willfully blind.
Wilful blindness can also be substituted for knowledge (i.e. wilful blindness can substitute actual knowledge when
knowledge is a component of mens rea).
This is harder to prove than recklessness.
R V BRISCOE (1985) SCC
Facts The accused drives the victim and the killer (who was underage at the time) to a golf course despite knowing that the killer had
mentioned desiring to assault and kill someone. He also knew when the victim and the killer were together.
Ratio Wilful blindness is best understood as ‘deliberate ignorance’ as it connotes ‘an actual process of suppressing a suspicion’

18
 No requirement for shared intent but they must know about the intention of the principal and attempt to help. See below.
It does not matter if the principle cannot be convicted as per s. 23.1. See below.
Holding The accused had suspicions but failed to clarify.
A lack of intention for the victim to die does not absolve him of responsibility for the murder.

R V SANSREGRET (1985) SCC

Facts The accused had a no-contact order but broke into the complainant’s home and threatened her. She had intimate relationships with
him. She reported this to the probation officer who warned the accused about consent.
He repeated this action.
Issue Did the accuse act recklessly?
Ratio “One who, aware that there is danger that his conduct could bring about the result prohibited by the criminal law, nevertheless
persists, despite the risk” commits recklessness
Holding Negligence is the failure to take reasonable care (objectively measured).
Recklessness is the risk that conduct could bring about prohibited conduct, but the accused proceeds.
Willful blindness is declining to inquire because they prefer to remain ignorant.
During the first incident, the accused was reckless and in the second, he was willfully blind.

RECKLESSNESS
Recklessness occurs when the accused knows and/or foresees proscribed harm may possibly or probably occur (but is not
certain to occur such as in intent). As per Buzzanga and Durocher, it is the “subjective state of mind of a person who sees
that his conduct may cause the prohibited result but takes a deliberate and unjustified risk anyway.”
In Sansregret, the first incident was seen to be reckless and the second was willfully blind.
“Wilful blindness is distinct from recklessness because, while recklessness involves
knowledge of a danger or risk and persistence in a course of conduct which creates a risk
that the prohibited result will occur, wilful blindness arises where a person who has
become aware of the need for some inquiry declines to make the inquiry because he
does not wish to know the truth. He would prefer to remain ignorant. The culpability in
recklessness is justified by consciousness of the risk and by proceeding in the face of it,
while in wilful blindness it is justified by the accused's fault in deliberately failing to
inquire when he knows there is reason for inquiry.” [22] Sansregret.

OBJECTIVE MENS REA

The standard measured in objective mens rea is that of a reasonable person.

CRIMINAL AND PENAL NEGLIGENCE

There is a difference between criminal (marked and MANSLAUGHTER TEST (CREIGHTON)
substantial) and penal negligence (marked departure). The activity must The activity must Given the
constitute a be done when personal
The test to be applied is the modified objective test marked departure
from the standard
there is objective
foresight of harm
characteristics of
the accused, were
Establish mens rea

where the reasonable person takes into account the

Establish capacity
Establish actus reus

of care of a which can be they able to

reasonable inferred from the appreciate the
surrounding circumstances (Hundal) but not personal person in the
circumstances
facts, as per the
reasonable
risk of harm
flowing from their
characteristics such as age or life experience (Creighton). person in the
circumstances
conduct?

R V HUNDAL (1993) SCC

Facts The accused was charged with dangerous driving causing death when he drove into an intersection on a red light and collided with
another vehicle.
Ratio The standard to be applied in a dangerous driving offence (penal negligence) should be that “a marked departure from the standard of
care that a reasonable person would observe in the accused’s situation, in all the circumstances”
Holding There is no subjective mens rea required since driving is automatic and there is little conscious fault.
There was the use of a modified objective standard which considers circumstances included in the event such as the weather, traffic
etc.

19
 R V CREIGHTON (1993) SCC
Facts The accused is charged with manslaughter by way of an unlawful act (injection of drugs leading to an overdose).
He prevented a third party from calling an ambulance and they clean up the site instead.
Issue Should the accused have objectively seen that the injection could have resulted in death?
Ratio The objective standard is whether a reasonable person in all the circumstances would have foreseen the risk of bodily harm that is
neither trivial nor transitory
See the test for manslaughter as per above.
Holding There should not be an incorporation of personal characteristics into the standard of a reasonable person, otherwise, the law would
not apply evenly to everyone and will become highly variable.
The objective test should apply unless there are mental capacity issues.
McLachlin J in Creighton surrounding Martineau factors:
1. Unintentional killing but foreseeable risk of bodily injury
2. Punishment for manslaughter can be tailored to context
3. Those causing harm intentionally will be punished more severely
Dissent The modified objective test should include characteristics of the accused that are relevant to the offence.
In this case, the accused had an understanding of drugs.
Death does not need to be reasonably foreseeable; only an injury.

R V BEATTY (2003) SCC

Facts The accused was driving a pickup truck and veered into oncoming traffic.
Issue Was the accused negligent?
Ratio The modified objective test is appropriate to determine requisite mens rea for negligence-based criminal offences.
Holding The test to apply is the modified objective test
This was a momentary lapse as opposed to a marked departure of the standard of care for the reasonable person.
The act was dangerous and there was a departure from the standard of care but not marked.
There is the possibility of a civil suit.

R V ROY (2012) SCC

Facts The accused was driving onto a highway on a foggy day. He checks for traffic but doesn’t see anyone. He collides with a car and his
passenger dies.
Issue Was the accused negligent?
Ratio The degree of fault for dangerous driving is a marked departure from the standard of care that a reasonable person would observe in
the circumstances, as per Beatty. Factors to assess:
1.In light of all relevant evidence, would reasonable person have foreseen risk and taken steps to avoid it if possible?
2.Was the accused’s failure to foresee the risk and take steps to avoid it, if possible, a marked departure from the standard of care
expected of a reasonable person in the accused’s circumstances?
Holding The court considers what the reasonable person would have foreseen (as a risk) i.e. Foggy day, steep hill → the driver did check for
the risk and attempted to avoid it

R V J.F. (2008) SCC

Facts The victim was four years old and died from blunt traumas to the head.
The foster mother pleaded guilty to manslaughter as she physically beat the victim.
The accused was the foster father and was charged with criminal negligence and manslaughter by failing to provide the necessaries of
life.
Issue Was the accused criminally negligent? Or does penal negligence apply?
Ratio Crimes which have an external element of negligence require a standard of a marked departure from the standard of care;
manslaughter by criminal negligence requires a standard of marked and substantial departure from the standard of care.

EXTENDED LIABILITY
MODES OF PARTICIPATION
The first part of s. 21(1) is the principle. The second two provisions include parties to offences. There is nothing that
suggests that the latter will receive lesser offences. Ss. 22.1 and 22.2 captures corporations.
As per s.23.1 and Briscoe, the principle does not need to be convicted in order for the other parties to the offence to be
convicted. Omissions can count as acts of aiding when there is a duty to act by statute (Nixon) or by common law (Popen).

20
FAULT REQUIREMENTS (BRISCOE)
Actus Reus Mens Rea
An act or omission that aids or abets the offence Intent to facilitate and encourage the offence
Knowledge that the principal intends to commit the offence
Parties to offence
21(1) Every one is a party to an offence who Aiding: To assist or help the actor (includes an omission)
(a) actually commits it; For the purpose of: Guards against overreach → Mens rea is the act or the
(b) does or omits to do anything for the purpose of aiding any person to commit omission that is the commission of the offence e.g. no innocent parties
it; or Abetting: Encouraging, instigating, promoting, or procuring the crime to be
(c) abets any person in committing it. committed by acts or words
Common intention
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.
Where one party cannot be convicted
23.1 For greater certainty, sections 21 to 23 apply in respect of an accused notwithstanding the fact that the person whom the accused aids or abets, counsels or
procures or receives, comforts or assists cannot be convicted of the offence.

R V THATCHER (1987) SCC

Facts The accused was a Member of the Legislative Assembly in Saskatchewan and he was accused for ordering the murder of his ex-wife.
Issue Does it matter whether the accused physically committed the murder or just aided and abetted in it?
Ratio There is no requirement to identify whether the accused is the principal, all that needs to be proven is that he is responsible
There are no provisions for differences in sentencing whether principal or abetter (regardless of what jury decides)
Holding Where the accused was being tried alone but there was evidence that more than one person was involved, it was appropriate for the
trial judge to direct the jury regarding s. 21 of the Criminal Code even if the identity of the participants was unknown or uncertain.
The trial judge was not required to separate his charge into sections dealing with the possible alternative modes of committing the
offence.
Section 21(1) of the Criminal Code made the difference between aiding and abetting and personally committing the murder legally
irrelevant such that either mode was equally as culpable → As long as the jury reached the conclusion that the accused committed the
offence beyond reasonable doubt it was of no consequence which of the alternatives took place.

R V PICKTON (2010) SCC

Facts The accused was charged with six counts of murder.
The trial judge directed the jury in a conflicting way → It's a murder if he committed the act and, later, it's a murder if he participated
in the act with unnamed individuals.
The defence argued that the instruction, including the newly introduced phrase “was otherwise an active participant in her killing”—
presented an alternate, ill-defined route to conviction late in the trial.
Issue Did the trial judge err in instructing the jury?
Ratio It did not matter whether the accused acted alone or with others for, provided that he "actively participated" in the killings, and thus
had a physical role in them, he could be found criminally liable.
Holding The jury instructions were valid because they were in response to the accused’s lawyers advancing the position that other people
were participating.
The theory that others may have possibly been involved could not have come as a surprise to the jury or the defence.
Even though there was no explicit instruction on aiding and abetting, the majority ruled that the relevant law had been explained to
the jury sufficiently, considering the facts and evidence.
Concur The jury should have been instructed that they should pick between physically killing and aiding/abetting because this is how it was
presented

R V GREYEYES (1997) SCC

Facts The accused helped an undercover officer obtain drugs. He takes him to the drug dealer and uses the officer’s money to purchase the
drugs.
Issue Could the accused be party to the offence of trafficking? If so, is aiding in drug purchase or drug trafficking?
Holding The accused facilitated the transaction of the drugs and he had intention to traffic the narcotics.
The accused did more than just purchase the drugs, he brought the officer to the place of purchase and therefore, he trafficked.
Dissent The agency is unclear → consider that anyone buying drugs could be a trafficker
CA

21
 R V DUNLOP (DUNLOP AND SYLVESTER V THE QUEEN) (1979) SCC
Facts A few girls are invited to a bush party by a motorcycle group. One of the girls is dragged away and raped by one of them.
She identifies two of these men who she met at a bar but doesn't remember who specifically raped her → she knew that they were
part of the group who attacked and that they were principles
The two men claimed they saw her having sexual relations with someone at the party but they departed shortly thereafter.
Issue Were the accused guilty?
Ratio Mere presence at the scene of the crime is not sufficient to ground culpability
Holding Found no evidence that the men were doing anything other than standing there for a few minutes before departing
They ignored evidence of the victim (not that they were present and therefore guilty but rather, they committed the crime as
principals)
Note Case decided on the presumption that the defendant’s evidence was accepted
Dissent Mere presence is not enough to aid, but all of the circumstances should be considered

R V NIXON (1990) BCCA

Facts Inmate assaulted by another officer and breaks his leg. The officer on duty did not intervene.
Issue Did the supervising officer aid/abet the crime?
Ratio Omissions can count as acts of aiding when there is a statutory duty to act
Holding Officer was party to and guilty of assault on basis of breach of legal duty to provide care and protection to the inmates under his care

R V POPEN (1981) ONCA

Facts A mother killed her daughter (history of abuse). The accused was a parent and did not intervene in the killing.
Issue Did the accused aid/abet the crime?
Ratio Omissions can count as acts of aiding when there is a common law duty to act
Holding Common law duty of a parent to take reasonable steps to protect a child from illegal violence

STRICT AND ABSOLUTE LIABILITY

It is a principle of fundamental justice that the penalty imposed on an accused and the stigma which attaches to that
penalty and/or to the conviction itself, necessitate a level of fault which reflects the particular nature of the crime.
Lamer CJ in Wholsesale Travel Group
True crimes are those that are inherently ‘bad’ and
require mens rea as an element of the crime. These
Strict Liability
offences are usually implied by the use of language •Do not require mens rea
•The act alone is punishable
within the charge such as "knowingly", "willfully", or
•Duty on the accused to have acted as a
"intentionally". reasonable person and has a due
Public welfare offences are those aren’t inherently diligence defence
bad within
themselves but can
Criminal Law v Private Law result in harmful or Absolute Liability
Crown brings case rather than a dangerous •Do not require mens rea
private party •The act alone is punishable
conditions.
•No defences permitted
Stigma to the corporation Beaver set out the
Corporations are sometimes basic principle that,
involved in true crimes i.e. in possession crimes, subjective mens rea must be present. However, this was
terrorism
countered in Pierce Fisheries where the SCC found that mens rea is not necessary for
Considerations that go beyond statutes which criminalize behaviour by reason of public welfare → the stigma for these
one injured party i.e.
offences are not as strong and, therefore, criminalizing them
environmental impact
Resource issues Wholesale Travel Group created the distinguishing factor between true crimes and
regulatory offences.
In Sault St-Marie, the court created the following two categories of liability offences
(see chart above).
To distinguish between these types the court will examine “[t]he overall regulatory pattern adopted by the legislature, the

22
subject matter of the legislation, the importance of the penalty
and the precision of the language used will be primary
considerations in determining whether the offence falls into
the [strict liability offence category].” (Sault St-Marie)

Defence of Due Diligence

Officially Induced Error
•Error of law, or mixed •The accused took
The due diligence defence "will be available if the accused law and fact was made reasonable steps to
reasonably believed in a mistaken set of facts which, if true, •Person who committed avoid the harm and
the act considered the can demonstrate that
would render the act or omission innocent, or if he took all legal consequences of they have done so
reasonable steps to avoid the particular event. These offences their action •It is not necessary to
•The advice obtained take all the
may properly be called offences of strict liability." The burden came from an conceivable steps
of proving that the accused acted as a diligent person rests on appropriate official •Compliance with
•The advice was industry standards
his shoulders and must be demonstrated by preponderance of reasonable weighs in favour but is
evidence. (Sault St-Marie) •The advice was not determinative
erroneous •Industry standards
The defence of officially induced error applies primarily in cannot be of value if
•The person relied on
regulatory and strict liability cases (but may apply in true the advice in the standards are
committing the act insufficient
crimes as well). The criteria for the defence is found in Levis
(see right).

R V BEAVER (1957) SCC

Facts The accused were arrested for selling heroin to an undercover police officer. They thought the package was milk sugar and they were
attempting to defraud the officer.
Issue Does a conviction based on possession requires knowledge of the nature of the object?
Ratio An offence based on possession (such as possession of a narcotic) requires the Crown to prove that the accused had subjective
knowledge of the nature of the object in possession.
Representing something as a narcotic and selling it will
Holding The accused not know the character of the substance so he was acquitted of possession. However, he did represent the substance as
a narcotic and therefore was convicted on the charge of trafficking.
It is a fundamental principle of criminal law that the mens rea of an element of an offence must be proven to secure a conviction. It
has been established that provisions in the statute are criminal law, and that any offence that allows a punishment of prison requires
proof of mens rea.

