Canadian Criminal Law Notes - Summary

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Crim Notes - Summary Canadian Criminal Law
Canadian Criminal Law (York University)
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CRIMINAL LAW INTRODUCTION

In these notes, D = the accused/defendant, V = the victim, X = a third party, P = the prosecution or, depending on context, the
principal offender, S = the suspect, O = officer, TJ = trial judge
Sources of Criminal Law-------------------------------------------------------------------------------------------------
With exception of contempt, criminal offences are created by statute, mostly Criminal Code. The common law cannot be used to
create offences in Canada because of concerns related to the principle of legality, and the notion that criminal offences should be clear,
certain, and should pre-exist the act being prosecuted.
Frey v Fedoruk [1950] (peeping tom, chased and detained):

 “Conduct, not otherwise criminal and not falling within any category of offences defined by the criminal law, does not
become criminal because a natural and probable result thereof will be to provoke others to violent retributive action; acts
likely to cause a breach of the peace are not in themselves criminal merely because they have this tendency. It is for
Parliament and not for the Courts to decide if any course of conduct is criminal”
 Cartwright said, "I think that if any course of conduct is now to be declared criminal, which has not up to the present time
been so regarded, such declaration should be made by Parliament and not by the Courts.
 Rule from this case puts burden on legislature (to declare acts that are injurious to society criminal)
 Note that this is the PRINCIPLE OF LEGALITY – citizens should know beforehand what is punishable.
 Parliament’s response to case: see s177 CC – Peeping Toms.
 Also see CC s. 9
Common law offences are not available, BUT Common law defences are available under Canadian criminal law: CC s. 9, e.g. Levis
(City) v Tetrault (officially induced error defence was recognized). OR, in R v Mack [1998], entrapment was used.
Section 8 (3) – common principles continue to apply if they are not inconsistent with the code, or have not been altered by parliament
Common law CAN determine, however, how criminal offences are interpreted, e.g.
R v. Jobidon [1991]– illustration of common law influence on reach of statutory provisions – fist fight death
Facts: Victim and accused got into a fist fight, was broken up, accused waited outside – hit with fist so hard that he was
knocked backwards, accused kept hitting him and victim went limp and died; at trial found not guilty of manslaughter,
and since victim has consented to ‘fair fight’ it negated assault (section 265); Court of Appeal set aside appeal and
substituted guilty verdict for charge of manslaughter
Issue: Since section 265 sets out that one can’t commit assault if the other person consents to the application of force, then can
common law restrict or limit the legal effectiveness of consent
Held: Dismissed
 Common law generates body of law to illuminate meanings of the requirements of an offence, and thus place certain
limitations on the legal effectiveness thereof in the criminal law
 By limiting consent to application of a certain type of force and not beyond that, court was right
The Power to Create Criminal Offences and Rules of Criminal Procedure--------------------------
[a] Constitutional Division of Powers

 Federal and Provincial governments have jurisdiction to create non-criminal offences (regulatory offences), but only Fed can
create “criminal offences”: s. 91(27) Constitution Act.
 Provinces under s91(14) set up lowest level of criminal courts, where most crimes are prosecuted.
[b] The Canadian Charter of Rights and Freedoms

 The Charter can be used to invalidate offences that Parliament has created, and can be used to strike down rules of criminal
procedure
Canada (Attorney General) v. Bedford, 2013 SCC 72

FACTS:
 Terri Jean Bedford, Amy Lebovitch, and Valerie Scott are either current or former sex workers.
 They applied to the Ontario Superior Court of Justice for an order declaring that the following laws were unconstitutional
as per s7:

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 1) Communicating in public for the purpose of prostitution;

 2) Living in, owning, leasing, occupying or being inside of a 'common bawdy house'; and
 3) 'Living off the avails of' prostitution.
 They argued that these laws created unsafe working conditions for prostitutes, and thus violated their rights to the
security of the person under section.
 At trial, the judge found the laws against keeping a common bawdy house, living on the avails, and communicating in
public for the purposes of prostitution laws to be unconstitutional.
 The government appealed the decision to the Ontario Court of Appeal, where it found that the 'bawdy house' and 'avails'
laws were unconstitutional. However, they found the law about 'communicating' to be constitutional.
 Both parties appealed to the Supreme Court
ISSUES:
The Supreme Court considered the following issues:
1. Can a trial judge consider Charter arguments not raised in a previous case about the same law?
2. Must appeal courts defer to facts found at trial about society and legislation?
3. How should courts determine whether laws cause violations of section 7 rights?
4. Is the 'common bawdy house' law constitutional?
5. Is the 'living off the avails' law constitutional?
6. Is the 'communicating in public for the purposes of prostitution' law constitutional?
HELD:
 The Supreme Court ruled that a trial judge may consider Charter arguments not raised in a previous case about the same
issues. It also found that facts about society and legislation determined at trial court must be given deference by higher
courts.
 Further, the Supreme Court of Canada struck down Canada's remaining prostitution laws, finding that bans on street
soliciting, brothels and people living off the avails of prostitution create severe dangers for vulnerable women.
 Writing for a unanimous court, Chief Justice Beverly McLachlin opined that "Parliament has the power to regulate
against nuisances, but not at the cost of the health, safety and lives of prostitutes
 The focus is on security of the person, not liberty, for three reasons.
 First, the Prostitution Reference decided that the communicating and bawdy-house provisions engage liberty,
and it is binding on this point. The security of the person argument is a novel issue and an important reason why
the application judge was able to revisit the Prostitution Reference.
 Second, it is not clear that any of the applicants’ personal liberty interests are engaged by the living on the
avails provision; rather, they have pleaded that they fear that it could apply to their employees or their loved
ones.
 Lastly, it seems to me that the real gravamen of the complaint is not that breaking the law engages the
applicants’ liberty, but rather that compliance with the laws infringes the applicants’ security of the person
SIGNIFICANCE:
 Not only were three of Canada's prostitution laws declared invalid, the Supreme Court gave new direction on how courts
should deal with prior decisions and section 7 rights claims.
 On June 4, 2014, Minister of Justice Peter McKay introduced a bill in response to this decision. He stated that the bill
would make prostitution illegal in Canada for the first time by criminalizing the purchase of sex
R v Oakes: Example of a rule of criminal procedure being struck down

- Constitutionality of s. 8 of the Narcotic Control Act: a person found in possession of a narcotic was presumed to be in possession
for the purpose of trafficking, unless he established the contrary
- Held: s. 8 violates the presumption of innocence by requiring accused to disprove guilt on balance of probabilities; not saved by s.
1 of Charter (no rational connection)
The Charter can be used as an important interpretative tool by allowing courts to use constitutional values to influence the way
statutes are interpreted
- R v Labaye: Whether group sex activities carried out in private club constituted “acts of indecency”. They did not: harm must be
one which society formally recognizes as incompatible with its proper functioning (autonomy, liberty, equality and human dignity
are among these values)
o An illustration of how the Charter changed the criminal concept of indecency through a progression of cases described
therein. You will see that this case provoked a strong dissenting judgment.

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Classification of Offences------------------------------------------------------------------------------------------------
Two general categories: “Indictable” and “summary” offences

- Indictable: more serious offences, prosecuted in superior courts. No statute of limitations.
- Summary Offences: less serious, lower courts, time-barred by six months after the completion of the offence.
Offences can be “hybrid” (i.e. prosecutor has right to elect whether to treat as indictable or summary) (this is not a 3rd category of
offence, though)
The classification of offences has important implications for the penalties that are possible, and for the procedure that will be used,
including the mode of trial
Interpreting Criminal Provisions-----------------------------------------------------------------------------------------
Definitions
- Definitions are found in CC s. 2 (which apply throughout) and in the beginning of each Part
Strict Construction
- Historically, statutes were interpreted strictly in favour of the accused insofar as any doubts or ambiguity in the matter of
interpretation; this is a means of ensuring that the criminal law is fixed and predetermined. The seriousness of imposing criminal
penalties demands that reasonable doubts be resolved in favour of the accused
- Statutes that affect the physical liberty of a person should be applied so as to favour the person against whom it is sought to be
enforced: R v Marcotte
- Only laws containing ambiguity are strictly construed: Canadian Oxy Chemical
- This principle continues to apply but has been heavily modified by the purposive interpretation.
R v Pare: (Sexually assaulting and then murdering little boy)

Facts: Pare murdered a young boy two minutes after indecently assaulting him; at trial jury found him guilty of first degree
murder section 214(5)(b) (“when death is caused ... while committing an offence under section 156); Court of
Appeal substituted verdict of second degree murder; Crown appealed
Issues: Whether accused murdered the child “while committing” the indecent assault
Held: Crown’s appeal of second degree verdict should be allowed
- “while” committing, as per section 214(5)(b) doesn't require the murder and offence (under section 156) to take
place simultaneously; that they form part of one continuous sequence of events forming a single transaction qualifies
as “while committing”
- Potential grammatical ambiguity in s. 214(5) re killing ‘while committing’ another offence. SCC looked at purpose
of provision to find there was no ambiguity: “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.”
Roach thinks the court seems less likely to strictly construe in favour of accused where very serious crimes are involved and the
wording of the statute is not really ambiguous, e.g. R v Pare…
Purposive Interpretation
Canadian law makes liberal use of purposive interpretation (see R v Pare above)
 The language of the provision being construed is interpreted harmoniously with the statute as a whole, with the underlying
purpose of the provision in mind so as to best accomplish that purpose
- Limit: can’t damage the actual language of the provision
French/English
Federal laws like the CC are passed in both English and French; each is equally authoritative and ambiguities in one language can
be clarified by the other
The more restricted version is always the one used, e.g. adapted vs. modified (below)
- R v Mac: ambiguity in the English version of statute containing ‘materials adapted for forgery’ cleared up by resorting to
French version (‘modifié’)

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- R v Collins: French version of Charter s. 24(2) preferred: "the evidence shall be excluded if it is established that, having
regard to all the circumstances, the admission of it in the proceedings could [rather than the English ‘would’] bring the
administration of justice into disrepute"
The Charter
The Charter can have an important influence on the way statutory provisions are interpreted because of the presumption that statutes
were intended to be constitutionally valid. This was seen in: R v. Labaye
Canadian Foundation for Children, Youth & the Law v Canada: – McLachlin C.J. – right to discipline
- Criminal statutes are presumed to be constitutionally valid.
- Section 43 justifies reasonable use of force by parents and teachers to correct the children in their care; the Foundation said it
violated section 7 (life, liberty, security of the person), 12 (right not to be subject to cruel and unusual punishment), and 15(1)
(equality before and under the law and equal protection and benefit thereof); trial judge rejected the contention;
- Court of Appeal confirmed rejection
- Implicit (societal acceptance, expert opinion re age and capacity of children) and textual limitations (not harming the child, use
as correction only) ensure ‘reasonable’ corrective force (s. 43 CC) is constitutionally valid and not overbroad or in violation of
children’s ss. 7, 15 or 12 rights
- S. 7 analysis: no violation of s. 7 (security of person). Although security of person is affected, fundamental justice is
not.: children receive all the same protection as anyone else (prosecution); "best interests of the child" is not a principle
of fundamental justice as there is no "consensus that it is vital or fundamental to our societal notion of justice"
- S. 12 analysis: reasonable corrective force is not ‘so excessive as to outrage standards of decency’ (quoting R v Smith),
the test for cruel and unusual punishment; if it were, it wouldn’t be reasonable
- S. 15 analysis: equal treatment ≠ identical treatment; making a distinction based on age isn’t discriminatory. Human
dignity is not impaired; regard is held for children’s actual circumstances in allowing parents to (technically) assault
them

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-------------------------CRIMINAL (or Regulatory) OFFENCES/ELEMENTS------------------------------

Elements of a crime can be determined by statutory wording in conjunction with precedents. Each crime has a required element
which must be present before conviction is possible. These elements are:
[1] The PHYSICAL elements, actus reus

- The act that must be performed, or
- The omission that is proscribed
- The circumstances or conditions in which the act must occur, e.g. absence of consent
- The voluntariness of the act
- The act causes the harm (if relevant) or proscribed results, factual and legal
- Any consequences that must be caused by the act
- Sometimes the law intervenes even before the accused has committed the criminal act required for a complete crime
- Section 24 states that anyone, having the intent to commit an offence, who does or omits anything beyond mere
preparation, is guilty of attempting to commit that offence (regardless of whether it was possible to actually commit the
offence or not)
[2] The MENTAL element, mens rea

- A true crime will generally be interpreted as requiring subjective mens rea…
 Intent, planning and premeditation, knowledge, wilful blindness or recklessness
- …Unless it is clear that Parliament wished to impose objective liability, e.g. negligence
 Objective liability is determined with reference to what a reasonable person in the position of the accused would
have known or foreseen
In a question about criminal liability, go through ALL these considerations, relate to the evidence, and mention the relevant cases
Actus Reus----------------------------------------------------------------------------------------------------------------------------------
Acts and Statutory Conditions
(i) The act must be the act of the accused, and must be the kind of act described in the relevant provision, and the act must be
committed under the circumstances or conditions specified in the offence
 E.g. an accused cannot be convicted of the offence of break and enter with intent to commit a criminal offence pursuant to s.
348(1)(a) unless he “breaks” and “enters” something that qualifies as a “place”
See, for an example of the interpretation of acts and actus reus conditions:
R v Gunning: To make out a murder conviction, Crown needs to prove beyond reasonable doubt:
(1) identity of D as the offender;
(2) time and place of the offence as set out in the Indictment;
(3) that D caused the death of V;
(4) that D caused the death by means of an unlawful act [here, careless use of a firearm];
(5) that D intended to cause the death
o All of these are matters of fact to be decided by the jury (judge erred in telling the jury that D’s act was unlawful – that his
use of the gun was careless)
R v. J.D. – [2002]– being let into his friend’s house, counting as forcible entry
Facts: JD fled to VB’s house after being approached by cops; he was let into the house and tried to go out the back door but
was unable to; cops were let in and they arrested JD; trial judge found that forcible entry didn’t require actual use of force as
long as there was a breach of peace
Issues: was there a forcible entry
Held: conviction set aside, acquittal entered
- Forcible entry occurred only where the entry interfered with the peaceable possession of a property; a known person
walking in the front door and straight through to the back does not have such an intention
(ii) Acts must be ‘voluntary’ or ‘willed’
- The act described by the offence must be voluntary in the sense that it must be the willed act of the accused – unless physical
motion is wilful, it is not fair to call it an act of the accused

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- For the most part the issue of whether the accused committed the actus reus is distinct from whether he had the required fault
element doesn’t create issues – he must have voluntarily committed the offence to be convicted of it
- Voluntariness is now a requirement built into the actus reus.

 The actus reus has its own mental element, that the act must be voluntary act of the accused
R v Theroux: actus reus has its own mental element: the act must be done voluntarily
 e.g. heart attack/epileptic seizure/detached retina/bee sting while driving aren’t voluntary >  no AR
R v Daviault: extreme intoxication producing involuntary/unconscious behaviour negates actus reus
R v Stone: an involuntary act will lead to acquittal (as no actus reus made out)
R v Ruzic: voluntariness is one of the principles of fundamental justice (section 7 Charter).
The Act of Possession [divide b/w AR & MR not clear]
Some actus reus incorporate the inherent mental element of “possession”, e.g. possession of firearm, property obtained in a crime (s.
354(1)), etc.
“Possession” is defined in s. 4(3) and includes both actual and attributed possession (notes, CC p. 20):
- A person has something in his “possession” where he
(a) Has it in PERSONAL POSSESSION (manual possession);
(b) KNOWINGLY has it in the actual possession or custody of ANOTHER PERSON (constructive possession);
(c) KNOWINGLY has it in any place, whether or not that place belongs to or is occupied by him, for the use or
benefit of himself or another person (also constructive possession)
(d)Where ONE OF TWO PERSONS has anything in their custody or possession, with the KNOWLEDGE AND
CONSENT of the rest, it shall be deemed to be in the custody of ALL OF THEM (i.e. joint possession)
 S. 2 of the CDSA adopts this definition of possession
- This section creates 3 types of possession: personal possession (actual); constructive possession (attributed) and joint
possession (actual to one possessor, and attributed to the other)
R v York: [2005] driving away van with property stolen by partner [manual/actual possession]
Significance:
- Personal (actual) possession is established where an accused person exercises physical control over a prohibited object with
full knowledge of its character, however brief the physical contact may be, and where there is some evidence to show the
accused took custody of the object willingly with the intent to deal with it in some prohibited manner
Facts:
- D found goods in his warehouse and upon inquiry suspected they were stolen. To get rid of the goods D borrowed a truck
and removed the goods, then was arrested.
Issue: Did D possess necessary mens rea to establish possession of stolen property?
Held:
- Intention to deprive owner of goods required to establish ‘possession’; brief handling for the purpose of disposing of stolen
goods, even with full knowledge of theft, ≠ intention to deprive
- Crown must establish a blameworthy state of mind
- Note how the “act” of possession has a mental element; so sometimes the actus reus and mens rea are not distinct
R v Terrence: [Joint Possession & Constructive Possession]

Significance: Joint possession requires evidence that the party in attributed possession had knowledge, consent and control over
the subject matter
Facts: D, passenger in a stolen car, charged with possession under s. 313; he didn’t know the car was stolen
Held: Control an essential element of possession; must coexist with knowledge & consent
R v Marshall: [Joint Possession & Constructive Possession]

Facts: Marijuana in the car in which M was a passenger. He knew the narcotics were in the car but did not touch or use them.
Issue: Was Marshall in joint possession? What is necessary to meet requirements of possession in s. 4(3)?
Held: To prove s. 4(3) possession, there must be evidence of consent; M had not consented (appeal allowed)
- To be in possession requires
1. Knowledge of the criminality associated with the item (not just of the item);
2. Consent (per Marshall v R (1969)); and
3. Control (per R v Terrence (1983))

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R v Pham: Knowledge & control required for joint/constructive possession (s. 4(3)(a)(i) & (ii))
Facts: Drug exchanges in D’s apartment; no evidence new occupant of apartment was aware (‘control’ element of
joint/constructive possession not satisfied)
Issue: Did X have knowledge and control of the cocaine found in the black cloth purse in the bathroom, sufficient to constitute
constructive or joint possession? Yes: it was in plain view in the bathroom, a common area of the apartment
Held: Knowledge, consent, control required for joint possession (question of fact; evidence)
- Knowledge can be inferred from circumstantial evidence
R v Morelli: [Possession of electronic data, child pornography]

- Just having an illegal file cached on D’s computer (child porn) didn’t establish possession: it would have to be downloaded and
saved to the hard drive in order for there to be ‘control’
- Merely viewing in a Web browser an illegal image stored in a remote location on the Internet does not establish the level of
control necessary to find possession
- In order to commit the offence of possession, as opposed to the offence of accessing child pornography, one must knowingly
acquire the underlying data files and store them in a place under one’s control
- Dissent: “D does not need to have control in a place belonging to him, such as his hard drive. The provision simply requires the
material to be ‘in any place’for the use or benefit of D.”
- Material need not be downloaded, so long as it can be controlled for access/use
Consent as an Element of the Actus Reus
- Absence of consent by the victim is an important actus reus condition, and must be present for offences to occur
- If alleged victim allegedly consented, must also consider whether the consent is obtained lawfully: s. 265(3)
- The existence of consent for the purposes of defining the actus reus of sexual assault depends on the subjective perception of the
victim as opposed to any external and/or objective standards of law
- Court has rejected the defence of implied consent, rejects idea that although the complainant did not actually consent, her conduct
failed to meet the objective standard of consent: R v Ewanchuk, thus determining consent is subjective, reference to the
complainants subjective internal state of mind towards touching.
- Statement by the victim that she did not consent or did so because of fear will be determinative unless not credible.
- Court took different view in Cuerrier, actions of accused assessed objectively to determine whether reasonable person would
find them do be dishonest. Persons only had duty to disclose if the failure to disclose presented a significant risk of bodily harm.
- In Jobidon, Court held person could not consent to an assault that intentionally causes ‘serious hurt or non-trivial bodily harm…
in course of fist fight or brawl’.
CASES:
R v Ewanchuk: Only relevant period for ascertaining consent is while the touching is occurring. Also, subjective perception.
- Sexual assault involves three actus reus circumstances…
(1) Touching, (2) Of a sexual nature,
(3) Absent freely given consent (subjective: V’s state of mind, assessed for credibility)
- If in doubt re veracity of consent, check s. 265(3): no threat, fraud etc.
- No such thing as implied consent
- Two mens rea elements:
(1) Intention to touch
(2) Knowledge, recklessness of, or willful blindness re lack of consent
- c.f. Honest belief defence, s. 265(4): SCC held it insufficient for D to have believed V was subjectively consenting in her
mind: “In order to cloak D’s actions in moral innocence, evidence must show he believed V communicated consent to
engage in the sexual activity in question” (applied in J.A., below)
R v J.A. (upholding Ewanchuk): consent while unconscious

Facts: Long term partners engaging in consensual asphyxiation play; female blacked out and when she came to, a dildo was
being inserted into her anus; she claimed she had not consented to the sexual activity while she was unconscious; trial
judge convicted the accused of sexual assault; court of appeal set aside the conviction; crown appeals to dismissal.
Issues: Can sexual acts be performed on an unconscious person if that person consented beforehand
Held: Conviction of the accused was restored

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- ‘Conscious consent of an operating mind’ is necessary to engage in every act of a sexual encounter; starting
something new while V was (voluntarily) unconscious = no consent
- No such thing as broad advance consent; the protection afforded by s. 273.1(2)(e) would be lost (under which V can
revoke consent), also remember Ewanchuk: relevant time for establishing consent is while the touching is occurring, i.e.
while the unconsciousness continues
- Differences between consent elements in actus reus and mens rea (from Ewanchuk):
- Mens rea defence: whether the accused believed C had communicated consent (see note in Ewanchuk above);
requires taking reasonable steps to ascertain consent
- Actus reus: whether V was subjectively consenting in her mind
- Dissent: advance consent while unconscious wasn’t at issue in Ewanchuk (in which V didn’t consent at any point) and
that case shouldn’t be taken out of context; court should avoid vitiating consent except in limited circumstances
(Jobidon)
- Since Jobidon, consent has only been judicially vitiated in cases of ABH and should not be vitiated here
R v Jobidon: Cannot consent to intentional application of force to cause hurt or non-trivial bodily harm
- Accused charged with manslaughter, through the offence of assault, following a fist fight. Although V agreed to fight, his
consent did not extend to being punched after he was unconscious.
- Issue: Must absence of consent be proved by P in all cases of assault?
- The common law still ‘illuminates’ offences listed in CC and defines their content
- The fact that s. 265(3) sets out factors that vitiate consent does not mean that we cannot rely on the common law to
ascertain other ones
- Where two people engage in a fight by mutual consent, the blows struck by each constitute assaults, unless there is
justifiable self defence (i.e. you cannot consent to the infliction of bodily injury, or non-trivial bodily harm)
- This policy of the common law will not affect the freely given consent to participate in rough sports, so long as the
intentional force is within the normal rules of the game
R v Cuerrier: How fraud vitiates consent per s. 265(3) [HIV+] (significant risk test?)
Facts: D charged with two counts of aggravated assault per s. 268 for failing to inform sexual partners of his HIV+ and using
condoms; two partners contracted HIV
Issue: Was Vs’ consent to unprotected sex vitiated by fraud by virtue of D’s knowledge? Both failing to disclose and
deliberately deceiving
Held: Must find causal connection between fraud and submission/failure to resist (i.e. consent); fraud need not pertain to
‘nature and quality of act’
- i.e. Both partners knew they’d be having sex with D so there was no fraud there; the fraud was in D’s knowledge
that neither V would consent if they knew he was HIV+
- Fraud involves (i) dishonesty, determined objectively: was dishonesty used to obtain consent?; (ii) deprivation, here
serious risk of bodily harm
- Greater risk of deprivation > higher duty of disclosure
- Without disclosure, there can be no TRUE CONSENT.
- Cuerrier the court used the language of “significant risk” to determine if there is a duty to disclose.
- The Court was left to decide at what point risk becomes “significant” enough and harm becomes “serious” enough for
conduct to be considered a criminal offence
R. v. Mabior [2012] (failing to disclose HIV positive status, Test  “realistic possibility of transmission” )
Facts: Mr. Mabior was charged with nine counts of aggravated sexual assault because he had sex with different women and did
not disclose to them that he was HIV positive.
None of the complainants contracted HIV.
Held: Convicted of three of the four counts that he was acquitted of at the Court of Appeal
- 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."
- The Cuerrier decision provided the basic requirements for the offence, including that the circumstances must create a
“significant risk of transmission” but did not clarify “the precise circumstances when failure to disclose HIV status
vitiates consent and converts sexual activity into a criminal act.”
- The Court convicted on three counts because, although he had a low viral load when he had intercourse with three sexual
partners, he did not use a condom.
- The Court concluded that low viral load with no condom use meets the test for “a realistic possibility of transmission of
HIV”. In the 4th conviction, Mr. Mabior was not convicted because he did use a condom and his viral load was low.

