Crim2261 2016 Summary Criminal Law

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CRIM2261 - 2016 - Summary Criminal Law
Criminal Law (Thompson Rivers University)
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CRIM 2261 - 2016
1. Role of the Criminal Justice System 1 R v DeSousa 1992 SCC 1

Malmo-Levine Test for PFJ 1 R v Creighton, [1993] 3 SCR 3 1
LaBaye Test for Indecency 1 7. Public Welfare offences 1
2. Sources of Criminal Law 1 R v City of Sault Ste Marie, SCC 1978 1
Common law to Criminal Code 1 R v Chapin, SCC 1979 1
Sedley 1 Reference re s. 94(2) of the Motor Vehicle Act (BC), 1985 SCC 1
Frey v Fedoruk 1 R v Wholesale Travel Group Inc, SCC 1991 1
R. v. Clark 2005 SCC 1 8. Defences 1
Bilingual interpretation 1 Mistake of fact 1
Strict Construction 1 R v Cinous, SCC 2002 1
R. v Paré 1987 1 R v Ladue YTCA 1965 1
R. v McIntosh 1995 1 Mistaken belief in consent 1
Division of Powers 1 R v Darrach Ont CA 1998 1
Reference re Firearms Act (Canada) 2000 SCC 1 R v Ewanchuk, SCC 1999 1
1949 Margarine Reference 1 Mistake of law 1
Calgary Street Prostitution 1 R v Campbell and Mlynarchuk, Alta Dist Ct, 1972 1
Constitutional Law: Charter 1 Lévis v Tétreault; Lévis v 2629-4470 QC Inc, SCC 2006 1
Test for Charter violation 1 R v Dorosh, Sask CA, 2004 1
R. v. Heywood 1994 37 1 R v Prue; R v Baril, SCC 1979 1
R v Oakes 1986 SCC 1 Mental disorder 1
R. v. Chaulk 1990 3 SCR 1303 1 Cooper v R, SCC 1979 1
R. v. Laba 1994 34 CR 1 R v Chaulk, SCC 1990 1
RJR-MacDonald 1 R v Rabey, 1997 OntCA, Rabey v R, 1980 SCC 1
3. Procedural Aspects of Criminal Law 1 R v Parks, SCC 1992 1
Classification of Offences 1 R v Bernard, SCC 1988 1
Presumption of Innocence 1 R v Daviault, SCC 1994 1
Woolmington v DPP 1935 HL 1 R v Stone, SCC 1999 1
R v S (JH) 2008 SCC 1 R v Fontaine, SCC 2004 1
R v Mullins-Johnson 2007 SCC 1 Self-defence 1
R v Lifchus 1997 1 R v Pintar, 1996 SCC 1
Presumption of Innocence and the Charter 1 R v Deegan, 1979 Alta CA 1
R v Oakes 1986 SCC 1 R v Lavallee, 1990 SCC 1
R v Downey 1992 SCC 1 R v Kong, 2006 SCC 1
Doubt Mountain 1 Provocation 1
4. Proving external elements of offences 1 R. v. Hill, [1986] 1 SCR 313 1
External element: actus reus 1 R. v. Thibert, [1996] 1 SCR 37 1
R. v. Lohnes [1992] SCC 1 R. v. Humaid, 2006 Ont CA 1
Simultaneity 1 Necessity 1
Legal duty theory 1 Perka v R, 1985 SCC 1
R. v. Thornton Ont CA and Thornton v. R. (SCC) 1 R v Latimer, 2001 SCC 1
Continuing act theory 1 Duress 1
Fagan v. Commissioner of Metropolitan Police 1 R v Carker (No 2), 1967 SCC 1
Omission 1 R v Paquette, 1977 SCC 1
R. v. Miller 1983 1 R v Hibbert, 1995 SCC 1
Causation 1 R v Ruzic, 2001 SCC 1
Smithers v R 1978 SCC 1 9. Parties to a Crime and Attempts 1
R v Blaue 1975 CA 1 Dunlop and Sylvester v R, 1979 SCC, s. 21(1)(c) 1
R v Harbottle 1993 SCC (test for irst deg murder causation) 1 R v Laurencelle, BCCA 1999, 21(1)(c) 1
R v Nette 2001 SCC 1 R v Logan, 1990 SCC, 21(2) 1
R. v. Smith 1959 Cts Man App Ct 1 Counselling, s. 22 1
R v Menezes 2002 Ont SCJ 1 Accessory after the fact, ss. 23, 23.1 1
Involuntariness 1 Attempts, s. 24 1
R. v. Lucki 1955 SK Pol. Ct. 1 R v Ancio, SCC 1984 1
Kilbride v Lake 1962 NZ 1 R v Sorrell and Bondett, Ont CA 1978 1
Possession 1 R v Deutsch, SCC 1986 1
R v Pham Deinition of possession 1 US v Dynar, SCC 1997 1
Marshall v R 1969 Alta CA 1 10. Adversary system and legal ethics 1
R v Chalk 2007 CA 1 Menkel-Meadow, “Portia in a Diferent Voice: Speculation on a
5. Proving fault elements of offences 1 Women’s Lawyering Process”, 1985 1
Fault element: subjective mens rea 1 Madam Justice Bertha Wilson, “Will Women Judges Really Make a
R v Hundal 1993 SCC 1 Diference?”, 1990 1
R v Mulligan 1974 Ont CA 1 Rupert Ross, “Dancing with a Ghost: Exploring Indian Reality”, 1992 1
R v Ortt 1968 Ont CA 1
Lewis v R 1979 SCC 1
Symmetry Rule 1
R v Buzzanga and DuRocher 1979 Ont CA 1
R v Hibbert 1995 SCC 1
R v Mathe 1973 BCCA 1
R v Théroux 1993 SCC 1
R v Currie 1975 Ont CA 1
Sansregret v R 1985 SCC 1
R v Jorgensen 1996 SCC 1
R v Duong 1998 Ont CA 1
R v Blondin 1971 BCCA 1
6. Proving the fault elements of offences 1
Objective fault 1
R v Tutton and Tutton, [1989] 1 SCR 1392 1
O’Grady v Sparling, [1960] SCR 804 1
R v Anderson, [1990] 1 SCR 265 1
R v Hundal, [1993] 1 SCR 867 1
R v Beatty, [2008] 1 SCR 49, paras 41-49 1
R v F(J), 2008 SCC 60 1
Objective fault and the Charter 1
Vaillancourt v R SCC 1987 1
R v Martineau, SCC 1990 1