R V PIERCE FISHERIES (1971) SCC

Facts The statutory regime prohibited the capturing of undersized lobsters.
The accused caught 60,000 kg of lobster and 26 of those were found to be undersized.
Issue Can the accused be found criminally responsible despite not knowing that they had captured undersized lobsters?
Ratio The requirement of a mens rea is not necessary for statutes which criminalize behaviour by reason of public welfare
Holding Regulations around fisheries are intended to protect lobsters from depletion, hence there is a public welfare purpose to regulate.
It is not an offence similar to the ones found in the code, hence it is not a new crime added to the criminal law or require mens rea.
The wording of the statute does not indicate that intent or knowledge is necessary to find liability.
There are implications of not requiring a mens rea in crimes such as these. The rise of industrialization led to regulatory law and the
concept of protecting the public since they could not protect themselves. This serves the public welfare at large. As the idea evolved,
there was less concern with moral fault but, rather, the impact of large scale activities on a large number of people. The lack of
regulation can result on a negative impact. Regulations can be justified but regulations are not criminalization.
Dissent Beaver was clear in its finding that mens rea is required for a crime → parliament could not have intended criminal liability without
mens rea

R V WHOLESALE TRAVEL GROUP (1991) SCC

Facts Wholesale Travel sold vacation packages which it advertised as being at "wholesale prices" when, in fact, they were not wholesale
prices at all. The company was charged with five counts of false or misleading advertising contrary to the Competition Act.
The charge was a hybrid offence that could be either an indictment consisting of a fine at the discretion of the court and to
imprisonment for five years or to both, or a summary conviction consisting of a fine of $25,000 and a prison term for one year or both.
Issue Is the lack of a requirement for mens rea unconstitutional?
Ratio Offences for which the mens rea is not required are constitutional when a due diligence defence is available.
Public welfare offences are generally strict liability offences, meaning that the Crown does not need to prove mens rea, but the
defendant can be acquitted if they prove that they acted reasonably in the circumstance
Holding Criminal law can be a tool of public policy

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 R V SAULT STE-MARIE (1978) SCC
Facts The city built a disposal site 20 feet from a stream which, when filled by the disposal company, resulted in waste seeping into the
stream. The city was charged with discharging, or permitting to be discharged, refuse into the public waterways causing pollution
pursuant to the Ontario Water Resources Act.
Issue Should the offence be strict liability or one of absolute liability?
Ratio Strict liability offence is one between a true crime and strict liability. A strict liability offence doesn’t require mens rea and the act
alone is punishable. As opposed to strict liability, the accused can raise a defence of due diligence.
Holding Dumping offences were of a public welfare nature and were from a provincial statute, thus, were Strict Liability offences and do not
require mens rea.
A need for a class of offence that had a lower standard to convict than True Crimes but was not as harsh as Absolute Liability offences.
As opposed to the first category of offences in which the accused is presumed innocent, offences of strict liability presses a
presumption of negligence on the accused.

LEVIS V TETRAULT (2006) SCC

Facts A numbered company was charged with operating a vehicle for which registration fees had not been paid. The company said it had
been advised by an employee of a provincial insurance agency that a renewal notice would be sent out.
Issue Is the defence of an officially induced error available?
Ratio The defence of an officially induced error can be adopted for regulatory, strict liability offences
Holding Due to circumstances leading up to the act, the company is not liable.

CONTEMPORANEITY
The actus reus and mens rea must coincide. This includes concurrence and a temporal overlap.
As per Roach, “the Supreme Court of Canada has never explicitly stated that the principle of contemporaneity is a
principle of fundamental justice within the meaning of s 7 of the Charter, but a strong argument can be advanced for this
conclusion.”
FAGAN V. COMMISSIONER OF METROPOLITAN POLICE (1969) ENG. QB
Facts A constable asked the accused to pull over. He does and accidentally drives on the foot of the constable.
When the constable tells him to get off, he curses at him.
He is summarily charged for assaulting a police officer.
The accused argues that assault requires an active assault whereas he accidentally drove over the foot of the officer.,
Issue Did the actus reus (driving over the foot) coincide with the mens rea (intent) in order to establish contemporaneity?
Ratio An intent developed after the act which results in a continuance of the act will establish contemporaneity
Holding This was a continuous act. While it was initially unintentional, but the intention was formed during the act which made it criminal.

R V MILLER (1983) ENG CA

Facts The accused was drinking and smoking. He fell asleep with an actively burning cigarette. When he awoke to find a fire, he moved to
another room.
He was charged with arson.
Issue Did the accused’s omission after discovering the fire establish mens rea and actus reus?
Ratio “An unintentional act that is followed by an intentional omission to rectify that act or its consequences can be seen as an intentional
act.”

R V COOPER (1983) SCC

Facts The accused and the victim were drinking together. He grabbed her by the throat and blacked out. When he came to, he was in the
backseat of the car with her body next to him.
Issue Since the accused blacked out, was the requisite mens rea missing?
Ratio Mens rea does not need to continue throughout the duration of the act. It is sufficient if the actus reus and mens rea coincide at a
point.
Holding The jury may have inferred that the accused intended to cause bodily harm when he grabbed her by the throat, knowing that
strangulation was likely to cause death (recklessness standard surrounds foreseeability of a likelihood of death)
An act that is not criminal may become criminal once the person committing the act becomes aware of it and nonetheless continues.

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 R V BOTTINEAU (2006) ON CA
Facts Grandparents became guardians of their four grandchildren. They resided in a home with five adults and another child.
They severely neglected two of the children for a period spanning over four years and one of the children died.
Issue Did the grandparents possess the mens rea (knowledge that the children could die) and does this coincide with the actus reus
(omission)?
Ratio If at some point, the mens rea and actus reus coincided, there can be contemporaneity.
Holding The single transaction occurred over four years → at some point, the mens rea and actus reus would have coincided.

R V WILLIAMS (2002) SASK QB

Facts The accused and the complainant were in a relationship for 18 months.
They engaged in unprotected sex for five months prior to him learning that he had HIV+ status. He did not tell his partner about this
for over a year and they continued having unprotected sex.
He was charged with aggravated assault.
Issue Was contemporaneity established in this case?
Holding It was difficult to determine when the complainant contracted HIV. Complainant may already have contracted HIV when the accused
discovered his status.
At first, there was endangerment (actus reus) but no intent (mens rea), and then intent (mens rea) but no endangerment (actus reus).

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CORPORATE LIABILITY
Historically, courts have been reluctant to connect employee’s actions with
corporate structures and assigning the corporations responsibility for them. As WESTRAY MINE DISASTER (1991)
the scale of corporations have increased, there is a trend towards making such
connections. A coal mine in Nova Scotia suffered from an
explosion that led in casualties. A public
Nowadays, the Crown will attempt to connect the action to a person with inquiry found that the mine was
some authority within the corporation and, therefore, holding the corporation mismanaged, miners' safety was ignored, and
responsible. This presents its own challenges, however, since directing minds poor oversight by government regulators led
can often be far removed from illegal acts. If an act of an ordinary employee to the disaster. A criminal case against two
mine managers went to trial in the mid-
can be connected to a senior officer of the company, the corporation may be 1990s, but ultimately was dropped by the
liable for the act. crown in 1998, as it seemed unlikely that a
The Corporate Culture Model assigns responsibility to the organization if the conviction could be attained. Unions
advocated to allow for prosecutions of mine
Crown can demonstrate that the act in question seems to be part of the
managers which led to the establishment of
culture of the organization. Evidence to prove this includes policies, s. 22.1 of the Criminal Code.
procedures and other relevant documents.
SECTION 22.1 (OFFENCES OF NEGLIGENCE – ORGANIZATIONS)
22.1 In respect of an offence that requires the prosecution to
prove negligence, an organization is a party to the offence if Representative commits the act
(a) acting within the scope of their authority
This should occur within the scope of their own responsibilities The act can be committed by more than one person (aggregation of acts)
(i) one of its representatives is a party to the
offence, or
(ii) two or more of its representatives engage in
conduct, whether by act or omission, such that, if it
had been the conduct of only one representative, Assessment of the connection between the representative and the relevant senior
that representative would have been a party to the officer
offence; and
(b) the senior officer who is responsible for the aspect of the
organization’s activities that is relevant to the offence departs
— or the senior officers, collectively, depart — markedly from The culpability of the senior officer
the standard of care that, in the circumstances, could
reasonably be expected to prevent a representative of the Marked departue from the standard
of care (not substantial)
No requirement to show knowledge Due diligence analysis
Collective inaction does not preclude
liability
organization from being a party to the offence.
Representatives are those who commit the actus reus (i.e. false advertising or negligence causing death).
Senior officers are responsible for actively managing the part of the organizations’ activities where the act occurred or has
a relevant role in establishing the relevant policies that govern the area where act occurred → this is not based on the job
title but the responsibilities. This is where the mens rea should be located.
SECTION 22.2 (OTHER OFFENCES – ORGANIZATIONS)
22.2 In respect of an offence that requires the prosecution to prove fault — other than negligence — an organization is a party to the offence if, with the intent at least
in part to benefit the organization, one of its senior officers
(a) acting within the scope of their authority, is a party to the offence;
(b) having the mental state required to be a party to the offence and acting within the scope of their authority, directs the work of other representatives of the
organization so that they do the act or make the omission specified in the offence; or
(c) knowing that a representative of the organization is or is about to be a party to the offence, does not take all reasonable measures to stop them from being a party
to the offence.
This offence pertains to situations where the senior officer directs their representatives to commit an offence. This
provision is not often used.
(a) within scope of their authority (b) mental state required (c) does not take reasonable measures
Requirement that they were acting The senior officer knew (subjective) If they knew that the representative
within the scope of their authority or ought to have known (objective) was about to or in the process of
and, while committing the act, have that the offence was a possible committing the offence, failed to take
the intent to at least in part benefit consequence of the directive they reasonable steps (due diligence) to
the company. issued. stop them.
Whether the company was a willing
recipient of the benefit is irrelevant.
Subsequent to Metron, prosecutors can have charges filed against corporations and can enter into a remediation phase
with prosecutors (under the supervision of courts) where they will pay fines.

26
 R V METRON CONSTRUCTION CORP (2013) ONCA
Facts A senior officer was negligent and this resulted in the death of himself and some of his coworkers. The corporation pled guilty
Issue Was a lowered fine appropriate since higher penalties may result in bankruptcy for the company?
Ratio A corporation is not to be permitted to distance itself from culpability due to the corporate individual's rank on the corporate ladder
or level of management responsibility.
Holding The fine should be raised due to the Occupational Health and Safety Act and jurisprudence.
The economic viability of a corporation was properly a factor to be considered but it was not determinative.
The sentence of a fine of $200,000 failed to convey the need to deliver a message on the importance of worker safety. Denunciation
and deterrence should have received greater emphasis. The sentence was demonstrably unfit.

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INCHOATE OFFENCES
Attempts only require the element of mens rea and not the actus
reus.
S. 24(1) indicates that someone is guilty of an attempt takes place
when:
• They have an intent to commit the offence
• Does or does not do anything to carry out the attempt
• Whether the offence was possible or impossible is not
relevant.
The sentence for an attempt is usually half of that of committing
the offence (see s. 463) except murder (see s. 439).
Some attempts are treated as complete offences because the
attempt itself constitutes the entirety of the offence i.e. bribery
offences (s. 119) and obstruction of justice (s. 139).
Factual impossibility o is not persuasive (Forcillo). Arguments that
the object of the crime do not exist (Kerster) and/or that the crime
wasn’t completed due to the fact that the accused was dealing
with undercover law enforcement is not acceptable (USA v Dynar).
Williams was charged with attempted sexual assault because the
evidence was unclear as to when the HIV transmission took place.
Abandonment cannot be used as a defence but can be used to
raise doubt surrounding intent.
USA V DYNAR (1997) SCC
Facts The accused was caught in a money laundering operation.
They argued that they could not be charged with an attempt
because they did not follow through as the receiving party were law
enforcement.
Could the accused be charged with the crime?
Issue
Ratio There is no difference between factually and legally impossible
crimes.
There should be a focus on the true belief of the accused.
The lack of success does not affect the mens rea, only the actus reus.
Holding The operation was a valid means of finding criminals. The fact that
the money laundering was practically impossible is unimportant.
An attempt consists of an intent to commit the offence and an act,
more than mere preparation, taken in furtherance of the offence.
R V KERSTER (2001) BCSC
Facts There was an undercover operation to catch a child predator.
Issue Could the accused be charged with the crime since the child did not
exist?
Ratio The absence of illicit goods or persons do not indicate that someone
has not made a criminal attempt
R V FORCILLO (2006) ONCA
Facts A police officer shot the deceased who shot in a second volley of
bullets. He pled that it was impossible to kill someone after death.
Issue Could the officer be found guilty of attempted murder?
Ratio Factual impossibility is not necessarily relevant
Holding The first shooting was justified use of force but the second was not.
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CRIMINAL CODE PROVISIONS
Attempts
s. 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.
Question of law
(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.
Attempts, accessories
463 Except where otherwise expressly provided by law, the
following provisions apply in respect of persons who attempt
to commit or are accessories after the fact to the commission
of offences:
(a) every one who attempts to commit or is an accessory after
the fact to the commission of an indictable offence for which,
on conviction, an accused is liable to be sentenced to
imprisonment for life is guilty of an indictable offence and
liable to imprisonment for a term not exceeding fourteen
years;
(b) every one who attempts to commit or is an accessory after
the fact to the commission of an indictable offence for which,
on conviction, an accused is liable to imprisonment for
fourteen years or less is guilty of an indictable offence and
liable to imprisonment for a term that is one-half of the
longest term to which a person who is guilty of that offence is
liable;
(c) every one who attempts to commit or is an accessory after
the fact to the commission of an offence punishable on
summary conviction is guilty of an offence punishable on
summary conviction; and
(d) every one who attempts to commit or is an accessory after
the fact to the commission of an offence for which the
offender may be prosecuted by indictment or for which he is
punishable on summary conviction
(i) is guilty of an indictable offence and liable to imprisonment
for a term not exceeding a term that is one-half of the longest
term to which a person who is guilty of that offence is liable,
or
(ii) is guilty of an offence punishable on summary conviction.
Attempt to commit murder
239 (1) Every person who attempts by any means to commit
murder is guilty of an indictable offence and liable
(a) if a restricted firearm or prohibited firearm is used in the
commission of the offence or if any firearm is used in the
commission of the offence and the offence is committed for
the benefit of, at the direction of, or in association with, a
criminal organization, to imprisonment for life and to a
minimum punishment of imprisonment for a term of
(i) in the case of a first offence, five years, and
(ii) in the case of a second or subsequent offence, seven years;
(a.1) in any other case where a firearm is used in the
commission of the offence, to imprisonment for life and to a
minimum punishment of imprisonment for a term of four
years; and
(b) in any other case, to imprisonment for life.
PROVING ATTEMPTS
Cline sets out criteria to determine an attempt. Evidence of past actions can be used. In order to establish the actus reus,
examine how removed the accused was from the attempt itself and whether they were in control of the steps taken that
lead towards the commission of the offence (Deutsch). Any alternative and innocent explanations for the actus reus could
hinder the finding of an attempt (Sorrell and Bondett).
The mens rea for attempted murder is a specific intent to kill someone (Logan).