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Causation
Where the relevant offence prescribes a “consequence” that must occur before the offence is complete, the prosecution must prove that
the accused caused that consequence
If causation is not proved beyond reasonable doubt, D can’t be convicted of a ‘consequence’ crime (Williams)
Nette discusses the need for both “factual causation” and legal causation, as well as discussing the higher causation standard for first
degree murder.
Smithers illustrates the legal causation principle of the “thin skull” and Reid demonstrates the need in some contexts to consider
whether intervening events have broken the relevant chain of causation.
So where an offence requires a specific consequence, causation becomes an element of the offence
- The offences which prescribe a consequence include:
Criminal negligence causing bodily harm (s. 221), criminal negligence causing death (s. 220),
Dangerous operation causing bodily harm (s. 249(3)), dangerous operation causing death (s. 249(4)),
Impaired driving causing bodily harm (s. 255(2)), impaired driving causing death (s. 255(3)),
assault causing bodily harm (s. 267(b)) aggravated assault (s. 268),
sexual assault causing bodily harm (s. 272(1)(c)), aggravated sexual assault (s. 273(1)),
mischief causing danger to life (s. 430(2)), arson causing bodily harm (s. 433(b)).
Homicide (causes death) (222(1)), 1st degree murder
(231(5))
Overview:
Although the criminal code doesn’t’ comprehensively codify all causation issues, sometimes parliament prescribes the level of
causation for a crime
 section 222(1) provides that a person commits homicide when, directly or indirectly, by any means, he or she causes
the death of a human being
Where factual situation occurs which are not covered in statute, rules of common law general principles of criminal law apply to re-
solve any causation issues that arise. For example, in R v Smithers, upheld manslaughter on basis that kicking the stomach was at
lease a contributing cause of death, outside the de minimus range, even though death was caused by the victims own malfunctioning
epiglottis (causing him to choke on own vomit). Here the thin skulled plaintiff rule used in criminal law homicide
Example: R v Maybin: where facts aren’t anticipated by statute, common law will resolve causation issues
- Maybin brothers punched V repeatedly until V became unconscious, then a bouncer came in and punched him again:
which punch caused death?
- Reasonable foreseeability test vs. intentional independent act test at trial; SCC held the two could be used together
- Review this later on!
It was reasonably foreseeable that the bouncer or someone else would forcefully intervene, so causation remains with D
If the accused set off a chain of events that ended in the person’s death, even though the immediate cause of death was not at the
accused’s hands, the courts have concluded that the accused caused such a death
- The accused actions don't have to be the sole cause of death, but a significant contributing cause thereof
- The actions of the accused have to be so connected to the death that they can be said to have had a significant causal effect that
continued up to the time of the accused’s death without having been interrupted by an intervening effect
- But there may be times when intervening factors make it so that the accused’s actions are no longer the significant cause of death
Causation = Two Stage Analysis:

Causation involves an analysis into both factual causation (i.e. the medial cause of death) and legal causation (i.e. whether the
accused should be held responsible in law) (Menezes):
[1] Factual Causation:

(i) As there can be more than one cause of death, the causation test is not restricted to a search for the most proximate, the
primary, or the only cause of death (Menezes)
(ii) Regardless of whether the accused’s conduct is the sole cause, ask was it a material cause? The test is this:
a. Was the conduct of the accused a significant contributing cause of the prohibited consequence?
(iii) If the act of the accused is too remote to have caused the result alleged, causation is not established

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(iv) If the triggering of a chain of events is interrupted by an intervening cause, it can serve to distance and exonerate the accused
(R v Nette).
- D’s withdrawal or abandonment can terminate the chain of causation, e.g. leaving V in a building that then burns down
- D’s abandonment of the dangerous conduct requires a positive communication of notice, sufficiency of which is
determined by the nature of the offence and the degree of D’s participation
(v) Factual causation is typically resolved by the ‘but for’ test
[2] Legal causation: Examples of legal causation: reasonable foreseeability test, independent intervening act test > blameworthiness
(i) This inquiry concerns whether D should be held criminally responsible in law for the prohibited consequences: blameworthy?
(Nette, Williams)
(ii) Causation expresses an element of fault. That, together with the requisite mental element, is in law sufficient to base criminal
responsibility
(iii) Note: there is a higher standard of legal causation to secure a first degree murder conviction (Nette)
R v. Menezes – [2002]– car race death [talks about intervening / breaking chain]
Facts: Incited victim into car race; there came a turn in the road where victim lost control and was killed; Menezes slowed down
when he came near the dangerous turn, thus backing out of race. Other driver continued and died.
Issues: Did D’s withdrawal from the race break the chain of causation? Because of his co-participation in the dangerous activity,
was accused criminally responsible
Held:
- Found not guilty of criminal negligence causing death, but guilty of dangerous driving. Contributory negligence does not negate
causation/criminal responsibility
- Accused’s conduct showed marked departure from standard expected of a reasonably prudent driver; the driving was dangerous
but not criminally negligent
- Accused slowed down nearing the turn, – victim should have been aware of that given the race situation – this amounts to
intervening event in the causation of the consequences that occurred
- There are two stages to causations: factual causation and legal/imputable causation
o Factual causation considered: where there are multiple independent significant contributing causes, a predominant
cause need not be found. All that matters is whether D’s conduct was a significant contributory cause.
 “If the act of D is too remote to have caused the result alleged, causation is not established.”
o Legal causation considered: is D to blame for the prohibited consequence? Application of criminal responsibility
- Remoteness of D’s act from prohibited consequences brings about acquittal

o If D’s acts are only part of the history from which the prohibited result arose, no causation (Cribbin)
o Intervening acts make D’s act more remote (Nette)
o Abandoning the dangerous conduct, as D did here, requires that V receive a positive communication of notice (i.e. V must
have known that D was no longer racing). Sufficiency of notice is determined by the nature of the offence and the degree of
D’s participation
Criminal negligence: a wanton and reckless disregard for the lives and safety of others: s. 219(1)
- Involves a marked, substantial departure in all circumstances from the standard of care of a reasonable person
- In the context of a dangerously negligent act, the mens rea for the offence charged is objective foreseeability of the risk
of bodily harm which is neither trivial nor transitory
- As is the case with crimes of subjective mens rea, the mens rea for objective foresight of risking harm is normally
inferred from the facts
Dangerous driving: marked departure from the standard of conduct of a reasonably prudent driver in all circumstances: s. 249
- Based in negligence (standard of care): whether, viewed objectively, D exercised the appropriate standard of care
General Rule:
R v Smithers: ‘Thin Skulled Plaintiff’ rule (common law rule)

Facts: D kicked V in stomach (both young hockey players), V choked to death on vomit, medical disorder.
Held: One who assaults must take V as found: the fact that the act wouldn’t normally cause death is no defence as long as P can
prove that D’s act is at least a contributing cause of death that is more than de minimis
Charter Scrutiny?
 R v Cribbin : The common law Smithers test, i.e. an unlawful act that is at least a contributing cause of death, survives
Charter scrutiny (namely under s. 7, forbidding punishment of the morally innocent)

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R v Nette: the Smithers test is to be used to determine causation (rather than the Harbottle test of ‘substantial cause’); to be framed
positively: ‘was D’s act a significant contributing cause of V’s death?’
- This is to be the standard of causation for all homicide cases
- D robbed V, a 95-year-old woman, then left her tied up; V died of asphyxiation 2 days later
- Responsibility for causing a consequence must be determined both in fact and in law:
- Factual causation: but for D’s acts, would V have died?
- Legal causation: concerns with the accused’s responsibility in law and is informed by legal considerations such as the
wording of the offence and the principles of interpretations thereof. S
 Should D be held criminally responsible for V’s death? Morally innocent people should not be punished. Look to
CC section for clues.
- The fact that the accused actions may not have caused death in a different person does not negate causation
- The fact that other factors might have contributed to the result may or may not be legally significant depending on whether these
other (independent) factors, occurring before or after the act or omission of the accused, legally severs the link that ties the
accused to the result in question
R v Reid: Jury trial instructions re intervening act
R v Talbot: Accelerating V’s already imminent death is a significant contributory cause. But evidence that an act was
possibly a cause of death cannot provide the evidentiary basis for a finding beyond a reasonable doubt that the act
significantly contributed to the death.
R v Williams: Where P can’t prove D caused the prohibited consequences, D can’t be convicted
Facts: D, HIV+, had consensual sex with V without telling her of his disease; V later contracted HIV
Held: It was not certain whether V already had HIV, so D couldn’t be convicted
- D has the benefit of the doubt in matters of causation
- This is an actus reus issue: have all the elements of the crime (aggravated assault) been made out? Mens rea hasn’t
yet been reached
- Aggravated assault (s. 268(1)) is an offence based on proof of certain consequences: crown must establish all of the
elements of an assault, plus the aggravating circumstance (in this case, “endangers the life of the complainant”)
- The Crown was unable to prove the endangerment of life, and therefore unable to prove every element of the actus
reus
Omissions and Duties – (Some offences do not require a positive act by the accused)
To be Guilty of Omission (failed to act):

(1) The offence must contemplate guilt for omissions (based on statutory interpretation)
(2) The accused must be placed under a legal duty to act either by the provision charging him or by some incorporated provision
(see ss. 215-217)
(3) The omission in question must be a failure to fulfil that legal duty
- Omission insofar as a legal duty is important because although the law prohibits harmful conduct, it doesn’t require socially
desirable conduct
- Only binding and intentional commitments will suffice to make an accused criminally liable for failing to act
Duty Arises When: common law duty OR statutory duty
R v Moore: Failure to act will give rise to criminal liability only where a duty arises at common law or is imposed by statute
- M ran red light on bicycle; was stopped by a cop and asked for identification; refused to give name and address; charged with
obstructing a peace officer in execution of his duty; trial judge said there was no evidence of obstruction and acquitted;
appeal court reversed verdict and ordered new trial
- Issue: Was this omission a crime? Obstructing a peace officer in the course of his duties by omission: yes
Failing to Provide Necessities of Life (s.215)
R v Peterson:
Facts: D was convicted of failing to provide the necessaries of life to his elderly father with whom he lived, yet lived on
another floor, thereby endangering his life (s. 215)
- Accused father was dependent; since accused had a familial relationship with his father, and was aware of the father’s
dependency, he was under a duty to provide the necessaries of life to his father

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- S. 215(1)(c): Every one is under a legal duty (c) to provide necessaries of life to a person under his charge if that person
(i) is unable, by reason of detention, age, illness, mental disorder or other cause, to withdraw himself from that charge,
and (ii) is unable to provide himself with necessaries of life
o “Necessaries of life” = food, shelter, care, and medical attention necessary to sustain life; also appears to include
protection of the person from harm
- S. 215(2): Every one commits an offence who, being under a legal duty within the meaning of (1), fails without lawful
excuse, the proof of which lies on him, to perform that duty…
- Liability is on an objective basis: conduct showing a marked departure from the conduct of a reasonably prudent
person having the charge of another in circumstances where it is objectively foreseeable that failure to provide
necessaries of life would risk danger to life or permanent endangerment of the health of the person under the charge
of the other, without lawful excuse
- D’s personal characteristics are not a relevant consideration (c.f. capacity to appreciate the risk). The objective basis
of liability includes an assessment of whether D could have acted other than he did.
- “Without lawful excuse”: a defence to prevent the punishment of the morally innocent. The obligation to provide
necessaries is not absolute and may be excused, e.g. for financial inability
- “Under his charge”:

- Consider the relationship between the parties: dependency of disabled parent on independent adult child. Past
course of dealing and element of trust are accounted for in determining whether D was ‘in charge’
- “Charge” therefore connotes the duty or responsibility of taking care of a person or thing
- Consider relative positions of the parties and their ability to understand and appreciate their circumstances.
- An elderly parent who is not in full possession of his or her faculties may not appreciate that he or she
cannot provide himself or herself with the necessaries of life and may not have the capacity to understand
that he or she is in an unsafe or unhealthy environment that is likely to cause permanent injury
- Evidence indicates D was in charge of V, who was unable to withdraw from D’s charge
Duty of Persons Undertaking Acts:
s217: imposes legal duty upon any one who undertakes to do an act if omitting to do it is or may be dangerous to life.
R v Browne: meaning of ‘undertaking’ vis-a-vis creating a duty to act [

Facts:
- D charged with criminal negligence causing death of V after undertaking to take her to hospital after she swallowed a
bag of crack to avoid police check.
- Instead of calling the ambulance, D hired a taxi which took too long: Criminal Negligence: ‘wanton and reckless
disregard’ for V’s life (s. 219)
Held:
- Undertaking (under s. 217) must be clearly made – commitment has to be clear, binding; mere expression of words
indicating a willingness to do an act cannot trigger the legal duty.
- Only if the appellant can be found to have given an undertaking giving rise to a legal duty under s. 217, can he be found
criminally negligent for "omitting to do anything that it is his duty to do" within the meaning of s. 219 (criminal
negligence)
- Given serious penal consequences of being convicted of causing death by criminal negligence, the relevant
undertaking must have been made with binding intent.
- Evidence doesn’t disclose binding intent; “I’ll take you to a hospital” hardly constitutes an undertaking creating a legal
duty under s. 217
Also see FAGAN V. COMMISSIONER OF METRO. POLICE

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2. SUBJECTIVE MENS REA---------------------------------------------------------------------------------------------------
Introduction:
The focus is on the actual state of find of the accused. It normally must be gathered by circumstances, including using the common
sense inference that people normally intend the natural consequence of their acts.
Subjective MR operates as a doctrine that prevents the conviction on someone who, for whatever reason, does not have knowledge
and foresight that a reasonable person would have. It operates to protect those because of impaired reasoning or lack of thought, did
not recognize or intend what may be obvious to the reasonable observer
Each crime has a specific fault element that must be related to the AR of the specific crime. In Canada there is confusion because
Parliament has not clearly and consistently defined fault elements such a “purposely” “knowingly”, “recklessly”, or “negligently”, or
specified which particular fault element applies for each offence. Thus, MR is often inferred by the courts from the legislative
definition of each separate offence.
- For those offences not specifying mental state, the courts have to infer what type of fault element is required
Because knowledge manifests from intent, the law assumes that A knew of the elements of the offence, unless “defence of mistake of
fact” is made out.
Determining the MR of an offence depends on construction to see what mental states are required by a particular offence.
Most offences require more than one mental state to exist. For example, to be guilty of murder, the accused must know that the
living thing he is killing is a human being and intend to cause death to that human being. A
For some serious crimes (i.e.; murder, attempted murder, war crimes), the principles of fundamental justice (section 7) require that
the crown prove that the accused subjectively knew that the prohibited result was likely to occur (the supreme court has ruled that it is
not required for most other crimes) – i.e.; for such offences, subjective knowledge of the actus reus is a constitutional requirement
Purpose of MR:
R v Theroux 1993 CCC: “to prevent conviction of the morally innocent—those who do not understand nor intent the consequences
of their acts.”
Subjective vs. Objective MR:
Subjective: Crown must establish that accused subjectively had the required guilty knowledge in relation to the specified circ or
consequences
Objective: Crown must only establish that a reasonable person in the accused’s position would have had the required guilty
knowledge or would have acted differently
Inferences will be drawn from evidence provided, trier of fact will no doubt always inevitably consider what a reasonable person
would have though are recognized. But: R v Buzzanga 1979: “ what a reasonable would have known may provide the basis for the
jury to conclude the accused had a particular subjective mental element BUT it never requires jury to make such a determination.
Supreme Court has kept clear distinction between OB and SUB fault elements, but they are increasingly willing to see OB as a
appropriate form of fault:
Wholesale Travel Group 1991 CCC:

Significance: in the context of regulatory offences outside the CC, negligence should not be forgotten as a fault element,
which measure against an objective standard, irrespective of A subjective mental state. Accepts negligence can be sufficient
fault level for ‘most criminal offences’
R v Beatty 2008 SCR:

Fact: SC uphold an acquittal for dangerous driving on basis that A had only engaged momentary lapse when his vehicle went
over the center line and killed 3 people.
Significance: suggests that OB fault will not always follow from the commission of an act that is in itself negligent—in all
cases pros must prove a ‘marked departure’ from reasonable standard considering all evidence in the case. Therefore, court
elevated ‘marked departure’. Moreover, “modified objective approach’ so to look at mental state of driver to determine
whether it might raise RD about whether accused was criminally neg. It focuses on administering OB standard in contextual

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manner that is sensitive to the possibility that ‘a reasonable person in position of A would not have been aware of the risk, or
would not have been able to avoid creating danger.
Reasoning: Court elevated the marked departure standard to a constitutional requirement because if every departure from the
civil norm (ob) is criminalized, regardless of degree, there is a risk of casting net too wide, branding criminals who are in
reality not blameworthy! This would violate the principles of fundamental justice (morally innocent can not be deprived of
liberty
2.1: Subjective MR: Intention, Ulterior MR
The accused must have the very intention required by the relevant provision.
Intent is the highest level of subjective MR, acting with intent or purpose to achieve the prohibited result, or to willfully pursue result.
In reality, intent is used infrequently, as common law presumptions and constitutional requirements of SUB MR, do not require proof
of intent and are satisfied by lower forms of MR such a knowledge of recklessness; except where prescribed by statute ‘with intent’.
R v Vandergraff 1994 MJ: throwing jar at hockey rink (no intent to assault)
- D intended to throw the object, but not to make contact with the C. His assault was not intended, thus he was not guilty. He could
have been charged with criminal negligence causing injury, but the wrong charge was laid
R v Murray 2000 OJ: Bernardo Lawyer withholds evidence tapes (obstruction of justice)
- Bernardo’s lawyer, on Bernardo’s written instructions, attended at the Bernardo home and removed videotapes that had
significant evidence on it; the tapes weren’t handed over for almost a year and a half later; Murray faced charge of attempt to
obstruct justice by concealing the tapes;
- He may have believed he had no obligation to disclose the tapes before trial; thus reasonable doubt.
- There is no duty to hand over all evidence to the crown; just that it cannot be permanently suppressed
- Murray stated he had planned to use the tapes in his defence case for Bernardo, and thus to introduce them into evidence at such a
time
- Murray intended to hold the Bernardo tapes, but not for the purpose of obstructing justice. Therefore, not guilty
R v (JS) 2008 ONCA: Jane Creba Shooting

Facts:
- Shootout between three to five shooters broke out; three bystanders were wounded; Jane Creba was fatally wounded;
Issues: Was there evidence that the accused had the intention for second degree murder
Held: He intended to shoot into a crowd, with intent to kill a human being, which opens door to possible murder conviction.
R v Roks 2011 ONCA:

- CA stressed the importance of knowing that death is probable and warns of the dangers of reasoning backwards form the fact
that death occurred.
Difference between Guilty Intent and Guilty Knowledge
This is demonstrated where the A knowingly engages in prohibited conduct, but does so for another purpose such a avoiding harm:
R v Paquette 1975 CCC: (get away driver at gunpoint)

Fact:
- Accused was held not to have formed a common intent under 21(2) to rob a store when he drove the robbers to the store after
being threatened at gunpoint. The D acted with knowledge that his actions would contribute to the prohibited result.
Signif:
- A person whose actions have been dictated by fear of death/ GBH cannot be said to have formed a ‘genuine common intent’
to carry out an unlawful purpose with the person who threatened him with those consequences if he fails to co-operate.
BUT
R v Hibbert 1995 CCC: (get away driver at gunpoint)

- Overruled Paquette on basis that it confuses intent and purpose with motive and desire. In Paq, his motive of saving his
own life does not prevent the formation of the unlawful purpose of intentionally committing the robbery. Similarly Paq
would act with purpose of assisting the robbery required under 21(1)(b) if he intended to drive the getaway car and by doing
so assist the robbery.
- Significance: SC rejected the idea that intent or purpose under sec.21 should be equated with the accused’s desires and
motivations. Depending on how the offence was structured, the fact that person acted as a result of threats could in some
instances be relevant to the question of whether he or she possessed the MR necessary to commit the offence.

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Motive vs. Intent:
Motive does not have to be proved for a crime, lack of motive or some innocent motivation will not exonerate one who has otherwise
committed the crime with the necessary guilty intent. Motive is difficult to distinguish from intent because cases on the issue have
not been consistent.
R v Dunbar 1936:
Significance: SCC held that a person who assisted in a robbery had formed a common intent to commit the crime. The fact
that his motivation may have been to avoid threats of death from his accomplices was irrelevant to the issue of MR
BUT:
R v Paquette:
SCC indicated that a person who assisted in a robbery in response to threats of death could not have formed a genuine intent
to carry out the lawful purpose.
BUT:
R v Hibbert 1995:
Significance: motive of avoiding harm to self/other would not negate issue of intent.
Exception to ‘motive not essential of offence’:
Terrorism offences created by Parliament in 2011, require prosecutor to prove various forms of intent BRD and that act was
‘committed in whole or in party for a political, religious, or ideological purpose, or objective cause. AKA- political or religious motive
is an essential element of crimes involving the commission of terrorist activities.
2.2: Subjective MR with Objective Features:
Some criminal offences use standards to define criminal conduct.

- Example: Some assaults are sexual in their nature, others are not; Some acts are dishonest, others are not.
No need to require A to have a subjective appreciation that the relevant criminal standard has been met before a conviction can
follow since that would permit the content of offences to vary from offender to offender
- Example: the accused can commit fraud if he intends the relevant transaction, even if he does not appreciate that a transaction
of that nature is dishonest.
If it were objective, dishonest people would be held to lower the standard for the rest of use. Or an accused can commit sexual assault
if he intends to touch another, even if he does not believe that the contact is sexual in nature, so long as that it is.
R v Theroux 1993 SCR fraud  subjective awareness (possibility of depriving)
Fact: T developing new subdivision takes deposits from X with promise of being insured for development, this was represented on
flyers as well. Deposits not insured, he honestly believed project would be completed, therefore deposit safe. Bankrupt. Convicted
with fraud under s.380(1) CC
Issue: Does fact that an individual honestly believed there was no risk and money was not in danger negate the necessary MR of fraud
under s.380(1)?
Held: Appeal dismissed SC. Conviction affirmed.
- AR of fraud is objective, by reference to what a reasonable person would consider to be dishonest act.
- MR of fraud (subjective awareness) is established by proof of the (1) subjective knowledge of the prohibited act having (2) the
possibility of depriving another of his interests, or at least putting those interests at risk.
 where the conduct and the knowledge are established, the accused is guilty regardless of whether he actually
intended that deprivation or was reckless to the deprivation occurring
Significance: McLachlin. Question is whether one subjectively understands that their actions could result in a prohibited outcome;
their view of morality of this outcome is irrelevant. Therefore MR for fraud consists of subjective awareness that one was undertaking
a prohibited act that could cause deprivation (ie: depriving another of property or putting that property at risk) . Recklessness will
result in this criminal responsibility, as the courts will not require A to subjectively know his/ her conduct was dishonest as
relation to the AR.

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R v Eizenga 2011: the CA applied Thereoux reasoning to conclude that an ‘accused’s assertion that he believed that no one would be
hurt by his conduct was no defence, because a subjective intent to mislead is not an essential element of the offence of fraud. Rather,
all that is required is subjective knowledge of the prohibited act, and that the act could have as a consequence the deprivation of
another.
Note: R v Zlatic 1993 SC finds differently from Thereoux when holding that accused had necessary MR because he subjectively
knew that when he gambled with money that was required by creditors, he was placing their financial interests at risk, even though he
also believed he would win at the casino to pay his creditors.
Sexual Assault vs. Assault and Sexual Offences
Courts have distinguished Sex assault from assaults on the basis of whether the circumstances viewed objectively, are sexual. The
intent of the accused to obtain sexual gratification may be a factor, but it is not required.
Sex assault differs from sexual offences with respect to young persons in CC ss.151 through ss.153.1 because it does not require that
the touching be for a sexual purpose.
R v Chase 1987 SCR: MEANING OF “SEXUAL” IN CC

Fact: C struggles with 15 year old girl and touches her breasts, says “I know you want it.” Tried to grab genitals, did not
succeed.
Issue: What is the meaning of sexual in terms of the Code for sexual assault?
Held: Sexual assault is an assault, committed in circumstances of a sexual nature.
Test: Is the assault committed in circumstances of a sexual nature, such that the integrity of the victim is violated. This is an
objective test (reasonable person, look at totality of circs)
Significance: courts will examine ‘part of body touched, nature of conduct, words and gestures accompanying the act and all
other circumstances surrounding the conduct’, in determining whether the assault is sexual.
R v V(KB) 1992 SCR: sex assault intent of gratification is not required

Fact: Father grabs 3 year old genitals causing bruising and severe pain in an attempt to discipline child who had been
grabbing genitals of over children.
Held: Sexual assault because it violated child’s sexual integrity.
R v Ewanchuk 1999 SCR:

Significance: Crown need not prove that the accused had any MR with respect to the sexual nature of his/ her behaviour.
Conclusion: The Courts approach accords with a trend towards thinner versions of intentional MR.
2.3: Knowledge:
Knowledge is a slightly lower form of subjective MR than intent/purpose.
The accused must generally know that the conditions of the actus reus exist – e.g.; can’t be convicted of assaulting an officer if it
wasn’t known that the victim was an officer, knowledge is usually also essential in possession (i.e.; of narcotics) cases
Unrealistic to expect the crown to prove what the accused actually knows, it is presumed that the accused knew of the relevant
conditions, unless the accused presents a mistake of fact defence.
Knowledge has two components:

1. Belief – which is relevant to the determination of subjective mens rea
2. Truth – an objective fact that is required to establish the actus reus (not the mens rea)
Section 229(c): states that a person is guilty of murder if he knows ‘he is likely to cause death to a human being, notwithstanding
that he desire to effect his object without causing death or bodily harm to any human being. Moreover, 229(a)(ii) emphasized
requirement of guilty knowledge by providing a person who intentionally causes bodily harm is guilty of murder if he or she knows
that harm is likely to result in death.
**NB: NEW CASE in updated syllabus: R v. ADH, 2013 SCC 28 **

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Knowledge and Possession Offences
Knowledge is a common form of MR for possession-based offences:
R v Beaver 1957 CCC: no knowledge  no possession

Fact: B agreed to sell heroine to undercover RCMP. Uses a defence that cop did not tell him it was heroine.
Held: SC ‘a person in physical possession of a substance would not be said to possess that substances unless he knew the
nature of the substance.
Signif: Essence of the crime is a possession of the forbidden substance. In a criminal case, there is no possession without
knowledge of character of forbidden substance.
Note: But—a person who makes mistake about whether a drug is illegal would not have defence because ignorance of law
is no excuse.
Consent and Knowledge:
There are a number of provisions that deem knowledge where accused has failed to take ‘reasonable steps’ to determine actual facts:
Section 265(4) Discusses A’s belief as to consent. ‘Where an A alleges that he believed C consented to conduct, judge where
there is sufficient evidence to satisfy, shall instruct jury as to the determination of honest for A’s belief, to consider the presence
of reasonable grounds for that belief.
 (A person commits an assault pursuant to Section 265(1), which applies to all forms of assault listed in (2), and where no
consent of the assault occurred pursuant to (3).
Seciton 273.2: ‘It is no a defence to a charge under 271,272, 273 that A believed C consented to the activity that forms the subject
matter of the charge where:
(a) A’s belief arose from the accused’s
a. Self intoxication, or
b. Recklessness or willful blindness; or
(b) the A did not take reasonable steps, in circs known to his at time, to ascertain the C was consenting.
R v Ewanchuk 1999 SCR: consent is subjective, determined by reference to victim’s internal state of mind towards touching
Fact: Woman (14) at interview in vehicle, leaves door open. After interview asked to view his work in trailer behind van, she
purposefully leaves door open, she closed it thinking it was locked, no evidence door was locked; accused touched victim
several times (getting more intimate each time) even though she kept saying no; victim said if she complied at all it was out
of fear and that the accused knew the same
TJ: Acquitted A of sexual assault relying on defence of implied consent. CA upheld.
Issue: What is the understanding of consent in sexual
Held: The MR is the (1) intention to touch and (2) knowing of, or being reckless or willfully blind to a lack or consent.
- The trial judge erred when he concluded there was implied consent (as there can be no such conclusion)
Rule: Touching and sexual nature is determined on an objective basis, but consent is subjective and determine by reference to C’s
internal state of time towards the touching at the time it occurred. The accused’s perception of C’s state of mind is irrelevant
to determining the AR, the A’s belief of consent only relevant to determine MR of offence.
Signif The absence of consent, is purely subjective and determined by reference to V’s subjective internal state of mind toward
the touching at the time it occurred. SC rejected defence of implied consent to sexual assault (obvious policy reasons)
Test for consent: The existence of consent for purpose of defining AR in sexual assault depends on ‘the subjective perception of
the V as oppose to external and objective standard of law’. Therefore, consent is negated by V’s fear, unless its
found not to be a credible statement of her mind at the time the offence occurred.
Specific Instances where Consent is NOT valid!
Section 265(3): No consent is obtained where victim submits or does not resist by reason of:
(a) Application of force to C or person other then C
(b) Threats or fear of app of force to C or another
- R v Ewanchuk: SC: ‘fear need not be reasonable, nor must it be communicated to A in order for consent to be vitiated.
(c) Fraud
(d) Exercise of Auth.