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1. Role of the Criminal Justice System

Aim/Purpose of criminal law: that people’s behaviour don’t fall into the scum category. We’re not trying to make everyone into decent
people. As long as they are merely jerks, we’re good.
Malmo-Levine Test for PFJ
Harm principle cannot be universal PFJ for all crimes
Def arg: behaviour which causes harm to people is the deining criterion for a crime. Behaviour which does not cause harm isn’t
criminal.
Held: SCC rejects harm principle as PFJ.
It’s too simple. Other considerations - social consensus. Harm principle too diicult to ascertain - what is harm anyway? Need to
uphold the social morals of society. Decides that the harm principle is not a PFK. Creates test for PFJ
Application to harm principle
1. Legal principle - arguable
2. Signiicant societal consensus - fails
a.Lots of exceptions: dueling, bestiality, cannibalism - we make all these things illegal b/c even they don’t really cause harm;
okay with making them illegal even though there’s no consensus on it
3. Manageable standard - fails
a.No objective standard; relative harm to speciic persons shouldn’t be compared anyway
b.Too subjective
c. W/o standard of harm to start w/, people won’t know if they’ve violated it
LaBaye Test for Indecency

Defines one term - indecency - using the harm principle; harm principle is still useful in certain contexts
Facts: illegal operation of a common bawdy-house; not necessarily a brothel
Def’n of bawdy-house: place where acts of indecency are committed
Issue: Whether acts of indecency were committed in these places. Is group sex indecent?
Held: no, it’s not indecent, so it means these were not bawdy-houses, not illegal.
Majority used harm principle: Deinition of indecency is hard to pin down; based on perception of harm; who are they harming if they
are consenting adults?
Q: Is LaBaye inconsistent with Malmo-Levine in using the harm principle to acquit?