1. There must be both mens 2. Evidence of similar actions

rea and actus reus, but the
misconduct lies primarily in
the intention;
3. The Crown can raise this
leading to a criminal end, if
evidence without waiting for
not too remote in time, will
a specific defence;
help to prove attempt;

6. When the requisite

intention has been formed,
4. It is not essential that the 5. The actus reus must be
the next action performed to
actus reus is a crime, tort, or more than a mere
further the attempt to
even a moral wrong; preparation; and
commit the crime satisfies
the actus reus.

R V CLINE (1956) ONCA

Facts The accused would lure young boys into an alley, claiming that he lost his suitcase, and sexually assault them. In the instance for which
he was charged, the child escaped.
Issue Can his past be used to prove that he was making an attempt?
Ratio Evidence of past actions can be submitted in order to prove attempts
The criteria for an attempt should be assessed using the factors above
Holding If the accused has a history of assaulting children, this can be used to prove mens rea.

DEUTSCH V THE QUEEN (1986) SCC

Facts The accused was trying to procure females to have sex with clients. He posted an employment advertisement for a secretary and told
the interviewees as such.
Issue Were his actions sufficient to constitute a criminal attempt?
Ratio In order to establish the actus reus, examine removed the accused was from the attempt itself and whether they were in control of
the steps taken that lead towards the commission of the offence
Holding The offer of financial compensation was sufficient actus reus in this case. It went beyond mere preparation.
The attempt occurred when the job offer was issued.

R V SORRELL AND BONDETT (1978) ONCA

Facts The accused attempted to rob a fried chicken shop. They were wearing masks and carrying a gun. The manager had closed the store
early. The accused knocked on the door but the cleaner said that they could not open it. The accused leave.
Issue Are the accused guilty of the attempt to rob the store?
Ratio It would be challenging to find an attempt when there is an innocent explanation
Holding If there’s an innocent explanation of their conduct and there’s no other evidence of their intent, then the balance of probabilities
should determine the culpability of the accused.

R V ANCIO (1984) SCC

Facts The accused broke into his ex-partner’s house with a firearm and fired it at the male present on the premises. He missed and a
struggle ensued. The accused later argued that he did not go to the premises to hurt anyone but, rather, wanted his ex-partner to
accompany him to his son’s house.
Issue Did the accused have the mens rea to commit murder and was the actus reus sufficient to find a murder attempt?
Ratio Attempted murder requires the establishment of intent to commit murder

29
Holding The mens rea for attempted murder requires intent to cause murder or bodily harm that can lead to death. There needs to be specific
intent (to commit a crime) in order to be convicted of an attempted murder even if the mens rea for this crime is lower than intent.

R V LOGAN (1990) SCC

Issue What is the mens rea for an attempted murder?
Ratio The minimum mens rea for an attempted murder is specific intent to kill
Holding The constitutionally minimum standard for a murder attempt is a subjective foreseeability of death.

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ASSAULT AND SEXUAL ASSAULT
Assault
265 (1) A person commits an assault when
(a) without the consent of another person, he applies force intentionally to that other person, directly or indirectly;
(b) he attempts or threatens, by an act or a gesture, to apply force to another person, if he has, or causes that other person to believe on reasonable
grounds that he has, present ability to effect his purpose; or
(c) while openly wearing or carrying a weapon or an imitation thereof, he accosts or impedes another person or begs.
Application
(2) This section applies to all forms of assault, including sexual assault, sexual assault with a weapon, threats to a third party or causing bodily harm and aggravated
sexual assault.
Consent
(3) For the purposes of this section, no consent is obtained where the complainant submits or does not resist by reason of
(a) the application of force to the complainant or to a person other than the complainant;
(b) threats or fear of the application of force to the complainant or to a person other than the complainant;
(c) fraud; or
(d) the exercise of authority.
Accused’s belief as to consent
(4) Where an accused alleges that he believed that the complainant consented to the conduct that is the subject-matter of the charge, a judge, if satisfied that there is
sufficient evidence and that, if believed by the jury, the evidence would constitute a defence, shall instruct the jury, when reviewing all the evidence relating to the
determination of the honesty of the accused’s belief, to consider the presence or absence of reasonable grounds for that belief.
Assault is the intentional application of force (beyond de minimis) without the person’s consent.
SEXUAL ASSAULT

HISTORY
In the past, rape was a property crime since women were not legal person and
essentially belonged to their husband. Sexual assault was ripe with victim
92% of complainants of sexual
blaming. Myths and stereotypes about women and women’s sexuality informed
assault are female
the jurisprudence. The rules of evidence permitted cross examination of
previous sexual history and placed requirements such as the assault be ‘recent’ The rate of sexual assault
and that the complainant’s evidence be corroborated. Juries were also told to reporting dwindled between
remain skeptical of their testimony. (Shilton and Derrick) 1983 and 2015 but there is no
In 1982, the laws surrounding sexual assault changed: corresponding decline in self-
reported victimization surveys
• The requirement for penetration is removed
(StatCan)
• Corroboration are no longer required (s. 274)
• Gendered stereotypes are not permissible Only 5% of victims over 15 years
• Past sexual history is not relevant of age report their sexual assault
• Marital rape is included (s. 278) (Uniform Crime Reporting; 2015)
The case law has adapted to this. For instance, the complaint does not need to Police officers will often report
be recent (s. 274) No longer is there any presumptive adverse inference against that sexual assault claims were
the complainant solely due to the claim being made at a later time (DD). While ‘unfounded’ → this is heightened
the accused can cross examine complainants on why the report was not made in mid-sized locations such as in
earlier, there must be other evidence to prompt this such as a motive to Victoria
fabricate. Judges are also expected to explain to jurors that delayed reporting is Conviction rates for sexual
not indicative of fabrication. assault (11%) are lower than for
Despite these changes, there is still tension within the criminal justice system other crimes (63%)
and the law of sexual assault and its adjudication is pervaded with rape If a complainant was self-
mythologies (Shilton and Derrick). The statistical profile (left) is evidence of this. intoxicated, the result will likely
IDEAL VICTIM be an acquittal
The ‘ideal victim’ myth perpetuates within the criminal justice system where a Sentences for spousal violence
complainant’s success in the system does not concentrate on the perpetrator are more lenient than for similar
but, rather, largely depends on how closely their situation aligns with the ideal non-spousal violence
victim archetype. If a woman is seen to deviate too far from what ‘real victims’
should look like, their experiences are disqualified. The onus is still on the
complainant to establish their credibility and the idea that if their complaint is

31
authentic, their stories would correspond with patriarchal expectations about what real victims look like and how they act
(Melanie Randall). For instance, an ideal victim fits into traditional modes of femininity, she will be raped by a stranger,
she will actively resist and she will have a “clean” sexual history. This type of thinking is seen in the actions of the lower
courts in Ewanchuk and its criticism by L’Heureux-Dubé J leading to an inflammatory response by McClung J which serves
as evidence that sexism is firmly entrenched within the judiciary.
The way that police handles sexual assault complainants also aligns with similar ideas about how raped women ought to
behave. This is evidenced by ‘unfounded’ reports by police subsequent to a sexual assault complaint. Cases such as
Williams v London Police Services Board and Jane Doe v Toronto Metropolitan Police directly target these sexist police
practices.
RAPE V SEXUAL ASSAULT
It is notable that there was some controversy surrounding the change of terminology (in the new legislation) from ‘rape’
to ‘sexual assault’ where the latter is considered less severe.

TYPOLOGY OF SEXUAL ASSAULT

Aggravated sexual assault
273 (1) Every one commits an aggravated sexual assault who, in committing a sexual assault, wounds, maims, disfigures or endangers the life of the complainant.
Sexual assault with a weapon, threats to a third party or causing bodily harm
272 (1) Every person commits an offence who, in committing a sexual assault,
(a) carries, uses or threatens to use a weapon or an imitation of a weapon;
(b) threatens to cause bodily harm to a person other than the complainant;
(c) causes bodily harm to the complainant; or
(d) is a party to the offence with any other person.
Sexual assault
271 Everyone who commits a sexual assault is guilty of
(a) an indictable offence and is liable to imprisonment for a term of not more than 10 years or, if the complainant is under the age of 16 years, to
imprisonment for a term of not more than 14 years and to a minimum punishment of imprisonment for a term of one year; or
(b) an offence punishable on summary conviction and is liable to imprisonment for a term of not more than 18 months or, if the complainant is under the
age of 16 years, to imprisonment for a term of not more than two years less a day and to a minimum punishment of imprisonment for a term of six months.
There is differentiation between aggravated sexual assault (s. 273), sexual assault with weapons, threats or bodily harm (s.
272) an undefined sexual assault (s. 271).
While sexual assault is not defined in the Criminal Code, the provisions for assault will apply in addition with sexual
context. As per Chase, the common law will assess what is being touched, the nature of touching. anything said or done
around the act and any other relevant circumstances.
Sexual Assault
Definition Same platform as for assault but sexual assault involves touching in a sexual manner
Causation
Actus Reus Touching In a sexual context (Chase) Without consent
Sexual gratification is not
necessary (V(KB)
Mens Rea Intentional touching Knowledge of lack of consent
Only requires subjective lack of consent
(Ewanchuk)
Consent need to be continuous and conscious
(JA)
Notes

R V CHASE (1987) SCC

Facts The accused held the complainant and touched her breast.
He was initially convicted of assault but the crown appealed and asked for sexual assault.
Issue What is the difference between sexual assault and assault?
Ratio In order to determine sexual assault (in common law), assess what is being touched, the nature of touching. anything said or done
around the act and any other relevant context

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CONSENT
Meaning of consent
273.1 (1) Subject to subsection (2) and subsection 265(3), consent means, for the purposes of sections 271, 272 and 273, the voluntary agreement of the complainant
to engage in the sexual activity in question.
Consent
(1.1) Consent must be present at the time the sexual activity in question takes place.
Question of law
(1.2) The question of whether no consent is obtained under subsection 265(3) or subsection (2) or (3) is a question of law.
No consent obtained
(2) For the purpose of subsection (1), no consent is obtained if
(a) the agreement is expressed by the words or conduct of a person other than the complainant;
(a.1) the complainant is unconscious;
(b) the complainant is incapable of consenting to the activity for any reason other than the one referred to in paragraph (a.1);
(c) the accused induces the complainant to engage in the activity by abusing a position of trust, power or authority;
(d) the complainant expresses, by words or conduct, a lack of agreement to engage in the activity; or
(e) the complainant, having consented to engage in sexual activity, expresses, by words or conduct, a lack of agreement to continue to engage in the activity.
Subsection (2) not limiting
(3) Nothing in subsection (2) shall be construed as limiting the circumstances in which no consent is obtained.
Assessing consent at the actus reus stage only requires showing that the complainant did not subjectively consent.
Implied consent is not a defence for sexual assault (Ewanchuk). In assessing “threats or fear of the application of force to
the complainant or to a person other than the complainant” as per s. 265(3)(b), s. 273.1(2) can be used.
Consent can be vitiated under s. 265(3)(d) as fraud when someone vitiates consent by lying about their identity or about
the act or exposing the complainant to harm by depriving them of knowledge (Mabior). However, the onus is on the
plaintiff to prove a lack of consent.
Further to s. 273.1(s)(a.1) surrounding unconsciousness, a conscious operating mind is required in order to give consent.
Consent must be continuous and consciously given (JA). The limit to sexual freedom is justifiable in the case of consent.
There is no longer any blanket consent within marital relationships (s. 278).
R V EWANCHUK (1999) SCC
Facts The accused had prior rape convictions and a similar sex assault conviction.
The complainant was lured into a trailer when she was asked to interview as a job selling wood carvings.
She was sexually assaulted by him.
The trial judge said that the complainant had not consented to the sexual touching but that this was not clear to the accused and
circumstances existed that substantiated implied consent.
The Court of Appeal said that her state of mind was not clear to the accused and she did not communicate a lack of consent to him.
Issue Was this sexual assault?
Ratio Assessing consent at the actus reus stage only requires that, subjectively, there was no consent.
Implied consent is not a defence for sexual assault.
Holding When a claimant testifies that she did not consent, the defendant can argue that she is lying about not consenting prior to and during
the act. If this is not found, the absence of consent is established.
There is no such availability of ambiguity i.e. Even if consent was not believed, there wasn't communication.
If some consent is demonstrated, then force, threat of force, fraud or exercise of authority can vitiate or negate that consent.
The lack of verbal non-consent → courts didn’t take into account the power dynamics i.e. The physical size of the accused
The lower courts relied on a lot of myths and stereotypes i.e. The complainant lacks the virtuous qualities that would be expected of a
quality woman (unmarried, single, keeping knees closed) ““it must be pointed out that the complainant did not present herself to
Ewanchuk … in a bonnet and crinolines.”
The characterization of the conduct was minimizing (i.e. Not being chivalrous)
Misunderstandings surrounding 'feminist agendas'
Called it "unwanted kissing" and not assault → Implication that SA requires more force.
Requirement of physical and verbal resistance.
Manifestation of these ideas by judges and counsel.

R V JA (2001) SCC
Facts The complainant and the accused are in a relationship. The complainant gives consent and then fell unconscious (part of the play). The
accused engaged in things that were not part of the agreement.
Issue Can consent be given in a situation like this?
Ratio A conscious operating mind is required in order to give consent. Consent must be continuous and consciously given.