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R v Levigne 2010 SCR: Undercover cop representing 13 yrs old, luring in child, must take reasonable steps to find age
Fact: Accused chatted for sexual purposes online with (an undercover officer pretending to be) a 13-year-old; they arranged to
meet and the accused was arrested and charged with luring a child (s172) ; accused said he didn’t take any steps to ensure the
boy was an adult, but that he thought it was an adult pretending to be a boy because the profile had said he was 18 – even
though he kept saying he was 13; trial judge acquitted saying it was possible the accused believed he was dealing with an
adult pretending to be a 13-year-old; court of appeal overturned acquittal
- By 172.1(3), where no evidence exists to contradict D believing he was communicating with an underage sexual target, it is
not a defence to a charge that accused believed he was not underage, unless he took reasonable steps to ascertain.
Issue: Did the accused know that the other person was not underage
Held: Appeal dismissed. Must read together the overreaching purpose of s.172.1- the combined effect of (3)(4), this CA applied it
properly. “Reasonable steps” invoked by accused were neither ‘reasonable’ nor ‘steps’ to ascertain age; despite V’s
repeated assertion that he was only 13.
Signif: If represent to A that person whom he is communicating with is underage, A is presumed to believe that he was in fact under
age. This rebuttable presumption will be displaced by evidence that A took all reasonable steps to ascertain the real age.
Such evidence will constitute ‘ev to contrary’ under 172.1(3) and satisfy ‘reasonable steps” requirement of 172.1(4).
R v. ADH, 2013 child abandoned toilet, subjective fault is required
Facts: Accused didn’t know was pregnant, gave birth while using the toilet in a retail store. Thinking the child was dead, she
cleaned up as best she could and left, leaving the child in the toilet. The child was in fact alive. She admitted leaving baby.
Charged with unlawfully abandoning a child under the age of 10 years old and thereby endangering his life contrary to s. 218
of the Criminal Code.
TJ: The trial judge noted that the accused acknowledged that she had left her child in the toilet, thereby committing the actus
reus of the s. 218 offence. As for the mens rea, the trial judge decided that subjective fault was required accused not shown
to intend to abandon her child. She had not known she was pregnant and truly believed she had delivered a dead child.
Held: The text, context and purpose of s. 218 of the Code show that subjective fault is required. It follows that the trial judge did
not err in acquitting the respondent on the basis that this subjective fault requirement had not been proved.
Reason: s. 218 of the Criminal Code does not expressly set out a fault requirement. When read in light of its full context, it supports
the conclusion that subjective fault is required.
- Cromwell J. pointed out “the presumption that Parliament intends crimes to have a subjective fault element.” He
stressed that as a presumptive principle of criminal law, presumption of subjective fault is an important value of our
criminal law system.
- While the conduct and people that fall within s. 218 are broadly defined, the requirement for subjective fault ensures that
only those with a guilty mind are punished.
- The words “abandon”, “expose” and “wilful” all suggest a subjective fault requirement. The first two of these
words involve more than just leaving a child alone or failing to take care of it: they denote awareness of the risk involved
- Conversely, any objective elements are absent from the text.
Dissent: Moldaver J. (Rothstein J. concurring) agreed with the majority’s decision but disagreed with the requirement of subjective
fault. Moldaver J. pointed out that s. 218 of the Code is a child protection legislation aimed at shielding children under the
age of 10 from the risk of death or permanent injury. He concluded “that a review of the provision’s language, its legislative
evolution and history, the gravity of the crime and the social stigma associated with it confirm that the offence is duty-based
and that penal negligence is the level of fault required to establish guilt.”
2.4: Willful Blindness
It is related but distinct from recklessness. It is a subjective state of mind, requiring that the accused personally sees the risk of a fact,
but then willfully avoids confirmation so as to be able to deny knowledge.
Where the accused is deliberately ignorant as a result of blinding himself to reality, the law presumes knowledge
R v Briscoe 2010 SCR:

- Significance: where A subjectively sees the need for further inquiries about the existence of prohibited consequences or circs
but deliberately fails to make such inquiries because he does not want to know the truth. Willful blindness is used as a
substitute for ‘knowledge’

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Distinction b/w Recklessness and WB:
The terms works best as a substitute for knowledge, although courts have the unfortunate habit of using ‘willful blindness’
terminology as interchangeable with recklessness’: Example- Criminal Code s. 273.2. This had led to considerable confusion, and if
they two concepts were indeed interchangeable- willful blindness would disappear because everyone who is willfully blind is
necessarily reckless. Thus, the two concepts are not the same and should not be equated.
** R v Sansregret 1985: SCR leading definition for recklessness/willful blindness
Significance: Willful blindness is distinct from recklessness because, while recklessness involves knowledge of a danger or a risk
and persistence in a course of conduct which creates a risk that the prohibited result will occur, willful blindness
arises when a person who has become aware of the need for some inquiry declines to make the inquiry because
he does not want to know the truth. Therefore, he would prefer to remain ignorant
Recklessness: 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
Willful Blind: Person who become aware of the need for some inquiry, declines to make inquiry because he does not wish to know
truth and prefers to remain ignorant.
R v Currie 1975 CCC: forged endorsement cheque cashed

Fact: Charged for unlawfully and knowingly uttering a forged doc. Claim he didn’t know it was stolen with forged signature on
back and was only trying to help guy who gave it to him, who seemed like an honest guy. Convicted on ground he was
willfully blind by TJ.
TJ Held he should have made enquiries into the cheque and he deliberately/knowingly neglected to do so, thereby making
himself wilfully blind to the situation; accused appealed
Held: Appeal allowed, CA acquitted.
Signif: The doctrine of constructive knowledge has no application in criminal law
Reason: Willful blindness only applicable when a suspicion arises and person omits to make further inquiries. Currie was never
suspicious, perhaps he ’ought’ to have known, but this does not constitute knowledge for the purpose of criminal liability
R v Vinokurov (2001:
Fact: D charged with 7 counts of possession of stolen property (s.355(b); where he worked at pawn shop and accepted stolen goods
from prison inmate. TJ found Crown failed to prove BRD that D was ‘willfully blind’ but there was no doubt he was reckless
because he had not queried the source of the goods being pawned, even though he knew he was buying them from a inmate.
Issue: Is recklessness proper?
Held: TJ erred in determining recklessness, as reck required consciousness of the risk. And this conscious risk was not proved
BRD. Acquitted.
R v. Briscoe – [2010] helped lure victim who was later raped and killed by another
Facts: Accused was charged jointly for kidnapping, aggravated sexual assault, and first degree murder; he and others lured victims
into their car; L had said he wanted to find someone to kill; accused drove them to a secluded area, and stood by and watched
as victim was raped and murdered
Issues: Was the accused wilfully blind to the rape and murder
Held: Accused appeal from appeal court’s setting aside of the acquittal is dismissed
- It wasn’t required that the accused desired that the offences be successfully committed
- Though he didn’t do the raping and murdering, in order to have the intention to assist in the offence, he had to have known
that the main perpetrator intended to commit the crimes, though not precisely how
- The aider doesn’t have to have the same mens rea as the actual killer, but that he had the knowledge of the killer’s intentions
and acted with the intention to assist the killer, then if the aider makes himself wilfully blind, knowledge can be substituted if
his suspicion was aroused to the point where there was a need for further inquiries, but deliberate choice not to make those
inquiries
- Accused own statements suggest that he had strong, well-founded suspicion that someone would be killed that night, and that
he might have been wilfully blind to the kidnapping and sexual assault
- Wilful blindness can substitute for actual knowledge when knowledge is a component of the mens rea of an offence

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2:5 Recklessness:
Is a lower form of MR than intent, purpose, knowledge or willful blindness, but still forms a subjective state of mind (MR).
Recklessness is found per SANSREGRET where:
Recklessness  Accused is aware that there is danger that his conduct could bring about the result prohibited by the criminal law,
nevertheless persists, despite the risk.
It can be distinguished from negligence because it requires a subjective advertence of the risk and not the risk a reasonable person
would have been.
Still, recklessness is a subjective mens rea with objective features because it exists only where it is objectively unjustifiable to
take that risk the accused understood he was taking.
Knowledge vs. Recklessness:
- Recklessness requires A is subjectively aware of the possibility of the prohibited act

- Knowledge: requires A be aware of the probability of the prohibited act.
R v Buzzanga & Durocher 1979: Significance: defines intention and knowledge

Fact: D published doc that appeared to promote hate of Francophone. His actual intention being to sway public opinion in
favour of building French-language in highschool. Charged/ convicted with willfully promoting. TJ treated D’s
testimony that they ‘wished to create a ‘uproar’ as a virtual admission that they had the state of mind requisite for guilt
Issue: did TJ err in his decision
Held: YES. Appeal allowed, new trial ordered
Signif: Intention to create ‘uproar’ is not the same thing as an intention to promote hatred and it was an error to equate them.
Note: If they were indeed intending to promote hatred, they would be guilty regardless if their motive was to produce
reaction to help establish French-hatred.
R v Theroux 1993
Note: Theroux had subjective knowledge that others would act on his lie and he thereby put their property at risk.
See above.
2.6: Transferred MR
Section 229(b) codifies CL doctrine of transferred intent. MR of intentionally or knowingly causing death to one person is
transferred to the killing of the victim, even though the accused ‘does not mean to cause death or bodily harm’ to the victim and does
by ‘incident or mistake’.
R v Droste (no.2) 1984: transfer if accidental

Fact: D kills two children accidently via asphyxiation by incident when in a deliberate attempt to kill his wife, set fire to the car.
Held: Because of attempted murder of A’s wife was planned and deliberate, and the intent of planning and deliberation, as well as
the guilty knowledge that death would result, could be transferred to children’s death.
R v Deakin 1974: intent to strike A, transfers to intent to strike B,C,D

Fact: A attempts to strike another person and in doing so causes bodily harm for a bystander
Held: Conviction of assault pursuant to section 229(b).

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3: OBJECTIVE MR and TRUE CRIMES---------------------------------------------------------------------------------

Negligence is judged objectively—according to what a reasonable person would know or understand how a reasonable person would
act. While the Supreme Court has accepted that Objective MR is constitutionally sufficient for the unlawful act manslaughter and
other serious offences, less serious then murder, there is considerable uncertainty about how such a standard should apply in
criminal prosecution.
The objective fault required a marked departure standard from the reasonable standards and to require it to be contextualized to
reflect all the circumstances (including after R. v. Beatty the accused’s explanation and state of mind.) But the ultimate issue is
whether the accused can be said to have engaged in a marked departure from the standard of care expected of the reasonable person.
What is the ‘reasonable person’?
Some judges have been attracted to making the ‘reasonable person resemble the accused’ R v Beatty/ R v Tutton, however the law is
now sound, and R v Creighton is good law identifying the marked departure test:
Although the accused must live up to the standard of a reasonable person, that standard of conduct could be determined on the
basis of the accused’s own perception of the circumstances – then the issue becomes whether the reasonable person in the same
circumstances would have been aware of the risk of the prohibited act
The purpose of examining these factors is not to determine that the accused had the subjective mens rea, but rather to
determine whether the accused conduct marked a departure from the standards of the reasonable person.
The court has recognized that this marked departure standard is required under section 7 of the charter (R v. Beatty)
R v Creighton 1993 SCR: cocaine death
FACT: Accused, another, and victim shared large quantity of alcohol and cocaine at victim’s apartment; at one point accused
injected victim with cocaine, and as a result, she went into cardiac arrest; accused and the other tried to resuscitate her;
when they couldn’t, the other wanted to call emergency, but accused intimidated him not to; he cleaned the apartment of
fingerprints and left the victim to die; the other later called emergency but the victim had already died; accused charged with
manslaughter, but that since it was while trafficking drugs (when he injected her), it fell under section 222(5)(a) (causing
death by means of an unlawful act);
Crown argued Manslaughter as death was a direct result of unlawful act. TJ convicted and upheld by CA. The common
law’s definition of ‘unlawful Act Manslaughter required the objective foreseeability of the risk of bodily harm, which was
neither trivial or transitory. Foreseeability of death is not required.
ISSUE: What is the meaning of negligence in criminal law. 5:4 decision

HELD: appeal dismissed, convicted.
1. Test for mens rea of manslaughter while committing an unlawful act is objective foreseeability of the risk of bodily
harm that is not trivial – foreseeability of risk of death is not required. Established that reasonable person in same
circumstances would have been aware of likelihood consequences of unlawful conduct would create risk of harm.
2. The reasonable person used to determine objective liability is based on the simple reasonable person standard, with personal
characteristic of the accused not being relevant unless they revealed an incapacity to appreciate the prohibited act.
3. Personal factors such as: inexperience of youth, lack of education, foresight of risk of an experienced drug user, as Lamer
CJ representing the minority wished to consider, was not accepted by the majority.
4. McLaughlin for majority, indicated the Larmer approach personalized the objective test to the point that it becomes a
subjective test!
Exceptions for Consideration:
The only personal characteristics of accused are those that are so extreme as to create an incapacity to appreciate the prohibited risk or
the quality of the prohibited conduct
 EXAMPLE: Accused’s illiteracy if he or she was charged with a crime stemming from the mishandling of a marked
container containing a dangerous substance. The accused’s age and level of education however, would not normally be
considered when applying the reasonable person standard.
Crimes using Objective Fault as MR:

The SCC has required a marked departure from the conduct of a reasonable person even when a criminal offence seems to require
simple negligence.

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R v Beatty 2008 SCR

Facts: Charged with dangerous operation of motor vehicle causing death; his truck suddenly crossed the divider into oncoming
traffic; he had been driving properly prior to the accident with no evidence of speeding or vehicle failure or intoxicants;
accused said he didn’t know what happened, that he must have fallen asleep; trial judge acquitted on the basis that the few
seconds where he suddenly fell asleep did not support a marked departure from the standard of care of a reasonably prudent
driver; court of appeal found there was marked departure and set aside acquittals and ordered new trials; accused appealed
Signif: A ‘marked departure’ from reasonable standards is necessary to distinguish criminal from civil negligence and to ensure
restrain in the use of the criminal law. This is a requirement of Section 7 of the charter.
Ratio: Affirmed that a modified objective approach taking person traits into account is not required when applying standards of
criminal negligence. It suggested judges examine the accused’s state of mind, ONLY to determine if there is a reasonable
doubt about whether a reasonable person in the accused’s position would have been aware of the risk created by this conduct.
R v Martineau 1990 SCR:
Fact: X and A rob trailer, During which X killed occupant contrary to what A had intended. TJ used objective foresight as the MR.
Issue: Do felony murder and the objective foresight standard violate the Charter?
Test: Subjective foresight of death must be proven beyond reasonable doubt before there a conviction for murder would be
sustained.
Signif: It is unconstitutional to convict a person of murder under s.229(c) of the CC on the basis that while pursuing an unlawful
object, he ought to have known that death was likely to result.
Pursuant to s.7 CC, the Crown must prove that A has subjective knowledge that death is likely to result before that person
can be convicted of murder (this is because the stigma and mandatory life imprisonment of murder).
Note: Court had define manslaughter quite broadly to apply to an accused who causes death when a ‘reasonable’ would have
foreseen risk (Creighton).
As Martineau demonstrates, Negligence is not accepted for murder, attempted murder and war crime. For crimes using OBJECTIVE
fault as MR ‘penal negligence’,a more restricted form of negligence requiring a ‘marked departure from reasonable standards of
care’ is generally required.
One exception is with predicate offences (stat prov/ logic), in which consequences need not be brought by penal negligence, rather it is
enough that A commits the underlying offence and that aggregated consequences that has been there caused was objectively
foreseeable.
For the specific offence of criminal negligence, the higher standard of a marked and substantial departure must be proven:
 This was distinguished in R v J.F. 2008: where the court cited a number of cases in which the appellate courts had
distinguished criminal negligence causing death/ bodily harm from dangerous driving
 Criminal negligence requires marked and substantial departure from reasonable conduct; and dangerous driving requiring
only a marked departure.
 This is justified because criminal negligence was subject to more serious maximum sentences than failing to provide the
necessities of life.
Thus, R v J.F., demonstrates the distinctions in the degrees of objective fault between the general rule and of proof of a marked
departure from reasonable conduct and the higher standard of marked and substantial departures from reasonable conduct required for
criminal negligence
Dangerous Driving Causing Death:
R v Roy 2012 SCC: dangerous driving, causing death, marked departure

Fact: Affirms Beatty, Acquit a person of dangerous driving causing death after he drove into the path of an oncoming tractor when
entering highway at a difficult intersection when foggy.
Held: Trier of fact must find fault going beyond carelessness and amounting to a marked departure from standard of care expected
from a reasonable person. All circs should be considered in making fault determination, but its consistent with Creigton
specific characteristics are not taken into account
Significance: all evidence must be examined and fault should not be automatically deduced even from a dangerous act.

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4: REGULATORY OFFENCES
Regulatory offences can be created by any level of government. They are public welfare offences that emphasize the protection of the
public from the risk of harm and the regulatory interests of the modern state, as oppose to punishment of inherently wrongful and
harmful conduct. They can be full MR offences just as true crimes are, but a clear indication that MR is required is needed before
a regulatory offence will be interpreted as having MR elements.
There are presumed to be ‘strict liability’ offences; some are ‘absolute liability offence’.
Purpose: Primary purpose of regulatory offences is to deter risky behaviour and prevent harm before it happens rather than to
punish intrinsically wrongful and harmful behaviour – they emphasize the protection of the public from the risk of harm
and the regulatory interests of the modern state, as opposed to the punishment of inherently wrongful and harmful conduct
3 Types of Regulatory Offences:
Courts were faced with interpreting regulatory offences to required either:
(1) Absolute Liability: conviction followed from the commission of the prohibited act, solely needing AR, no MR; liability
without fault; they are know vulnerable under s.7 Charter when they actually deprive liberty/ life/ security by imposing terms
of imprisonment
(2) Subjective MR Offence: frustrates the objectives of regulatory scheme by requiring the Crown to prove someone in a large
organization had guilty knowledge
(3) Strict Liability: fault based negligence and thus satisfy the requirement under s.7—that morally innocent who act without
fault not be punished, but violate presumption of innocence under s.11(d). Where Crown proves prohibited act of a SLO
BYD, negligence is presumed and burden shifts to A to rebut.
Absolute Liability  imprisonment  AL  MR (no option to refute reasonableness)
Crown must prove commission of prohibited act BRD, no need to show fault element. For an ALO, it is not open to the accused to
exculpate himself by showing that he was free of fault (R v City of Sault 1978)
The correct approach in public welfare offences is to relieve the crown of the burden of proving mens rea – though crown must prove
that the prohibited act was committed
R v City of SSM 1978 SCR: – city hired out garbage disposal, caused pollution
Facts: City entered into an agreement with a company for disposal of garbage; material was dumped and submerged into springs
that lined the sides of the site of the disposal; pollution resulted and company was convicted; city was also charged;
Held: Offence of causing discharge of pollution was a SLO as oppose to ALO or subjective MR offence. Thus, A gets opportunity
to establish he acted reasonably and with due diligence to avoid commission of AR.
Significance: Create CL presumption that regulatory offences would be interpreted as requiring SL unless the legislature clearly
indicated that the offence was an absolute liability offence that would punish the accused who had acted
reasonably and with due diligence.
Imprisonment ( if imprisonment is in regulation / legislation  AL)

Reference re Motor Vehicle Act (BC) S 94(2) – [1985] – imprisonment for driving without a valid license
Facts: BC Motor Vehicle Act provided for minimum periods of imprisonment for driving without a valid driver’s licence or a
suspended licence, and the offence was one of absolute liability as per section 94(2) the act; court of appeal found the section
to be of no force and effect as it was inconsistent with section 7 of the charter; that decision was appealed
Issues: Does section 94(2) violate of section 7
Held: The appeal should be dismissed
Absolute liability (in and of itself) does not offend section 7 of the charter unless it has the potential to deprive life, liberty,
or security of the person – the combination of imprisonment and absolute liability violated section 7 (unless qualified by s 1)
- generally, no imprisonment may be imposed for an absolute liability offence, and an offence punishable by
imprisonment cannot be an absolute liability offence

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Strict Liability: where Crown proves prohibited act of a SLO BYD, negligence is presumed and burden shifts to A to rebut.
- Public welfare crimes  SL Crimes
R v Wholesale Travel 1991 SCR:
Fact: Travel agency accused of misleading advert in violation of s.60(2) competition act. They stated that they were offering
vacation packages "at wholesale prices" when in fact they were charging more to customers than they had to pay for the
vacations.
Offence carried penalty, imprisonment, and included exculpating by showing they acted reasonably in the circumstances.
Issue: Do regulatory schemes which impose strict liability breach ss.7 and 11(d) of the Charter?
Held: The Court unanimously held that offences for which the mens rea component is negligence do not violate s. 7 of the Charter
when a due diligence defence (s. 37.3(2)(a) and (b)) is available, but that the "timely retraction" provisions of s. 37.3(2)(c)
and (d) did infringe s. 7 and could not be saved under s.1.
.
- This is obviously a strict liability offence for all of the reasons in the regulation. Therefore, the Crown does not need to
prove mens rea in order to get a conviction; however, the defendant can be acquitted if they can show that they acted
reasonably in the circumstances (among the other things required for the statutory defence).
- If the offence has a statutory defence that is similar to this requirement then it falls under the heading of strict liability
offences, and the Crown does not need to prove mens rea for a conviction.
Reverse Onus: The Court however was divided on whether a reversal of onus onto the accused in s. 37.3(2) was constitutional. The
of the Charter. However, only four of the seven held that it could not be saved under s. 1. Since the remaining 2
judges (L'Heureux-Dube and Cory) found the reversal of onus did not violate s. 11(d), a majority was had by those
that argued a reversal of onus was constitutionally justifiable by a 5 to 4 margin
R v. Raham – [2010]– stunt driving at 51 km over limit
Facts: Accused was 51 km over speed limit; instead of charging with speeding, officer charged with stunt driving which was
punishable by fine, imprisonment, or both; accused argued that it was absolute liability offence violating section 7 of the
charter; justice of peace said it was strict liability and convicted accused; in appeal, judge said it was absolute liability and
acquitted; appeal by crown
Issues: Was it a charge of strict liability or absolute liability
Held: Appeal allowed, acquittal set aside, new trial ordered
- Appeal judge erred in holding that stunt driving was absolute liability offence and that due diligence was not available thereto
- The offence was public welfare offence, and as such a strict liability offence - an absolute liability offence cannot have
imprisonment as a potential punishment (and would thus be of no force and effect), but a strict liability offence can
Levis (City) v Tetreault 2006 : operating vehicle w/o registration, fees
Facts: Respondent company and respondent Tetreault are charged with operating a motor vehicle without having paid either
required registration fees, or fees to renew the driver’s license; respondent raised defence of due diligence
Issues: Was there a defence of due diligence available and made out
Held: It would be ‘better to return to the clear and analytical framework and classification approach adopted in SSM’
requiring a ‘clear proof of legislative intent’ for absolute liability offences and does not ask the addition question of whether
legislature intended a due diligence defence to be available.
- Although defences can be raised in strict liability cases, the court dismissed those defences in this case
- The concept of due diligence is based on a citizen’s duty to take action to find out what his obligations are; passive ignorance
is not a valid defence – due diligence requires an active and reasonable attempt to prevent the commission of the prohibited
act

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[B]. EXTENTION OF CRIMINAL LIABILITY
Criminal liability extends to include those who attempt but fail to complete a crime; those who encourage or plan the commission of
a crime and those who assist others to commit a crime:
(1) Parties to an offence: Assist and Abet

(2) Inchoate Offences: Attempts, Counseling and Conspiracy.
Example: A person who goes beyond mere preparation to rob a bank, with intent to commit robbery will be convicted of attempted
robbery even though no robbery took place, or even where it was impossible for it to take place
Example: A bank teller who helped the robber plan his heist, may be guilty as party to the robbery, as the person who abets the crime
A relatively high level of MR is required for both attempts and parties, limited to those who act with guilty intent or knowledge.
This is counterbalanced by a low level required AR for both attempts and parties.
___________________________________________________________________
1: AIDING & ABETTING (Principals and Parties to Offences)
Section 21 CC: ‘Parties to Offences (Common Intent)’

(1) Every one is a party to an offence who:
(a) actually commits it;

(b) does or omits to do anything for the purpose of aiding any person to commit it; or
(c) abets any person in committing it.
(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 probable consequence of carrying out the common purpose is party to that offence.
Section 21 dictates that when it is demonstrated that an individual ‘aid’s or abets’ an offence, they are guilty of the same offence as
the principle offender. It is not necessary for the Crown to specify whether a person is guilty as the principle or the aider/ abettor in the
offence.
R v Thatcher 1987 SCR:

Fact: Crown argued that accused was guilty of murder on the alternative theory that he either killed his ex-wife or assisted
others in killing her.
R v Pickton 2010 SCR: Aid/Abet = Same punishment of Principal

Significance: SC indicated that it was not necessary for A to be the actual shooter to be guilty of murder. Relied of
Thatcher stressing that 21(1) was designed to put A/A on the same footing as the person who actually
committed the crime.
ACTUS REUS of Aiding and Abetting:

The two concepts are distinct and liability will flow from either one:
“To aid” under s.21(1)(b) means to assist or help the actor
“To abet” under s.21(1)(c) includes encouraging, instigating, promoting or

procuring the crime to be committed.
MENS REA of Aiding and Abetting:
To be convicted for the purpose of A/A, the accused must not only knowingly assist the principal, but also intend to assist the
principle. Thus there are 2 MR requirements:
(1) intent to assist principle; and
(2) knowledge of the type, but not the nature of the crime committed.
Section 21(1)(b) requires that the accused act or omit to do anything for the purpose of aiding any person to commit an offence.

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The requirement that the accused act with the purpose of aiding does not mean the accused must desire the offence be committed
or even share the exact same MR as the principle.
 For example: A person who assists in a robbery by driving the getaway will have acted with purpose of aiding. Even though he
participated only because of death threats.
R v Briscoe 2010 SCR: aiding A to lure & rape V, Willful blindness  knowledge of A’s intent to commit
Fact: 13 girl & friend lured into car with 5 men to be ‘taken to a party’. A drives grou, knowing X had said earlier he wanted to
find someone to kill and 13 was chosen V. A hands X pliers on request, leaves to ‘find party’ and later rejoins group to find
1 in the group strike V. He held on to V and quieted her and stood back and watched her rape and murder. All 5 persons were
charged with aggravated assault and first degree. A and X to be jointly tried alone.
TJ: trial judge said accused didn’t know of L’s intention to commit each of those crimes and acquitted; court of appeal said trial
judge erred in failing to consider accused’s wilful blindness and overturned acquittal
Issue: What is required to find wilful blindness; was accused party to sex assault/ murder?
Held: Convicted.
- MR for section 21(1)(b) requires intent and knowledge – crown must prove that the accused intended to assist the
principal in the commission of the offence (it isn’t required that the accused desired that the offences be successfully
committed); in order to have the intent to assist in the commission of the offence, the aider must know that he
principal intends to commit the crime (though not precisely how)
- MR established  he knew that the main perpetrator intended to commit the crimes
- The aider doesn’t have to have the same mens rea as the actual killer, but that he had the knowledge of the killer’s
intentions and acted with the intention to assist the killer, he can said to have aided and abetted
Ratio: ‘wilful blindness is an active process of suppressing a suspicion; it substitute for actual knowledge when knowledge is
required component of MR of the offence.
Significance: ‘wilful blindness is deliberate blindness’. From his statement to the police ‘fuck I don’t want to know”, it is clear that
there was a deliberate suppression of questioning/ suspicion
Recklessness sufficient?
R v Roach 2004 CCC:
Significance: with respect to 21(1)(b), purpose and intent are the same, and does not include recklessness. Thus a high level
of subjective MR is necessary. Recklessness is not a sufficient form of fault to convict a person as a party to an offence
under 21(1)(b).
Note: R v Briscoe found wilful blindness sufficient to demonstrate intent, however, this is a much higher subjective MR,
then recklessness.
Dunlop and Sylvester v R 1979: gang rape at motorcycle club, ! mere presence is not sufficient !
Fact: Bike gang, accused were acquitted of rape on basis that there was no evidence that they ‘rendered aid, assistance, or
encouragement’. Accused claimed they were delivering beer. V claimed it was them.
Held: The trial judge erred in charging with section 21(2) common intention when there was no evidence that there was any
common intention with those involved with the gang rape of the victim
- A person is not guilty of aiding or abetting a rape merely because he is present at the scene and does nothing to prevent it;
one cannot be properly convicted of aiding and abetting in the commission of acts which he does not know may be or are
intended; also, if there is no evidence of encouragement, then presence alone will not suffice to render him liable as an aider
and abettor – he is not, as a matter of law, an accomplice
o However, prior knowledge that the crime was going to be committed, or preventing the victim from escaping or
receiving assistance, can be submitted as evidence that presence at the scene can be equated with aiding and abetting
o This is in line with criminal law’s reluctance to penalize omissions
o Accused did not render aid, assistance, or encouragement to the rape
Significance: mere presence at scene of crime is not sufficient, more is needed: encouragement (abet) of P1, act which facilitate
(keeping watch, enticing victim), act which hinders interference/ escape) (aid)

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R v Black 1970: present at crime AND PREVENTS V from receiving assistance is sufficient AR.
Doctrine of Common Intent: s.21(2)
“Ought to have know” is an OBJECTIVE TEST, however test must be subjective where its murder, attempted, war crime to fall
within Charter.
R v Logan: - A w/ others robs bank, someone pulls gun (w/o knowing) kills, objective test  sufficient re Charter
Fact: Robberies by A and others, shooting and sever injury. Accused did not shoot, but admitted to being one of the
robbers. ‘No intent to shot and no discussing of guns had taken place’. Judge instructed that Crown was required to
establish BRD that someone would probably shoot with intent of killing. Convicted for attempted murder, CA
overturn and substitute armed robbery.
Issue: Does s21(2) infringe right of life, lib, security (ss7) and to fair trial (ss11d)?
Held: Appeal dismissed- MR for attempted murder could not without restricting s.7 require less then subjective foresight of
accused, this is constitutionally required.
Ratio: On charges where subjective foresight is a constitutional requirement (murder, attempted murder), the
objective component of s21(2) is not justified; however, because of legislative purpose, the objective component
could be justified with respect to most offences.
Significance: if a certain minimum degree of mens rea is required in order to convict for an offence, then that minimum
degree of mens rea is also required to convict a party to that offence.
R v Berryman 1990 CCC: unwittingly delivers a bomb

o A person will not be guilty as a party to an offence regardless that he committed the AR of assisting the commission of the
offence, where he unwittingly delivers a bomb/ administers a poison; because he lacks MR.
R v. JF, 2013 SCC 12; Mother beats / kills child, father charged under criminal negligence / failure of necessities
Facts: 4 Yr old died in foster home (hit to head). Mother confessed to beating, pleaded g to MS. Father (didn’t beat child) charged
with MS by criminal negligence and MS by failing to provide necessities of life. He was convicted on first, acquitted on 2nd.
Issue: Are a conviction for manslaughter by criminal negligence and an acquittal for manslaughter by failing to provide for the
needs of a child inconsistent?
Held: Acquitted
Reason: Though the two counts alleged different "underlying" offences, the J.F.'s guilt (MR) depended on exactly the same failure to
perform exactly the same duty: the duty to protect his foster child from foreseeable harm from his spouse.
[1] Failure to provide the necessaries of life required proof of a marked departure from the conduct of a reasonably
prudent parent in circumstances where it was objectively foreseeable that the omission would lead to a risk of danger to
M's life, or a risk of permanent endangerment to his health.
[2] Criminal negligence required proof that the same omission represented a marked and substantial departure from the
conduct of a reasonably prudent parent in circumstances where the accused either recognized and ran an obvious and
serious risk to M's life or gave no thought to that risk.
The verdicts signify that a lesser degree of fault was not established whereas a greater degree of fault was proven beyond a
reasonable doubt.
Ratio: Generally, 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 departurefrom the
standard of care.
R v. Gauthier, 2013 SCC 32 - Mens rea or intention - Abandonment of intention
Facts: The accused and her husband had a murder/suicide pact to kill their three children. The husband prepared and served the
drinks. The accused called 911 after ingesting the drug and having her wrist slit by her husband. She survived. Others died.
The accused was charged with three counts of first degree murder as a party under s. 21(1) of the Criminal Code (aider and