No. M-L = generalized idea of harm; LaBaye = objective test for indecency (speciic behaviour).
Harm principle is not PFJ that applies to every case, but not rejecting it 100% It is the test in LaBaye.
Morality is the de facto PFJ for criminal law.
2. Sources of Criminal Law

Common law to Criminal Code
Shift from common law system to criminal code
Principle of fair notice. If nothing says you can’t do it, then you can. Then you can hold people liable for things they had fair notice
about.
Criminal law is by statute. There are no c/l ofences.
C/l contribution to criminal law:

Defences; principle of presumption of innocence; principle of mens rea
Statute contribution to criminal law:

CC - sole federal jurisdiction + other acts
There’s a diference between regulatory ofence and criminal ofence.
Feds create crime; Provs can create ofences
Frey: no crime in CC so they can’t charge. Principle of fair notice. If one’s allowed violent retributive action for breach of peace (w/o it
being a crime) - chaos!
Sedley: willing to create precedent. Later: CC s 9 abolishes all c/l ofences in 1955, except criminal contempt of court.
Trade-ofs to abolition: can’t catch up w/tech advances; can’t create law until sth that you deem a crime happens 1st - somebody will
be a victim.
Sedley
Illustrates problem with c/l crime - willing to set precedent. Violates the principle of fair notice.
Facts: Man lashes on balcony. Held: Guilty, creates crime right there in court. How is he supposed to know he was committing a
crime? C/l crime is retroactive - that’s problem.
Frey v Fedoruk
Principle of fair notice; if it isn’t stated illegal, it’s legal, even if it’s wrong.
Facts: Man is a peeping tom, gets arrested by people who he was spying on, sues them saying he didn’t commit crime, so their
citizens’ arrest was illegal, claiming false imprisonment. Held for P. CC didn’t state at the time that his behaviour was illegal, hence
citizens’ arrest is illegal.
Though parliament added voyeurism to list of crimes, statutory law isn’t retroactive. Can’t charge him again.
R. v. Clark 2005 SCC

Pre-eminent source of criminal law = legislation; stat interp; court unwilling to do Parliament’s job; application of LaBaye indecency test

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Facts: A masturbated near uncovered window of his illuminated living room. First noticed by Mrs. S who was watching TV with daughters in partially lit
family room. Mrs. S went to another room for a better view and alerted her husband. They observed the appellant for another 10-15 mins in the privacy
of their darkened bedroom across their adjoining backyards: distance of 90-150 feet. Police was summoned and the appellant was charged with both
173(1)(a) and (b) of CC
Issue: Did A commit indecent in a public place and in the presence of one or more persons?
Trial: A convicted with 173(1)(a) “indecent act in a public place in the presence of 1 or more persons”, not 173(1)(b) “with intent to
insult or ofend any person”
BCCA: upheld conviction under 173(1)(a)
SCC: acquittal
A’s arg against conviction under 173(1)(a). Concedes his conduct is indecent within meaning of CC. Did not commit this act wilfully in
a public place (his living room ≠ public place). Complainants were in their own bedroom some distance away, not “in his presence”,
therefore he’s not in their presence. Did commit wilfully commit this act in the presence of anyone b/c trial judge observed there was
no evidence that he knew he was being watched
Element analysis of section not at issue

173(1)(b)
1.Does an indecent act - A admits it; but if he didn’t, we have LaBaye Indecency Test
2.Wilfully
3.Intent to insult or ofend
4.Any place --> (“any” means you don’t really need to prove anything)
173(1)(b) - not guilty

1.Does an indecent act - A admits it; but if he didn’t, we have indecency test from LaBaye
• SCC doesn’t discuss this since LaBaye came later and since they were going to acquit on other grounds, they didn’t bother
going into this.
(1) cause/risk harm
(a) confronting public that interferes with their liberty/autonomy or - pass
• In an illuminated room, near a window, from the waist-up; but the couple had to get a pair of binoculars to igure it
out
• It’s fair to say that most of us don’t want to see anyone masturbating on the street; it is confronting the public!
• In the case of the Clarks, their children are there -- they were afraid that their children might see it.
• The case does satisfy (1)(a).
(b) predisposing others to anti-social behaviour or - no
(c) physically/psychologically harming persons involved in the conduct - no
(2) harm/risk harm of degree that’s incompatible with the proper functioning of society - arguable
2.Wilfully - yes he meant to do it
3.Intent to insult or ofend another person
• the trial judge concluded that there was no evidence that Clark could see anyone or was even aware that there were other
people
• he can’t have intended to insult/ofend another person
Decision can be appealed on a question of law but it can’t be an appeal on a question of facts.
Whatever the trial judge decides on the facts, those are the facts going up on appeal. SCC rejects CA’s conclusion that he was acting
in an exhibitionist manner, as there’s no evidence to back it up.
Element analysis of section at issue