33
 Holding There are at least a few reasons why it makes sense to not recognize consent in terms of unconscious sexual activity:
i) Logic: If the complainant doesn't expect the activity that takes place then legally and definitionally, there has been an assault
ii) Evidence: There won't be knowledge that the person was assaulted because they are unconscious - assault doesn't always leave
physical evidence (i.e. Bruising and obvious trauma) - nature of assault turns on lack of consent and not the harm experienced by the
person
iii) Innocent misinterpretation: People can communicate clearly to each other but there is also the possibility that misinterpretation
will occur → The risk of being unintentionally violated
Dissent Limits on sexual freedom cannot be justified

MISTAKE OF FACT
Accused’s belief as to consent
265(4) Where an accused alleges that he believed that the complainant consented to the conduct that is the subject-matter of the charge, a judge, if satisfied that there
is sufficient evidence and that, if believed by the jury, the evidence would constitute a defence, shall instruct the jury, when reviewing all the evidence relating to the
determination of the honesty of the accused’s belief, to consider the presence or absence of reasonable grounds for that belief.
Where belief in consent not a defence
273.2 It is not a defence to a charge under section 271, 272 or 273 that the accused believed that the complainant consented to the activity that forms the subject-
matter of the charge, where
(a) the accused’s belief arose from
(i) the accused’s self-induced intoxication,
(ii) the accused’s recklessness or wilful blindness, or
(iii) any circumstance referred to in subsection 265(3) or 273.1(2) or (3) in which no consent is obtained;
(b) the accused did not take reasonable steps, in the circumstances known to the accused at the time, to ascertain that the complainant was consenting; or
(c) there is no evidence that the complainant’s voluntary agreement to the activity was affirmatively expressed by words or actively expressed by conduct.
In general, if someone is mistaken about a particular fact, there is an argument that they lacked the mens rea
requirement. If the mens rea for an offence is objective, then it must be a reasonable mistake of fact.
Mistaken belief in fact can be raised in the following instances:
• Evidence is required that reasonable steps were taken (absence of evidence, this will not be taken)
• If there is an expression of unwillingness to engage, they must acquire a “clear and unequivocal yes” (Ewanchuk)
• A lack of time, silence or ambiguous conduct does not indicate consent
• If there is initiation of sexual conduct after hearing a ‘no’ then, at minimum, there is recklessness
Since mes rea is subjective in sexual assault, there is no requirement that the mistake be objectively reasonable
(Pappajohn). Proponents of this point to the following justification (Pickard):
1. Unfair to punish those who have made an honest mistake
2. Making even an unreasonable mistake should not warrant criminal sanction
3. An honest mistake about a material element is “sufficient to negative the mens rea for a serious crime”
This is problematic because, while it saves those who are unable to take enough care as to determine consent, it results in
two issues: individuals who are capable of taking care could escape conviction or prosecution and, even besides this,
people incapable of ascertaining consent are still dangerous to victims and potential victims of sexual assault (Boyle).
Pickard argues that the mistaken belief in fact should only be applied to sexual assault if the mistake was reasonable. The
standard should not be absence of knowledge of non-consent but, rather, a mistaken belief in consent and the content of
this should be the source of considerable inquiry. There is good social policy to balancing the interests of the accused, the
victim and those in society.
Recklessness and willful blindness (s. 273(2)(a)(iii)) cannot lead to a mistake of fact (Sansregret). Neither can anything
discussed in s. 265(3) or s. 273.1(2) or (3) in which no consent is obtained.
Self-induced intoxication (s. 273(2)(a)(i)) is not available for a defence for sexual assault even though it is an defence for
assault. This subsection has been challenged as unconstitutional but this has not been acknowledged at the appellate
level.

PAPPAJOHN V THE QUEEN (1980) SCC

Facts The accused has sex with the complainant but then he gags and ties her up. She escapes.
Issue Should the jury have been directed towards the defence of mistake of fact?
Ratio There needs to be a ‘sense of reality’ in cases where there is a mistake of fact
There is no requirement that the mistake be reasonable

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HISTORICAL RECORDS AND EVIDENCE
Mistake of fact is very much linked with sexual history and third party records.

SEXUAL HISTORY
Evidence of complainant’s sexual activity
276 (1) In proceedings in respect of an offence under section 151, 152, 153, 153.1, 155 or 159, subsection 160(2) or (3) or section 170, 171, 172, 173, 271, 272 or 273,
evidence that the complainant has engaged in sexual activity, whether with the accused or with any other person, is not admissible to support an inference that, by
reason of the sexual nature of that activity, the complainant
(a) is more likely to have consented to the sexual activity that forms the subject-matter of the charge; or
(b) is less worthy of belief.
Conditions for admissibility
(2) In proceedings in respect of an offence referred to in subsection (1), evidence shall not be adduced by or on behalf of the accused that the complainant has engaged
in sexual activity other than the sexual activity that forms the subject-matter of the charge, whether with the accused or with any other person, unless the judge,
provincial court judge or justice determines, in accordance with the procedures set out in sections 278.93 and 278.94, that the evidence
(a) is not being adduced for the purpose of supporting an inference described in subsection (1);
(b) is relevant to an issue at trial; and
(c) is of specific instances of sexual activity; and
(d) has significant probative value that is not substantially outweighed by the danger of prejudice to the proper administration of justice.
Factors that judge must consider
(3) In determining whether evidence is admissible under subsection (2), the judge, provincial court judge or justice shall take into account
(a) the interests of justice, including the right of the accused to make a full answer and defence;
(b) society’s interest in encouraging the reporting of sexual assault offences;
(c) whether there is a reasonable prospect that the evidence will assist in arriving at a just determination in the case;
(d) the need to remove from the fact-finding process any discriminatory belief or bias;
(e) the risk that the evidence may unduly arouse sentiments of prejudice, sympathy or hostility in the jury;
(f) the potential prejudice to the complainant’s personal dignity and right of privacy;
(g) the right of the complainant and of every individual to personal security and to the full protection and benefit of the law; and
(h) any other factor that the judge, provincial court judge or justice considers relevant.
Interpretation
(4) For the purpose of this section, sexual activity includes any communication made for a sexual purpose or whose content is of a sexual nature.
In the past, the accused could not use sexual history to defend themselves. However, this has been changed to a
prohibition only in the following circumstances:
• Supporting the idea that accused is more likely to have consented due to having a sexual history
• Support the idea that she shouldn't be believed due to having a sexual history
The prosecution is still able to use sexual history.
Before evidence is admitted, judge makes a determination surrounding admissibility (s. 276(2)). This is based on whether
the history is relevant to the issue at trial and whether the significant probative value is not outweighed by the prejudicial
effects of the evidence. Under s. 276(3), the judge must attempt to balance the accused's fair trial rights along with the
complainant's privacy interests along with society's interests in seeing that there be reporting of sexual assault.
Seaboyer found that sexual history evidence can be admissible in the following situations:
1. Specific instances of sexual conduct which could show that someone other than the accused caused the bodily
harm that resulted from the assault
2. Proving a bias or motive to fabricate on the part of the complainant
3. Honest mistake of fact: The accused, at the time of the assault, believed that the plaintiff was consenting based
on past activity which seemed similar or earlier comments on the same day
4. Resist evidence introduced by the prosecution about the sexual history of the complainant
5. An issue surrounding evidence that will not be addressed
The dissent by L’Heureux-Dubé J found that sexual history will always be prejudicial and should never be permitted.

35
 R V SEABOYER (1991) SCC
Issue Can sexual history ever be permissible in trials surrounding sexual assault?
Ratio Sexual history is admissible in the situations as per above
Holding Blanket prohibition is dangerous → there are some situations where prior sexual history can be relevant
Dissent Sexual history is never relevant
General stereotypes that operate within the law:
i. Struggle and Force: Woman as Defender of Her Honor
- A woman cannot be raped against her will
- Women need to behave in particular ways in order to avoid rape
ii. Knowing the Defendant: The Rapist as a Stranger
- In most cases, the attacker is known to the complainant and is often an intimate partner
- Sexual history can be used in the defendant's advantage
iii. Sexual Reputation: The Madonna--Whore Complex
- Women are either entirely pure and nonsexual (besides marriage) or they are promiscuous due to sex outside of marriage
iv. General Character: Anything Not 100 Percent Proper and Respectable
- Complainant cannot be trusted because they aren't behaving in accordance with societal values
v. Emotionality of Females
- Raped women should be visibly upset - screaming and hysterical etc - otherwise the assault may not have happened
vi. Reporting Rape
- Raped women report their rape
vii. Woman as Fickle and Full of Spite
- Women only report because they're upset and are trying to get revenge
viii. Female Under Surveillance: Is Victim Trying to Escape Punishment?
- They are avoid suffering from being punished for extra-marital relationships
ix. Disputing That Sex Occurred
- They did not want to have sex so they called it rape
x. Stereotype of the Rapist
- Stranger rape

THIRD PARTY RECORDS

Third party records are used to establish the unreliability of the complainants. These materials include counselling
records, medical history and, sometimes, even personal journals. They are not received automatically (the government
does not have these records) since there is a third party and have to be actively acquired. Seaboyer now serves as a model
for obtaining records. The defence applies for them and judges will determine whether they are admissible.
In O’Connor, the SCC confirmed that therapeutic records of the complainant should be disclosed.
This decision can be criticized on the basis that it extraordinarily burdens the complainant and does not adequately
balance the fair trial rights of accused with the right to privacy of the complainant (Busby). These records can be used to
dissuade victims from proceeding with complaints (dissent in Seaboyer).
In 1996, newly-introduced Bill C-46 emphasized the complainant’s right to privacy and this was upheld by the SCC (Mills).

36
POLICING INDIGENOUS COMMUNITIES
...both jurisprudence and ethical codes stress that the Crown prosecutor is a “minister of justice” and not an adversary
purely concerned with winning. Prosecutors should not rely on unreliable, speculative and “shaky” expert evidence in plea
and charge negotiations and should not (mis)use insufficiently reliable opinions to secure admissions and bargains from
those accused of criminal acts. On all occasions where incriminating expert evidence is relied upon, limitations with
techniques and opinions should be disclosed.
G Edmond, “(Ad)ministering Justice: Expert Evidence and the Professional Responsibilities of Prosecutors”

DONALD MARSHALL INQUIRY: UNDERLYING FACTS

Sandy Seale was killed and Donald Marshall Jr was convicted for his death. Many years later, Ebsery was found to be the
murder. There was contradictory evidence, institutional problems (police communications). A Royal Commission was
struck to decide on the problem but judges were not permitted to be examined.

ANALYSIS
Police
Poor investigation
The treatment of the
evidence was lacking
They came upon a suspect
of the offence and decided
that he was the only person
who would be investigated
for the crime
Poor securing of the crime
scene, poor interviewing of
witnesses...
The Commission agreed
that there was racial
tension; the white people
of Sydney did not trust
indigenous peoples
When they focused in on
Donald Marshall Jr, they did
not investigate further due
to discrimination
When the daughter of the
real murderer came in to
speak to her evidence, they
told her the case was
closed (did not relay to
superiors who could relay
information to crown
counsel)
The two police forces were
not coordinating
information.
Trial Judge
The trial judge did not
understand the Evidence
Act
Didn't allow the Crown or
Defence to explore the
contradiction and
testimony given by one
witness (this was shut
down even though the
Crown believed that it was
an adverse witness)
dddd
Defence Counsel
Defence counsel have an
obligation to their client →
they are the only person's
interests who should be
considered and they did not
live up to this obligation
Competing duties →
Representing the client and
representing the truth
While they were very good
lawyers, they did not do an
adequate job because their
client was indigenous.
They made the
assumptions that the client
committed the offence.
They didn't interview
Crown witnesses before the
trial.
They didn't ask for
disclosure from the Crown.
They didn't do their own
investigation.
The lawyers didn't argue
the fundamental errors in
law
They focused on the
strategy where the jury had
to either find him guilty of
murder or not
They didn't try to use any of
the evidence to show the
inconsistencies
Prosecutors
The prosecutor has to be a
neutral and impartial
participant in the process
as their job includes
presenting evidence that
tends to prove the guilt of
the accused but also...
Disclosing evidence that the
accused did not commit the
offence and other evidence
relevant to the case → If
disclosure is not made, it is
a violation of someone's
section 7 rights
The job of the prosecutor is
not to judge the person but
to allow the judge and/or
jury to make a
determination
The Royal Commission said
the Crown did not
recognize when the
defence lawyers were
failing to do things that
they should have done i.e.
Tell the judge that certain
types of questions by the
defence are actually
allowed

37
 Appeal Judges (1972) Second Appeal (1983)
The appeal judges should have seen that there were The court absolves everyone else involved in this decision
serious errors made in the case especially those made by of any responsibility except for Donald Marshall Jr, stating
the trial judge on the introduction of the case and the that if he had been more honest then they would have
shutting down of the questioning discovered the evidence, seen things differently and not
Appeal courts are the most important courts and the last convicted him
opportunity for many to get justice (SCC is unreachable The Royal Commission found that the comments made by
for most) the second appeal court were wrong: ignored
overwhelming evidence that said he was innocent, they
pretty much convicted him of something that he was
never charged with (robbery) and generally, ignored all
structural factors to the conviction.
The terms of reference of the appeal were structured
incorrectly. Donald Marshall Jr had to request the AG for
this appeal. The AG allowed this but excluded the broader
context, i.e. The way the police investigated the case,
focusing simply on the trial.
The judge who was on the second appeal used to be the
attorney general who managed affairs while the
investigation took place and had an interest in making
sure that people did not suffer from consequences of this
appeal
Donald Marshall Jr was disadvantaged from this since it
impacted his standing in terms of negotiating for
compensation
The commission also recognized a racialized image of the justice system, which it called “the image of white justice.” This
image stems largely from the underrepresentation of “racialized persons” among judges, lawyers, and jury members. An
accused person who is a member of a visible minority is most often met with a courtroom filled with white jurors, lawyers,
and judges—an image that does not reflect the multiracial makeup of Canada. Interestingly, while recommending certain
measures to expand juror eligibility to recent immigrants and minority groups, the commission provided no guidance as to
what can be done to increase the numbers of judges and lawyers drawn from racial minorities. Roach
In the second appeal, Donald Marshall Jr succeeded but the court said the following:
Donald Marshall Jr. was convicted of murder and served a lengthy period of incarceration. That conviction is now to be set
aside. Any miscarriage of justice is, however, more apparent than real... By lying he helped secure his own conviction. He
misled his lawyers and presented to the jury a version of the facts he now says is false, a version that was so far-fetched as
to be incapable of belief... By planning a robbery with the aid of Mr. Seale he triggered a series of events which
unfortunately ended in the death of Mr. Seale... By hiding the facts from his lawyers and the police Mr. Marshall
effectively prevented development of the only defence available to him, namely, that during a robbery Seale was stabbed
by one of the intended victims. He now says that he knew approximately where the man lived who stabbed Seale and had
a pretty good description of him. With this information the truth of the matter might well have been uncovered by the
police.
ROLE OF PROSECUTORS
In short, the prosecutor does not act in the largely partisan sense usually required of defence counsel by the adversarial
system, but as a promoter of the public interest in achieving a just result. Significantly, the Supreme Court has noted that
this role is not confined to the courtroom, but extends to all dealings with the accused. Roach