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abettor by supplying the fatal drug). She relied on the defence of abandonment of intent. The trial judge refused to put the
abandonment defence to the jury, questioning the availability of the defence to a party under s. 21(1).
Held: However, since the defence lacked an air of reality, the trial judge correctly did not leave the defence with the jury
The defence of abandonment of intention can be raised:

(i) That there was an intention to abandon or withdraw from the unlawful purpose;
(ii) That there was timely communication of this abandonment or withdrawal from the person in question to those who wished to
continue;
(iii) That the communication served notice upon those who wished to continue; and
(iv) That the accused took, in a manner proportional to his or her participation, reasonable steps to neutralize or otherwise cancel
out the effects of his or her participation or to prevent the commission of the offence.
G’s evidence that she communicated her withdrawal from the deadly plan and that her communication was timely and
unequivocal is insufficient. She therefore had to do more either to neutralize the effects of her participation or to prevent the
commission of the offence.
Per Fish J. (dissenting): The defence of abandonment does not require that the accused take steps to neutralize prior participation
in the criminal enterprise or to prevent the commission of the offence.
2: INCHOATE OFFENCES
2:1 Counselling:
A person can be convicted of counseling offences, whether or not the offences counseled are actually committed. If the offences
counseled are committed, s. 22 operates; If they are not commit s.464 operates
Section 22: Offence committed

(1) Where a person counsels another person to be a party to an offence and that other person if afterwards a party to that
offence, the person who counseled if a party to that offences, notwithstanding that the offence was committed in a way
different from that which was counseled.
(2) Everyone who counsels another to be a party to an offence is a party to every offence that the other commits in
consequence of the counseling that the person the person who counseled knew or ought to have know was likely to be
committed in consequence of the counseling.
(3) Counsel includes: procure, solicit or incite.
Section 464: Offence not committed

The following provision apply in respect to person who counsel other person to commit offences, namely
(a) everyone who counsel another to commit an indictable offence, is, if the offence is not committed, guilty of an indictable
offence and liable to the same punishment to which a person who attempts to commit that offence is liable; and
(b) same for summary offences.
Actus Reus of Counseling a Crime not committed:
It does not matter whether the person counseled acts on the solicitation or has any intention of doing so. Example: A is guilty of
counseling an undercover officer to commit a crime, even if officer so solicited would never commit the offence.
R v Hamilton 2005 SCR: sold software to generate credit card numbers

Significance: AR will be established where the material or statement made or transmitted by A actively induce or
advocate—and do not merely describe—the commission of an offence.
R v Gonzague 1983 CCC:

Significance: A will be guilty of counseling, even if person solicited immediately rejects going through with the offence.
Mens Rea of Counselling a Crime not committed:
MR is not spelled out in s.464, but it will be important to require:

(1) subjective knowledge of the crime counseled; and
(2) an actual intent that crime be performed.

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R v Hamilton 2005 SCRE: software to steal, MR – knew or aware of risk likely to commit crime
Facts: Accused sent teaser email for software that would enable the purchaser to general “valid” credit card numbers; he made
several sales; he was charged with counselling offences that were not committed (including fraud); trial judge accepted
evidence that accused was not actually aware of the software’s workings and acquitted because the mens rea wasn’t
proven; court of appeal upheld
Issues: Did the accused have the mens rea for counselling fraud
Held: MR of counseling an offence included: (1) intent to commit (2) knowingly counseling crime while aware of an
unjustified risk that offence is likely to be committed as a result of accused’s conduct.
o The actus reus of counselling is the deliberate encouragement or inducement of commission of an offence – regardless
of whether the person being counselled is actually persuaded to commit the offence
o The mens rea consists of nothing less than an accompanying intent (or disregard) of the risk of the offence counselled
being committed – that he either knew it would be committed, or was aware of the unjustified risk that it was likely to be
committed
o The mens rea of counselling is generally made out from the actus reus of counselling
o It is not just that the accused know that there is a risk of the offence being committed, but that there is a risk of the
offence is likely to be committed (which is a higher standard than reckless awareness of the possibility that an offence
might be committed)
Note: this should not be interpreted as encompassing recklessness as sufficient fault for the offence of counseling a crime not
committed.
Significance: stressed the requirement of intent as oppose to lesser forms of subjective MR, such a recklessness. This is
related to the fact that the offences of counseling is a crime that is no actually committed; thus should require intent to
commit complete offence.
Impossibility  S 23.1
Impossibility would not be a defence to a crime of counseling that is not committed. Parliament provides this pursuant to 23.1
(1) For greater certainty, s.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 received, comforts or assisted cannot be convicted of an offence.
Counselling a Crime that is Committed
Where crime is committed, person who counsels is subject to the same punishments as if he actually committed the offence,
notwithstanding that the offence was committed in a way different from that which was counseled.
o A counsels a person to kill another with a bomb would still be guilty of murder if the person counseled used a gun instead.
The liability is expanded in 22(2) where A ‘knew or ought to have known’ was likely to be committed in consequence of.
Actus Reus: Remains the act of procuring/ soliciting/ inciting crime. In addition, crime must be committed by the person
counseled. The crime need not be committed in the same way as counseled, however it must be a crime that was
reasonably foreseeable from the counseling.
Mens Rea: Intentional counseling of a criminal offence under 22(1). As it would not be fair to hold that an accused is a party to
an offence for comments that were not intended to solicit or incite a crime, but which had that effect. Under 22(2)
‘knew or ought to have known’, objective foreseeability would be a constitutional sufficient fault element for most
crime, except murder, attempt and was crime.

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2.2: Attempts
Not all crimes need to be complete before an offence arises – the criminal law intervenes even before the accused has committed the
criminal act required for a completed crime – there is liability for attempting to commit an offence
Section 24 provides:
(1) Everyone who, having intent to commit an offences, does or omits to do anything for the purpose of carrying out this
intention is guilty of an attempt to commit the offence whether or not it was possible under the circs to commit
(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 omit the offence, and too remote to constitute an attempt to commit the offence, is a question of law.
o The crown has to prove beyond a reasonable doubt that he accused had gone beyond mere preparation to commit
the offence
Section 463: punishment for attempted crime, providing that a person guilty of attempted crime is subject to ½ of the longest term
to which a person guilty of the completed offence is liable.
 There are however, a few substantive offences, including bribery and assault that include attempt as part of the completed
offence, there punishment occurs in the same fashion. Therefore, no need to charged someone with attempted assault if he
threatened a person in a manner that made that person reasonably believe he could be assaulted.
Mens Rea of Attempt
o The AR by definition will not, by definition, include the completed crime, thus Supreme Court recognized that the
‘criminal element of the offence of attempt’ may like solely in the intent. R v Ancio 1984
R v Ancio 1984: estranged husband breaks in with sawed off shotgun
Facts: Respondent wanted to speak with his estranged wife and broke into her apartment building with a sawed off shotgun;
wife’s boyfriend went to investigate and threw a chair at accused when he saw him; the gun went off but missed the
boyfriend; trial judge found accused had broken in with the intent to use the gun; court of appeal overturned conviction
and ordered new trial
Issue: what is mental element required for proof of Attempted murder?
Held: MR for murder cannot be anything less than the specific intent to kill.
Significance: SC have interpreted that the intent to commit the offences as specific intent to commit the completed
offence.
Note The intent that is “read in” in s.229(a)(i), even though it is constitutionally permissible to convict a person of the
completed offence of murder on basis of a lesser intent. In this case no reference to charter was made.
R v Williams 2003 SCC: Attempted exposing to HIV+ w/ Unprotected Sex
Facts: Court convicted man of attempted aggrevated assault for having unprotected sex when he was HIV +.
Significance: The crime of attempt, as with any offence, require Crown to establish A intended to commit crime in question.
The requisite was established here as the D knowing he was HIV+ engaged in unprotected sex with C intending to
expose her to the consequence of HIV.
Actus Reus of Attempt
Section 24(2) says it’s a question of law whether an act or omission ‘is not mere prep to commit the offence, and too remote to
constitute an attempt to commit the offence.
It is clear from R v Cline that a definition of the AR is impossible and thus ‘each case must be determined on its own facts,
having due regard to the nature of the offence and the particular acts in question.
“More then mere preparation” means that the AR cannot be mere preparation, but it can be the next step done with intent to
commit the crime after preparation is complete.

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R v Deutsch 1986 CCC: interviewing for assistant, telling them they needed to be able to have sex with clients
Facts: D placed advert looking for secretary. Position entailed possibly of sex with clients to close deals, might make 100,000/
year. Cops interviews, interested. D told her to look it over and let him know. Charged with attempting to procure
prostitution
Issue: Where did mere prep end and AR begin?
Held: Accused went beyond mere prep of attempted procurement of prostitution when he indicated to applicant that she could
earn 100,000/ year and might be required to have sex. By holding out this award during interview, accused had gone
beyond mere prep, regardless that no formal job offer was made/ any prostitution would happen “a considerable period of
time’ in the future.
Ratio: [1] Distinction between prep and intent is qualitative: involves the relationship between the nature and quality of the act
and the nature of the complete offence. Relative proximity of act in terms of time, location and acts under the control of
accused must be considered.
[2] The distinction between preparation and attempt has to be made out on the facts of a particular case
[3] When the attempt proceeds far enough to constitute a crime, an act does not lose its quality as the actus reus of attempt
because further acts were required or because a significant period of time may have elapsed before the completion of
the offence
R v. Dery – [2006]– attempt to conspire  an offence

Facts: Charged with conspiring to commit theft and posses stolen liquor; trial judge found no agreement had been
established an acquitted of conspiracy, but finding the actions more than mere preparatory to conspire, judge
convicted them of attempting to conspire; court of appeal affirmed conviction; accused appealed
Issues: Was there attempt to conspire
Held: Appeal allowed; conviction should be set aside and acquittal entered
 An attempt to conspire to commit an offence is not an offence under the law
 Conspiracy is essentially a crime of intention, so it is difficult to have the intent to intend something
 An attempt to conspire amounts, at best, to a risk that a risk will materialize
R v James 1971:
Fact: Going through glove compartment of a car is beyond mere prep and AR for attempted theft when accused indicated e was
searching for keys to steal car.
VERUS
R v Lobreau 1988:
Fact: Making a plasticine impression of a car key had was mere prep to steal the car.
Addition Factors:
 More remote AR will be accepted if intent is clear

 Magnitude of the planned crime may also be taken into consideration
If accused intended to commit mass murder, the approach in Deutch of holding that the accused had gone beyond mere prep and
committed AR of an attempt even though crime may still be months away makes eminent sense.
Impossibility and Attempts
24(1) settles this question when stating “whether or not it was possible under the circs to commit the offence”.
In R v Dyner the courts affirmed that impossibility was not a defence to an attempt. Thus for example, a person who stabs
a corpse with intent to murder a real person, would be guilty of attempted murder.

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2.3: CONSPIRACY
Like attempt, conspiracy is something that occurs before a complete offence is committed. The offence is considered to be complete
before any acts are taken that go beyond mere prep to put the common design into effect, thus it is before attempt.
The Crown is solely required to prove a “meeting of the minds” with regard to the common design to do something unlawful.
Conspiracies are generally punished as severely as the completed offence.
Section 465(1)(c): “everyone who conspires with any one to commit an indictable offence…is guilty of an offence and liable to the
same punishment as that to which an accused who is guilty of that offence would, on conviction, be liable.
AR of Conspiracy:
(1) agreement to carry out the completed offence
But the commission of acts in furtherance of the scheme does not constitute the AR; there must be (1) agreement (2) meeting of
minds to commit the offence. Once an agreement to commit an offence is reached, no necessary requirement to do more.
Example: A conspiracy between two people to launder money is a conspiracy even though money has not yet transferred
between parties and there would not be sufficient AR for an attempt.
Attempted Conspiracies and other attempts to combine inchoate forms of liability:
Courts have refused to recognize an offence of attempted conspirary when an agreement is not reached between the parties:
R v Dery 2006:
Significance: SC set aside a conviction of an attempt to conspire on the basis that it would extent the criminal law too far
and criminalize ‘bad thoughts abandoned before agreement made and acted upon’.
Note: ‘unilateral conspiracies’ in which there is no agreement, will normally be caught under the offence of ‘counseling an
offences not committed, under s.464
Mens Rea or Conspiracy:
(1) Intention to agree

(2) Intention to put the common design into effect
R v O’brien 1954:
Facts: no conspiracy found because only one of the parties to the agreement actually had the intent to carry out the kidnapping.
R v Sokoloski 1977: criticized majority decision

Facts: 2 ppl convicted of conspiracy to traffic controlled drug on basis that seller of large quantity must have known that
purchaser would in turn sell them. Minority argues there should be something more than mere knowledge that drugs will
be sold, but rather an agreement on a common design and an intent to implement the agreement.

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CORPORATE AND ASSOCIATION LIABILITY
Corporations can’t claim section 7 charter rights as they have no rights to life, liberty, or security of the person
Corporations are liable for the acts of their agents for strict and absolute liability offences – since these offences require only actus
reus, mens rea is not ascribed to the corporations, and corporate liability provisions don’t apply to regulatory offences
A corporation is convicted for performing a regulated activity without a license or for failing to take specified safety precautions not
because such non-compliance must be denounced and punished, but because it frustrates the regulatory ambitions of the modern state
and creates a danger of harm
Until recently, only the fault of the directing mind of the corporation could be attributed to the corporation for the purposes of
establishing its criminal liability – which made it difficult to hold corporations criminally accountable
Bill C-45  parliament introduced new statutory provisions for corporate criminal liability – there were extensive reforms designed to
make it easier to convict and punish corporations and other organizations for criminal offences
Directing mind = restricted to those who had enough power to establish corporate policy
Replaced with the concept of a corporate senior officer, including those who are responsible for managing an important aspect of
the organization’s activities – and it can be more than one person
- Applied to corporations, public bodies, body corporate, societies, companies firms, partnerships, trade unions, and municipalities
– all of these entities are not natural persons who enjoy section 7 protection
Prohibited act (actus reus) must be committed by one or more of the organization’s representatives – including directors, partners,
employees, and also agents ad contractors
Mens rea for the offence must be found in a senior officer of the organization – a representative who plays an important role in the
establishment of the organization’s policies or is responsible for managing an important aspect of the organization’s activities
o this concept is limited to managers and not mere employees
Section 22.1 applies to objective fault (negligence) offences where an organization is charged – a marked departure from a standard
of reasonable care is required for organizational fault for negligence offences to be found
Section 22.1(a) requires that the representatives of the organization commit the prohibited act
- They have to be acting in the scope of their authority
- Multiple representatives of the organization may cumulatively be held responsible for the commission of the prohibited act –
section 22.1(a)(ii)
Section 22.1(b) requires that senior officers of the organization have the fault of departing markedly from the standard of care
that could reasonably be expected to prevent a representative from being party to the offence
o Crown must prove beyond a reasonable doubt that senior officers had this fault whereas it is the accused corporation who
must demonstrate that it took all reasonable steps to prevent the prohibited act from occurring when the offence is a
regulatory offence of strict liability or simple negligence
Section 22.2 applies to subjective mens rea offences charged against an organization – section 22.2 applies to organizational liability
for all criminal offences other than those based on negligence – where there is a subjective intent offence
o The section contemplates subjective intent offences being committed by senior officers acting on their own within the
scope of their authority; senior officers directing representatives so that they commit the offence; or senior officers
knowing that representatives are or will commit offences but failing to take all reasonable measures to stop them from
doing so
- Instead of holding corporations vicariously liable for the mens rea offences of their employees, courts identified the
corporation with a senior official and attributed the fault element of that person to the corporation for the purposes of
determining the corporation’s liability for an offence
o as such ,the corporation is only liable for what is done by the directing mind and will of the corporation so that the
corporation has primary, not vicarious liability for the acts and minds of an official who is a directing mind of the
corporation

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C. SELECT CRIMINAL DEFENCES
There are numerous defences to criminal actions which will be discussed in detail:
1- Mental Disorder
2- Automatism & Involuntary Acts “Navigating” the Actus Reus *[title altered in updated syllabus]
3- Simple Intoxication/ Extreme Intoxication [intoxication  defence, rather raised to bring doubt as to MR]
4- Defence of the Person
5- Necessity
6- Duress
7- Provocation
8- Entrapment
9- Ignorance of the law ** NB: Updated syllabus new topic added**
Introduction:
Even if the crown proves that he accused committed the prohibited act having the required fault element, the accused may still avoid
conviction by raising a relevant defence.
Most defences put forth will have to pass the air of reality test before the jury is instructed on them (i.e.; that there is evidence upon
which a properly instructed jury could find that the accused acted involuntarily on a balance of probabilities
_________________________________________________________________________________________________
1. MENTAL DISORDER (Insane Automatism?)

_________________________________________________________________________________________________
Fundamentals:
Section 16 CC modifies the common law defence of insanity. The defence applies to accused who commits a criminal act, but
who cannot be found criminally responsible because their mental processes were impaired.
The verdict is not purely acquittal, but rather a verdict of not criminally responsible on account of mental disorder. Accused is
subject to detention or release with conditions until he or she is determined to no longer be a significant danger to society.
Section 16 has been revised by both the Supreme Court and Parliament to take into account various Charter concerns.
Who the defence applies to:
An accused, who, at the time that criminal act was committed, suffered from a mental disorder that made him incapable or
appreciating the nature/ quality of the act or omission or of knowing that it was wrong.
Unfit to Stand Trial:
Section 672.23(1) allows court on its own motion or application from accused to determine whether A is fit to stand trial. The
accused is presumed to be fit, unfitness must be proven on a balance of probabilities.
Statute enabled A, who is unable on account of MD to conduct a defence or instruct counsel to do so, because:
(a) unable to understand nature/ object of proceeding
(b) unable to understand possible consequences of the proceedings, or
(c) unable to communicate with counsel
SECTION 16:
(1) “No person is criminal responsible for an act committed or an omission made while suffering from a mental disorder that
rendered person incapable of appreciating the nature and quality of the act/omission or of knowing that it was wrong”
(2) “Every person is presumed not to suffer from a mental disorder so as to be exempt from criminal responsibility by virtue of
ss(1), until the contrary is proved on the balance of probabilities”
(3) Burden of proof that accused suffered is on party who raises issue

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Origins of the Defence: Insanity Defence
M’Naughten’s Rule- availability of insanity defence if it was ‘clearly proved that, at time of committing, A was under:
(1) a defect of reason…
(2) from a disease of the mind…
(3) as not to know nature and quality of act, or if he did know, that he did not know it was wrong
In 1892 this principle was embodied in the CC, so that an accused would have an insanity defence if he or she did not
‘appreciate’ as opposed to “know” the nature and quality of the act and of knowing that it was wrong.
In 1992, insanity defence became ‘mental disorder defence’ and verdict of ‘not guilty by reason of insanity” is renamed “not
criminally responsible by reason of mental disorder.
Defined: ‘disease of the mind’
R v Cooper 1979 CCC:**Dickson J. defined ‘disease of the mind’ as:
“Any illness, disorder or abnormal condition which impair the human mind and its functioning, excluding however, self induced
status cause by alcohol or drug, as well as transitory mental states such as hysteria or concussion”
Note: original definition, altered by Parks
Facts: Accused was out-patient at psychiatric hospital, victim in-patient; accused tried to have sex with her after a party at
the hospital; but then choked her to death; defence of insanity wasn’t raised, but evidence was called in to establish
that he did not have the capacity to form the intention to kill; expert witness said he didn’t think accused was
suffering from disease of the mind; trial judge charged jury with issue of insanity; jury found him guilty; court of
appeal dismissed appeal; appealed again to supreme court
Issues: Did the accused appreciate his actions, and thus have the capacity to form the intention to kill
Held: The appeal should be allowed
- In order for the accused to be able to appreciate the nature of his conduct, it is more than that he know (i.e.;
have a cognition) thereof
Examples of ‘DoM’:
- R v Simpson 1970: psychopathic personalities
- R v. Rabey 1977: personality disorders
- R v Revelle 1979: brain damage including fetal alc spectrum disorder
- R v Malcolm 1989: chronic alcoholism (permanent brain/ not temporary)
- R v Bouchard-Lebrun: A’s brutal assault after taking ecstasy was no suffering because he was in a temporary psychosis.
- R v O’Brien 1966: Epilepsy
R v Parks 1992CCC: Sleepwalking Murder

Facts: Sleepwalker
Issues: Should sleepwalking be classified as non-insane automatism (and thus lead to acquittal), or a disease of the mind
(insane automatism), and thus lead to the verdict of not guilty by reason of insanity
Held: Sleepwalking is not a disease of the mind, regardless that it was seen as organic/ hereditary internal to the accused.
Disease of the mind is a legal concept, so medical opinion cannot be relied on blindly – a condition likely to present
recurring danger should be treated as insanity and/or a condition stemming from the internal make-up of the accused,
rather than external factors, should lead to a finding of insanity.
Significance: Even though a condition might fall within the broad contours of an illness or abnormal condition that impairs the
human mind, it will not necessarily by classified as a disease of the mind.
Note: SC holistic approach suggests the focus is on whether the cause was internal and the defence should be dispensed with in
those cases in which it will produce an absurd result not necessary for public safety.
Ultimate issue: whether the public requires protection through potentially indeterminate conditions or detention imposed on those
found not criminally responsible on account of mental disorder. Thus, Can Courts should not classify organic conditions such as
epilepsy or diabetes as disease of the mind simply because they are internal causes that explain A’s behaviour.

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Defence Criteria:
Even if accused is held to suffer from a MD. He/she must qualify under 1 of 2 arms of the mental disorder defence listed in s16:
(1) Capacity to appreciate the nature and quality of the act
(2) Capacity to know that the act is wrong
(1) “Capacity to appreciate the nature and quality of the act”
This ability to appreciate involves more than knowledge that act is being committed, rather, it includes the capacity to
measure and foresee the consequences of the conduct.
For example: the ability to perceive the consequences, impact, results of a physical act.
Being unable to appreciate the physical consequences of his or her actions because of MD will have a valid s.16 defence
The focus is on the accused’s capacity for rational choice about the particular criminal act at the time the act was committed,
not his general intellectual ability to know right from wrong
R v Cooper 1979:
- Significance: defined appreciate nature and quality as involving the estimation and understanding of the consequence
of the act. The issue is the MR.
R v Landry 1991:
Fact: A killed V while under delusion that he was God and the V was Satan.
Issue: Did he appreciate the nature and circumstances of the act?
Held: NGRMI on alternative basis that the accused severe psychosis and resulting delusion rendered him incapable of
knowing that the killing was wrong. But he did appreciate the nature and quality of death.
(2) “Capacity to know that the act is wrong”
When the disease of mind renders the accused incapable of knowing that the act was wrong.
- It isn’t just the ability to know right from wrong, but also the ability to apply that knowledge to the offence
- if at the time of the act, a mental disorder deprived him of that ability, then section 16(1) may apply
R v Chaulk 1999 SCC:
Significance: Defines ‘wrong’ in s.16(2) to mean more than simply legal wrong. Thus,
A should have insanity defence if, because of a disease of mind, A was incapable of know that that an act was morally
wrong, even if A was capable of knowing that act was legally wrong.
Note: “Moral wrong” is not to be judged by personal standard of offender, but his awareness that society regards the act as
wrong. Thus he will be protected by 16(2) if he is incapable of understanding that the act is wrong according to the ordinary
moral standards of reasonable members of society.
R v Oommen 1994 SCC: the meaning of “wrong” – killed victim bc he thought victim was conspiring with others
Fact:
- A suffered from psychosis of a paranoid delusion type, killed X who was sleeping without apparent motive.
- He came convinced union members were trying to destroy him and surrounded his home with intent of killing, he felt V
was a conspirator, thus he killed V to prevent V from killing him.
- Charged with 2nd degree and raises defence of insanity. Psychiatrist testified A possessed general capacity to distinguish
right from wrong and generally that killing a person is wrong, but that night the delusion deprived him of that capacity.
Issue: Did A possess the capacity present in the ordinary person to know that the act in question was wrong having regards
to the everyday standards of the ordinary person.
Held:
- Agree with TJ who concluded that while A was generally capable of knowing killing was wrong, he could not apply that
capacity for distinguishing right from wrong at the time of the killing because of a mental disorder.
- And because of this disorder, A deluded into believing he had no choice but to kill. These findings were consistent with
conclusion A MD deprived him of capacity to know act was wrong by standards of the ordinary person.
Significance: A, even though he was generally capable of knowing that act was wrong, could have the defence if his
paranoid delusion ‘at time’ of act deprived him of capacity for rational perception and hence rational choice about rightness
and wrongness of act.