173(1)(a)
1.Does an indecent act
2.Wilfully
3.In a public place
4.In the presence of 1 or more persons
173(1)(a)
1.Does an indecent act - yes
2.Wilfully
• A claims he wasn’t doing it wilfully in a public place; change in deinition. He did mean to do the act, but he didn’t mean to do it
in a public place
• SCC ignores this b/c they use 3 to acquit him
3.In a public place - no. Case hinges on this.
• His own home ≠ a public place. Why? SCC does statutory comparison/interp
i. s. 150 “public place” - “includes any place to which the public have access as of right or by invitation, express or
implied.” Being able to see it doesn’t mean it’s public place; you don’t access it just b/c you see it.
• Discussion of “access”. Was his bedroom a place to which the public have access? No. Why? This deinition is
actually just the deinition for Part V of the Criminal Code (see heading). Visual access is not the meaning of
‘access’ intended for that Part.
• Small counterargument: the word includes - this just says that there could be other ways to be a “public place” as
well. It doesn’t say means which would make it an exhaustive deinition. But includes keeps things open.
ii. S. 173(1)(a) v 173(1)(b)
• Interpreting “public place” in a manner consistent with the physical as opposed to visual access = renders s. 173(1)
more coherent
• if ‘access’ in (a) meant visual access as well --> it would make (b)’s provision of ‘any place’ superluous
• Sub 1 limited by physical space; sub 2 limited by intention
iii. S. 173 v. 174

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• S. 174(1) proves this as well --> 174(1)(b) says “exposed to public view while on private property, whether or not
the property is his own” proves that no such provisions are provided in s. 173(1)(a) which just says “public place” --
> the term doesn’t cover private places exposed to public view. (Legislation actually has to say it to make it an
ofence)
• Parliament enacted both ss. at the same time --> meanings highly consistent. If Parliament intended to include
private place exposed to public view for 173, they would have put it in.
iv. S. 173 v. 213
• S. 213(2) - deinition of “public place” - in any place open to public view is added. It can be concluded that if
Parliament wanted to include the provision in any place open to to public view then they would have done so. So if
they didn’t, then it’s deliberate.
4.In the presence of 1 or more persons
• A’s arg: wasn’t aware of other people around, so he wasn’t in the presence of one or more persons
• SCC ignores this b/c they acquit him based on 3
SCC general approach: decide as little as possible to settle this case.
Clark is not guilty. Even though technically, he’s factually innocent on not meeting one of the elements. Even so, he’s just not guilty.
Bilingual interpretation
FR and EN equally authoritative; narrower/more restricted version is used if there’s discrepancy (i.e. one more favourable to A)
Strict Construction
If a penal provision is capable to 2 interpretations and even after considering facts there’s ambiguity, the 1 more favourable to the accused will be
adopted and not necessarily the more restrictive meaning
R. v Paré 1987
Narrow interp of 214(5) can’t be adopted if it runs counter to common sense & there’s a more reasonable alternative available
Facts: A = 17 y.o. Indecently assaulted 7 y.o. boy. Threatened boy with death if he told; A was sure boy would tell, killed boy by
strangulation and physical assault with oil ilter. A charged with and convicted of irst deg murder on 214(5) (now 231(5)): “murder is
irst degree murder when the death is caused while committing” an indecent assault (now sexual assault). Convicted at trial. CA
overturned based on: murder wasn’t committed “while committing” indecent assault - i.e. simultaneously.
Issue: Is CA’s narrow interp of “while committing” a reasonable one given the scheme and purpose of legis?
Held: no, conviction of irst deg murder restored.
Reasoning
- Lack of common sense in narrow construction: Indeinite beg and end of sexual assault -- you can’t delineate this. Impt
issues of the law shouldn’t be hinged on when he stopped assaulting this boy
- Leads to arbitrary and irrational distinctions, i.e. If he had strangled the boy 2 mins earlier, would that be 1st deg murder,
but if he waited another 2 mins it wouldn’t be?
- Actually it should be more serious in the latter b/c he had taken time to deliberate what his actions would be --> preplanning
almost
More reasonable alternative:
- Adopts Martin JA’s single transaction analysis as the proper construction:
- Eliminates the need to draw artiicial lines to separate commission and aftermath of an indecent assault
- “single transaction” = continuing illegal domination of the victim, gives continuity to the sequence of events culminating in
the murder.
- Organizing principle for this class of murders as irst deg: killing in the course of unlawful domination of people by others;
murder committed by someone already abusing his/her power by illegally dominating another, should be treated as exceptionally
serious crime
R. v McIntosh 1995
Lamer CJ: ‘principle of statutory interpretation that where 2 interp of a provision which afects the liberty of the subj are available, 1
of which is more favourable to an accused, then the court should adopt this favourable provision
Later: Lamer CJ: this should be so even when it led to absurdity or illogicality (contrary to Paré)
Division of Powers
Feds have legislative auth over crime.
Criminal law purpose = prevent / punish absolute lowest category of human behaviour
Charter purpose = guarantee absolute minimum level of rights for all against state; not ideal protection
Reference re Firearms Act (Canada) 2000 SCC