38
ETHICAL PRINCIPLES FOR JUDGES
The Canadian Judicial Council has since produced Ethical Principles for Judges
These addresses conflicts of interests in rule 6E as follows:
1. Judges should disqualify themselves in any case in which they believe they will be unable to judge impartially.
2. Judges should disqualify themselves in any case in which they believe that a reasonable, fair minded and informed
person would have a reasoned suspicion of conflict between a judge’s personal interest (or that of a judge’s
immediate family or close friends or associates) and a judge’s duty.
3. Disqualification is not appropriate if:
a. the matter giving rise to the perception of a possibility of conflict is trifling or would not support a
plausible argument in favour of disqualification, or
b. no other tribunal can be constituted to deal with the case or, because of urgent circumstances, failure to
act could lead to a miscarriage of justice.
R V S (RD) (1997) SCC
Facts Case in which a white police officer is arresting someone; the accused turns up and asks the person being arrested if he needed
assistance. The police officer ends up arresting the latter as well.
The accused was charged with obstruction of justice and an assault.
The trial judge is biased in favour of the young black male accused.
She finds the accused more credible and thought the police officer overreacted; as they would when dealing with people of colour.
When prompted by counsel, the judge says she can think of a few reasons why a police officer would misinterpret the situation.
The appeal court said that the decision was fine but the extra comments could make people think preferential treatment would be
given to people of colour. They found that the statements made by the trial judge (i.e. Police officers being untruthful or responding to
people of colour) could led to a reasonable apprehension of bias to someone watching the trial take place or reading about it in the
news
Issue Were the comments permissible?
Holding The comments were appropriate given the context “This said, we disagree with Cory J.’s position that the comments of Judge Sparks
were unfortunate, unnecessary, or close to the line. Rather, we find them to reflect an entirely appropriate recognition of the facts in
evidence in this case and of the context within which this case arose—a context known to Judge Sparks and to any well-informed
member of the community”
“It's important to note that while the trial judge did not make a finding of bias, she could have made the finding given the facts that
existed” “As a member of the community, it was open to her to take into account the well-known presence of racism in that
community and to evaluate the evidence as to what occurred against that background...”
Care needs to be taken when such general statements are made due to a risk of not paying attention to the facts of the case - despite
the understandings of racism in the justice system, the particular case needs to be attended to
Dissent When the trial judge made comments surrounding police officers lying and dealing with people of colour, there was a plausible
interpretation that all police officers were liars and racists

PUBLIC INQUIRY INTO THE ADMINIS TRATION OF JUSTICE AND ABORIGINAL PEOPLE
(MANITOBA)
A response to the deaths of Helen Betty Osborne: (indigenous woman murdered by four people - only two of them were
convicted) and John J Harper (indigenous elder killed by a police officer who was not held to account). They found that
criminal justice should be administered within aboriginal communities (through aboriginal courts etc.)
• Communities should have greater self-determination so that Aboriginal Justice Systems can be put in place. This
could be done by such acts as replacing the Court of the QB and the Provincial Court with the ‘Manitoba Trial
Court’
• Incarceration should be used only as a last resort and only where a person poses a threat to another individual or
to community or where other sanctions would not sufficiently reflect the gravity of the offence
• Where incarceration is required for an Indigenous person, it should be a community facility that is close to home

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“DON’T FENCE ME IN” BY MARY-ELLEN TURPEL LAFONDE
The concept that even if bias within the minds of people were wiped out, the current system still doesn't meet the needs
of indigenous peoples.
Points of Incommensurability/Alienation:
Crimes against the state:
The prosecutor acts for the state
The victim doesn't have any legal standing and this does not fit with the way that indigenous people see crimes
Adversarial system
Justice is collaborative within indigenous communities
Formal Written Offences/Defences
No separation of mens rea and actus reus
No oral histories
Professional class
Someone you don't know is speaking for you (not usual except in the Cherokee)
Elders are a weak parallel to judges; former focus on harmony, rehabilitation, reintegration of an offender into
the family, clan and community— not guilt
Involvement of strangers:
Juries
Impartiality does not exist
Value of participation and involvement
Punishment
The Canadian system is grounded in a retributive theory of punishment that hopes to match a measure of
deprivation with a wrong-doing.
Deterrence is also a central concern.
The goal for Aboriginal communities after an incident of harm against a person or possessions was to resolve the
immediate dispute through healing wounds, restoring social harmony and maintaining a balance among all
people in the community.
“These seven basic elements or concepts in the Canadian criminal justice system are all problematic for Aboriginal peoples.
Aboriginal peoples’ approaches, as informed by Aboriginal culture and traditions, do not accord with the Canadian system.
If Aboriginal peoples choose to abandon their traditional approaches and follow the path of the Canadian criminal justice
system, that is their choice to make. However, to date I know of no Aboriginal people who have chosen this path. The
history has been one of imposition of this system on Aboriginal peoples without regard to the fact that they do not share
many of its elements, premises or concepts. My answer to the question of whether the difficulty lies in fundamental
elements of the Canadian criminal justice system is, most definitely. This is the problem, and it cannot
be wished away simply by having Aboriginal people act as the administrators of a system that is not premised in Aboriginal
culture and approaches.”

40
JURIES
As per s. 11(f) of the Charter, any person charged with an offence where the maximum punishment for the offence is
imprisonment for five years or a more severe punishment is entitled to the benefit of a trial by jury.
The following are the specific offences that denote jury trials:
Entitled to a jury trial Not entitled to a jury trial
Court of criminal jurisdiction
469 Every court of criminal jurisdiction has jurisdiction to try an indictable
offence other than
(a) an offence under any of the following sections:
(i) section 47 (treason),
(ii) [Repealed, 2018, c. 29, s. 61]
(iii) section 51 (intimidating Parliament or a legislature),
(iv) section 53 (inciting to mutiny),
(v) section 61 (seditious offences),
(vi) section 74 (piracy),
(vii) section 75 (piratical acts), or
(viii) section 235 (murder);
Accused can elect (otherwise a jury trial)
Election before justice in certain cases
536 (2) If an accused is before a justice charged with an indictable offence,
other than an offence listed in section 469, and the offence is not one over
which a provincial court judge has absolute jurisdiction under section 553, the
justice shall, after the information has been read to the accused, put the
accused to an election in the following words:
You have the option to elect to be tried by a provincial court judge without a
jury and without having had a preliminary inquiry; or you may elect to be tried
by a judge without a jury; or you may elect to be tried by a court composed of a
judge and jury. If you do not elect now, you are deemed to have elected to be
tried by a court composed of a judge and jury. If you elect to be tried by a judge
without a jury or by a court composed of a judge and jury or if you are deemed
to have elected to be tried by a court composed of a judge and jury, you will
have a preliminary inquiry only if you or the prosecutor requests one.
Crown override to a jury trial
Attorney General may require trial by jury
568 Even if an accused elects under section 536 or re-elects under section 561
or subsection 565(2) to be tried by a judge or provincial court judge, as the case
may be, the Attorney General may require the accused to be tried by a court
composed of a judge and jury unless the alleged offence is one that is
punishable with imprisonment for five years or less. If the Attorney General so
requires, a judge or provincial court judge has no jurisdiction to try the accused
under this Part and a preliminary inquiry must be held if requested under
subsection 536(4), unless one has already been held or the re-election was
made under subsection 565(2).
Absolute jurisdiction
553 The jurisdiction of a provincial court judge, or in Nunavut, of a judge of the
Nunavut Court of Justice, to try an accused is absolute and does not depend on
the consent of the accused where the accused is charged in an information
(a) with
(i) theft, other than theft of cattle,
(ii) obtaining money or property by false pretences,
(iii) unlawfully having in his possession any property or thing or any proceeds of
any property or thing knowing that all or a part of the property or thing or of the
proceeds was obtained by or derived directly or indirectly from the commission
in Canada of an offence punishable by indictment or an act or omission
anywhere that, if it had occurred in Canada, would have constituted an offence
punishable by indictment,
(iv) having, by deceit, falsehood or other fraudulent means, defrauded the
public or any person, whether ascertained or not, of any property, money or
valuable security, or
(v) mischief under subsection 430(4),
where the subject-matter of the offence is not a testamentary instrument and
the alleged value of the subject-matter of the offence does not exceed five
thousand dollars;
(b) with counselling or with a conspiracy or attempt to commit or with being an
accessory after the fact to the commission of
(i) any offence referred to in paragraph (a) in respect of the subject-matter and
value thereof referred to in that paragraph, or
(ii) any offence referred to in paragraph (c); or
(c) with an offence under
(i) section 201 (keeping gaming or betting house),
(ii) section 202 (betting, pool-selling, book-making, etc.),
(iii) section 203 (placing bets),
(iv) section 206 (lotteries and games of chance),
(v) section 209 (cheating at play),
(vi) section 210 (keeping common bawdy-house),
(vii) [Repealed, 2000, c. 25, s. 4]
(viii) section 393 (fraud in relation to fares),
(viii.01) section 490.031 (failure to comply with order or obligation),
(viii.02) section 490.0311 (providing false or misleading information),
(viii.1) section 811 (breach of recognizance),
(ix) subsection 733.1(1) (failure to comply with probation order), or
(x) paragraph 4(4)(a) of the Controlled Drugs and Substances Act.
(xi) [Repealed, 2018, c. 16, s. 219]

JURY SELECTION

PURPOSE
The purpose of entitling the accused to a trial by jury is because it is said to guarantee a fair and impartial trial. A jury
consists of a group of people who are independent to the accused and independent from the state. As judicial
independence came at a much later date, it is on this historical basis that juries are instituted. Juries are still of
importance because they reassure the accused and public that their case is being decided by their peers and, as such,
there is validation and some value to the judgment while maintaining public confidence in the system.
However, the biased ways in which juries are selected are becoming a prominent issue. In the wake of the Gerard Stanley
trial, the dangers of all-white juries has come into prominence along with counsel practice to remove indigenous jurors. It
is notable that the jury that convicted Donald Marshall Jr was an all-white jury.

41
GENERAL PROCESS
Each judicial district is responsible for maintaining a list of eligible jurors. They are mailed out notices
to report for duty and will be on the jury role on a specific day. From the larger group of people,
some will be selected to sit on the jury.
The gold standard would be lists corresponding to healthcare as done in Saskatchewan.
In Kokopenance, the courts used property tax lists which excluded those living on reserve (this Handpicking and
challenges
created problems as only 4% of people on the list were indigenous while 21.5 to 31.8% of the
population.
The report on juries by former Chief Justice Frank Iacobucci found that “First Nations Courtroom
people living on-reserve have been excluded from jury rolls as Ontario’s government
failed to take steps to obtain accurate contact information in order to have
jury questionnaires sent out and completed by people living on-reserve Mailing out notices

to ensure that the jury rolls could include sufficient numbers of First
Nations people to be representative.” List of jurors

Cromwell J, in his dissent in Kokopenance found that “a jury roll that is

representative of the community is more likely to result in a petit jury that can avoid these often unconscious effects of
racism. Indeed, our law of challenge for cause is premised on representativeness in this sense. If that premise is not
sound, the interlocking protections of impartiality as a whole are weakened.”
The report also pointed to the tension between indigenous people and the criminal justice system, finding that “the most
significant systemic barrier to the participation of First Nations peoples in the jury system in Ontario is the negative role
the criminal justice system has played in their lives, culture, values, and laws throughout history.” He suggested tackling
this through consultation with indigenous people, using different means of compiling jury rolls and training government
workers in cultural competency.
Its important to remember the systemic issues faced by indigenous jury members and how employment situations, lack of
access to transportation and/or child care and low compensation can create barriers.
R V KOKOPENACE (2015) SCC
Facts An indigenous person was changes with second degree murder and the compiled jury had no other indigenous people
Issue Is a jury that does not have a representative makeup that include your own ethnicity unconstitutional?
Ratio A fair opportunity will have been provided when the state makes reasonable efforts to: (1) compile the jury roll using random
selection from lists that draw from a broad cross-section of society, and (2) deliver jury notices to those who have been randomly
selected. In other words, it is the act of casting a wide net that ensures representativeness.
Holding Underrepresentation of Aboriginal reserve residents on a jury roll in Kenora, Ont. did not violate the Charter because there was no
deliberate exclusion
The underrepresentation of Aboriginal reserve residents on a jury roll in Kenora, Ontario did not violate the Charter because there was
no deliberate exclusion, reasonable efforts had been made to include Aboriginal people, and there was no right to a jury roll or a jury
that proportionately represented particular groups.
Dissent Ontario had used inadequate lists and notices to send jury notices to reserve residents and had not made reasonable efforts to
address the 10 percent return rate on jury notices from reserve residents or findings that only 4 percent of the jury roll were
Aboriginal people living on reserves in a district where between 21.5 and 31.8 percent of residents lived on reserves.

EXCLUSION OF JURORS
The accused does not have a right to a jury that includes “members having specific racial identities” (Gayle). Biddle held
that the jury does not need to be ethnically diverse so long as they were selected from an ethnically diverse pool.
In the Gerald Stanley case, the defence used peremptory challenges to remove five indigenous people from the jury. The
Royal Commission on the Donald Marshall Jr. Prosecution recommended that challenges to jurors only be made for
articulated cause. They found that peremptory challenges are often used to exclude indigenous jurors. The Iacobucci
report also supported the abolishment of peremptory challenges for this reason, emphasizing that solving problems with
jury rolls will be ultimately useless if indigenous jurors are excluded through peremptory challenges.
Some defence counsel believe that it is important to retain peremptory challenges in order to create a jury pool that is
representative of their client if the client is a minority. Nader Hasan believes that peremptory challenges gives the
accused some control over their trial and that this serves a function within the justice system where the accused is in an
adversarial relationship with the state; he suggests that the American process of Batson challenges should be adopted,

42
where counsel monitor each other and, in cases where they suspect that the challenges are being used in a discriminatory
way, raise this in court (CBC Radio).
Bill C-75 abolishes peremptory challenges as a response to Gerald Stanley and the Iacobucci report.