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R v Kjeldson 1981 SCC: how the defence applies to sociopathic or psychopathic offenders
Facts: Evidence revealed he was a psychopath, who was indifferent to, but understood the physical nature and
consequences of his acts.
Significance: A personality disorder will not receive defence, regardless that psychopathy/ anti-social personality disorder is
considered a disease of the mind. Because- it does not affect appreciating nature and quality of act or if act was wrong

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2. AUTOMATISM & INVOLUNTARY ACTS “NAVIGATING” the ACTUS REUS

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The Accused will not satisfy the AR requirement unless his act is willed.
Automatism is related to the mental disorder defence because both involve conditions in which the accused cannot be held criminally
responsible for his or her actions owing to a lack of mental capacity, however,
- If the automatism is caused by a mental disorder, the accused will be held not criminally responsible by reason of mental
disorder.
- If the automatism is caused by a factor that is not mental disorder, the accused can be acquitted
R v Swaby 2001: – occupying a car with an unregistered weapon
Fact: A charged with offence of being an occupant of motor vehicle while having knowledge that another occupant is in possession
of an illegal firearm. Testified he had no knowledge of gun, only when exiting car. Passenger runs away w/ gun, he drives off.
Issue: Did the accused act voluntarily when occupying the car with an unregistered weapon
Held: Crown had to prove that the occupancy of the car and the knowledge of the weapon coincided so as to amount to voluntary
conduct by the accused –
- However, one can’t be immediately guilty upon knowledge (especially when taking into consideration that the occupancy
happened to be in a moving car); the conduct of the driver following the knowledge that counts
- Without voluntariness there was no AR to be punished. If A only acquired knowledge at the point when X was exiting
vehicle, then an acquittal should be entered.
Significance: coincidence of elements of offences (fleeing police + gun in car) doesn’t automatically = voluntary act for the
purpose of punishment because A needs time to take appropriate steps to remove himself or gun from motor to vehicle.
Automatism
It is the voluntariness concept that helps explain the defence of automatism. Automatism is the legal term that refers to
unconscious or involuntary behaviour. Meaning that the accused’s physical motions were not culpable or blameworthy where
they are not voluntary or thought-directed or conscious.
Reserved to those unusual cases where there appears to be some disconnect between the actions of the accused and his conscious
will. Automatism refers to involuntary behaviour that may cast a doubt on the fault element (or even the actus reus, in some
cases) of an offence.
Automatism has to be established on a balance of probabilities
R v Rabey 1997 ONCA:

Fact: D was rejected by a girlfriend and so he battered her. He argued that this was an external cause.
Held: A ‘disassociated state; resulting from the ordinary stresses and disappointments of life which are common lot of mankind
did not amount to an external cause. Guilty.
INSANE AUTOMATISM: internal stimuli, recurring problems, (not guilty by reason of insanity) Rabey
SANE AUTOMATISM: external stimuli, transient disturbance of consciousness (full acquittal) Rabey
Sane Automatism:
R v Parks 1999 SCC:

Fact: A drives 23 km and stabbed 2 people, killing 1 while sleepwalking. Argued cause of his automatism was sleepwalking.
Held: SC found defence was successfully raised as this condition, on evidence presented was not a disease of the mind. A was
acquitted and not subject to a disposition hearing or any form of treatment.
R v Stone 1999 SCC: stabbing wife 47 times after a ‘whooshing’ feeling (Air of Reality Burden)
Fact: A driving to see sons with his new wife. She did not allow them to stay for long, she taunts him, calls him loser, terrible
in bed, small penis and threatens to make up assault charged. Pulls over stabs her 47 times with hunting knife, he said he

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felt a ‘whoosh’ sensation wash over didn’t know what happened until he saw his wife lying dead. Hid her body, he later
turns himself in. Pleas insane automatism/ non-insane automatism. Jur convicts of mans, CA upheld.
Issue: Should defence of non-insane automatism have been left to jury?
Held: Appeal dismissed. Judge is justified in not instructing jury on the defence because there was no evidence upon which a
properly instructed jury could find that the accused acting involuntarily on a balance of probabilities
Significance: Test of Establishing Automatism:

1. A has burden to establish basis for defence of automatism on balance of probabilities. To establish burden A must give
expert evidence to go along with claim of automatism
2. If burden is met, J must decide whether MD(disease of mind). If yes, then special verdict is entered and s.16 procedure
applies. If there is no MD, then question left to jury whether A acted involuntarily. If he did then he is acquitted by
reason sane automatism.
NOTE: An accused claiming NMD defence of automatism must establish on a balance of probabilities that he or she acted in
an involuntary manner.
NOTE: Stone does not overrule Parks but it does encourage judges to use policy concerns about the need to protect the public
as a factor in concluding that the accused suffers from a disease of mind.
NOTE: automatism will be presumed to be caused by mental disorder unless the accused can establish otherwise
R v Fountaine 2004 SCC: paranoid mechanic killed co-worker (limits Stone & Air of Reality Burden)
Facts: Accused received a call from R saying that they were coming to get him; he later heard from a co-worker that the
victim had been offered a contract to kill him; one night he thought he saw R outside his home, he saw the victim at
his work the next day and shot and killed him; pleaded mental disorder automatism; experts gave evidence; judge
refused to put defence to the jury; accused was convicted; appeal court quashed the conviction and ordered a new
trial; crown appealed
Issues: Should the defence of mental disorder automatism been put the jury
Held: Crown’s appeal should be dismissed. Judge erred in not putting defence to jury.
Significance: Case lowers the air of reality burden in Stone but leaves intact the assignment of a persuasive burden on accused
to establish the defence of non-mental disorder automatism on balance of probabilities.
SC qualified Stone as it relates to the threshold air of reality burden but not the persuasive burden on the accused to establish
automatism. Stone better used to guide trier of fact in deciding whether defence has been establish on balance of probabilities.
TJ should not weigh evidence in deciding whether there is an air of reality that justified leaving the defence to the jury.
Question is whether there is ‘in the record any evidence upon which a reasonable trier of fact, property instructed in law and
acting judicially, could conclude that the defence succeeds.
R v Lueduecke 2008 ONCA:

Fact: A sexually assaults woman at a party while asleep. There was confirming medical evidence led by A that a person could
perform actions while sleepwalking and that sleepwalking was not a mental disorder. There was a history of sexual
activities in his sleep, although with a former gf, thus did not lead to charges. TJ determined there was no continuing
danger under Stone
CA held that TJ had erred when following Parks when he classified sleepwalking as a basis for non-mental disorder
automatism. CA reversed and held that sleepwalking should for policy reasons be characterized as a mental disorder.
Also CA ensured that reforms to disposition process ensured sleepwalking accused found NCRMD would not be detained or
subject to conditions unless he was a significance threat to the public.
Significance: CA rejected medicalized approach in Parks and followed public safety approach (holistic approach) taken in
Stone. This case can only be justified on the basis that Stone overrules Parks, a decision that SC has yet to make.

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3.1. SIMPLE INTOXICATION ( Defence  Disputing MR) _______________________________________

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Intoxication does not operate as a justification or excuse or defense for criminal conduct. It will operate only if proof of the
intoxication helps leave the J/J in reasonable doubt over whether the accused formed MR of an offence classified by the courts as a
“specific intent” offence that requires the accused to do an act for an ulterior purpose.
Generally, if an accused’s voluntary intoxication prevents a conviction for a specific intent offence, the accused will normally still be
convicted of a less serious general intent offence.
NOTE: in Canada, the inquiry for the ordinary intoxication defence is no longer into “capacity to form the intent” as it was in
common law England – the defence applies if intoxication prevents the formation of the specific intent required by the relevant section.
R v Beard 1920 HL: Original HOL rules governing intoxication ‘defense’ (helped distinguish specific / general intent)
Fact: A drinking killed woman in course of rape. After killing he interviewed and accepted into a trade union.
Held: Convicted of constructive murder, as drunkenness would be no defence unless it could be established that Beard at
time of committal, was so drunk that he was incapable for forming the intent to commit it.
Significance: Canada Courts have interpreted Beard as establishing the distinction between crimes of specific and general
intent, with intoxication only being a defence to specific intent crimes. Courts followed Beard and held that the issue was
whether evidence of drunkenness raised reasonable doubt as to the accused’s capacity to form specific intent.
Specific intent offences: additional element required beyond immediate act

- Specific intent crimes require the individual who commits the crime to have a certain intent or purpose when the
crime was committed, whereas general intent crimes don’t.
- Intention as applied to acts done with the specific and ulterior motive and intention of furthering or achieving an
illegal object
- These acts are the product of preconception and deliberate steps taken towards an illegal goal
General intent offences:
– General intent crimes are those that do not require a further purpose or intention and are often crimes committed in
moments of uncontrolled passion or aggression.
– A general intent crime only requires that you intend to perform the act. That is, you don't need any additional
intention or purpose. For example, assault is usually a general intent crime. You only need to intend your actions,
not any particular result.
R v George 1960 SCC: robbery = specific intent -vs- assault = general intent
Fact: SCC held robbery was a specific intent offence to which drunkenness was relevant, but assault was a general intent
offence to which evidence of intoxication was rarely, if ever, relevant.
Fauteux J: Explained ‘In considering Q of MR, a distinction is to be made between :
(1) Intention as applied to acts considered in relation to their purposes AND..

(Robbery falls into (1) because it required application of force in order to facilitate the taking of property)
(2) Intention as applied to acts apart from their purposes.

(Assault falls into (2) because it required only the minimal intent required for application of force without
consent)
Held: The intoxicated accused was acquitted of robbery, but convicted of assault.
Intent To Commit, Not Capacity to Commit the Offence:
In Beard HL require trier of fact to have a reasonable doubt about whether the accused was capable of forming an intent, whereas
general MR principles suggest actual intent, not capacity to form intent, should be the issue.
R v Robinson 1996 SCR: killed victim who said something to offend him while they were drinking

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Held: SC held Beard rules violated s 7, 11(d) of Charter because they require the jury to convict even if it had a reasonable doubt
about the accused actual intent. Could not be justified under s.1 because social protection could be achieved without casting
net of liability
Significance: for offences of specific intent, evidence of intoxication should no longer be subject to a rule requiring that it be
considered only if intoxication attains such a degree that it deprives the accused of the capacity to form the specific intent – evidence
of intoxication can be considered with all other evidence in determining whether the accused actually had the specific intent
required to constitute the offence
Note: 2007 SCC R v Daley, judges should only instruct with respect to actual intent, no reference to capacity should be made.
Therefore, getting around Charter violations
Distinction:
Specific Intent: murder, robbery/theft, B&E with intent, attempts (sexual assault, murder)
General Intent: manslaughter, sexual assaults, assaults, willful damage (vandalism), B&E and committing an offence.
The distinction often served the practical purpose of ensuring that even if the accused voluntarily intoxication prevents conviction for
SIO, the accused will normally still be convicted of a less serious general intent offence.
* Example: George (acquitted of ROB but not ASS)
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The court has stated that if an accused, of his own volition, takes a substance which causes him to cast off the restraints of reason and
consciousness, then no wrong is done by holding him answerable for an injury he may do or cause while in that condition (R v.
Majewski)
– the recklessness of becoming drunk is deemed to be sufficient to supply the fault for the commission of the general
intent offense

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3.2. EXTREME INTOXICATION

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Extreme intoxication is distinct from simple intoxication because unlike simple intoxication, where extreme intoxication applies, it can
operate as a defence to any offence (general or specific). The theory is that a person can become intoxicated enough that his mind may
cease to operate sufficiently to make conscious choices relating to his actions
The defence of extreme intoxication was created in Daviault by way of the charter
R v Daviault 1999 SCC: – got extremely drunk that he blacked out and sexually assaulted victim
Facts:
- Elderly victim confined to wheelchair, asked accused to bring some alcohol; she drank a glass and fell asleep; when she awoke,
accused sexually assaulted her; victim later discovered the bottle of alcohol was empty;
- He claimed he woke up naked in the victim’s bed, he had no idea what happened; expert witness said a person of the
hypothesized blood alcohol level might suffer a blackout, lose contact with reality, and the brain would disassociate from normal
functioning;
- Trial judge found the act had been committed as described, but acquitted on basis of reasonable doubt as to accused possessing
minimal intent necessary to commit offence of sexual assault;
- Court of appeal allowed crown’s appeal and ordered verdict of guilty be entered holding that self-induced intoxication resulting in
automatism is not available as a defence to a general intent offence; accused appealed.
Held:
- Appeal should be allowed and a new trial ordered
- Necessary for A to prove extreme intoxication as a defence to a general intent crime on a balance of probabilities. Thus in
this case, expert evidence that A was likely in a state akin to automatism or insanity as a result of drinking was necessary.
Significance: SCC prefer Wilsons (minority) approach in Bernard 1988 held extreme intoxication could in rare cases be a defence to
general intent offences such as assault or sexual assault.
o Thus, extreme intoxication verging on automatism could provide a defence because it would undermine the voluntariness of the
act and it would be unconstitutional to substitute the act of becoming intoxicated for the basic acts and mind of the offence.
Implications of Daviault:
- Raises possibility that extreme intoxication would be a defence not only to general intent offence but also absolute/ strict liability
offences, because it may negate the voluntariness that is seen as part of the AR.
- Did not abolish the distinction between general and specific intent offence, rather, it introduced 2 distinct intoxication defence
with different burdens to prove:
o If charged with specific intent offences (ie murder), ordinary defence will apply if it raises reasonable doubt about
whether the accused required intent.
o If charged with general intent offence (mans/ ass), evidence of intoxication will be relevant only in rare cases, and A
faces a reverse onus- prove on balance of probs that he was so extremely intox as to be incapable of having the minimal
intent required for a general intent offence.
- There is no lesser conviction available for general intent crimes, where there is no conviction, like there is for specific intent.
Legislative Response to Daviault: Bill C-72, Section 33.1
Parliament amended the CC to eradicate the defence in sexual assault and violence cases, so that those with the Daviault defence
will be convicted of the same violent general intent offences that they would have been convicted of before the Court’s decision:
Section 33.1(1)(2): it will not be a defence that the accused ‘by reasonable of self-induced intoxication, lacked the
general intent or voluntariness required to commit the offence’.
Thus, a person who has become so drunk as to engage in involuntary violence has departed markedly from an at-large standard of
reasonable care. This marked departure from the standard of reasonable is substituted for the intent required to commit the
general intent offence charged, whether it be sexual assault or assault.
Note: Be aware that nothing in s. 33.1 abolishes the defence of simple intox – it limits only the defence of extreme intoxication.
Where does s.33.1 apply?

Section 33.1 does not apply to general intent that do not involve assault or threat of interface with bodily integrity, as noted in this
case ‘Daviault still applies today to enable an accused charged with a property offence to plead extreme intoxication’ (Bouchard)

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R v Bouchard-Lebrun 2011 SCC:

Significance: Section 33.1 applies where 3 conditions are met:
(1) A was intoxication at material time
(2) Intoxication was self-induced
(3) A departed from standard of reasonable care generally recognized in Canadian society by interfering or threatening to
interfere with the bodily integrity of another person.
Note: Where these 3 are proved, it is no defence that A lacked general intent or voluntariness required to commit offence.
Criticism  Constitutional Validity?

- S.33.1 clearly allows a persons to be convicted of a crime even though he ‘lacks’ general intent or voluntariness to commit
the offence. A number of cases including Daviault, Stone confirm that this would violate the fundamental principles of
justice.
Involuntary Intoxication as an Independent Defence:
R v King 1962:
Fact: A impaired by drug at dentist convicted of impaired driving where he became impaired ‘through no act of his own will, thus
could not have reasonably be expected to have known that his ability was impaired or might have become impaired when he
undertook to drive”.
Significance: Restricts involuntary intox defence:

(1) Accused not know that substance might impair & (2) Accused could not reasonable known that substance would impair
Note: King has been applied in the following:

- Vickberg: A overdoses on prescription pills that contained no specific warning, he assaults another as he went into an
automatic state
- Tramble: A given vodka in his drink and is unaware
- Honish: deliberate overdose of prescription pills in an attempt to commit suicide would not meet defence requirement

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4. DEFENCE OF THE PERSON

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This defence operates as a complete defence which results in the A’s acquittal. A does not have to establish self-defence on a balance
of probabilities. A must have acted reasonably in response to external pressure being: violence, threats of violence from victim.
Reasonable in the context of this defence is given a modified objective standard, in order to fight the danger of holding A to
unreasonable standards of restraint. Thus, this modified standard, is one that invested the reasonable person with the relevant
characteristics and experiences of the accused.
The accused must not only subjectively have believed that he was being threatened and that the actions taken in self defence
were necessary, but there must also have been a reasonable basis for such beliefs
The defence is not derived from the fault element of the offence and can apply even if the accused voluntarily committed the actus
reus and had the mens rea required for the offence.
Arises under circumstances where a person is subjected to an external danger and commits an act that would otherwise be criminal as
a way of avoiding the harm the danger presents.
Statutory Provisions:
The 1995 CC provisions were criticized as ‘highly technical’, ‘excessively detailed’ and ‘internally inconsistent’, because it attempted
to define various circumstances in which an accused might act in self-defence.
The self defence provisions to the Criminal Code were amended in March 2013, adopting a simpler approach based on one
encompassing provisions in Section 34, governing self defence of self and other and Section 35, governing all forms of property.
DEFENCE: SECTION 34 .
SECTION 34. Self Defense

(1) A person is not guilty of an offence if
a) They believe on reasonable grounds that force is being used against them or another person or that a threat of force is
being made against them or another person;
b) The act that constitutes the offence is committed for the purpose of defending or protecting themselves or the other
person from that use or threat of force; [subjective purpose] and
c) The act committed is reasonable in the circumstances.
(1) In determining whether the act committed is reasonable in the circumstances, the court shall consider the relevant
circumstances of the person, the other parties and the act, including, but not limited to, the following factors:
a) The nature of the force or threat;
b) The extent to which the use of force was imminent and whether there were other means available to respond to the
potential use of force;
c) The person’s role in the incident;
d) Whether any party to the incident used or threatened to use a weapon;
e) The size, age, gender and physical capabilities of the parties to the incident;
f) The nature, duration and history of any relationship between the parties to the incident, including any prior use or
threat of force and the nature of that force or threat;
g) Any history of interaction or communication between the parties to the incident;
h) The nature and proportionality of the person’s response to the use or threat of force; and
i) Whether the act committed was in response to a use or threat of force that the person knew was lawful.
(3) Subsection (1) does not apply if the force is used or threatened by another person for the purpose of doing something
that they are required or authorized by law to do in the administration or enforcement of the law.
 A is not guilty of an offence if they believe on reasonable grounds force is being used against them or another person, or
threat of force, and act is committed for purpose of defending and act is reasonable in the circs .

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Note: Jury should not be instructed about SD if there is no air of reality to the accused’s claim that he had a reasonable belief that
he was subject to force or threat of force. Air of reality test applies to all affirmative action defences (SD).
It differs from old law in not making the A’s intent to cause GBH specifically relevant to the self-defence claim. Intent is not found in
the non-exclusive list of factors in section 34(2), at most it would be among a range of factors that is relevant in determining the
reasonableness of the act of SD.
Moreover, where self- defence has traditionally been seen as a justification and not an excuse on the basis that accused have rights to
defend themselves and their property, 34/35 replaces the reference that an accused who acts in SD or defence of property is
justified with a more generic reference to such a person not being guilty of the offence.
34(1)(a): ‘Belief on Reasonable Grounds that Force/ Threat is being used’
The old law referred to unlawful assault as triggering factors, where 34(1)(a) refers to force of threat of force. This simplified
matters by avoiding having to resort to definitions of assault and the classification of unlawful assault. Threat of force thus
expands the self-defence, no longer requiring A to wait until assault was underway in order to respond with SD.
R v Lavallee 1990 SCC: embraced the modified objective standard approach – battered woman killed her husband
Fact: W shot abusive partner in back of head after he threatened that she would be harmed after guests left. expert witness
explained her ongoing terror and inability to escape the relationship put her life in danger and that he felt the
shooting was the act of a woman who sincerely believed she’d be killed that night;
Held: SCC upheld acquittal

RATIO: No legal requirement that A wait until she faced an imminent attack from the deceased.
Note: Lavallee has been misunderstood as making A’s status as a ‘battered woman’ determinative of the SD claim.
Objective/Subjective: Wilson J: the issue is not what an outsider would have reasonable perceived but what the accused
reasonably perceived given her situation and her experience, thus this case is the landmark decision
embracing a contextual objective approach that considered the accused’s situation and experience
R v Petel:
Significance: An accused can qualify for the self defence claim even though he was in fact not being unlawfully assaulted.
SCC affirmed that evidence of prior threats and beatings would be relevant to the determination of whether the
accused could perceive danger from abuser.
“34(1)(b): Subjective Purpose of Defence Oneself/Others”
This is normally the least challenging requirement for the accused to pass. It will however, not exclude A who does not
subjectively intend to defence themselves or others but rather desire to seek vengeance, punishment or vindicate honour against
someone who has used force against them or threatened to do so.
“34(1)(c): Acts Done in SD must be Reasonable in the Circs”:
Section 34(2) provides a list of what the court shall consider in determining circumstances of the person. The judge should read
the long list to jury and jury should consider all listed factors, but they can also consider other factors relevant to the accused.
This open-ended approach allows courts and juries to consider new factors that may be relevant; however it also makes SD less
predictable and less structured and demanding then the other CL defences.
Section 35: use of force in defence of property
Contains one defence for defence of property and makes no distinction between various forms of property and dwelling houses.
There are 4 requirements to the defence, air of reality on all four elements must exist to put defence to jury. There must be
reasonable doubt on all 4 elements to justify an acquittal: a person is not guilty of offence if:
35(1)(a): belief on reasonable grounds that they are in peaceable possession, or lawfully authorized/ assisting in property:
- Does not actually require peaceable possession but only requires that those claiming defence and those assisting have a
reasonable belief in such peaceable possession.
35(1)(b): A must believe on reasonable grounds that another is entering, taking, damaging, or destroying A’s property

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- reasonable belief that property in question is being threatened
35(1)(c): Offence must be committed for subjective purpose of protecting property

- this will be the purpose in preventing a trespasser from entering property or removing a trespasser or retaking property or
preventing damages
35(1)(d): offence committed by A must reasonable in the circumstances

- no enumerated factors must be considered by judges/ jury
- remains to be seen whether courts will read a proportionality requirement into this section R v Szczerbaniwics says yes.
Section 35(2): places an additional requirements by requiring that A who has a reasonable belief in peaceable possession will not
have a defence if they do “not have a claim of right to it and the other person is entitled to its possession by law”. Claim of right
can include an honest mistake about entitlement even though the mistake is based on both fact and law.
Section 35(3) Prevents a defence of property claim against law enforcement actions unless the accused believed on a reasonable
grounds that other person is acting lawfully.

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5. NECESSITY
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The defence of necessity permits the conduct of the accused to be excused where its elements are met.
It is an excuse and not a justification for action. Based on what is required by a realistic concession to human weakness. Arises under
circumstances where a person is subjected to an external danger and commits an act that would otherwise be criminal as a way of
avoiding the harm the danger presents.
Necessity isn’t a codified defence – rather it is a common law defence and was first recognized in R v. Perka, but later finalized in
R.v Latimer 2001 SCC:
R v Perka 1984 SCC: recognized and limited defence of necessity
Fact: Drug smugglers forced to land in Canada because of dangerous seas, imminent risk of death.
Issue: How should courts deal with defence of necessity?
Held: Necessity is restricted to: (Per Dickson C.J)

(1) Imminent risk taken to avoid direct/ immediate peril
(2) Morally involuntary, as measures on societies expectation of appropriate resistance to pressure
(3) No reasonable legal alternative to avoid peril
Significance: necessity as defence is recognized (an excuse for morally involuntary conduct, but not a justification for the conduct)
R v Morgentaler 1985 ONCA:
Fact: M et al charged with conspired with intent to ‘procure miscarriage of female persons’. Jury acquitted. Crown appeals
challenging appropriateness of necessity as a defence in this case
Issue: Did judge err in leaving defence of necessity to the jury?
Held: Yes, defence not available to accused. Appeal allowed
Ratio: D’s consciously agreed to violate law out of their dissatisfaction with it. Defence recognized the law must be followed,
but certain factual situations which arise may excuse person for failure to comply. Thus: dissatisfaction with law does not
equal necessity.
Note: there were legal ways out as legal abortion could have been approved by therapeutic abortion committee.
R v Latimer 2001 SCC: Assisted Suicide of ill daughter before surgery, held not imminent danger, set the test for necessity
Fact: A kills daughter with debilitating, though not terminal, cerebral palsy. He learned that doctors wanted to perform another
painful surgery. Killed via carbon monoxide poisoning. TJ removed defence of necessity. Latimer convicted of 2 nd. CA
dismissed appeal. Appeal to SC
Issue: was TJ correct to remove defence of necessity from jury?
Held: Yes. Appeal dismissed. There was no air of reality to Latimer’s defence, with the elements outlined in Perka, therefore
jury should not have been left to consider defence. There was no reasonable basis for Latimer’s belief in imminence in
part because there was no evidence of imminent peril
RATIO: 3 ELEMENTS OF NECESSITY:
(1) Imminent peril or danger (MOT)

a. A modified objective standard (i.e.; a reasonable person endowed with the characteristics of the accused) should be
applied in determining whether the accused faced an imminent harm
(2) No reasonable legal alternative (MOT)

a. A modified objective standard (i.e.; a reasonable person endowed with the characteristics of the accused) should be
applied in determining whether the accused had no safe avenue of escape or legal way out.
(3) Proportionality between harm inflicted and harm avoided (OT)

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a. Purely Objective Standard used.

b. Killing a person is completely disproportionate to non-life-threatening suffering
The air of reality test, whereby there must be evidence relating to each part of the offence, and that the evidence must be of such a
nature that a properly instructed jury acting reasonably could acquit the accused, was not made out in this case
Notes: Must be imminent, not enough that peril is foreseeable or likely, must be on verge of transpiring and virtually certain to
occur. There was no imminent peril because daughters ongoing pain did not constitute an emergency. Accused subjective belief of
imminent peril is not determinative, there must be a reasonable basis for the belief.
Note: Killing a person was completely disproportionate to non-life threatening suffering should Tracy have had proposed
operation- importance of proportionality.

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6. DURESS________________________________________________________________________________________
_________________________________________________________________________________________________
Like necessity, duress occurs when an accused commits a crime in response to external pressure by a third party. It applies when an
accused commits a crime in a morally involuntary response to threats where there is no safe avenue of escape
The defence of duress is available under section 17 of the Criminal Code and at common law. Section 17 identifies a limited defence,
but the common law and Charter have been used to extend its application.
Historically: S17 applied when the threat was of immediate death or bodily harm and made by a person who was present when
the offence was committed.
Current: The courts held that such requirements violated section 7 of the charter by denying the defence to those who have
no realistic choice but to commit the offence and thus act in a amorally involuntary manner (R v. Ruzic).
- The court has not yet ruled on whether the remaining parts of section 17 (namely that it does not apply to
offences such as murder, attempted murder, robbery, unlawfully causing bodily harm, and arson) violate charter
Section 17:
- Definition: Pressure of threats of “immediate” harm, subjectively believed to be carried out, by some other person “present”
- Defence is very restricted, threats of immediate death or BH from a person present when offence was committed and excludes
a long list of offences ranging from murder, sexual assault, hostage, robbery to arson.
- After Ruzic Section 17 is not as strict  the immediacy and presence requirements are restricted.
- The focus shouldn’t be on the immediacy of the threat, but rather on whether there was any safe avenue of escape in the eyes of a
reasonable person similarly situated.
- Now applies to those who commit an offence under “compulsion by threats of death/bodily harm…if person believes threats will
be carried out and if person is no party to a conspiracy or association whereby the person is subject to compulsion.
- Roach: S17 prevails over CL test except to the extent that it as been clearly struck down as unconstitutional
- Defence of duress is applied on a modified objective standard
R v Ruzic 2001 SCC: importing drugs b/c mother held hostage, sets test under CL
Fact: A charged with importing 2kg of Heroin. Threats to harm mother from X in Ireland if she didn’t carry it on flight. Invoked
CL defence duress and held s.17, which denied her the defence because she did not meet immediacy/ presence requirements,
contravenes Charter. She was acquitted TJ, Crown appeal was dismissed
Issue: does 17 violate Charter?
Held: Yes, Appeal dismissed.
Ratio: S17 is too strict because immediacy and presence requirement preclude threats of future harm. Thus, violate 7 of Charter
because it allows persons who acted involuntarily to be declared criminally liable.
Moral involuntariness doesn’t negate the actus reus or mens rea of an offence, but it deserves protection under section 7 of
the charter as only voluntary conduct should attract the penalty and stigma of criminal liability,
Requirements:
(1) Threats of death/BH against A or 3rd party:
(2) Subjective belief that threat will be carried out:
- Does not require a reasonable basis for such a belief, thus even an unreasonable belief by A about threats of
death and BH may be sufficient basis for 17 defence
(3) No Section 17 Defence if Offences are excluded in enumerated list
- Murder, AM, SA, forcible abduction, assault with weapon or BH, aggravated assault, unlawfully causing BH,
robbery, arson, abduction of a young person
(4) No 17 Defence if A is party to a conspiracy or criminal association.

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Common Law:
Defence applies when A commits a crime in a morally involuntary response to threats where there is no safe avenue to escape
- Defence is applied using a modified objective standard, allowing for the particular characteristics and attributes of A.
- Does not require threats to be immediate from a person who is present when offence is committed
- Focus is on whether there is a ‘safe avenue’ to escape in the eyes of a reasonable person, similarly situated
- Some requirement of proportionality, between harm avoided and harm inflicted.
- Applies to those who aid, abet, formed a common unlawful purpose to commit offence; unlike 17.
R v Mena 87: Threats need not be express from words/gestures but can be reasonable implied from the circumstances
R v McRaw 05: Implied threat when Y instructs A to assist him after Y killed 2 other people.
CL REQUIREMENTS:
(1) Reasonable belief in threats of death or BH:

 Ruzic placed restrictions on CL defence by indicating the need for a ‘close temporal connection bw threat and harm’
(2) Reasonable belief in no legal way out or safe avenue of escape: no choice in deciding whether or not to commit crime
R v Hibbert 1995 SCC:

Ratio: CL defence of duress will not apply to parties who had a safe avenue of escape and could have safely extricated
themselves from the situation of duress. Defence applied only if A had no realistic choice when deciding whether or not to
commit the crime (Lamer C.J)
(3) Proportionality between harm inflicted and harm avoided:

 Proportionality is based on a modified objective standard per Ruzic
R. v. Ryan (N.P.) 2013: abusive husband, attempted to kill via hiring hit-man, acquitted, convicted, proceedings stayed
Facts: The accused, an abused wife, attempted to hire a “hit man” to kill her husband. 15 years of repeated abuse and threats if she
left him. The “hit man” was an undercover R.C.M.P. officer. The accused was charged under s. 464(a) of the Criminal Code
with counselling an undercover officer to murder her abusive husband.
TJ and Appeal Courts both recognized she had been subjected to a “reign of terror” and reasonably feared that she and her
daughter would be killed by Mr.Ryan, she made repeated attempts to seek the protection of the state, and that she had “no
other safe avenue of escape open to her”.
Held: SCC allowed the appeal and set aside the acquittal on the ground that the defence of duress was not available. However,
rather than ordering a new trial, the court found exceptional circumstances warranting a stay of proceedings. Fish, J.,
dissenting, would have ordered a new trial, leaving it to the Crown to determine whether a retrial was in the public interest.
Duress and MR:
The relevance of duress to MR is on a decline. Hibbert narrowed the instances in which duress could raise a reasonable doubt
about MR. It held Duress could not negate A’s intent required to form an unlawful purpose under 21(2) or intent required for
doing something for the purpose of aiding an offence under 21(1)(b).
Because duress will frequently arise in situations where A reluctantly assists in the commission of the crime, this decision
suggests that duress will rarely be relevant to determining MR.