Test for jurisdiction - example of intra vires feds - moral content not relevant
RATIO: Firearms Act serves valid criminal law purpose, therefore intra vires Parliament
Facts: 1995 Firearms Act amended CC C-46: all holders of irearms must get licenced and register their guns. Prov of AB challenged
Parliament’s power to pass gun control. CA decision 3:2 majority upheld Parliament’s power to pass law. Prov of AB appeals to SCC
Feds: crim law power and under general power to legislate for “peace, order, and good gov’t”
AB: falls under its power over property and civil rights; gun use is not immoral; not prohibition but a registry = prov regulatory
measure
Issue: Not morality, justice, or efectiveness of law, but whether Parliament has constitutional auth to enact law?
Held intra vires fed gov’t
Test to determine jurisdiction
I. Determine “pith and substance” or essential character of the law
A) Purpose of the enacting body - passed
- Purpose: Firearms Act
- Plain language - public safety
- Mischief approach: prevent illegal trade, violence, suicide - public safety
- Historical focus of gun control law - public safety
- Not total regulation, just for the purposes of public safety

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B) Legal efect - passed
- Whether it’s going to achieve that goal is not really our purpose, as long as we agree that they did intend to achieve that
goal
- Efficaciousness is not relevant to the court’s division of powers analysis. That’s the enacting body’s job
- Public safety is indeed the goal,
- If something else was the goal, law would be colourable and not valid.
II. Classify “pith and substance” by ref to Constitution 1867
A) Presumption of constitutionality
- onus is on AB to show that Act doesn’t fall within jurisdiction of Parliament
- AB didn’t discharge onus
B) General rule for criminal classiication - passed
i) Valid criminal law purpose backed by
• Purpose of FA (public safety as determined in Step 1) is a valid criminal law purpose
• Eliminating threats to public peace, health, and morality
ii) Prohibition and
• s. 112 of FA - prohibit possession w/o registration cert + s. 91 of CC - same thing
iii) Penalty
• s. 115 of FA + s. 91 of CC
Irrelevant objections
1. Moral content not relevant for jurisdiction question. Even if it was, misuse of guns is a moral issue.
2. Discrimination against northern, rural, aboriginal Canadians - not relevant when deciding parliamentary jurisdiction.
1949 Margarine Reference

Ultra vires Parliament. Crime only when threat to public peace, health, and morality. Margarine is obviously not.
Calgary Street Prostitution

Illustration of colourable. Intent to regulate use of sidewalks, but actual intent to prohibit prostitution.
Calgary bylaw - can’t be prostitute standing on a sidewalk. Where are they going to stand? Moral objection to street prostitution,
bylaw is actually about prostitution, not sidewalks. Ultra vires.
Moral content not required for jurisdiction analysis. Moral content required for crime/regulatory ofence analysis.
Constitutional Law: Charter

Test for Charter violation
Overbreadth, Arbitrariness, Vagueness
Established PFJs:
1. A law cannot be overbroad.
2. A law cannot be arbitrary.
3. A law cannot be vague.
If law is any of these things, it can’t be prescribed, and therefore can’t be saved under s. 1.
Vagueness: Ambiguous language, means not clearly deined, test: suicient room for legal debate.
Overbreadth: Language may be unambiguous, means too sweeping in relation to objective, test: are the means chosen necessary? If
not = arbitrariness or disproportionate application.
Both result in legislative lack of precision in stating the means to accomplish a given objective.
R. v. Heywood 1994 37
Application of s. 7 analysis
Facts: Accused convicted 1987 2 counts of sexual assault; charged 1989 2 ofences of vagrancy, found loitering near
school/pool/public park, taking photos of kids with telephoto lens. Child porn found in his apt.
Issue: Are the means of preventing loitering near places where kids frequent reasonably tailored to the objective of protecting kids
from becoming victims of sexual ofenders? What’s on trial here is s. 179(1)(b), not Heywood himself.
History: Trial: conviction. SCC: overturned on basis that s. 179(1)(b) violates PFJ by being overbroad
Note: Should Heywood be guilty? Yes, but there wasn’t a precise enough statute to convict him of his crimes.
s. 7 analysis
1. Was there deprivation of life, liberty, or security of the person? Yes: can’t go to areas public can go, will go to jail if you
violate it
2. Was it in accordance with PFJs? No.
a.Which PFJs?
b.A law cannot be vague: ambiguity in language; loiter is hard to deine; clearly room for debate (5-4 split on how to deine
loiter)
c. A law cannot be overbroad: it’s doing more than it is necessary to achieve the objective
Example: Applying Test for PFJ to “a law cannot be vague”