PEREMPTORY CHALLENGES
634 (1) A juror may be challenged peremptorily whether or not the juror has been challenged for cause pursuant to section 638.
A peremptory challenge does not require any explanation. Both the Crown and the accused have the same number of
challenges. If there is more than one accused, each will receive a few while the Crown will receive the sum total. For some
charges, the number of peremptory challenges can number into 30.
Peremptory challenges cannot be used for the following:
• Crown cannot create an all-female jury in a sexual assault case (Biddle)
• The accused does not have a right to a favourable jury (Sherrat)
• Selectively hand-picking jury members is not permissible (Bain)
• Crown should not use peremptory challenges in a discriminatory manner but defence counsel are required to
counter is if they do (Gayle)

CAUSE
638 (1) A prosecutor or an accused is entitled to any number of challenges on the ground that
(a) the name of a juror does not appear on the panel, but no misnomer or misdescription is a ground of challenge where it appears to the court that the description
given on the panel sufficiently designates the person referred to;
(b) a juror is not indifferent between the Queen and the accused;
(c) a juror has been convicted of an offence for which he was sentenced to death or to a term of imprisonment exceeding twelve months;
(d) a juror is an alien;
(e) a juror, even with the aid of technical, personal, interpretative or other support services provided to the juror under section 627, is physically unable to perform
properly the duties of a juror; or
(f) a juror does not speak the official language of Canada that is the language of the accused or the official language of Canada in which the accused can best give
testimony or both official languages of Canada, where the accused is required by reason of an order under section 530 to be tried before a judge and jury who speak
the official language of Canada that is the language of the accused or the official language of Canada in which the accused can best give testimony or who speak both
official languages of Canada, as the case may be.
In addition, the BC Juries Act states that any conviction or charge under the CDSA precludes the offender from serving as a
jury member.
There is no limit on challenges as long as the counsel can point to cause. The evidentiary burden focuses on the
circumstance.
There are three types of racial bias that can be challenged while challenging for cause:
a. Specific bias → Prejudging a case
b. General bias → Stereotypes about participants. In Ontario, counsel has the ability to query how the jurors feel
about black people (Parks and Wilson). In Koh, this was extended to asking about any type of bias against visible
minorities.
c. Conformity bias → Pressure to decide in a way that conforms with community expectations of appropriate
outcome (i.e. people attending the same mosque)

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HOMICIDE
SENTENCING
The following provisions list the minimum sentences for homicide. They indicate the minimum sentence.
Murder Punishment for murder
235 (1) Every one who commits first degree murder or second degree murder is guilty of an indictable offence and shall be
sentenced to imprisonment for life.
Minimum punishment
(2) For the purposes of Part XXIII, the sentence of imprisonment for life prescribed by this section is a minimum punishment.
Manslaughter 236 Every person who commits manslaughter is guilty of an indictable offence and liable
(a) where a firearm is used in the commission of the offence, to imprisonment for life and to a minimum punishment of
imprisonment for a term of four years; and
(b) in any other case, to imprisonment for life.
Infanticide Punishment for infanticide
237 Every female person who commits infanticide is guilty of an indictable offence and liable to imprisonment for a term not
exceeding five years.
Attempt to Attempt to commit murder
Commit Murder 239 (1) Every person who attempts by any means to commit murder is guilty of an indictable offence and liable
(a) if a restricted firearm or prohibited firearm is used in the commission of the offence or if any firearm is used in the
commission of the offence and the offence is committed for the benefit of, at the direction of, or in association with, a
criminal organization, to imprisonment for life and to a minimum punishment of imprisonment for a term of
(i) in the case of a first offence, five years, and
(ii) in the case of a second or subsequent offence, seven years;
(a.1) in any other case where a firearm is used in the commission of the offence, to imprisonment for life and to a minimum
punishment of imprisonment for a term of four years; and
(b) in any other case, to imprisonment for life.
S. 745 speaks to the meaning of ‘life imprisonment.’ Life imprisonment creates allowances for the offence to leave prison
without conditions (parole). The eligibility for parole depends on the conviction and is set out in s. 745:
Imprisonment for life without eligibility for parole until they have High treason
served 25 years of their sentence First degree murder
Second degree murder with a previous conviction for murder
Second degree murder with a previous conviction of an offence under
Crimes Against Humanity and War Crimes Act

Imprisonment for life without eligibility for parole until the person Second degree murder
has served at least 10 years of the sentence or such greater
number of years, not being more than 25 years, as has been
substituted therefor pursuant to section 745.4 (persons under
eighteen)
Imprisonment for life with normal eligibility for parole Any other offence

GENERAL OFFENCE
Homicide
222 (1) A person commits homicide when, directly or indirectly, by any means, he causes the death of a human being.
Kinds of homicide
(2) Homicide is culpable or not culpable.
Non culpable homicide
(3) Homicide that is not culpable is not an offence.
Culpable homicide
(4) Culpable homicide is murder or manslaughter or infanticide.
Idem
(5) A person commits culpable homicide when he causes the death of a human being,
(a) by means of an unlawful act;
(b) by criminal negligence;
(c) by causing that human being, by threats or fear of violence or by deception, to do anything that causes his death; or
(d) by wilfully frightening that human being, in the case of a child or sick person.
Exception
(6) Notwithstanding anything in this section, a person does not commit homicide within the meaning of this Act by reason only that he causes the death of a human
being by procuring, by false evidence, the conviction and death of that human being by sentence of the law.

44
The different homicide charges are distinguished by mens rea. The standard causation is Smithers/Nette. Harbottle
causation applies when indicated as per the causation chart below. If Harbottle can be proven, Smithers/Nette can likely
also be proven.

RULES OF CAUSATION
s. 231(1) A child becomes a human being when it has proceeded (in a living state) from the body of its mother regardless of whether it is breathing, has
s. 231(2) independent circulation or the naval string is severed.
A person causes injury to a child before or during its birth and the child dies after becoming a human being.
s. 225 When a person does something by act or omission, he causes their death regardless of whether it could have been prevented.
s. 225 When a person causes an injury and the person dies from treatment.
s. 226 Where someone injures someone such that it accelerates their death from a disease or disorder arising from another cause.
s. 231(1) Murder is first degree murder or second degree murder
s. 231(2) Murder is first degree murder when it is planned and deliberate
s. 231(3) Murder is planned and deliberate when it is contracted
s. 231(4) Murder is first degree murder when the victim is a peace officer
s. 231(5) Murder is first degree when the death is caused while committing or attempting to commit Harbottle causation
the following:
Hijacking an aircraft
Sexual assault
Sexual assault with a weapon, threats to a third party or causing bodily harm
Aggravated sexual assault
Kidnapping and forcible confinement
Hostage taking
s. 231(6) Murder is first degree when the death is caused while committing or attempting to criminally
harass them.
s. 231(6.01) Murder is first degree when the death is caused while committing or attempting to commit
terrorism.
s. 231(6.1) Murder is first degree when the death is caused while in association with a criminal
organization.
s. 231(6.2) Murder is first degree when the death is caused during intimidation.
s. 231(7) All murder that is not first degree murder is second degree murder.

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MANSLAUGHTER
Manslaughter
234 Culpable homicide that is not murder or infanticide is manslaughter.
Ss. 234 and 222(5) set out the provisions relevant to manslaughter.
It is a residual homicide. As such, it encompasses a range of offences (i.e. dangerous driving, accidentally shooting
someone while threatening them).
There is no minimum sentence but the maximum is life in prison except for manslaughter with a weapon which carries a
minimum term of four years imprisonment.
The objective standard for mens rea was found to be constitutional (Creighton). If the standard were lower, it would be
too low and if it were higher, it would be too close to murder.

Unlawful Act - s. 222(5)(a) Criminal Negligence – s. 222(5)(b)

Definition The behaviour is not authorized by law
Commission of or participation in an activity that
violates criminal or regulatory law
Causation Death was a result of the underlying unlawful act
Actus Reus The commission of an objectively dangerous
offence → something that a reasonable person
would inevitably realize that the underlying
unlawful act would subject another person to risk
of bodily harm (De Sousa)
Mens Rea Mens rea for the underlying act
Objective foreseeability of bodily harm that is
neither trivial or transitory
A marked departure from the standard of care of
a reasonable person (at minimum)
Notes Most common – usually assault
Someone is criminally negligent when, in doing
something (or omitting to so something that is in
their duty to do as per Popen) shows wanton or
reckless disregard for the lives or safety of other
people
Death was a result of the act or omission
Commission or omission of the act → something
that a reasonable person would inevitably realize
that the act would subject another person to risk
of bodily harm (De Sousa)
Mens rea for the act or omission
Objective foreseeability of bodily harm that is
neither trivial or transitory
Marked and substantial departure from standard
of care of a reasonable person (no formal mens
rea)

R V POPEN (1981) SCC

Facts Accused charged with manslaughter of his infant daughter as a result of mistreatment on a number of occasions by his wife.
Issue Is this manslaughter?
Ratio Where D has a right to control the actions of another and he deliberately refrains from exercising it, his inactivity may be a positive
encouragement to the other to perform an illegal act, and, therefore, an aiding and abetting.
Reasoning This is manslaughter by criminal negligence
He did not do or omit to anything for the purpose of aiding his wife inflict the injuries to the child.

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INFANTICIDE
The history of infanticide points to unwed mothers and the tragic tendency of some women to kill their infants due to the
social circumstances of the time. This offence considers the historically disadvantaged position of women as caregivers.
In current years, the Crown has taken to charging women with murder.
The concept surrounds a female whose child is born alive and is newly born when killed. The accused has to be shown as
not fully recovered from giving birth and of a ‘disturbed mind’. Unlike other mental states that mitigate criminal
responsibility, the disturbed mental state should not necessarily need to lead directly to the killing and no medical
condition or diagnosis is required (Borowiec).
However, infanticide can act as a partial defence to murder when it can be proven that all the elements are met (R v LB).

Elements of Infanticide

•The accused is female

•The child is born alive
•At time of death, the child is newly born (1 year old or less)
•The accused caused the death through an act or omission
•The accused is not fully recovered from giving birth
•The birth affected the mental state of the accused → it does not necessarily lead to the killing but it needs to manifest in
some way (Borowiec)

Actus Reus

•A 'disturbed mind' resulting from birth

•Causation of death of child

Mens Rea

•Intent to cause harm and objective foresight of bodily harm (lowest mens rea)

R V BOROWIEC (2016) SCC

Facts The accused had given birth to three children in three years and left them all in a dumpster. The third infant survived.
Issue Can the accused be convicted of infanticide?
Ratio There is no requirement for a causal connection between the disturbance of the accused’s mind and the act or omission causing the
child’s death, but there is, however, a required link between the disturbance and having not fully recovered from the effects of giving
birth to the child or of the effect of lactation consequent on the child’s birth—in either case the disturbance must be “by reason
thereof”.
There is no requirement that they satisfy a medical condition.

R V LB (2011) ONCA
Facts The accused had killed both of her infants. One when she was underage, and another four years later.
Issue Is she guilty of two counts of first degree murder?
Ratio Treating infanticide as a partial defence to murder was consistent with the distinction drawn between infanticide and murder by the
legislature
Holding The accused is guilty of infanticide, not murder.

LAW REFORM
Law reform efforts have suggested the repealment of infanticide and replacing it with flexible penalties for intentional homicide where the elements
for infanticide will be seen as mitigating factors during sentencing. However, this will only be taken into account during sentencing and not during a
trial where culpability is determined → murder is not the same as infanticide and our legislature has decided this.
Alternatively, women could resort to NCRMD. However, this defence has a higher threshold. It also puts women through the mental health/forensic
psychiatric system with criminal code review board hearings which do not seem suitable for women in this situation as post-partum issues are usually
temporary.
Ideally, the infanticide partial defence would be clearer and allow the Court to hear the socioeconomic context of the crime. Perhaps, it could also
ask for further proof that the woman had a reduced ability to make decisions.
As it is, this is a better option that abolishing infanticide altogether.

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MURDER
Classification of murder
Murder
231 (1) Murder is first degree murder or second
229 Culpable homicide is murder
degree murder.
(a) where the person who causes the death of a human being
Planned and deliberate murder
(i) means to cause his death, or
(2) Murder is first degree murder when it is
(ii) means to cause him bodily harm that he knows is likely to cause his death, and is reckless whether death planned and deliberate.
ensues or not; Second degree murder
(b) where a person, meaning to cause death to a human being or meaning to cause him bodily harm that he (7) All murder that is not first degree murder is
knows is likely to cause his death, and being reckless whether death ensues or not, by accident or mistake second degree murder.
causes death to another human being, notwithstanding that he does not mean to cause death or bodily harm
to that human being; or
(c) where a person, for an unlawful object, does anything that he knows or ought to know is likely to cause death, and thereby causes death to a human being,
notwithstanding that he desires to effect his object without causing death or bodily harm to any human being.
230 Murder in commission of offences → found to be unconstitutional

SECOND DEGREE MURDER

Actus Reus Mens Rea
(a) (i) Means to cause death Causation of death Intent to cause death
(Smithers/Nette)
(ii) Means to cause bodily Causation of death Intent to cause bodily harm
harm likely to cause death (Smithers/Nette) Knowledge that bodily harm will likely cause
and is reckless death
Reckless as to whether death occurs
(b) Transferred intent Causation of death Same as (i) and (ii)
(Smithers/Nette)
(c) Unlawful object Causation of death No intent to cause bodily harm
(Smithers/Nette) A dangerous act in pursuit of an unlawful object
(Vasil)
Underlying crime must have subjective mens rea
(Shand)

S. 229(A)(I) MEANS TO CAUSE DEATH OR

(A)(II) MEANS TO CAUSE BODILY HARM LIKELY TO CAUSE DEATH AND IS RECKLESS
The aspect of recklessness can be considered an afterthought since to secure a conviction under this section it must be
established that the accused had the intent to cause such grievous bodily harm that he knew it was likely to cause death.
One who causes bodily harm that he knows is likely to cause death must, in those circumstances, have a deliberate
disregard for the fatal consequences which are known to be likely to occur. That is to say he must, of necessity, be reckless
whether death ensues or not. (Cooper)
This requires both the intent to cause bodily harm and subjective knowledge that bodily harm will likely cause death. If
this is paired with being planned or deliberate, consider first degree murder.
As per Cooper, mens rea does not need to continue throughout the duration of the act. It is sufficient if the actus reus and
mens rea coincide at a point. Contemporaneity can be established if the events are part of one ‘transaction’ (Meli).
In order to commit murder under (a)(ii), there must be the following:
1. Subjective intent to cause bodily harm
2. Subjective knowledge that the bodily harm is likely to cause death
3. The later recklessness element is an afterthought to secure the conviction (Cooper)

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 MELI V THE QUEEN (1954) PC
Facts The accused intoxicate the deceased and physically assault him. They throw him off a cliff and stage the scene such that it appears
that he fell off the cliff. He dies of exposure.
Issue Was this manslaughter or murder?
Ratio Dividing the conduct into two separate acts in order to avoid a finding of murder is not possible when there is just one transaction.
Holding Were there two different acts that took place? The attack on the deceased and then rolling him off a cliff. No.

R V SIMPSON (1981) ONCA

Facts The accused was charged with two counts of attempted murder. He met one of the victims at a bar, he choked her until she was
unconscious. Then he attacked a second victim outside the bar.
Issue What is the mens rea for murder?
Ratio The standard is subjective. While an objective analysis can assist in helping determine the intent, the later is not sufficient within itself.
Requires the mens rea of the following:
Subjective intent to cause bodily harm
Subjective knowledge that this bodily harm is likely to cause death

S. 229(B) TRANSFERRED INTENT

For instance, killing someone else instead of the person they were attempting to kill. If planned or deliberate, consider
first degree murder.

S. 229(C) UNLAWFUL OBJECT

If this is paired with being planned or deliberate, consider first degree murder.
The underlying crime must be a serious indictable offence that requires subjective mens rea (Vasil) and distinct from the
murder (Shand) i.e. not assault because assault caused the death. There is no requirement for an intention to cause bodily
harm.
Look for a dangerous act that caused the death (as per Vasil, it does not need to be an unlawful act) → Distinguish the
unlawful object from the dangerous act (in pursuit of the goal) and determine whether the act caused the death (Shand).
1. Accused is pursuing unlawful object distinct from trying to harm someone else
2. Original crime needs to be a serious indictable offence with subjective mens rea
3. Show that when accused commits dangerous act, it was in pursuit of goal
4. Dangerous act must cause death
5. Accused has subjective knowledge that death is likely to occur
If it is a situation such as assault, the unlawful object is also the crime and therefore, this section is inapplicable.
R V SHAND (2011) ONCA
Facts The accused were attempting to rob some drug dealers and killed someone.
The accused chased the person down the stairs and pulled out a gun in order to threaten them.
Issue Is the accused guilty of second degree murder?
Ratio The original crime in s. 229(c) is required to be a serious indictable offence that requires subjective mens rea
When the accused committed the dangerous act, the accused needs to do that in pursuit of the original criminal goal
‘Ought to have known’ is unconstitutional
Holding Companion claims shot occurred accidentally when the victim approached the accused in an argument.
The robbery fit the criteria of an offence that required subjective mens rea.
The dangerous act was pulling out the gun.