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7. PROVOCATION
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Provocation is a partial defence that reduced murder to manslaughter where its elements are met.
SECTION 232:
(1) Culpable homicide that other wise would be murder may be reduced to manslaughter if person who committed it did so in
the heat of passion caused by sudden provocation
(2) Wrongly act or insult that is of such a nature as to be sufficient to deprive an ordinary person of power of self-control is
provocation for the purposes of this section if the accused acted on it on the sudden and before there was time for his
passion to cool. No provocation when the accused has incited the victim to commit the act claimed to be the provocation
NB: Only Murder. Yet, other offences?

- If provocation results in automatism that can be explained with reference to the accused’s internal emotional make-up, then
the defence would be mental disorder automatism
- If the provocation could be explained on the basis of extraordinary external factors such as seeing a loved one killed or
harmed, the defence might be non-mental disorder automatism leading to a complete acquittal
The Requirements:
(1) Wrongful act or insult that is not provoked by A or the result of a victim exercising his legal right
(2) Sudden provocation
(3) Subjective provocation [A must act before subjective time to cool]
(4) Wrongful act/insult must be of ‘such a nature as to be sufficient to deprive an ordinary person of the power of self-control:
 Modified objective standard is used for the ordinary person. Whether the reasonable person in the circumstances
would have lost control when faced with the provocation, not whether he would have done what the accused did, as
such, proportionality is not required for the defence of provocation
 R v Parent: anger alone with not suffice, defence will not apply when A acted in a calculated manner to retaliate to
some perceived insult or wrong.
R v Thibert 1996 SCC: ordinary person standard
Fact: A shot wife’s lover, as he was persuading wife to go somewhere to talk, V led her indoors. V came at him saying ‘come
on big fellow, shoot me” and kept coming towards him. Taunts were sudden and not remote. TJ left provocation w jury
Issue: was TJ correct in leaving to jury?
Held: Yes, appeal allowed, new trial on charge of 2nd degree.
RATIO: TEST- “Ordinary person standard”: has been contextualized so that the ordinary person has the same age/gender/
same relevant experience as the accused. This led to concerns that individuated reasonable person may diminish level of self-
control and afford defence to jealous or homophobic males.
R v Tran 2010 SCC: accused killed estranged wife’s boyfriend, modified ordinary person standard
Fact: Estranged husband sneaks into former home and finds her with new lover. Homicidal rage and stabs lover 17 times killing
him and harming wife. Convicted of Mans, CA substituted conviction of 2 nd.
Issue: Could the relationship (estranged wife found w/ other man) constitute an event so insulting to deprive him of self-control?
Held: Appeal dismissed and upheld 2nd degree conviction. There was no air of reality to the defence of provocation, appellant did
not act suddenly, evidence he intentionally entered their old residence and was aware of the relationship.
He was not sufficient “insulted”. ‘after couple is separate, it cannot in law be sufficient to excuse a loss of control and
constitute and excuse for the ordinary person; victims lying passively in bed could not amount to provocation.
Significance: Ordinary person should only be modified to place the act/insult in context but not to “shift ordinary person standard to
suit the individual accused” or to individualize the ordinary person so as to defeat its purpose in encouraging self-control and non-
violent behaviour” [only general contextual traits like age, sex & not specific traits like religion, homophobic]

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Provocation Steps
(1) Wrongful act/ insult not incited by A or result of V exercising a legal right
 Tran: courts take a restrictive approach to the threshold requirement of whether there was and act/insult: ‘there was
no wrongful act/insult defined as scornful abuse or offences to modesty/self-respect
 R v Squire- A (the aggressor) during fight was held to not have been provoked even if he had been kicked during
the fight
(2) Sudden Provocation:

 Suddenness must characterize both the insult and the act of retaliation R v. Tripodi
 Therefore in Tran, there was no sudden provocation when an accused who previously knew that his estranged wide
was seeing another man.
 Wrongful act/ insult and A’s response must be sudden and unexpected
 Thibert distinguished from Tran: A was reacting on the sudden and unexpected taunts from V, whereas in Tran V
said nothing to insult.
(3) Subjective Provocation:

 A must act ‘before’ there was time for passion to cool. The test is subjective because it involves an assessment of
what actually occurred in mind of the accused. He must have subjectively lost control.
 All factors particular to A can be considered including intoxication, mental state, history of relationship with V etc.
(4) Objective Standard that the Wrongful Act/ Insult is Capable of depriving an ordinary person of self-control:
 R v Tran: Ordinary person standard should not be modified by the fact that the accused was ‘homophobic’, or held
‘antiquated beliefs’ about ‘honour’ or adultery being the ‘highest invasion of property’.
 R v Humaid 2006: holding murder conviction after TD specifically instructed jury that while it could consider A’s
age, gender and other factors that give insult special significance, it should not consider any ‘peculiar traits’
arising from A’s Muslim faith/ culture. (stabs W 19x, after learning she had sex with business colleague; there was
also known plan to killer)
 R v Tran: ordinary person standard should be applied in a manner that supports and incorporates the Charter and
other contemporary norms of behaviour.
Is Proportionality Required?
- Under 232 provocation defence, courts have focused only on whether ordinary person in circs would lose SC, not whether he
would have done what the accused did, thus suggesting no requirement that A acts is proportionate to insult.
Provocation and the Charter:
- Does the objective standard violate s7?

- In particular it has been challenged because of the requirement of subjective fault for a murder conviction.
- But as recognized in Hill, the OB standard in 232 is designed to encourage reasonable and non-violent behaviour.
- The court have recognized the OB standard as constitutionally sufficient for many offence and will likely continue to
uphold OB standards for defence.
- Does removal of, or, tightening of provocation defence violate s7?

 Abolition raises the issue of whether the absence of provocation defence would violate s.7?
 A person who kills while provoked is not a morally innocent person as he will at least have the minimum MR of
subjective foresight of death which is constitutionally required for murder.
 Moreover, he will likely not be acting in a morally involuntary manner in response to a compelling threat that cannot
reasonably be resisted, so that it could be said that he or she had no realistic choice.
 Thus it appears as if abolition of provocation would violate 7 by allowing conviction of the morally innocent person
who acts in a morally involuntary manner.

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8. ENTRAPMENT
Entrapment is a CL defence that applies even where A has committed a crime with the required fault element.
There are two different forms of entrapment in Canadian law.
It results in a stay of proceedings in cases where:

Random-virtue 1- A state agent has provided the accused with an opportunity to commit a crime without either
Testing:
a. A reasonable suspicion that A was, or already is, involved in a particular crime, or
b. A bone fide inquiry into a particular type of high crime area (the physical location with which the person is
associated is a place where the particular criminal activity is likely occurring.)
2- Alternatively even if there is a reasonable suspicion or a bona fide inquiry, entrapment will apply and result in a stay of
proceedings if the state agent induces the commission of the crime.
The question of entrapment is only considered after there has been a finding of guilt. If, after finding the accused guilty, the court
determines that the accused was entrapped, the court will enter a judicial stay of proceedings. In effect, this is similar to an acquittal.
R v Mack 1988 SCC: cite for CL definition above, expanded definition from Barnes
Fact: Police acted with reasonable suspicion in conducting a 6 month drug sting, A was former user with several
conviction, even though A told police informer he was only interested in real estate.
Ratio: Defence available even though an A committed AR with the requisite degree of fault. Because it is a matter
independent of guilt or innocence, entrapment must be established by A on a balance of probabilities, and the
determination of entrapment can be left until after the A’s guilt has been established.
Significance: Courts recognize above defence
Notes:
- Police will go over the line if their conduct is so objectionable that it brings admin of justice into disrepute.
- Courts will examine proportionality between conduct of the state and the A and whether state had instigated the crime and
exploited the A.
- There will be not entrapment defence when A is entrapped into committed crime by private individuals not acting for state.
R v Barnes 1991 SCC: being present in high crime area
Fact: Police had a correct hunch that man was selling weed, but did not have reasonable suspicion because the impressions of
suspect were too general and subjective.
Held: No entrapment because police were acting pursuant to a bona fide inquiry into criminal activity offering a person an
opportunity to commit crime because he was present in a place associated with particular criminal activity
Significance: Majorities approach allows random virtue testing of those found in areas associated with drugs and prostitution,
regardless they have no reasonable suspicion that person is engaged in the particular crime. The notion of being
"associated" with a particular area for these purposes does not require more than being present in the area. Such
randomness is permissible within the scope of a bona fide inquiry.

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9. IGNORANCE OF THE LAW
The general rule, that ignorance of the law is no excuse, is reflected in s 19 of the Criminal Code. This general principle is subject to
exceptions in limited circumstances.
S19: Ignorance of the law by a person who commits an offence is not an excuse for committing that offence
This codifies the common law rule that ignorance of the law is no excuse for the commission of a criminal offence. Ignorance as to the
existence of the law or of its meaning, scope or application is no defence.
 This general principle was recently reaffirmed in R. v. MacDonald, 2014 SCC 3, when the Supreme Court once again
engaged this principle in delivering judgement in a gun possession case from Nova Scotia, which strangely enough arose
from a simple noise complaint.
R v MacDonald, 2014 SCC 3

Note: this case is discussed in detail below under police powers of search
FACTS:
 Police responded to a noise complaint at M’s home in Halifax.
 When M opened the door, an officer observed that M had an object in his hand, hidden behind his leg. The officer
twice asked M what was in his hand.
 Because M did not answer, the officer pushed the door open a few inches further to see.
 A struggle ensued and M was disarmed of a loaded handgun.
 M was licensed to possess and transport the handgun in Alberta, but not Nova Scotia as he believed he was.
HELD:
 MacDonald freely admitted to possessing the weapon, but argued that he subjectively believed that his gun licence
from Alberta allowed him to possess the weapon in Nova Scotia; however, the Supreme Court of Canada did not
agree.
 Justice LeBel, writing for the majority of the Court, rejected MacDonald’s position and held that the Nova Scotia
Court of Appeal erred in requiring the Crown to prove that MacDonald knew his gun licence did not extend to
where he was staying at the time.
 Rather, in order to secure a conviction under s. 95(1), the Crown only had to prove that MacDonald knowingly and
intentionally possessed a loaded restricted firearm, not whether he properly understood the scope of his gun licence.
 Under the statute, criminal liability for possessing the gun could only be avoided if MacDonald did in fact have a
valid licence, not whether he thought he did.
 As shown below.
 The search was reasonable, there was no s. 8 breach and no need to consider s. 24(2).
Exceptions: In particular, when “colour of right” is specified to be relevant, a mistake about the law can be relevant. Further, the
Supreme Court of Canada has created the common law defence of “officially induced error”.
“Colour of Right” — defence involves a lack of mens rea.
Ignorance of the law is never an excuse but a genuine mistake as to a set of facts can be an excuse.
- An honestly held belief in entitlement to property; a defence to a charge of theft; a bona fide belief or an honest belief arising
from a genuine mistake or, in some cases, from ignorance.
- A person is not liable to penalties for his actions which, though wrongful, were done in the honest but mistaken belief in a set
of facts that, if true, would have made the actions not wrongful.
- As a defence to a criminal charge, colour of right involves a lack of mens rea.
- Mistake must be as to the facts, not the law (Jones)
- If a person is acting under a genuine mistaken view relating to a set of facts which would give him a defence to a criminal
charge if those facts were correct, then he is said to be acting with “Claim of right”.

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Lilly v. The Queen, 1983 trust funds mistaken for commissions

Facts: Accused, a real estate broker, convicted theft with respect to $ deposited in trust. He attempted to use the defence of
“colour of right” alleging he thought he could lawfully transfer the amounts from the “in trust” account to the agency’s
general account once the offer to purchase the property had been accepted.
Held: The trial judge misdirected the jury.

- The defence was dependent upon whether the jurors were satisfied beyond a reasonable doubt that the appellant had not,
at the time of the transfers, an honest belief that he had the right to that money, and not, as they were told, dependent
upon what they thought his rights were.
R. v. Jones, [1991] mistake must be as to fact, not as to law (applicability of law)

Facts: The appellants were charged with unlawfully conducting a bingo contrary to s. 206(1)(d) of the Criminal Code.
- The charges arose out of gaming operations at the Shawanaga Reserve, which were initiated resolutions
- Warned that lotteries must have provincial licence
- The appellants were convicted at trial and their convictions affirmed by the Court of Appeal
Issue: Whether the appellants were entitled to be acquitted by reason of a defence of colour of right. That right was the belief
that s. 206 did not apply to their activities since they were carried out on a reserve which they thought was not subject to
the laws of Canada relating to gaming
Held: The defence of colour of right does not apply to a charge under s. 206(1)(d) of the Code.
Mistake was one of law, rather than of fact. They mistakenly believed that the law did not apply because it was
inoperative on Indian reserves. A mistake about the law is no defence to a charge of breaching it.
Officially Induced Error Defence Exception:
A valid excuse for violating the law is on the basis of an officially induced error of law. The defence arises where the accused is given
advice in error that the accused relies upon in doing the criminal act.
Officially induced error is available as a defence to prevent morally blameless individuals, who believe they are acting in a lawful
manner, from being convicted. The defence arises in part out of the overly complex nature of regulation.
Each element must be proven on a balance of probabilities by the accused, A successful application will result in a stay of proceedings
R v Jorgensen
The elements that must be proven are:
1. The error was one of law or mixed law and fact
2. The accused considered the legal consequences of her actions
3. The advice obtained came from an appropriate official
4. The advice was reasonable in the circumstances
5. The advice obtained must be erroneous
6. The accused must demonstrate reliance on the official advice
This will be assessed objectively from the perspective of a reasonable person in a situation similar to that of the accused.
Levis (City) v. Tetreault (SCC affirmed the defence of officially induced error)
Facts:
- The accused company charged with operating a motor vehicle w/o registration fees paid.
- Raised the defence of officially induced error, alleging that a representative of the motor vehicle admin had led them on a 15
month renewal period.
- Because of an error, the admin office sent the notice to the company with an incomplete address.
- 31.1 (registration) the Highway Safety Code create strict liability offences.
Held:
- Affirmed the defence does exist in Canadian criminal law, yet…
- The company has not established that the conditions under which it is available have been met.
- The issues the company raised with the admin representative related to administrative practices, not to the legal obligation to
pay the fees by the prescribed date.
- Therefore defence conditions missing:
o The company could not have considered the legal consequences of its conduct on the basis of advice from the
official in question,
o Nor could it have acted in reliance on that opinion, since no information regarding the nature and effects of the
relevant legal obligations had been requested or obtained.

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D. THE ADVERSARIAL PROCEEDING
1. THE ADVERSARIAL PROCEEDING
Trial is the opportunity for Crown prosecutor to prove the specific allegation made in the charge (information or indictment) beyond a
reasonable doubt.
Key characteristic of the Canadian criminal trial is therefore the specific allegation
It is helpful to understand the criminal trial process by looking at:

(1) The presumption of innocence and the ultimate standard of proof
(2) Other burden
(3) The neutral impartial trier
(4) The role of the prosecutor
(5) The role of the defence
(6) The role of lawyer as advocate
(1) PRESUMPTION OF INNOCENCE/ ULTIMATE STANDARD OF PROOF
At a Canadian trial, the accused is presumed innocent, a right guaranteed by Section 11(d) of the Charter. Meaning, the wrong
must prove the guilt of the A beyond of reasonable doubt. This is the Crown’s ultimate burden in both criminal and regulatory
prosecution.
“Beyond Reasonable Doubt”:
R v Lifchus 1997: meaning of proof beyond reasonable doubt – stock broker convicted of fraud
Issue: How should judge charge a jury on the meaning of “beyond a reasonable doubt”?
Ratio: When defining term, judge must not simply use plain language definition, but include descriptions of important
underlying concept of criminal law that must be considered, and the specific degree that must be proven to be acceptable
Proof beyond a reasonable doubt is intertwined with the presumption of innocence – it isn’t proof to an absolute certainty, but
is doubt based on reason and common sense that is logically derived from the evidence presented, or the absence of evidence.
R v Starr 2000 SCR: reasonable doubt is close to absolute certainty vs balance of probabilities
Ratio: TJ would err if they did not make clear to Jury that the reasonable doubt standard was much closer to absolute certainty
than the balance of probabilities standard used in civil trials.
R v J.H.S: sexual assault of stepdaughter, reasonable doubt in terms of credibility
Fact: Accused was charged with sexual assault of his stepdaughter; accused and victim were main witnesses (she alleged he
had abused her over a number of years, he denied all the allegations); the issue was whether the alleged events ever
happened; judge charged jury on credibility of the witnesses an instructed them that it wasn’t a choice between the two
versions of the events; jury convicted; court of appeal set aside the conviction and ordered a new trial because the jury
wasn’t clearly instructed by the judge.
Issue: Did the TJ explain the principle of reasonable doubt correctly in regards to credibility.
Held: Conviction restored: When read as a whole, the charge did not leave the jury with any doubts as to the correct burden
and standard of proof to apply – the judge explained that the accused had to be given the benefit of the doubt should any
reasonable doubt arise; the judge also told the jury that they couldn’t simply choose between the witnesses’ testimony,
that they had to consider all the evidence when determining reasonable doubt
Note: Overreliance on a precisely stated formulae in case law makes our legal system less accessible to the layman. Reference
to the procedure in R v WD – evidence.

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2. OTHER BURDENS
Crown must prove all elements of the offence charge BRD
Evidential Burdens: w/ regards to standard of proof for each party
[A] “prima facie case” [the crown must prove evidence is worthy]
Where a party wishes a matter to be placed in issue, there is an evidential burden in order to succeed in having that matter
placed in issue.
 Example: if at end of Crown’s case in chief, D argues that there is no “case to meet” and requests a “directed verdict
of acquittal”, the judge will evaluate whether the Crown has shown a prima facie case.
Crown must proves its case BRD; otherwise, during prelim hearing A can request the injury judge to determine whether there
is a case to answer, or during the trial A can request a directed verdict because Crown was unable to prove elements of
offence BRD.
The same standard applies where A is entitled to and requests a preliminary inquiry to determine whether there is a case to
answer. The inquiry judge will discharge the A unless Crown can show a prima facie case.
R v Arcuri 2001 SCC: meaning of prima facie case (how to weigh Evidence in prelim inquiry to determine committal)
Facts: Accused charged with first degree murder; at the preliminary inquiry, the crown’s case was entirely circumstantial;
the testimony of the witnesses the accused called was arguably exculpatory (guilt clearing); the judge rejected the
accused’s contention that he must weigh the evidence and committed the accused for trial for second degree murder;
the certiorari application (move from higher to lower court) by the accused was dismissed; the court of appeal
affirmed the dismissible; accused then appealed to the supreme court
Issue: When determine whether EV was sufficient to commit A to trial, did prelim injury judge err in refusing to weigh
Crown’s EV against the allegedly exculpatory direct evidence of the accused?
Held: Appeal dismissed

Q is whether there is any evidence upon which a reasonable jury properly instructed could return a verdict of guilty.
Where Crown produced circumstantial evidence, J must engage in limited weighing of whole EV and determine
whether a reasonable jury properly instructed could return verdict of guilty.
[B] Air of Reality [defendant must prove evidence/elements of defence]
Where A wants a DEFENCE considered-- A must show defence presented has an air of reality to it.
Air of Reality: Hypothetically, if the evidence of defence is believed, and such belief can / will acquit (judge must weigh
defence presented, but not the credibility or quality), judge mus instruct jury to do so in light of the law that
applies to that defence.
R v Cinous 2002 SCC: accused killed criminal accomplice
Fact: A involved in criminal activity with M & Y, flees, rumours they want to kill him, come to house and ask him to
participate, A agreed to meet them, M & Y wearing gloves, A convinced he was going to be killed, he shot M in
back of head, didn’t call police. TJ puts self-defence to jury. Convicted of 2nd. CA held defence was not properly put
to jury.
Issue: Was defence properly put forward?

Held: Appeal allowed, conviction restored.
Ratio: In deciding whether evidence has AOR- judges takes EV produced as being true, and on that assumption, determines
whether a reasonable jury—would accused. He does not weigh credibility of evidence himself.
Significance: Defence should be put ‘if and only if, there is evidential foundation for it—duty to keep from jury defence
lacking air of reality.

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R v Fountaine 2004 SCC: paranoid mechanic killed co-worker
Fact: Accused received a call from R saying that they were coming to get him; he later heard from a co-worker that the
victim had been offered a contract to kill him; he saw the victim at his work the next day and shot and killed him;
pleaded mental disorder automatism; experts gave evidence; judge refused to put defence to the jury; accused was
convicted; appeal court quashed the conviction and ordered a new trial; crown appealed.
Issue: Should defence of MD automatism been put to jury?
Significance: judge does not evaluate the quality, weight or reliability- just air of reality.
[C] Mandatory Presumptions & Reverse Onus Presumptions:
Presumption is a rule of law that directs J and J to assume that a fact is true (presumed fact) in any case where Crown proves that
another fact is true (basic fact), unless A can rebut the presumed fact according to the assigned standard of proof. Known as:
“Mandatory presumptions” can be rebutted by the accused simply raising reasonable doubt about whether the presumed fact
follows from the basic fact.
- Where mandatory presumption is rebutted, presumed fact falls back into issue, and must be proved by Crown without
the assistance of the presumption (in the ordinary way)
Mandatory presumptions operate to assign burdens of proof on the accused. As such, presumptions are, prima facie,
contrary to the charter and must be saved by section 1 thereof.
Many presumptions operate in alcohol driving prosecutions and are used to determine whether the accused has more than a legal
amount of alcohol in his blood while driving or having care or control of a motor vehicle: See, for example, s. 258 (1) (a), [a
reverse onus provision] and ss. 258 (1) (c), (d.1) and (g), [all mandatory presumptions]
Example: s258: If a person is found to be in the driver's seat of a motor vehicle (or the seat normally occupied by the
operator of one of the other types of vehicles listed), they are presumed to be in care or control of the
vehicle. The presumption can only be rebutted if the person is able to show on a balance of probabilities
that at the time the person occupied the seat he or she did not occupy the seat for the purpose of putting the
vehicle in motion.
Ex: Mandatory: To work out the person's BAC at the time of the offence, the prosecutor generally needs to show the
following: (1) The breath samples were taken as soon as practicable, (2) The first breath sample was taken
within two hours of the offence, and (3) A second breath sample was taken 15 minutes or more after the
first sample. If the three criteria are met, then the lower of the two results is presumed to be the person's
BAC at the time of the offence. This is commonly referred to as the presumption of identity. This can be
rebutted via evidence of accuracy of results.
“Evidence to the Contrary”, or a reverse onus provision, deems a presumed fact to existed where C proves basic fact,
unless there is evidence of the contrary proven on a balance of probability. A presumption will be interpreted as mandatory
where it fails to set out the required standard or rebutted because of Section 25(1) Interpretation Act.
[D] Persuasive Burdens
The presumption of innocence is infringed whenever the A is liable to be convicted despite the existence of a reasonable doubt about a
factor for conviction.
Oakes 1986 SCC:
Fact: A charged with unlawful possession for trafficking. TJ convicted only of unlawful purpose, brought motion stating that S.8
NCA provide that if court find A in possession, A is presumed to be in possession for purpose of trafficking, must be
convicted unless A can establish contrary. CA found reverse onus unconstitutional against 11(d). Crown appealed.
Issue: Does section 8 of the Narcotic Control Act violate section 11(d) of the Charter
Held: Appeal dismissed, unconstitutional. Requiring A to disprove a presumed element of an offence violate the presumption of
innocence. No justification under s.1.

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Reasons:
On proof of possession, the presumption that it was for the purposes of trafficking is mandatory; and unless the accused can
rebut this mandatory presumption, he will be found guilty.
The right to be presumed innocent until proven guilty (i.e.; section 11(d)) requires that:
 the accused be proven guilty beyond a reasonable doubt
 the state bear the burden of such a proof
 the prosecution be carried out in accordance with lawful procedure and fairness
Requiring an accused to disprove a presumed element of an offence violated the presumption of innocence (section 11(d))

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3. THE NEUTRAL IMPARTIAL TRIER: critical component of the adversarial system
There must be a neutral impartial trier of law (legal decisions), and a neutral impartial trier of fact (fact finding):
 When trial is judge alone, he is trier or both law and fact (95% cases)
 When trial is by jury, they are factual trier’s, and the judge is the trier of law
Trial Judge:
 Judge has discretion over trial proceeding, including curtailing cross, preventing harassing questions, and asking Q’s to
witness himself, however caution must be taken so not to violate A’s right to a fair trial. Test for a “fair trial” is based on a
reasonable person attending trial R v Valley
 Section 485 preserves the court’s jurisdiction over adjournments
 TJ has power to exclude public from trial, where it is in the interest of public morals for the proper admin of justice. This
power conflicts with Section 2 Charter, but is saved by Section 1
 TJ has ability to order publication bans, they must however be seen as exception since they prevent public knowledge, thus
conflict with the principle of open court, which has been described a ‘the hallmark of a democratic society” (Vancouver Sun
(Re)); YCJA 2002 also bans publication of information that could identify young persons who receive adult sentences.
R v Gunning 2005 SCC: – shot and killed an stranger at his party, judge not entitled to direct a verdict or withhold defence
Fact: Accused shot and killed C, a stranger who had entered his home uninvited during a party; he denied that he intended to kill C;
he testified that his memory was sketchy because had drank some alcohol, but that C had assaulted him, refused to leave, and
they had argued; the said he was scared, so he took out his gun to intimidate C and the gun discharge accidently; the focus of
the trial was whether the shooting was accidental or intentional; the trial judge instructed the jury on the offence of careless
use of firearm and refused to instruct het jury on the defence of property – but later in the charge he tried to correct the
instruction on the careless use of firearm; accused was convicted of second degree murder; court of appeal upheld
Issue: Did judge err in directing jury that offence of careless use of firearm has been made out and by failing to instruct on defence
of property?
Held: Appeal allowed, convicted set aside, new trial ordered.