1. legal principle: statement about how legal system should operate, not general view of society
2. signiicant/suicient societal consensus: notion of fair notice existed in c/l long before, continues in statutory law
3. manageable standard: suicient legal debate as a manageable standard?
Violation of PFJ: test for overbreadth

1. What’s the objective? Child protection from pedophiles
a. What if we’re reading the objective wrong? What if the obj is to keep sexual ofenders from the general population? In that
case it wouldn’t be overbroad. Part V does not say that s. 179(1)(b) is speciic to children

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b. Even so, objective of section is unmistakeable
2. Is the law doing more than what’s necessary to achieve that objective?
a. Yes, it restricts liberty of person far more than necessary.
b. How?
i. Too many places
1. Deprivation of liberty beyond necessity
2. Schools and playgrounds - ok
3. But parks and bathing areas - too wide
a. All of them? Including lakes, wildlife reserves?
b. What if it’s a national park and he’s camping by himself beside a lake?
ii. Too many people / ofences covered
1. As long as you committed list of ofences, you must comply
2. What if A isn’t a threat to kids (but ofences were against adults only)
iii. Too long / No possibility of review
1. What if you’ve reformed and are no longer a danger?
2. What if you weren’t a danger to kids to begin with?
3. No review = a convict will forever have to comply with law
iv. No fair notice
1. Dissent: ignorance of the law is no defence
Violation of PFJ: vagueness

At issue: deinition of “loiter”, even though it is consistent with the purposes of the section.
1. majority: ordinary meaning of loiter = to hang about idly, to linger.
a. In that case, parks are meant for loitering.
b. There’s no need to read in malicious intent
2. dissent: Lingering around with “untoward or improper purpose” or “malevolent or ulterior purposes” by reference to the
predicate ofences listed in s. 179(1)(b)
a. If loiter means this, Heywood would go to jail. It would make s. 179(1)(b) valid as it addresses the majority’s reasons for
overbreadth
i. Too many places: police discretion, Crown would have to prove intent (harder to convict) related to predicate ofences
ii. Too long: if you don’t have intent anymore (even if you did before), then you’re no longer a danger
iii. Too many people/ofences: those who have the intent are the people captured; exact # of people with malevolent intent
b. Hard cases make bad law: if you use this dissent’s deinition, you can convict the guilty guy now, but what implications are
there for the future?
Today: s. 179(1)(b) has been turned into s. 161 to address these Charter objections.
But charging Heywood under s. 161 using the same set of facts would be double jeopardy, so he probably walked.
R v Oakes 1986 SCC

2 functions of s. 1
1. constitutionally guarantees the rights and freedoms set out in the provisions which follow
2. states explicitly the exclusive justiicatory criteria (outside of s. 33 of Constitution Act 1982) against which limitations on
those rights and freedoms must be measured, i.e. “reasonable limits prescribed by law as can be demonstrably justiied in a free
and democratic society”
“free and democratic society” - inal standard for limits on rights and freedoms
- Thus, Charter rights/freedoms aren’t absolute It may be necessary to limit Charter rights/freedoms in circumstances where
they prevent the realisation of collective goals of fundamental importance. The realisation of a free and democratic society may
ironically prevent the exercise of a certain right/freedom
Burden of proof is upon the party seeking to uphold the limitation

- Presumption: rights/freedoms are guaranteed unless otherwise proven should be limited
- limits are exceptions to the rule
Standard of proof = BOP, not BARD