R V VASIL (1980) SCC

Facts The accused sets the house on fire out of spite for his wife and leaves the house. The children on the top floor of the house die in the
fire.
Issue What was the dangerous act separate from arson?
Ratio For conviction under s. 229(c), it must be demonstrated that the accused was in pursuit of an unlawful object which had to amount to
a serious indictable offence that has subjective mens rea.
Holding Destroying property was unlawful object and setting the fire was dangerous act.

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S. 230 - MURDER IN THE COMMISSION OF OFFENCES
S. 230 is unconstitutional because it did not require any foresight of death → s. 230(d) was removed but the entire clause
was unconstitutional (Vaillancourt).
VAILLANCOURT V THE QUEEN (1987) SCC
Facts Two men committed a robbery. The accused’s partner attempts to rob the deceased and kills them. The partner flees and the accused
is charged for the murder.
Issue Did the accused have the requisite mens rea for murder?
Ratio Murder requires a subjective mens rea with respect to the prohibited act
Holding Objective standards for mens rea are not allowed and s. 230 is unconstitutional.
Sss

R V MARTINEAU (1990) SCC

Facts Two men committed a robbery. The accused’s partner attempts to rob the deceased and kills them. The partner flees and the accused
is charged for the murder.
Issue Did the accused have the requisite mens rea for murder?
Ratio Objective standard (‘ought to have known’) for mens rea are not allowed and s. 230 is unconstitutional.

FIRST DEGREE MURDER

Some murders are deemed as murder of the first degree.
Actus Reus Mens Rea
s. 231(2) Causation of death (Smithers/Nette) Intent under s. 229 (means to cause,
transferred intent or unlawful object) and
planning and deliberation
s. 231(4) Causation of death of designated person Intent under s. 229 (means to cause,
(Smithers/Nette) transferred intent or unlawful object) and to
know or be willfully blind to the fact that the
peace officer is acting within the course of their
duty
s. 231(5) to (6.1) Causation of death (Harbottle) Mens rea for the underlying offence

S. 231(2) – PLANNED AND DELIBERATE

In order to prove first degree under s. 231(2), the Crown must prove that is was planned and deliberate.
→ Conceived and carefully thought out before being committed (Nygard)
→ “Not impulsive” (Moore)
→ “A calculated scheme or design which has been carefully thought out, and the nature and consequences of which
have been considered and weighed” (Widdifield)
→ An intentional killing can occur even in the absence of intent to kill (Nygard).
→ Murder is planned and deliberate if it is a contracted murder under s. 231(3)

R V NYGARD (1989) SCC

Facts The deceased buys a stereo from the accused but his cheque bounces. When he returns with a new cheque, the deceased and his
friends attack the deceased with a baseball bat.
Issue Are the accused guilty of first degree murder even if they did not intend to kill anyone?
Ratio An intentional killing can occur even in the absence of intent
Holding This was a planned and deliberate beating that was supposed to cause serious harm and likely cause death.

S. 231(4) – MURDER OF PEACE OFFICERS

Murder of peace officers is first degree murder when the deceased is acting in the course of their duties (Collins).
R V COLLINS (1989) SCC
Facts The accused shot a police officer while in a donut shop and killed him.
Issue Is the accused responsible for first degree murder despite the fact that there was no planning or deliberation?

50
 Ratio Murdering a peace officer is a first degree murder if the deceased was acting within the course of their duties.
Holding There is an aggravated killing and that's why first degree (higher sentence) rather than second degree is appropriate in this instance.

S. 231(5) TO (6.1) – DEEMED MURDERS

Constructive first-degree murders are listed in s. 231(5) to (6.2). These do not require a mens rea element surrounding
bodily harm. The causation standard is Harbottle. The death occurs while the accused is trying to commit an offence of
domination.
‘While committing’ does not require the underlying offence and the murder to take place simultaneously but, rather, they
must be part of one continuous series of events which form a single transaction (Paré). It also doesn’t require the offence
to be committed against the deceased (Russell). The implication of the latter is consistent with s. 231(6.01) surrounding
terrorism where there may not be another ascertained victim of the underlying offence.

R V PARÉ (1987) SCC

Facts Accused murdered a young boy two minutes after indecently assaulting him. The killing was motivated by fear that the child would tell
his mother about the incident.
Issue Did the actus reus and mens rea match up enough for a constructive first degree murder?
Ratio The words "while committing" in s. 214(5) (now s. 231(5)) do not require the murder and the underlying offence to take place
simultaneously.
Holding At the time of the offence, s. 214(5) (b) provided that "murder is first degree murder in respect of a person when the death is caused
by that person while committing an offence under section . . . 156 (indecent assault on a male)".
Where the act causing death and the acts constituting the indecent assault all form part of one continuous sequence of events
forming a single transaction, the death is caused "while committing" an offence for the purposes of s. 214(5).
The offences under s. 214(5) all involve the illegal domination of people by other people.
Accordingly, it is the continuing illegal domination of the victim which gives continuity to the sequence of events culminating in the
murder and makes it a single transaction.
The murder represents an exploitation of the position of power created by the underlying crime and knits the two together.

R V RUSSELL (2001) SCC

Facts The victim was a tenant of the accused’s boyfriend. The victim was friends with the landlord who helped him buy a car. The accused
forcibly confined his girlfriend and killed the victim.
Issue Does this offence fit into s. 231(5) when the underlying offence was forcible confinement but it occurred to a different person than
the victim?
Ratio ‘While committing’ doesn’t require the offence listed in s. 231(5) to be committed against the same person who dies as a result
Holding The requirement is that it fall into a continuing series of events as per Paré

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SELF-DEFENCE
Self-defence has a fraught history. Prior to the Criminal Code, the common law saw it either as an excuse or a justification.
• Excuses denote an understanding that a moment of weakness existed (duress, provocation, infanticide etc) →
reduced sentence
• Justifications are not wrong and not criminal → no sentences
While infanticide is a partial defence, self-defence is an all-or-nothing defence. Nowadays, it works as a complete defence
The question that juries struggle with is whether using force was reasonable or understandable. In the case of Bernie
Goetz, it might have been understandable why he shot the victims but it was not reasonable for him to do so.
R V MCINTOSH (1995) SCC
Facts The accused gave the deceased an amplifier and other equipment to repair.
Over the next eight months, the accused made several attempts to retrieve his equipment but the deceased avoided him.
On one occasion, the accused confronted the deceased with a knife and said he would "get him" if the equipment was not returned.
On another occasion, the deceased fled through the back door when the accused was at his front door.
On February 7, 1991, the accused’s girlfriend saw the deceased working outside and told him. The accused obtained a kitchen knife
and confronted the deceased, demanding the return of his equipment. The accused alleges that the deceased pushed him and a
struggle ensued. The deceased attempted to assault the accused with a dolly. The accused responded by stabbing the deceased with a
kitchen knife. He then threw the knife down and fled.
Issue Is the self-defence justification (as in the Criminal Code) available where an accused is an initial aggressor, having provoked the assault
against which he claims to have defended himself?
Ratio The common law (prior to the CC) did limit the ability of people who provoked an assault to raise self-defence, nonetheless, give effect
to the clear language of the provision no matter how harsh or absurd it is
Holding There is only a non-provocation requirement in s. 34(1). This is not found in s. 34(2) or S. 35.
Dissent History of relevant provisions date back to the concepts of "justifiable homicide" (not provoked and no retreat requirement) and
"excusable homicide" (provoked and retreat requirement). The initial Criminal Code was true to this interpretation but through the
revisions of the Criminal Code, inadvertently, the text was changed to present- parliament did not intent to change the meaning of
self-defence.

PEOPLE V GOETZ (1986) NY

Facts The accused worked in downtown Manhattan. In 1981, he was robbed by youth in a subway station. With a help of a police officer, he
apprehends one of them. He spent more time at the police station explaining what happened to him than the youth did.
He bought a gun and applies for a concealed handgun permit. Three years later, he was approached by four people who ask him for
money. The accused shoots them five times; one is left paralyzed. In the aftermath, a conductor approaches him and he flees.
Issue What is the standard for self-defence?
Ratio The accused’s subjective belief that he is in imminent danger does not by itself justify the use of deadly force. An objective belief, one
that would be shared by a hypothetical reasonable person, is also required.

IMPACT OF THE NEW LEGISLATION

• Provocation does not bar self-defence
• If criteria is matched up, the accused is not guilty of the offence
→ A variety of offences can be committed in respect of self-defence i.e. Stealing a car to escape from a
threat (anything short of serious bodily harm or death)
→ Entirety of s. 34(2) covers proportionality
• S. 35 allows for a defence of property
→ No proportionality included in this provision
→ Courts have sometimes read in s. 34(2) into s. 35 but there is not statutory requirement that this be done
• Possibility that lesser acts would be considered when evaluating the route taken by the accused i.e. Why did you
stab someone when you could have stolen a car?
• Inclusion of defending another person
→ Previously, the other person had to be under the care of the accused

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ELEMENTS OF THE DEFENCE
An air of reality is required for defences (Cinous). This means that the accused is required to produce some evidence that the defence is applicable to
their case. Once established, the judge will advance the defence to the jury. The air of reality test must be applied to all three elements under s.
34(1). All three elements have subjective and objective elements → Dual Subjective-Objective standard of subjective belief that the route is
reasonable.

S. 34(1) – Elements of the Defence

s. 34(1)(a): A person is not guilty of an offence if... they “A jury acting reasonably could draw an inference from the circumstances
believe on reasonable grounds that force is being used
against them or another person or that a threat of force
described by the accused… to the reasonableness of his perception that he was
is being made against them or another person; going to be attacked” (Cinous)
s. 34(1)(b): A person is not guilty of an offence if... the The more immediate it seems, the more force can be used.
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
s. 34(1)(c): A person is not guilty of an offence if... the “With respect to the third element of self‑defence, namely a reasonable belief in
act committed is reasonable in the circumstances
the absence of alternatives to killing, it must be established both that the accused
believed that he could not preserve himself except by shooting the victim, and that
he held this belief on reasonable grounds” (Cinous)
Reasonableness is not only focused on the accused but on the situation.
There is a margin of appreciation such that more force can be used.
S. 34(2) Factors to consider when determining S. 34(1)(c)
(a) the nature of the force or threat; This is an evaluation of the immanency of the use of force.
(b) the extent to which the use of force was imminent
and whether there were other means available to
Initially assessed during s. 34(1)(b), it is repeated in this analysis.
respond to the potential use of force;
(c) the person’s role in the incident; The accused’s actions that may/may not have led to the use of force.
The more involved in aggressing the initial force, the more challenging it is to claim
self-defence (McIntosh)
(d) whether any party to the incident used or All weapons used in the circumstance as they could inspire the altercation.
threatened to use a weapon;
(e) the size, age, gender and physical capabilities of the Any physical disparities between the parties.
parties to the incident;
(f) the nature, duration and history of any relationship Historical accounting
between the parties to the incident, including any prior
use or threat of force and the nature of that force or Important in cases with intimate partner violence as it will impact the events that
threat; unfold
(f.1) any history of interaction or communication Communication between the parties in the lead up to the event
between the parties to the incident;
This could include an online relationship
(g) the nature and proportionality of the person’s The nature and proportionality of the response to the initial threat
response to the use or threat of force; and
There is a right to stand your ground but no right to stay there → failure to retreat
could be used against the accused but it depends on the ground (i.e. whose
property, public area)
Excessive use of force → Self-defence cannot be used for excessive use of force.
However, even if excessive force is used, Crown needs to show that offence was
committed.
Excessive force may be the actus reus but they still need to prove mens rea
(h) whether the act committed was in response to a use Not often relevant. Usually in cases of police offences.
or threat of force that the person knew was lawful.
S. 34(3) – Inapplicability of the defence
Subsection (1) does not apply if the force is used or Self-defence does not apply to situations of police interactions and trespass.
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.

53
 R V CINOUS (2002) SCC
Facts The accused believed that his criminal friends wanted to kill him while he was driving in a van with them. The deceased was making
subtle threats aimed at the accused. He kills the deceased.
Issue Was the self-defence reasonable?
Ratio Juries or judges don't need to consider all possible defences, they only need to consider those with an air of reality (if there is
evidence to support that defence)
Holding Under the law at the time, it needed to be demonstrated that he had to use that level of force (deadly force) in order to escape and
that it was a reasonable belief.
He had the option to run away or stay in a petrol situation.
In terms of reasonability, cannot use the rules of the criminal subculture to see if the use was reasonable

INTIMATE PARTNER VIOLENCE

Battered Women’s Syndrome (BWS) was developed prior to the new self-defence laws. BWS isn’t required to prove self-
defence or vice versa.
Courts can consider the following:
1. Expert evidence
→ Must agree that actions were reasonable
→ The manner in which the deceased posed a threat to the accused
→ The belief that killing the deceased was necessary
→ Permissible to show nature and extent of the violence and its impact.
2. Prior threats
→ Systematic use of threats and violence to enforce the authority of the abuser to control, isolate,
intimidate, physically confine and silence the victim of the abuse
Ideally, they should looking at why women don’t leave. Juries should be pointed towards resources that will elucidate
while victims of violence do not leave.