 TJ erred in instructing offence, jury should have been the one to decide whether the offence had been proven on the facts or
not; the judge could have given his opinion, but not a direction. Instruction should have been on law not fact. Judge had
no entitlement to direct a verdict or to keep a defence from the jury a defence, he should have instructed the jury on law.
R v Hamilton 2004 ONCA: poor black women given conditional sentences, judge oversteps limits (draws conclusions)
Fact: A pleaded guilty to importing cocaine, single black women, young children, limited finances. Sentenced to 20 months with
partial house arrest and curfew, other was 2 years less a day with partial house arrest and curfew. TJ concluded they were
victims of systematic racial and gender bias leading to circs, making them vulnerable to drug traffickers, which mitigated the
sentences they received. Appeal.
Issue: Did judge err in sentencing?
Held: TJ overstepped his position as judge and became an advocate for the women. No issue with length of sentence but did find
that the judge made an error in handing out conditional sentences.
- The judge made use of statistical information without the assistance of a properly qualified witness, drawing conclusion
that sentencing practise, as applied to those who imported cocaine ,reflected systematic, social, racial, and gender bias
against poor black women

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4. ROLE OF THE PROSECUTOR:
An advocate, but also a quasi-judicial officer, meaning he must make decisions in the interest of justice and the larger public
interest, including the interests of the accused. The prosecutor has many discretionary decisions that can be made and should act
as a “minister of justice”
Primary duty: Is not to seek conviction, but present all credible evidence relevant to the alleged crime so that justice
may be done through fair trial upon merit.
Boucher v The Queen 1955 SCC: Primary duty:
Significance: Purpose of a criminal prosecution is not to obtain a conviction; it is to lay before a jury what the Crown
considers to be credible evidence relevant to what is alleged to be a crime. Counsel has duty to see that all
available legal proof of fact is presented. It must be done fairly. Role excludes winning or losing, function is
a matter of public duty.
Kreiger v Law Society of Alberata 2002 SCC: Crown prosecutor not disclosing result of DNA test
Fact: K assigned to prosecute A accused of murder. Prior to prelim received DNA test implicating X, tells defence DNA test
would not be available for prelim. Defence find out about DNA test at prelim, K removed from case and A complained to
law society. K said law society had not jurisdiction over Crown. K’s application dismissed by Court, guilty. Appeal
Issue: does law society have jurisdiction over crown?
Held: Appeal allowed, TJ judgment restored because federal government has jurisdiction over criminal law and procedure and
the provinces have jurisdiction over administration of justice, including regulation of lawyers and reviews of alleged
breaches. The rules of the law society are not intended to interfere with the proper exercise of prosecutors and their
prosecutorial discretion
R v Nixon 2011 SCC: retracting plea agreement
Fact: Issue was a plea agreement between Crown and A. A had been charged with CC offences, including impaired and
dangerous after driving motor home through intersection, hitting vehicle and killing 2. Crown entered a plea
agreement with A to reduce charge to regulatory offence because he felt his evidence would not support a conviction.
The plea was repudiated.
Issue: Was repudiation acceptable.
Held: Repudiating (retracting) a plea agreement, thought subject to judicial review, would be acceptable short of
undermining trial fairness or the admin of justice.
Ratio: Crowns may, in certain circumstances, repudiate (retract, reject, disclaim) plea agreements as those agreements fall
within the realm of prosecutorial discretion.
R. v. Babos, 2014 SCC 16

FACTS
 Antal Babos and Sergio Piccirilli were charged in 2006 with numerous firearms offences, in addition to offences related to
importation, production, and trafficking of methamphetamine. The charges were laid in Quebec following a major RCMP
investigation in Project Cleopatra, (Hell’s Angels bikers)
 The accused argued that the provincial Crown attempted to intimidate them into forgoing their right to a trial by threatening
them with extra charges if they did not plead guilty to the charges as laid.
 She also threatened to proceed under s. 577 of the Criminal Code (direct indictment), which would preclude the accused from
having a preliminary inquiry.
 At trial, the judge issued a stay of proceedings for both accused, agreeing that allowing the conduct would undermine public
confidence in the administration of justice as the threats of the prosecutor and subsequent lack of remedial action by the
Crown were particularly “shocking and outrageous” (comments reproduced in para 20), also stating that the comments in and
of themselves were sufficient to warrant a stay of proceedings.
 The Quebec Court of Appeal disagreed, overruling the trial judge and ordering a new trial, acknowledging that a stay of
proceedings is only to be granted in extreme cases.

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HELD: SCC (overturned trial decision)

 It has been acknowledged that a stay of proceedings is “the most drastic remedy a criminal court can order”, and the court has
held that a stay will only be granted in the clearest of cases
 The legal test for whether a stay of proceedings is the appropriate remedy for abuse of process has three requirements:
o (1) There must be prejudice to the accused’s right to a fair trial or to the integrity of the justice system that will be
manifested, perpetuated, or aggravated through the conduct of the trial or its outcome;
o (2) There must be no alternative remedy capable of redressing the prejudice; and
o (3) Where there is still uncertainty over whether a stay is warranted after (1) and (2), the court must balance the
interests of the accused and the societal interest in having the case heard on its merits.
 The court made it clear that the Crown is well within its right to engage in legitimate plea bargaining practices, such as
dropping certain charges in exchange for a guilty plea (para 59). It is also acceptable to add additional charges, should further
evidence arise at a preliminary hearing to support the charges. However, in the present case, the Crown conduct was
particularly egregious because it happened before sufficient disclosure was provided. Moreover, the language was downright
threatening, including telling one accused that if he did not settle that he would be “hit by a train” (para 60). The conduct was
admonished by the SCC as “reprehensible and unworthy of the dignity of her office”
 Despite the conduct, the majority of the SCC found that the trial judge failed to properly consider multiple factors when
erroneously granting the stay of proceedings based on Crown abuse of process.
 For these reasons, a stay of proceedings was held not to be an appropriate remedy in this case. When balancing the
seriousness of the Crown misconduct against the very serious nature of the charges, the SCC held that society’s interests were
better protected by having a trial on the merits of the case.
R. v. Anderson, 2014 SCC 41

 The Supreme Court of Canada (SCC) dealt with the issue of whether Crown prosecutors are constitutionally required to
consider the Aboriginal status of accused persons when deciding to pursue a mandatory minimum sentence in R v Anderson,
2014 SCC 41.
FACTS:
 The respondent, Frederick Anderson, was charged with impaired driving pursuant to section 253 of the Criminal Code of
Canada (the Code), which was his fifth driving-related offence. Because of Anderson’s history of driving-related offences,
the Crown, exercising its prosecutorial discretion, decided to seek a mandatory minimum sentence of 120 days.
 In order to seek a mandatory minimum, the Crown must notify the accused of its intention to seek a greater punishment
(“Notice”) because of a previous conviction before any guilty plea is made. The Crown must also provide the Court with
proof that Notice was served.
 In accordance with these requirements, Anderson was served Notice and learned that the Crown intended to prove the Notice
at the sentencing hearing.
 Before his sentencing hearing, Anderson filed a Charter application arguing that sections 255(1) and 727(1) violated his
section 7 rights under the Canadian Charter of Rights and Freedoms (the Charter) because the combined effect of the
provisions effectively transferred a judicial function to the prosecutor by limiting the sentencing judge’s options on
sentencing.
 Anderson also argued that the provisions violated section 15(1) of the Charter because it deprived an Aboriginal person of the
opportunity to argue for a non-custodial sentence in appropriate cases.
 Anderson argued that, as a principle of fundamental justice, all state actors must consider Aboriginal status when making a
decision that may affect the liberty of an Aboriginal person.
HELD:
 Justice Moldaver ultimately rejected Anderson’s argument because it both places the judge’s duty to impose a proportionate
sentence on the prosecutor and fails to meet the test for fundamental justice set out in R v DB.
o Section 718.1 of the Code sets out the fundamental principle of proportionality in sentencing, stating that a
“sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.”
o One of the factors a sentencing judge is required to consider is Aboriginal status, pursuant to section 718.2(e).
 In Anderson, however, the Court noted that the case mentioned above make no mention of prosecutorial discretion. It is the
judge’s responsibility to impose a sentence that factors in an accused’s Aboriginal status, not the prosecutor’s.
o With respect to Anderson’s assertion that the Crown has, as a principle of fundamental justice, an obligation to
consider the Aboriginal status of an accused when deciding whether to serve Notice, the Court was not convinced.
o The rationale is that expanding the scope of judicial review of discretionary decisions by Crown prosecutors would
cripple the adversarial nature of Canada’s criminal justice system by opening the door to routine judicial review of
prosecutorial discretion.

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5. ROLE OF THE DEFENCE:
Defence counsel is an officer of the court, and therefore must be respectful and honest with court and must not attempt to mislead
court as to the state of the law. Subject to his rules and law and ethics, defence is obliged to act solely in the interest of the A, advising
the A on implications, propriety, of pleading guilty, securing advantage of all procedural and constitutional protections available to the
accused that are not properly waived.
When defending an accused, the lawyer’s duty is to protect the client as far as possible from being convicted except upon legal
evidence sufficient to support a conviction for the offence charge – he must take particular care to be accurate, candid, and
comprehensive in presenting the client’s case so as to ensure that the court is not misled.
The law society can take disciplinary action for professional misconduct (which is the conduct in a lawyer’s professional capacity that
ends to bring discredit upon the legal profession). See ethics code.

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GETTING TO THE TRIAL: THE CRIMINAL INVESTIGATION
POLICE POWERS
Police officers are independent of the Crown prosecutor in Canada. This independence is important to permit the prosecutor to act
as a quasi-judicial officer, and not get too close to the mind-set of an investigator.
Still, the police will often seek legal advice from Crown prosecutors, including on the wording of search warrants and the like. In
the interests of securing liberty, the powers of the police are constrained by law, although can be derived from statute, common law
and by implication from statute and common law.
Police powers are also significantly limited by the Charter, most significantly s. 8 (unreasonable search or seizure) and s. 9
(arbitrary detention). Courts have undertaken a careful balancing of police powers in an attempt to ensure respect for liberty,
without undermining the effectiveness of police investigations and law enforcement. The law of evidence supports limits on
powers.
General Powers:
Cooperation by a suspect is effectively another source of police power (e.g.; although the officer has no power to compel a
person questioned to answer, if the suspect so chooses, his answers are admissible if it can be proved that he statements were
voluntary (R v. Esposito)). There are limits to consent.
Search / Seizure: s487-9
Historical common law powers of the police include the power to search incident to an arrest (confirmed in Cloutier v.
Langlois), in order to prevent the destruction of any evidence that might be in the immediate control of the accused; or to enter a
private dwelling in hot pursuit of a person fleeing arrest.
When determining if the police power in question will be supported under common law, (i.e.; whether the court will support the
police power in question) the test is: does the conduct fall within the general scope of any duty imposed by statute or recognized
at common law; and does the conduct, albeit within the general scope of such a duty, involve an unjustifiable use of powers
associated with the duty (R v. Waterfield)
The decision to grant or withhold a warrant requires the balancing of the interest of the individual to be free from intrusions
of the state, and of the state to intrude on the privacy of the individuals for the purpose of law enforcement (Baron v. Canada)
The police can’t just say that they believe evidence will be found, but rather they must inform the issuing justice with some
reasonable degree of precision, what evidence will be found, so that the person whose property is searched is sufficiently
informed of the reason for the search.
R. v. Spencer, 2014 SCC 43 (unreasonable search)

SIGNIFICANCE:
 A landmark case that clarifies the Supreme Court of Canada’s (SCC) position on what constitutes a reasonable expectation of
privacy in the digital age.
FACTS:
 Mr. Spencer downloaded child pornography through an Internet file-sharing service.
 He was living with his sister at the time and using Internet services supplied under her name.
 In 2007, police identified a public sharing folder containing pornographic material and contacted Shaw, the ISP, to trace the
folder’s IP address to a name and physical location.
 Until this point, all of the information gathered by the police was publicly available; however, the police needed Shaw’s
cooperation in order to locate the computer and identify Mr. Spencer.
 Shaw provided Mr. Spencer’s sister’s personal information to the police, which they then used to obtain a search warrant. Mr.
Spencer was subsequently identified, charged, and convicted of possessing child pornography.
 Mr. Spencer appealed his conviction on the grounds that acquisition by the police of the subscriber information and the
resulting search of his computer constituted an unreasonable search and seizure, contrary to his s. 8 Charter rights.
HELD (conviction upheld)

 The Court of Appeal of Saskatchewan dismissed the appeal, finding that the police’s actions in obtaining the subscriber
information did not constitute a search under the circumstances.
 On further appeal to the Supreme Court of Canada, the court overturned the lower court’s determination as to whether an
unlawful search had occurred.

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 It was decided that Mr. Spencer did indeed have a reasonable expectation of privacy over his Internet activities in his own
home and the police had no lawful authority to obtain the subscriber information. As a result, the police’s actions amounted
to an unconstitutional search.
 In making this determination, the Supreme Court held that, “Anonymity may, depending on the totality of the circumstances,
be the foundation of a privacy interest.”
o However, the court noted that such an interest falls short of being a “right" that might otherwise preclude disclosure
under lawful process.
 Notwithstanding the court's determination that an unlawful search had occurred, the Supreme Court was not prepared to
exclude the evidence obtained from the search warrant because to do so would bring the administration of justice into
disrepute.
 As a result, Mr. Spencer’s conviction on possession was affirmed and the Court of Appeal's order for a new trial on the
charge of making available pornographic material was upheld.
R. v. MacDonald, 2014 SCC 3

FACTS:
 Police responded to a noise complaint at M’s home in Halifax.
 When M opened the door, an officer observed that M had an object in his hand, hidden behind his leg. The officer twice
asked M what was in his hand.
 Because M did not answer, the officer pushed the door open a few inches further to see.
 A struggle ensued and M was disarmed of a loaded handgun.
 M was licensed to possess and transport the handgun in Alberta, but not Nova Scotia as he believed he was.
 At trial, the judge concluded that M’s possession of the gun was unauthorized.
 He also concluded that the officer’s pushing the door open further did not breach M’s s. 8 Charter right to be free from
unreasonable search.
 The trial judge convicted M of careless handling of a firearm (under s. 86 of the Criminal Code), possessing a weapon
for a dangerous purpose (s. 88), and possessing a loaded restricted firearm (s. 95).
 The trial judge sentenced M to a three‑year imprisonment and a 10‑year weapons prohibition.
 A majority of the Court of Appeal upheld the trial judge’s decision that the officer did not breach M’s s. 8 Charter right.
It upheld M’s ss. 86 and 88 Criminal Code convictions, but significantly reduced the sentences. However, the Court of
Appeal allowed M’s appeal of his s. 95 conviction and substituted an acquittal.
HELD:
 The appeal of the s. 8 Charter issue should be dismissed and the Crown’s appeal of the s. 95 Criminal Code acquittal
should be allowed. The matter is remitted to the Court of Appeal for sentencing.
 The search was reasonable, there was no s. 8 breach and no need to consider s. 24(2).
ANALYSIS
 Justice Lebel, writing a four judge majority opinion, found the sergeant's actions did amount to a search. People have a
strong expectation of privacy in their homes and approaches. Although police have an implied licence to approach the
door of a residence and knock, their actions constitute a search if they exceed the conditions of that licence.
 Lebel termed this type of action a "safety search," a reactionary measure reasonably necessary to eliminate threats to
public or police safety. He described it as a "physical search that could uncover a broad array of information about an
individual."
 A warrantless search will be reasonable if it is authorized by reasonable law and carried out in a reasonable manner. In
this case, the majority found that "the duty of police officers to protect life and safety may justify the power to conduct a
safety search in certain circumstances. At the very least, where a search is reasonably necessary to eliminate an
imminent threat to the safety of the public or the police, the police should have the power to conduct the search.
 In this case, the officer had "reasonable grounds to believe that there was an imminent threat to the safety of the public
or the police and that the search was necessary in order to eliminate that threat." MacDonald had his hand behind his leg,
was clearly holding a "black and shiny" object which could have been a weapon and refused to answer or provide any
explanation when twice asked about it.
Warrantless searches are, prima facie, unreasonable under section 8 (Hunter v. Southam);
R v. Aucoin: Did The Police Officer Really Act In Good Faith? Examines the nature and scope of police powers.
- But it also raises the question of when the police can be considered to have acted in good faith and without deliberate
disregard for or ignorance of the Canadian Charter of Rights and Freedoms.

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- In particular, when there is evidence that a police officer was expected to know that his conduct could result in the
breach of the Charter and acted recklessly, he had no reasonable grounds for the search, there were less intrusive
alternatives open to him than detaining the accused in his car and the officer admitted that he conducted himself in that
manner repeatedly, can it still be concluded that the police officer acted in “good faith”? According to Justice
Moldavar, writing for the Majority in R v. Aucoin, it seems the answer to that question is yes.
- He held that the breach was “not sufficiently egregious to warrant the exclusion of the cocaine from evidence”
and therefore dismissed the appeal.
- Dissent: Justice Lebel found that less intrusive alternatives were open, therefore, the evidence obtained was in violation
of Mr. Aucoin’s Charter rights
Detention:
Section 10 gives various rights on arrest or detention – detention can include not only those situations where the police have an
actual legal power to compel a person to remain, but also some situations of ‘psychological detention’ in which no such power
exists, yet the person complies with the police demand nonetheless.
The court has recognized the concept of psychological detention because most people don’t know whether they are, in fact,
compelled to comply with police requests or not; and so, cooperation can’t always be seen as truly voluntary (R v. Therens)
R v. Grant – [2009]– young back guy stopped by three cops, detained prior to counsel
Facts: The officers, W and F in plainclothes and an unmarked car, were patrolling high crime area; the accused, a young
black man, came to the attention of W and F; W and F approached and identified themselves as cops and stood
behind G, obstructing the way forward; he said some weed and a weapon; the officers arrested seized the weed and
the weapon
Issues: Was the accused’s section 9 and 10 rights violated
Held: Admission of the gun would not bring the administration of justice into disrepute
- Detention under sections 9 and 10 refers to a suspension of the individual’s liberty interest by a physical or
psychological restrain – psychological detention is established when a (modified) reasonable person would conclude by
reason of the state conduct that he had no choice but to comply
- The accused was detained within the meaning of sections 9 and 10 before being asked the questions that led him
to disclose his possession of the firearm.
- Power balance was exacerbated by the accused’s youth and inexperience
- The right to counsel arises upon detention, and in failing to do so, the evidence of the firearm was obtained in a
manner that breached the accused’s rights under the charter
- Exclusion of evidence, under section 24(2) aimed at systematic concerns and the repute of the justice system – the
decision has to consider the effect of admitting the evidence on society’s confidence in the justice system and society’s
interest in the adjudication of the case on its merits.
- Although the gun was discovered as a result of the accused’s statements taken in breach of the charter, the charter-
infringing police conduct was neither deliberate nor egregious, and there seems to be no evidence of racial profiling or
discriminatory police practices
R v. Suberu – [2009]– cop tells suspect not to get into van and then gets info to arrest
Facts: Officer R responded to a call about two male suspects attempting to use a stolen credit card at a store; S walked by R
and said “he did it, not me”; R followed S outside and told him to wait as S was getting into the driver’s seat of a
minivan; R received more information by radio which matched the van S got into; at this point R decided he had
reasonable and probable grounds to arrest S of fraud; at trial, S claimed his section 10(b) rights had been
infringed because he was detained as soon as R told him to wait, and that R’s failure to tell him of his section 10(b)
rights at that point was a charter violation;
Issues: Were the accused’s charter rights violated when he was detained
Held: The appeal should be dismissed

- The police duty to inform an individual of his section 10(b) right is attracted at the outset of an investigative detention
because of concerns about self-incrimination and the interference with liberty
- The words “without delay” in section 10(b) must be interpreted as immediately; however, reasonable limitation as to
the immediacy is justified under section 1 where there is concern for officer/public safety

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- Though S was momentarily delayed when R asked to speak to him, he was not subjected to physical or psychological
restrain so as to amount to detention within the meaning of the charter – he didn’t testify, and the evidence did not
support his contention that his freedom to choose to cooperate was removed – it was only when R received the additional
information and determined that he could not let S leave that the detention was crystallized and section 10 was attracted
(and it was at this point that R promptly and properly informed S of his rights to counsel)

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[F]. GETTING TO THE TRIAL: TAKING CONTROL OVER THE ACCUSED
1. SECURING JURISDICTION OVER THE ACCUSED and INTERIM RELEASE
Gaining jurisdiction over the accused s485
A court must not only have jurisdiction over the matter of an offence, but also the accused – and this is done if the accused is within
the territorial limits of the court’s jurisdiction or has otherwise been lawfully ordered to appear before the court.
The court has no jurisdiction over:

- diplomats; persons under the age of twelve as they are presumed to be incapable of crime
- no jurisdiction to try a charge that was not actually an offence when it occurred (no retrospective laws)
The Arrest: s.10(b)
- Police have specified powers to arrest individuals – so do non-police officer

- Arrest (i.e.; taking physical control over the subject) is to be used as a last resort when other, less intrusive measures available
for ensuring the good conduct and attendance before the criminal justice process (such as appearance notice, promise to
appear, summons) are not practical or desirable.
- When a person is arrested, he must be released or given a bail hearing where it will be decided whether he should be released
absolutely, released subject to conditions, or held in custody pending trial.
- Must be a balance between legitimate state interest in prosecuting crime and individual freedom
- The majority of arrest powers are intended to compel the appearance of the accused
The Specifics:
- Arrest is a continuous act, starting with the moment of custody and extending until the person is either released.
- Arrest warrant only be issued after information sets out the reasonable grounds to believe that a person has committed an
offence is laid before a justice;
The Requirements:
- Section 29  anyone who arrests a person has to give that person notice of the process (or warrant) under which the arrest
is made, and the reason for the arrest – furthermore, section 10(a) of the charter creates the right to be informed promptly on
arrest of the reasons therefor, giving the accused sufficient information to decide whether to submit to the arrest and to make
an informed choice about the right to counsel
- Warrantless arrests are governed by section 494 and 495 which create a number of arrest powers available to anyone
o The ‘finds committing’ standard requires that the person arresting actually have witnessed the commission of the
offence
o Section 25(1) permits anyone making a lawful arrest in using as much reasonable force as necessary to do so
The ‘reasonable grounds to believe’ standard requires the person performing the arrest subjectively believes that the
person has committed the offence, and that the belief is objectively justifiable – more than a mere suspicion is necessary
A ‘standard caution’ (equivalent of Miranda rights) is read to the accused so as to instruct the accused as clearly as
possible about his rights upon arrest (including right to counsel, access to duty counsel); these informational aspects of the
section 10(b) right arise in every arrest
Counsel Requirements:
- When an arrested person has expressed a wish to speak to counsel, he has to be provided with a reasonable
opportunity to do so, unless there is a situation of urgency in which case the obligation may be temporarily
postponed (R v. Manninen); including the right to do so in private (R v. Playford) with the counsel of his choice
(R v. Ross)
- When an arrested person has requested counsel, the police must hold off from questioning and eliciting evidence
from the accused until he has had a reasonable opportunity to contact his counsel
- A person who has been arrested and has already spoken with counsel may then be questioned by police;
Compelling appearance without arrest

- The code provides powers to the police to require an accused to attend court through some type of written demand or to arrest the
person
- An appearance notice directs the person to whom it is issued to appear in court at a specified date, time, place; failure to comply
therewith is an offence
- A promise to appear is a written promise by the accuse to attend court at a specified date, time; failure to comply therewith is an
offence
- A recognizance is a written acknowledgement of a debt which would be forfeited upon failure to appear in court

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Bail Hearings: Note : Very important for the exam to know the factors below
- Judicial interim release (i.e.; bail) is a statutory preference for interfering with liberty as little as necessary – that an accused
should be released pending trial and with as few restrictions as possible;
- Accused must be brought to justice without unreasonable delay, so as to guarantee a speedy consideration of release, and that he
justice shall order the accused released on an undertaking without conditions (unless the crown can show cause as to why
something more restrictive is justified)
- Section 515(2) sets out that, in order to ensure that the accused attends court or to ensure the safety of the community while
the accused is on release, these restrictions imposed on an accused as conditions of release can be: undertaking with conditions or
recognizance (without surety, without deposit; with surety; without surety, but with deposit; with surety, with deposit)
- The crown may show cause as to why the accused should remain in custody until trial: (section 515(10)(a)) to ensure the
accused’s attendance in court; (section 515(10)(b)) that it is necessary to do so for the prosecution or the safety of the pubic
(including victims and witnesses); (section 515(10)(c)) on any other just cause being shown where the detention is necessary in
order to maintain confidence in the administration of justice.
R v. Hall – [2002]– brutal murder leads to denial of bail for confidence in administration of justice
Facts: Woman was found brutally murdered causing public concern and fear that a killer was at large; based on compelling evidence
linking the accused to the crime, he was charged with first degree murder; he applied for bail; bail judge denied bail under
section 515(10)(c) in order to maintain confidence in the administration of justice; the superior court dismissed the challenge
to the constitutionality of section 515(10)(c); court of appeal affirmed the decision; appeal to supreme court
Issues: whether bail judge erred by denying bail on the basis of 515(10)(c)
Held: the appeal should be dismissed
- Section 11(e) of the charter guarantees a right not to be denied reasonable bail without just cause and the presumption of
innocence
- Denial of bail to maintain the confidence in the administration of justice (as per section 515(10)(c)) complies with section
11(e) of the charter because a judge can only deny bail if he is satisfied that a reasonable member of the community would
be satisfied that the denial of bail is necessary to maintain the confidence in the administration of justice
- The provision strikes a balance between the rights of the accused with the need to maintain justice in the community
JUDICIAL INTERIM RELEASE

(Bail Hearings)
(pp. 178-184 Coughlan)
General Assumption: an accused should be released pending trial with as little restrictions as possible.
- “ladder approach” to bail
- accused presumed entitled to release and crown must justify each increasing step of intrusiveness i.e. give reasons as to why
interim release should not be granted
- justice has discretionary power to adjourn bail hearing up to three days without consent of the accused
- longer delays possible, but consent of accused required
Key Legal Principle: A must be brought to justice without reasonable delay (upholds Charter rights protecting freedom e.g. s.8
unreasonable search and seizure; s. 9 arbitrary detention)
- s. 515 Code – justice shall order that the accused is released on an undertaking without conditions unless crown shows cause
as to why something more restrictive is justified
- “show cause” hearings, held in front of justice, JP often provincial court judge
- s. 515(2) Code sets out range of restrictions on liberty, short of detention, that can be imposed on an accused as conditions of
release
- judge may not make order under (b) to (e) unless prosecutor shows just cause to do so
- s. 515(4) to 515(4.3) – various types of conditions that may or must be imposed when an order for release is made under
s.515(2)
o all related to ensuring A attends court or ensuring safety of community while A on release
- causal relationship between crime charged and particular condition imposed but need not be specific
- crown might show cause as to why A should remain in custody until trial
- s. 515(1) specifies 3 grounds on which continued detention of an accused may be ordered
o (a) detention is necc. to ensure A’s attendance in court; or
o (b) detention is necc. for protection or safety of public
o (public includes victims, witnesses and persons under 18, justice is to consider all circumstances including any
substantial likelihood A will commit a criminal offence or interfere with admin. Of justice if released)

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o *third ground is more controversial

o (c); ref. cc – s. 515(10)(c) – enumerated considerations where detention is necessary
o SCC in R v. Hall upheld this provision regarding other circumstances for detention
- 515(5) where prosecutor justifies continued detention by showing cause, justice must add statement of reasons for decision to
warrant of committal
EXCEPTIONS: *Above is gen. scheme WRT bail hearings but two exceptions to general approach for/against granting bail
- Exception 1);
- S. 515(6) lists a number of offences for which onus is reversed i.e. accused detained unless they are able to show cause not to
be detained, granting interim release
o Often arises where A not resident in Canada
o Other reverse onus offences in s. 515(6) involve cases where;
 a) offence charged was alleged to be committed while A already out on bail (charter challenged)
 b) offence charged was a criminal organization, terrorism, national security offence
 c) offence related to failing to attend court as ordered in some previous proceeding
 d) offence punishable by life imprisonment under Controlled Drugs and Substances Act (charter
challenged)
*Must also demonstrate why conditions on interim release should not be imposed in addition to reverse onus
- Exception 2); s. 469 offences; Murder

- s. 515(11) justice has no authority to release accused however under s. 522 judge of superior court may decide in a hearing
where there is a reverse onus for accused to justify release
- s. 518 - normal rules of evidence and admissibility of evidence do not bind bail hearings
- questions put to accused at bail hearing should be confined to matters relevant to determination of hearing (avoid self-
incrimination),
- accused cannot be examined about circumstances of alleged offence but may be questions under oath WRT matters for
release
- issue arises: prosecutor entitled to produce evidence of alleged offence and probability of conviction when contesting release
- s. 517 – where Crown seeks to show cause for accused to be detained pending trial, accused is entitled to mandatory
publication ban on all evidence and representations made at hearing
- s. 517 ban justified under s. 1 of charter; necessary to protect rights of accused for a fair trial
- s. 524 – A who has or is about to violate some condition of release can be arrested with or without warrant
See Bottom Notes for Judicial Review of Bail Hearings