- Unduly onerous b/c “reasonableness”, “justiiability” and “free and democratic” not amenable to the criminal standard
- Must apply BOP rigorously: “demonstrably justiied”
Degree of probability
- Depends on the totality of the circumstances and the gravity of the consequences
- very high degree of probability has to be proven.
- Evidence is required
- Must be cogent and persuasive
- Make clear to court the consequences of imposing/not imposing limit
- Court needs to know what alternatives for implementing the obj were available to the legislators when they made their
decisions
Test
Onus of proof is on the party seeking to limit the right/freedom
1. Suiciently important objective to warrant overriding a constitutionally protected right or freedom
a. What is the objective? Is the objective important enough? Mischief rule?
2. Proportionality Test:
a. Rational connection
b. Minimal impairment of the right/freedom in question - usually turns on this
c. Proportionality between means and efect

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R. v. Chaulk 1990 3 SCR 1303
Application of Oakes Test: presumption of sanity
Def arg: presumption of sanity in 16(4) (which is now 16(3)) is unconstitutional because it violates the presumption of innocence in s.
11(d)
16(3): The burden of proof that an accused was sufering from a mental disorder so as to exempt from criminal responsibility is on
the party that raises the issue, meaning almost always the accused.
Held: Lamer CJ rejects def arg b/c it would be an impossible burden of proof for the Crown
R. v. Laba 1994 34 CR
Application of Oakes Test: rational connection
Def arg: we shouldn’t have to prove that he owns what he’s selling, rather it should be the Crown to prove that he doesn’t own what
he’s selling
Oakes’ Test rational connection does not require “internal logic connection” ==> whether the presumption is a logical method of
accomplishing the legislative objective is enough
RJR-MacDonald
Application of Oakes Test: reasonable impairment
Total ban on ad/promo of tobacco without health warnings. Held in favour of tobacco companies
Reasoning: Parliament didn’t provide evidence in support of the need for a total ban - not ‘demonstrably justiied’. Minimal
impairment: Basis seems to be whether the measure restricted as little as reasonably possible. Oakes Test must be applied lexibly
having regard to the social and factual context of each case. Factual evidence rather than social science or policy-oriented evidence.
Parliament’s role: choose response to social problems within the Constitution
Court’s role: determine if that choice falls within the Constitution
Thus standard of proof = balance of probabilities reached by application of common sense to what is known
Heywood Application: Test for Charter Violation

1. Is there a violation of their Charter right? Yes.
Onus of proof is on the party claiming the violation
2. Is it prescribed by law? Yes s. 179(1)(b) CC
If no, go to remedy under s. 24
3. Oakes Test: Is it within the reasonable limit under s. 1?
If yes, saved under s. 1
If no, remedy under s. 52
Onus of proof is on the party seeking to limit the right/freedom
a. Suiciently important objective? Yes: protect children from sexual offenders
b. Proportionality Test
i. Rational connection? Yes. Prevent registered sexual offenders from going near places where children and people are found. If they are
prevented, they won’t have the opportunity to observe, photograph, stalk. Aims at keep people with sexual offence records from places
where children will be found. If if the means will help a little, it’s rationally connected.
ii. Minimal impairment? No. Statute could be more precise. Same underlying concern and reasons that’s found under the s. 7 analysis, but
these are 2 different tests! Note: It’s impossible to find a law that has passed the overbroad test to still be saved under s. 1. If the Charter
breach was under s. 7, then it’s nearly impossible to be saved in s. 1. You are going to end up asking the same question. But you still have
to do it. Fail one --> fail the other.
iii. Proportionality between means and efect. No. The means are too broad/general/untargeted to achieve the effect intended. Same
answers in i) and ii). Still have to do the analysis though
3. Procedural Aspects of Criminal Law

Classiication of Ofences
Common law classification
1) indictable ofences (triable by judge and jury)
- Treasons
- Felonies - punishable by death until 19C
- misdemeanour
2) Ofences triable only summarily by judge w/o jury
Statutory classification
- always stipulated in CC deinition
1) Indictable
2) Summary conviction
3) Hybrid / Crown election of 1) or 2)
Mode of trial
1) Indictment only
(1) Serious ofences, punishment set out usually; if not, 743 (5 years jail)
(2) Type involved will determine which court:
a. Exclusive jurisdiction of superior court - most serious: 468, 469
- No A election - must be tried by sup ct. Must retry if it accidentally goes to prov ct
- If A is pleading guilty to 469 ofence, can invoke 473 to get judge w/o jury
b. Absolute jurisdiction of inferior court - lease serious: 553
- A does not have to choose; automatically go there, but if it accidentally goes to sup court, it’s ok
- Give sup ct the ones with most societal interest; 553 ofences aren’t
c. Middle spectrum: accused election 536(2)