CHALLENGES
The spouse who kills abuser often does so when no apparent threat of violence or use of violence (temporally). This is
different from the usual rules of self-defence which require imminence.
There is an additional problem surrounding the patriarchal notion of women:
→ Pathologizes women (hysterics, medicalization, deviancy)
→ Amounts to victim blaming as the evidence concentrates on the pattern of violence suffered by the accused
rather than the abuser and the perpetration of abuse as inflicted by him
→ Experts speak towards the ‘irrationality’ of the women for failing to leave the abuser
→ Focus on the deficiencies of victims of spousal violence.
→ Learned helplessness via Lavallee → a double edged sword because on the one hand, if someone has tried to
resist abuse in the past, this may be submitted as evidence that the victim was able to leave the accuser

R V LAVALLEE (1990) SCC

Facts The accused was abused by her spouse. There were injuries from physical abuse which included a hospital visit.
In the evening of the crime, he threatens to harm her after visitors departs. He hands the accused a loaded gun in response to her
threats back to him. As he turns to leave, she shoots and misses. Then she shoots him again and he dies.
Issue Could the accused use BWS as a defence?
Ratio Defence needs to be analysed within the context of the relationship (threat of the use of force)
Articulation and identification of threats that fall short of that level of clarity → obligation to think about other ways in which the
threats may be expressed or other ways in which the danger is appreciated by the eventual accused

ADAPTATIONS FOR THE SELF-DEFENCE TEST

The new law allows for more of this context-specific knowledge s. 34(1). Self defence test:
→ Imminent belief in the use of force against you or someone else ✓
→ The relationship between threat and force ✓
→ Stretching of the concepts of immininency (easier to do under s. 34(2) than in the past)
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The emphasis should be towards the history and cycle of abuse which will establish the question of imminence.
Expert testimony will establish the baseline/foundation → The accused will testify as to how it played out.
Evidence of battering only assists within establishing self-defence s. 34(1). It is not a defence within itself. Once BWS is
established, the accused still needs to prove s. 34(1) → BWS can help nuance this and the jury should be informed about
what BWS means (Malott).
S. 34(1) – Elements of the Defence
s. 34(1)(a): A person is not guilty of an offence if... they The modified objective standard will be applied to the defence to establish
believe on reasonable grounds that force is being used
against them or another person or that a threat of force how reasonable the actions were and whether the nature of the response
is being made against them or another person; was proportional (Creighton)
s. 34(1)(b): A person is not guilty of an offence if... the
act that constitutes the offence is committed for the
Important to recognize that prior abuse could lead to many responses
purpose of defending or protecting themselves or the (fearful for life, angry and vengeful etc.).
other person from that use or threat of force; and
Motive is important.
s. 34(1)(c): A person is not guilty of an offence if... the
act committed is reasonable in the circumstances
S. 34(2) Factors to consider when determining S. 34(1)(c)
(a) the nature of the force or threat; Why didn't the accused (victim) leave the abuser? Unfortunately, the
(b) the extent to which the use of force was imminent emphasis is usually placed there
and whether there were other means available
to respond to the potential use of force;
Factors to consider:
(c) the person’s role in the incident; • Children
(d) whether any party to the incident used or • Child apprehension
threatened to use a weapon;
(e) the size, age, gender and physical capabilities
• Cultural expectations
of the parties to the incident; • Systemic failures
(f) the nature, duration and history of any relationship • Ongoing violence
between the parties to the incident, including any prior
use or threat of force and the nature of that force
• Financial security
or threat; • Immigration status
(f.1) any history of interaction or communication • Hope, love and optimism
between the parties to the incident;
(g) the nature and proportionality of the person’s
• Cycle of violence - honeymoon phase, escalating conflict and a
response to the use or threat of force; and blow up
(h) whether the act committed was in response to a use • Past abuse (normalization of violence - they believe they deserve it)
or threat of force that the person knew was lawful.
• Lack of safe shelter
• Disabilities
R V MALOTT (1998) SCC
Facts The accused was in a relationship with the sexually and physically abusive deceased. She reported them to the police but he was a
police informant and this led to further abuse. He drove her to get some prescription drugs and on the way, she shoots and kills him.
Issue Does establishing BWS denote sufficient proof of self-defence?
Ratio In order to establish that the accused used self-defence, it is not enough to demonstrate that she was suffering from battered
women’s syndrome → she needs to establish that she fits the criteria in the criminal code.
Holding Establishing BWS nuances the self-defence claim → proving BWS doesn't prove the self-defence
Noting four things where juries should be informed as to evidence in battered women cases (ideally with the aid of expert testimony):
1. Why an abused woman might stay in an abusive relationship?
2. Nature and extent of violence that may exist in an abusive relationship – as well as the nature of the violence in the relationship in
question and its impact on the abused
3. Accused’s ability to perceive/anticipate danger from abuser
4. Did accused believe that they could not have otherwise protect themselves from death or serious harm?

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SENTENCING
PURPOSE
Judges do not have much guidance in how to apply their discretion in terms of the competing goals of sentencing. Judges
will decide which factor is the most important and decide what the sentence should be.
Emphasizing one justification over another could sometimes result in different sentences. This is contrary to the fact that
there should be parity in sentencing.
As per s. 718, purpose of sentencing should is (primary consideration given to a and b) → by priority…
(a) denunciation
(b) deterrence
(c) separation of offenders from society
(d) rehabilitation
(e) reparation to victims or the community
(f) promotion of a sense of responsibility in offenders, and acknowledgement of the harm done to victims and to the
community.
OPTIONS
Available sentencing options:
1. Absolute and Conditional Discharge
2. Probation
3. Fine
4. Restitution and/or Community Work Order
5. Intermittent Sentence of Imprisonment (for 90 days or less, served, for example, only on weekends)
6. Conditional Sentence of Imprisonment (described in footnote 3 at p. 17)
7. Imprisonment (from one day to life)
8. Specific Prohibitions (e.g. driving prohibitions and firearms prohibitions)
9. Long-term Offender Designation (10 years of additional supervision in the community with conditions after current
sentence of imprisonment ends) and Dangerous Offender Designation (indefinite sentence – could last for life)

PROPORTIONALITY
Fundamental principle
718.1 A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.
Other sentencing principles
718.2(b) A court that imposes a sentence shall also take into consideration the following principles... a sentence should be similar to sentences imposed on similar
offenders for similar offences committed in similar circumstances
Proportionality is not specifically mentioned within the Criminal Code proportionality in sentencing is recognized as a
principle of fundamental justice (Ipeelee). It is arguable that there should be parity as different sentences for the same
crime is unfair.
The degree of contribution should be considered in sentencing and there should be the balance of the blameworthiness
of the offender with the gravity of the offence (otherwise, it might infringe s. 12 because an excess of punishment can be
cruel and unusual punishment).
Two types of proportionality:
• Ordinal Proportionality: Which types of crimes are the most grave or serious and therefore deserving of the most
punishment (hierarchy of offences)
• Cardinal Proportionality: Internal scale of punishment for any given offence (similar punishment for similar
offences) and sentence must be individualized surrounding the offence and the degree of responsibility (structure
in which someone can form a sentence for a particular individual who commits a particular offence)
For instance, manslaughter has no minimum sentence or requirement for years in prison, therefore, a judge must
consider the gravity of the offence.
While the following are not listed, aggravating and mitigation factors should be assessed:

56
 Potential for Conduct and
Prior offences Age Family status
rehabilitation remorse

Unrelated
Intergenerational Cooperation with Gaps in criminal
Plea meritorious
violence police offending
conduct

NON-CUSTODIAL SENTENCES
s. 730 Absolute or
Conditional Discharge
•Not available for severe
offences
s. 731 Probation s. 738 Restitution Order s. 734(2) Fines
•Suspended sentence •Damages suffered by the •If the ability to pay fines
•Often allowed to live by victim exists
yourself •Expenses incurred (i.e.
child care) and pecuniary
damages (i.e. removing
non-consensual images
from internet)

CUSTODIAL SENTENCES
• For instance, house arrest
• If conditions are violated, imprisonment will occur
• Required to be less than 2 years remaining in the sentence
Conditional Sentences • Community sentence
• Not applicable with mandatory minimums
• Conditional Release Act
• Eligibility for parole once 2/3rd of sentence is served

Conditional sentences are more lenient than suspended sentences (Proulx). A conditional sentence can apply in the
following:
1. Offense must not have a mandatory minimum
2. Required to be less than 2 years of imprisonment remaining in the sentence
3. Safety of community would not be endangered
a. Safety of community only refers to threat posed by specific offender
b. Should consider risk of re-offending and gravity of potential damage
4. Consistent with purpose and principles of sentencing in s.718 – 718.2
a. Conditional sentence is available for all offences where statutory prerequisites satisfied
b. Where punitive objectives such as denunciation and deterrence are involved then incarceration will be
likely
5. It would be a mistake to rule out possibility o f conditional simply because aggravating factors are present
R V PROULX (2000) SCC
Facts
Issue What is the difference between condition sentences and suspended sentences (probation)
Ratio Conditional sentences are punitive and rehabilitative while suspended sentences are rehabilitative.
Holding Conditional sentences, even with stringent conditions, are usually more lenient than jail terms of equivalent durations

CREDIT FOR PRE-SENTENCING CUSTODY

Accused receive 1.5 days of credit for every day spent in pre-trial custody.
Assumption that pre-trial detention is more onerous due to nature of holding facilities
Missed opportunities while in custody
Detainment of someone who hasn't been proven to have committed a crime
Pre-trial custody constitutes punishment

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MANDATORY MINIMUM SENTENCES
These are statutorily-set deviations from the norms of sentencing. Parliament agrees with tailoring sentencing to the
accused but has set the lower bar by instituting mandatory minimums.
Currently, there are 80 of these.
Accused will usually argue that the mandatory minimum sentence does not apply to them because they don’t fit into the
sentencing principles of proportionality. Therefore, they can be challenged under s. 12 → s. 12 challenges can be used on
the basis of the gravity of the offence, the circumstances of the offender, the goal of the sentence and the effect of the
sentence. This did not work for Latimer. Ferguson found that no executive exemptions should apply.
There is jurisprudence to recognize the submission of a reasonable hypothetical, stating that it would be grossly
disproportionate were it applied to someone else → this may help strike down sentences under s. 12.
However, this will likely not help the accused because they will either get a reduced sentence or the same as the
mandatory minimum since the judge will find it suitable.
R V LATIMER (2001) SCC
Facts Father killed his severely disabled daughter as a “mercy killing”
Issue Is the ten year mandatory minimum for killing his disabled daughter unconstitutional under s. 12?
Ratio A ten year imprisonment for second degree murder is constitutional
Holding Second degree murder is not first degree but still fairly serious.
Mitigating factor is that the father is an outstanding citizen.
An aggravating factor is that he initially lied about how she died (in her sleep), planned to do it, abuse of trust by parent, and there
was a vulnerable child.
There were other options available such as putting her in a home
Even though her life may have been painful and difficult, it doesn't mean it was one that she did not want to live.
The goals of sentencing is to denounce this type of conduct and the more emphasis on denunciation, the more severe the sentence.
This mandatory minimum is constitutional → if unconstitutional, everyone would have benefitted from that change in law.
Possibility of a constitutional exemption.

R V FERGUSON (2008) SCC

Facts A police officer killed the victim in a cell.
Issue Is the ten year mandatory minimum for killing the victim under s. 12? Can he be given a constitutional exemption?
Ratio The only remedy for an unconstitutional mandatory sentence is to strike it down in its entirety, as opposed to fashioning exemptions
from it for particular offenders.
Holding There should not be scope for discretion when parliament has already expressed intent.

DISCHARGE
Absolute discharge → no records under the Criminal Records Act
Conditional discharge → once conditions are met, records under Criminal Records Act will be removed
Local police records will need to be sealed.

PARDONS
Pardons can be granted ten days after the sentence is completed. This is completed through the records suspension
process. It has implications for the US-Canada border crossing since they will store this information once revealed.
However, if on the sex offender registry, there will still be notice given to neighbours

EXPUNGING
This applies to certain types of cases for historically unjust convictions i.e. having intercourse with someone of the same
gender

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GLADUE REPORTS
“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.” These matters
“provide the necessary context for understanding and evaluating the case-specific information presented by counsel.”
(Williams)
Other sentencing principles
718.2(e) A court that imposes a sentence shall also take into consideration the following principles... 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.
There is an overrepresentation of indigenous people in prison (4% of Canadian population and 12% of prison population).
The SCC and parliament have acknowledged that sentencing has played a large role in creating this state of affairs.
S.718.2(e) requires judges to consider all available options other than imprisonment, and to pay particular attention to
the circumstances of indigenous offenders but there is no automatic reduction in sentences (Gladue). As per Rudin and
Roach, the SCC has indicated that equality, for Charter purposes means substantive equality and not formal equality. In
this sense, a substantive equality approach means ensuring that the backdrop of colonialism and oppression is considered
during sentencing.
There is no requirement that there be a causal connection between the offence and the Gladue principles → it only exists
to should what the sentence should be like (Ipeelee). They do apply in violent crimes but this will be tempered by the
severity of the crime.
Application:
• Whether there has been some sort of systemic discrimination against the offender and consider how that may
have affect the understanding of the appropriate sentence for this person
• In determining sentence, it should be individualized and consider the ways they have suffered discrimination
• Identify a relevant community where they can be placed for support
• Apply these principles regardless of whether or not they are living on reserve
Challenges to Gladue:
• Effectiveness of Gladue is rooted in resources and cultural competency
• Very resource intensive → requires people who are advocating for indigenous offenders to go into communities;
obtain commitments from people about supports and prove that they have suffered from their actual life
circumstances
• Easier to sentence from non-indigenous perspective
Gladue applies at many stages including first appearances, sentencing, bail and parole hearings, reviews in indigenous
courts, dangerous offender hearing, long-term offender hearings, not criminally responsible hearings. These reports
should contain the following (Gladue Writers Society → not assigned or part of course – 1L Conference)
→ Neutral;
→ Unbiased;
→ Objective;
→ Accurate;
→ Fully researched;
→ Corroborated;
→ An individual's story;
→ Not used as an advocacy tool;
→ Identify individual, family and Nation's strengths;
→ Demonstrate the systemic & background factors relevant to the individual;
→ Contextualize risk through the lens of colonization;
→ Identify impacts of colonization to the individual, family, Nation;
→ Identify the healing and restorative justice principles through the lens of the individual's Indigenous worldview,
where possible;
→ Demonstrate community-based options and all available sanctions other than incarceration, as appropriate;
→ Contain a practical healing & restorative justice plan.
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 R V GLADUE (1999) SCC
Facts The accused was Cree from Northern Alberta and was pregnant. She heard that the deceased had committed infidelity and she killed
him. She was given a lower sentence
Issue Did the trial judge err when he did not apply s. 718.2(e)?
Ratio S.718.2(e) requires judges to consider all available options other than imprisonment, and to pay particular attention to the
circumstances of indigenous offenders. No automatic reduction in sentences.
Holding S. 718.2(e) is remedial in nature and its purpose is to assist with the overrepresentation of indigenous offenders. Sentences must be
individualized and assigned with regard to the background/systemic factors at play. Restorative justice is prioritized.

R V IPEELEE (2012) SCC

Facts The accused breached a term of their long-term supervision order. They were given custodial sentences.
Issue Should the gladue principles apply to violent offences?
Ratio Gladue principles do apply in violent offences
No causal connection is required between background or systemic factors and the offence. They provide context.
Holding The sentencing judge made an error by emphasizing protection of the public as the primary objective for the sentence when it should
have been rehabilitation.

CRITIQUES OF OUR SENTENCING REGIME

• The objectives above are not prioritized. A judge has broad discretion and they can legitimately select their own
personal sentencing philosophy which leads to unwarranted disparity in sentencing.
• The efficacy of some of the objectives above are in question i.e. Deterrence
→ There is an absence of empirical evidence that deterrence works, however, our sentencing regime relies upon
it
• There is no guidance on whether a custodial or non-custodial sentence should be imposed and what the
appropriate length should be. There are no average or starting point sentences.
• People don't serve as much time as imposed by the judge. The length of confinement is set by subsequent
decision-makers.
• Roach and Rudin article

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