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[G]. GETTING READY FOR TRIAL
- The charter plays an important role in the criminal trial process by ensuring that the trial is conducted in a fair manner
o The broad guarantee that everyone has a right to life, liberty, and security of the person, and that the same can only be
taken away in accordance with the principles of fundamental justice effects all aspects of the criminal process
- Under section 11(b), the crown is required to provide a trial in a reasonable time; otherwise the accused can be entitled to a stay
of proceedings (R v. Askov)
1. DISCLOSURE
- Disclosure is a right of the accused (legal right)  an important obligation of the crown is to make full disclosure of all
information gathered or made known to the police during the investigation
- The information of the investigation aren’t the property of the crown for use in securing a conviction, but rather are the property
of the public to be used to ensure that justice is done.
- The accused may also seek to secure relevant “third party records” – relevant documents that are not the fruits of the
investigation that are under the control of persons other than prosecution and police
- Disclosure is to be made before the accused is called upon to elect his mode of trial for s.536 indictable offences.
Purpose: Protects the accused’s right to make full answer and defence - section 7 (interpreted to provide the accused with a
right to make full answer and defence in response to the criminal charge
o R v. Stinchcombe concluded that an accused person has the right to disclosure of the crown’s case under section 7 of the
charter (before this point, there was no effective right thereto)
o Although the crown has an obligation not disclose, a simple breach of the accused’s right to disclosure doesn’t, in and of
itself, constitute a charter violation (R v. O’Connor)
o The test is: was the accused’s right to disclosure breached; if so, did that breach violate the accused’s right to make full
answer and defence; if so, what remedy should be granted
- The crown need not disclose what is clearly irrelevant (R v. Stinchcombe)
R v. Stinchcombe – [1991]– crown didn’t disclose content of statements to defence (must disclosure ALL RELEVANT info)
Facts: The accused, a lawyer was charged with breach of trust, theft, and fraud; his former secretary gave evidence favourable to the
defence at the preliminary hearing; after the preliminary inquiry, but prior to trial, she was interviewed by the police, and her
statement was recorded; request for disclosure was denied.
Issues: Whether the crown is obliged to disclose the statements

Held: The appeal by the accused should be allowed and a new trial ordered
 The crown has a legal duty to disclose all relevant information to the defence
 Why?  Information should not be withheld if there is a reasonable possibility that this will impair the right of the
accuse to make full answer and defence.
 Relevance is assessed in relation to the charge itself and to the reasonably possible defences
R v. McNeil – [2009] SCC 3 – SCC – disclosure of witness’s (arresting officer) misconduct documents (3rd party relevance)
Facts: Accused was convicted on multiple drug charges; arresting officer was the main witness; before sentencing, accused found
out arresting officer had been involved in drug-related misconduct; subsequently, the arresting officer pleaded guilty to one
of the and that evidence was admitted on the accused’s appeal; the accused’s convictions were set aside and the crown did not
re-prosecute him
Issues: Do the rules governing third party disclosure apply
Held: The appeal is allowed and the order in the court below is set aside
 Under the Stinchcombe regime, the crown’s disclosure obligation extends only to material relating to the accused’s case in
the possession or control of the crown
 There is also a necessary and collar obligation on the police to disclose to the crown all the material it has pertaining to its
investigation of the accused
 Records relating to misconduct by the officers involved in the investigation of the accused, within the scope of first party
disclosure that the crown is under

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 (R v. O’Connor) with third party disclosure issues, the person seeking production of the documents in the possession of a
third party has to satisfy the court that the documents are likely relevant to the proceedings; and if the court agrees, once
those documents are produced for inspection by the court, the court can determine whether production of those documents
should be provided for the party applying
 Once the court has inspected the third party records and ascertained that they are relevant to the accused’s case (that
they pertain to an issue at trial), then the Stinchcombe regime applies, of determining and balancing the interest
of whether the disclosure for the purpose of making full answer and defence will outweigh the privacy interest held
by the third party in the material
2. PRELIMINARY INQUIRY
 Before an accused is tried for an indictable offence, a preliminary hearing may be held at the request of the accused (the
prosecution can also request it)
 At the preliminary inquiry, the judge must determine whether the crown has presented a prima facie case – one of the central
functions of a preliminary hearing is to serve as a screening mechanism for unmeritorious prosecutions
o If the crown has been able to prove a prima facie case, the accused is committed to stand trial
o If the crown hasn’t done so, the accused is discharged, which is not an acquittal. Prosecution can re-charge, re-lay
charges.
 The scope of the inquiry is defined by section 535; whereby the scope is not strictly limited to the offences as charged in the
information, but can extend to any indictable offences disclosed by the evidence.
 The defence is entitled to cross-examine the prosecution witnesses at the preliminary hearing on any matter that could lead to the
conclusion that the prosecution evidence is insufficient; but, as per section 537(1.1), the judge has the power to stop any part of
the cross-examination that is abusive, too repetitive, or otherwise inappropriate.
 The test of sufficiency is the air of reality test (i.e.; whether a reasonable jury, properly instructed, could find the charge proved
beyond a reasonable doubt – R v. Shephard) – it is not for the judge at this point to assess the weight or credibility of the evidence,
but rather that if the evidence were to be believed by the judge or jury at trial, would it be sufficient
R v. Arcuri – [2001]
Facts: Accused was charged with first degree under; at the preliminary inquiry, the crown’s case was entirely circumstantial; and the
accused called two witnesses whose testimony was exculpatory; the judge rejected the accused’s contention that the must
weigh the evidence; instead, he viewed the evidence as a whole and committed the accused to trial for second degree murder;
Issues: Did the preliminary inquiry judge, in determining whether the evidence was sufficient to commit the accused to trial, err in
refusing to weigh the prosecution’s evidence against the accused’s evidence
Held: The appeal should be dismissed (did not err)

o The justice should undertake a limited weighing of the evidence, including any defence evidence, to determine
whether a reasonable trier of fact could return a finding of guilt; as such, he is not entitled to draw any inference from the
evidence or assess the reliability or credibility thereof
o under section 548, the judge is required to question whether there is any evidence upon which a reasonable jury
properly instructed could return a verdict of guilty
o i.e.; it is an assessment of the reasonableness of the inferences to be drawn from the circumstantial evidence
o The judge in this case did not err in arriving at the result to commit the accused to trial

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3. THE JURY TRIAL
 An accused who faces five years of imprisonment or more has the right to trial by jury (section 11(f))
 The jury consists of 12 citizens representing a cross-sample of the public in the place where the case is tried
 Once the jury array has been assembled, the code governs the remaining selection procedures
Selection: The jurors’ names are pulled randomly (section 631), and this continues until, after excluding jurors that are pulled
in the order they are pulled, twelve jurors are selected
Exclusion: The methods of exclusion are: exemption, challenge for cause, and peremptory challenge
o Section 632 allows a trial judge to excuse jurors based on personal interest in the matter to be tried, or relationship
with the judge or any of the parties, counsel, or witnesses; and personal hardship or other reasonable cause (though
this is typically done before the individual juror’s names are randomly pulled)
o the parties can then make challenges for cause that remain after any exemptions are granted
 Section 638 sets out the ground upon which a juror may be challenged for cause; although both defence and
crown are entitle to an unlimited number o challenged for cause, the grounds on which those challenges can
be made, however, are strictly set out
 The juror can have: an interest prejudice (where he has a direct interest in (relationship to one of the parties or a witness of) the
trial); a specific prejudice which consists of attitudes of beliefs about the particular case; generic prejudice which consists of
stereotypical attitudes towards the accused the victim, the witnesses, or the nature of the crime; and conformity prejudice,
whereby a juror might feel influenced by strong community feelings about an expected outcome
 The jury deliberates in secret and must agree unanimously to a verdict; if they cannot agree, they are a hung jury, and a new trial
may be held
R v Find (2001):
Facts: The accused was charged with 21 counts of sexual offences. Prior to jury selection, he applied to challenge potential jurors
for cause, arguing that the nature of the charges against him gave rise to a realistic possibility that some jurors might be
unable to try the case against him impartially and solely on the evidence before them. The trial judge rejected the application.
Held: The appeal should be dismissed. The nature of the charges against the accused did not give rise to the right to challenge
prospective jurors for cause on the ground of partiality.
 Section 638(1)(b) permits a party to challenge for cause where a prospective juror is not indifferent between the Crown
and accused. Lack of indifference constitutes partiality. Establishing a realistic potential for juror partiality generally
requires satisfying the court on two matters: (1) that a widespread bias exists in the community; and (2) that some jurors
may be incapable of setting aside this bias, despite trial safeguards, to render an impartial decision.
R v. Yumnu, 2012,
Facts: Yumnu was convicted by jury of two counts of first degree murder and two counts of conspiracy to commit murder. The
accused appealed, alleging that the jury selection was flawed because the prosecutor had information about prospective jurors
that was not disclosed to their trial counsel. They also claimed that the trial judge’s final instructions to the jury were riddled
with errors.
Held: The Supreme Court of Canada dismissed the appeals. The Crown should have disclosed to the defence (as per s7)
information it received that might have been relevant to the selection process. However, there was no serious interference
with the administration of justice. It was not so offensive to the community’s sense of fair play and decency that the
proceedings should have been set aside as a miscarriage of justice.

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4. PRE-TRIAL MOTIONS
 Preliminary legal issues to be resolved before the trial gets under way; these are usually dealt with by the trial judge – in the case
of jury trials, it is better to resolve such issues either before the jury is selected, or in the absence of the jury
 Section 625.1 permits pre-hearing conferences to consider matters that, to promote a fair and expeditious trial, would be better
decided before the start of the proceedings.
 Motion that can be made on a pre-trial basis is concern over the fitness of the accused to stand trial – a mental disorder
 Everyone is presumed to be fit to stand trial under section 672.22;
 The judge must first consider whether there are reasonable grounds to decide whether the accused is unfit to stand trial;
and if so, then the actual question of fitness is decided
 Many different charter motions can be brought up throughout the trial, but the two that are most relevant at the pre-trial stage are:
 trial within a reasonable time – section 11(b) guarantees any person charged with an offence the right to be tired within
a reasonable time (R v. Smith, developed the test)
 R v. Askov, and R v. Morin developed the test for deciding section 11(b) claims – the court noted that some delay is inevitable,
but the question is at what point does the delay become unreasonable – to determine that question, four general considerations
must be weighed
 the length of the delay – in essence this helps to determine whether there is a delay so as to require explanation
 waiver of time periods – the accused cannot agree to certain delay and then later complain of it
 the reasons for the delay -
 prejudice to the accused – section 11(b) protects against various forms of prejudice such as threats to security of the
person (by seeking to minimize the anxiety, concern and stigma of exposure to criminal proceedings), to liberty (which
results from pre-trial incarceration and restrictive bail conditions), and to the right to a fair trial (is protected by
attempting to ensure that proceedings take place while evidence is available and fresh)
 abuse of process and fair trial rights – most motions for abuse of process will not be brought on a pre-trial basis (e.g.;
entrapment will depend on the evidence that emerges at trial), but it can be available pre-trial if the case can be shown to
be tainted to such a degree that to allow it to proceed would tarnish the integrity of the court (R v. Conway)

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[H]. SENTENCING
Most accused plead guilty to some charge and proceed directly to sentencing without a trial; a significant number of people who do go
to trail are convicted of some offence and are thereby subject to sentencing.
The fundamental principle of sentencing as per section 718.1 is that a sentence must be proportionate to the gravity of the offence
and the degree of responsibility of the offender (that the punishment should fit the crime, and that an offender shouldn’t be treated
more harshly than the crime warrants)
Other purposes of sentencing include: (1) deterring others from committing crimes; (2) deterring the particular offender from
reoffending; (3) rehabilitating the particular offender; (4) providing reparation for harm done to victims and/or the
community; (5) denouncing unlawful conduct; responsibility in the offender, and acknowledgement of the harm done to the
victim and the community
Section 718.2(b) requires that a sentence should be similar to sentences imposed on similar offenders for similar offences
committed in similar circumstances
Section 718.2(d) and (e) codify the principle of restraint in punishments by instructing the judge not to deprive the
offender of liberty if a less restrictive sanction may be appropriate in the circumstances, and to consider all available
sanctions other than imprisonment that are reasonable in the circumstances
Courts consider a wide range of aggravating and mitigating factors

 Aggravating: his degree of participation in the crime; planning and deliberation; breach of trust; use of violence and weapons;
harm to victims; that he crime was motivated by bias, prejudice or hate, involved spousal or child abuse, or an abuse of position
of trust or authority; prior convictions –
 Mitigating: good character, youth, old age, ill health; remorse; early guilty plea; provocation – aggravating or mitigating,
depending on the circumstances and the purposes of punishment that are stressed: alcohol and drugs; social status; prospects of
rehabilitation an future danger; goals of the general deterrence and denunciation policies
GENERAL PRINCIPLES OF SENTENCING
Main principles of criminal justice with regards to punishment are: (S 718) deterrence, reformation, retribution, reparation
 Section combines concerns about proportionality by its reference to just sanctions with concerns about the future through its
concern for promoting a peaceful and safe society
 General deterrence - which is concerned with the effect of punishment in deterring others from committing similar offences –
courts consider general deterrence as a factor in crimes like drunk driving, sexual assault, where there is widespread concern
about the prevalence of such crimes and a desire to change human behaviour, and section 718(b) recognizes this principle).
 Specific deterrence - which is concerned with the effect of punishment in deterring the particular offender from committing
subsequent crimes – including incapacitation or rehabilitation of the offender, if that is the only way to prevent him from
committing future crimes;
 Section 718(d) provides that one of the objectives of sentencing is to assist in rehabilitating offenders
 Section 718.01 – sentences for offences against children (i.e.; those under the age of eighteen), the court shall give primary
consideration to the objectives of denunciation and deterrence of such conduc
 Section 718.1 states the fundamental principle that a sentence must be proportionate to the gravity of the offence and the
degree of responsibility of the offender
o Proportionality is a retributive concept that focuses on the offender’s conduct as opposed to concerns about future
effects of the punishment on the offender or others - it restrains punishment to ensure the imposition of a just and
appropriate punishment, and nothing more
 Section 718.2 provides that a sentence should be increased or reduced to account for aggravating or mitigating circumstances,
that a sentence should be similar to other sentences imposed in similar circumstances, that the least restrictive sanctions should be
identified and that available sanctions other than imprisonment should be considered

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R v. Nasogaluak – [2010] SCJ 6 – SCC – officers abuse drunk driver, reduced sentence, but must be within statutory power
Facts: RCMP got a tip about drunk driver; there was high-speed pursuit, after which accused stopped the car and swung his
feet out; officer ordered him to put his feet back in the car, accused refused; he was punched a second time, breaking his
ribs and puncturing one of his lungs; accused then gave breath sample that placed him over the limit; he entered a guilty
plea; at sentencing, judge found police actions constituted a violation of charter rights and excessive; as a remedy for
the charter breaches, the accused was given a reduced sentence
Issues: Was the court right in ordering the reduced sentence

Held:
o The sentencing judge committed no error of law in choosing to take this conduct into consideration towards reduced
sentence
o The court is able to consider not only the actions of the offender, but also of the state actors; however, the
sentencing judge has to exercise his discretion within the parameters of the statute
o Therefore, although the conduct led to reduction of sentence, the sentencing judge erred in ordering a sentence
that fell below the statutory minimum of the code.
R v. C.A.M. – [1996] 1 SCR 500 – SCC – cumulative sentence for accused who sexually, abused his kids
Facts: Accused pleaded guilty to several counts of sexual assault, incest, and assault with a weapon; trial judge, remarking
that the offences were egregious as any he had ever dealt with, sentenced the accused to a cumulative 25 years’
imprisonment (with some sentences running consecutively, and others concurrently;
Issues: Did the sentencing judge err in ordering the 25 years cumulatively
Held: Appeal should be allowed, and the sentence of 25 years’ imprisonment restored
o Code sets maximum terms in accordance with the severity of each crime, however it is silent on whether
there is an upper limited on non-life terms of imprisonment (whether as a single sentence, or as a sentence
for consecutive terms of multiple offences) – however, the cumulative sentence rendered shouldn’t exceed the
overall culpability of the offender
R v. Priest – [1996] OJ 3369 – youthful first time offender sentenced to one year
Significance: The prevalence of crime in the community should be taken into consideration when imposing a sentence,
however this can’t be the main concern; the sentence should have regard to particular offence and the
offender. Accused was a youthful, first time offender; the sentence should have been tailored to the
individual’s circumstances, and not as a warning to others; the sentence was not proportional to the
gravity of the offence and the offender
R. v. Pham [2013] (main case  discretion)

- This case deals with the question of what factors a court should consider when crafting a just and fair criminal sentence.
- Under immigration law, criminal sentences of a certain length trigger additional immigration consequences for non-citizens,
including the potential for deportation.
Held: The appeal should be allowed and the sentence of imprisonment reduced to two years less a day.
- A sentencing judge may exercise his or her discretion to take collateral immigration consequences into account, provided that
the sentence ultimately imposed is proportionate to the gravity of the offence and the degree of responsibility of the offender.
- However, it remains that they are but one of the relevant factors that a sentencing judge may take into account in determining
an appropriate sentence.
- It was wrong for the Court of Appeal to refuse the sentence reduction based solely on the fact that the accused had a prior
criminal record or on its belief that the accused had abused the hospitality that had been afforded to him by Canada. It is
therefore appropriate to grant the variation of the sentence from two years to two years less a day. .
(a) Procedure
 Sentencing judges can call the production of evidence and compel the attendance of witnesses at sentencing hearings
 Judges are required to provide reasons for their sentences (section 726.2)
 Victim impact statements and reports by probation officers can be introduced as evidence in the sentencing hearing
 Unless a sentence has been fixed by law, both the accused and the crown can appeal the sentence ordered
(b) Incarceration
 section 732 – intermittent sentencing
 section 743 – when convicted of an indictable offence for which no punishment is specifically provided is liable to
imprisonment for a term not exceeding five years

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 section 743.1 – anyone sentenced to life or two or more years will serve the imprisonment in a penitentiary; anyone sentenced
to a term less than two years, shall serve it in a prison or other place of confinement, other than a penitentiary, within the
province in which he is convicted
 section 745 – sentence of life imprisonment
 section 718.3(4) – cumulative punishments
(c) Probation and Community Service

 After convicting an accused, the court can suspend sentence and make a probation order
 Section 731 provides that courts make probation orders having regard to the age and character of the offender, the nature of the
offence, and the circumstances surrounding its commission
(e) Fines
 Fines are commonly used in addition to, or as an alternative to, imprisonment
(h) Restitution
 Section 738 allows judges to order restitution for property damage, pecuniary damage arising from offences involving
bodily harm, and reasonable and readily ascertainable expenses when a spouse and children move from an offender’s
household in cases involving bodily harm or the threat thereof to the spouse or children
 Useful and effective tool in the sentencing procedure that can help rehabilitate the accused, provide benefits for the victim, and
benefit society by reducing the use of imprisonment
(j) Sentencing Aboriginal Offenders

 Section 718.2(e) instructs judges to consider all available sanctions other than imprisonment that are reasonable in the
circumstances for all offenders, but with particular attention to the circumstances of Aboriginal offenders
 Designed to remedy the over-incarceration of Aboriginal people and requires judges to pay attention to the unique
circumstances of Aboriginal offenders, including systemic discrimination
R v. Gladue – [1999] 1 SCR 688 – SCC – Aboriginal woman who stabbed her common-law husband to death
Facts: the accused (and Aboriginal) woman, pled guilty to manslaughter for killing for common-law husband
Issues: should the accused’s Aboriginal status have been taken into consideration
Held: the appeal should be dismissed
 Section 718.2(e) requires a judge to take an accused’s Aboriginal status into account, especially
because of the over-representation of Aboriginals in prisons; however, it is not the sole factor to be taken
into consideration when determining the sentence, it must be considered along with other factors relevant to
the offence
 however, such an error is not sufficient to justify allowing the appeal (the offence was a
particularly serious one - the more violent and serious the offence, the more likely it will be that an
Aboriginal offender will receive the same sentence as a non-Aboriginal offender
(l) Parole
 An offender is eligible for full parole after having served 1/3 of the sentence, with some exceptions
 however, for the sake of denunciation, the sentencing judge can order that a person convicted of sexual or violent offence,
and who is subject to two years or more imprisonment, shall not be eligible for parole until either 1/2 of the sentence or 10
years (whichever is less) has been served (section 743.6)
Constitutional Implications?
R. v. Ferguson 2006
Facts:
- RCMP officer, was dispatched to a hospital and asked to investigate a complaint from Varley. In the course of two men’s
interaction, they became involved in a scuffle, at which point Mr. Ferguson took Mr. Varley into custody on charges of
public intoxication. Ssecond altercation, which culminated in Mr. Ferguson fatally shooting Mr. Varley. Mr. Ferguson was
subsequently arrested and charged with second-degree murder.
Trial:
- At trial, Mr. Ferguson was convicted of unlawful act manslaughter, a crime that carries a four year mandatory minimum sentence
pursuant to s. 236(a).
- Mr. Ferguson argued at trial that a four year sentence constituted cruel and unusual punishment within the meaning of s. 12 of
the Charter.

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- Instead of arguing that s. 236(a) should be struck down, he asked the court to grant him a constitutional exemption.
- R. v. Morrisey [2000] S.C.R. 90. in which Arbour .J., (writing for the minority), contemplated scenarios, in reference to criminal
negligence manslaughter, (s. 220 of the Code), where a mandatory minimum sentence would be “grossly disproportionate.” The
case at bar, Hawco J. concluded was one such scenario
- Held: a two year conditional sentence, to be served in the community, pursuant to s. 742.1 of the Code.
Appeal:
- In evaluating the legitimacy of the trial judge’s s. 12 analysis, Fruman J.A. provided her own, very methodical s. 12 analysis
based on the factors set out in R. v. Latimer [2001] 1 S.C.R. 3. Latimer, (drawing on R. v. Smith, [1987] 1 S.C.R. 1045,
identified several factors on which alleged s. 12 violations are evaluated: (i) the gravity of the offence; (ii) the personal
characteristics of the offender and the particular circumstances of the case; (iii) the effect of a four year mandatory minimum
sentence; (iv) the effect of such a sentence; (v) alternative sentences; and, (vii) sentencing goals and legislative objectives.
SCC:
- Here is no basis for concluding that the four-year minimum sentence prescribed by Parliament amounts to cruel and unusual
punishment on the facts of this case. In the absence of any s. 12 violation, the trial judge’s proper course in the circumstances
was to apply the four-year minimum sentence.
- Inference: "where a mandatory minimum sentence amounts to 'cruel and unusual punishment' and thus a violation under s.
12 of the Charter Of Rights, the only option open to a trial judge is to strike down the legislation itself, even if the mandatory
punishment would be constitutional in the vast majority of cases.

lOMoARcPSD|6130268
[I]. APPEALS AND REVIEW
1. APPEALS of FINAL DECISIONS and JUDICIAL REVIEW of INTERIM DECISIONS

- The final verdicts laid out by judges can be appealed – interim decisions cannot be, Interim decisions can, however, be the subject
of judicial review applications where jurisdictional errors occur.
- Judicial review may be necessary, for example, to challenge preliminary inquiry results, to seek or quash publication
bans, or to suppress or access third party records; in these cases if we wait until the end of the trial, the damage
sought to be prevented may have already occurred, hence the judicial review application.
- There are separate rules for appeals of indictable offences and summary conviction offences – different rights of appeal are
given to the prosecution and the defence in indictable offence appeals; appeal rights are essentially parallel for summary
conviction offence appeals
- Section 675(1)(a) says that a person can appeal a conviction based on: a question of law alone; a question of fact (with the leave
of the court of appeal to do so); inference of fact; a mixed question of law and fact; any ground of appeal that appears to the court
of appeal to be sufficient ground of appeal
- Section 675 sets out the bases upon which an appeal can be made; section 686(1)(a) sets out the filters that restrict the
grounds upon which an appeal can be granted:
 the verdict is unreasonable or cannot be supported by the evidence
 the judgement of the trial court was a wrong decision on a question of law
 there was a miscarriage of justice
- If a full appeal is granted under section 686(1)(a), the court of appeal quashes the conviction; it an then either acquit the
accused, or order a new trial
- When the issue is purely one of question of law, the standard of review is the correctness thereof
- When the issue is question of fact, because trial judges are presumed to be competent an able to decide cases justly and fairly,
allowing an appeal would undermine that presumption as well as the public’s confidence in the trial process,
- section 686(1)(a)(ii) permits an appeal to be granted in the case of a wrong decision on a question of law; section 686(1)(a)(iii)
permits an appeal based on a miscarriage of justice
- Crown appeals can be brought under section 676, however these rights are narrower than the rights of the accused in the case
of a conviction – the crown can’t appeal on the basis that an acquittal was unreasonable or could not be supported on the evidence
- It is possible for evidence to be introduced ion appeal that was not before the trial court; but this is done in a constrained
manner – the guidelines for the same have been put down in R v.
- R v. Lutoslawski – [2010] 3 SCR 60 – SCC – trial court acquitted; court of appeal convicted; supreme court
- **NB: Case is removed from the updated syllabus**
o Facts: accused was acquitted at trial; court of appeal overturned and convicted; accused appealed to supreme court
o Issues: did the court of appeal err in substituting a conviction instead of ordering a new trial
o Held: the court of appeal reached the proper conclusion; appeal by accused is dismissed
o as found by the court of appeal, the trial judge misdirected himself on the question of law
o the crown proved beyond a reasonable doubt that the touching of the victims occurred in circumstanced of a sexual
nature so as to compromise the sexual integrity of the victims
o section 686(4)(b)(ii) permits and appellate court on appeal from a judge alone to enter a verdict of guilty with respect of
the offence of which, in its opinion, the accused should have been found guilty but for the error in law
o the crown established that an error of law was committed at trial, and that but for that error, the accused would
necessarily have been convicted
o the court of appeal

Canadian Criminal Law Notes - Summary

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Crim Notes - Summary Canadian Criminal Law

Canadian Criminal Law (York University)

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CRIMINAL LAW INTRODUCTION

Sources of Criminal Law-------------------------------------------------------------------------------------------------

Frey v Fedoruk [1950] (peeping tom, chased and detained):

The Power to Create Criminal Offences and Rules of Criminal Procedure--------------------------

[a] Constitutional Division of Powers

[b] The Canadian Charter of Rights and Freedoms

Canada (Attorney General) v. Bedford, 2013 SCC 72

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 1) Communicating in public for the purpose of prostitution;

R v Oakes: Example of a rule of criminal procedure being struck down

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Two general categories: “Indictable” and “summary” offences

Interpreting Criminal Provisions-----------------------------------------------------------------------------------------

R v Pare: (Sexually assaulting and then murdering little boy)

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-------------------------CRIMINAL (or Regulatory) OFFENCES/ELEMENTS------------------------------

[1] The PHYSICAL elements, actus reus

[2] The MENTAL element, mens rea

Acts and Statutory Conditions

(ii) Acts must be ‘voluntary’ or ‘willed’

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- Voluntariness is now a requirement built into the actus reus.

R v Daviault: extreme intoxication producing involuntary/unconscious behaviour negates actus reus

R v Ruzic: voluntariness is one of the principles of fundamental justice (section 7 Charter).

The Act of Possession [divide b/w AR & MR not clear]

R v Terrence: [Joint Possession & Constructive Possession]

R v Marshall: [Joint Possession & Constructive Possession]

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R v Morelli: [Possession of electronic data, child pornography]

Consent as an Element of the Actus Reus

R v J.A. (upholding Ewanchuk): consent while unconscious

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Causation = Two Stage Analysis:

[1] Factual Causation:

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- Remoteness of D’s act from prohibited consequences brings about acquittal

R v Smithers: ‘Thin Skulled Plaintiff’ rule (common law rule)

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R v Reid: Jury trial instructions re intervening act

To be Guilty of Omission (failed to act):

Duty Arises When: common law duty OR statutory duty

Failing to Provide Necessities of Life (s.215)

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- “Under his charge”:

Duty of Persons Undertaking Acts:

R v Browne: meaning of ‘undertaking’ vis-a-vis creating a duty to act [

Also see FAGAN V. COMMISSIONER OF METRO. POLICE

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2. SUBJECTIVE MENS REA---------------------------------------------------------------------------------------------------

Subjective vs. Objective MR:

Wholesale Travel Group 1991 CCC:

R v Beatty 2008 SCR:

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2.1: Subjective MR: Intention, Ulterior MR

R v (JS) 2008 ONCA: Jane Creba Shooting

R v Roks 2011 ONCA:

NB: NEW CASE in updated syllabus: R v. ADH, 2013 SCC 28