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i. Prov ct judge (option of prelim inquiry)
ii. Sup ct judge w/o jury
iii. Sup ct judge and jury
- If A don’t choose, goes to judge and jury 565(1)(c)
- If A chooses prov, judge can still override choice 555
- AG can override A’s choice if ofence is punishable by 5+ years 568
- A can change his mind depending on original election, point in time, consent of Crown 561-563.1, 565
2) Summary conviction
(2) Trial before prov ct always, unless sup ct wants to
(3) Max $2000 or 6 mos jail time unless otherwise stipulated 787(1)
(4) Parliament can choose to set max penalty to 5 yrs less a day, technically
(5) A need not appear, lawyer can stand in unless judge orders 800(2)
3) Crown election
(2) If Crown chooses summary conviction, must follow all stipulations
(3) If Crown chooses indictment, A gets election of mode of trial
- indictment: A has prior record or history of violence, require A’s presence to face jury (mandated by judge 555) or AG (568),
play up jury sympathy
- summary conviction: First ofence, quicker proceedings if not an important case, legally technical cases (better for judge
only), eliminate jury sympathy
2 levels of court
1. Provincial (criminal law, less expensive, 80% plead guilty (don’t go to trial, rather go to prov ct who’s seen it all to plead
rather than a sup. ct. judge who’s not desensitized to crime and might give you a harsher punishment than otherwise)
2. Superior - big corp disputes, insurance, some divorce, criminal cases are rare
3 methods of trial
1. Provincial court judge
2. Superior court judge
3. Superior court judge with jury (default, unless an exception)
Prelim Inquiry
- Reasoning: if we’re going to take time of sup.ct. judge, must have good reason
- A who chooses sup.ct. can be sent to inf.ct. for prelim inquiry if Crown has enough to convict
- Purpose: 1) screen cases (this hardly ever happens); 2) letting A know of Crown’s evidence (since the Charter however
Crown is obliged to do this regardless)
- Steve thinks this will get scrapped soon; purposes no longer served; now it only happens on request and on particular issues
If there are multiple co-accused on the same charge (say conspiracy to murder), the highest election is chosen.
Presumption of Innocence
Presumed innocence is a legal concept - not convicted in court; not a prediction of outcome or actual belief in innocence; philosophical principle to treat
the A until s/he is proven guilty. Nothing to do with ‘factually innocent’
Charter s 11(d): presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial
tribunal.
Deinition
1. Standard of proof: Accused must be proven guilty BARD
2. Burden of proof: Crown always bears burden for each elements
3. Criminal prosecution in acc with lawful of procedures and fairness
Woolmington v DPP 1935 HL

Misdirection by the judge regarding onus of proof
Facts: Husband gets a gun, steals 2 bullets, saws of gun barrel, throws it in a lake, ties gun to body, goes to wife’s house, shoots wife
and still claims that gun accidentally went of. Guilty of irst deg murder? Held no b/c of jury charge
What was wrong in the Woolmington charge?
Judge misdirected the jury at trial: if Crown has proved BARD that A committed the murder, A must prove mitigating factors; “the law
will presume the fact to have been founded in malice until the contrary appeareth.” Equivalent to example 2(a): “An accused is
presumed to intend the natural consequences of an action, but is entitled to rebut that presumption.” Judge is essentially saying: we
presume malice and A must prove the contrary. Judge misdirected the jury. Burden and standard of proof was wrong.
R v S (JH) 2008 SCC

Jury charge on presumption of innocence: points to cover; W.D. phrasing is not an incantation
1. Lack of credibility of A ≠ proof of guilt BARD
2. Burden of proof of each element BARD is always on the Crown.
3. Jury cannot be under misapprehension as to correct standard and burden of proof
4. Jury may choose to believe all, some, none of the witnesses, incl A’s and still be in RD. In that case, acquittal!
R v Mullins-Johnson 2007 SCC

Difference between presumption of innocence and factual innocence
Facts: Convicted of the murder of his niece largely because of expert opinion of “disgraced pathologist” Charles Smith who tailored his expert opinion to
convict anyone charged with murder. The child actually died of natural causes. There was no crime whatsoever. It wasn’t that they didn’t get the right
guy, but that there wasn’t a guy to get. Mullins-Johnson wanted to be found “innocent” rather than “not guilty” since s. 11(d) says you’re “innocent until
proven guilty.” Held: Court can only pronounce him not guilty.
Reasoning:

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Having a 3rd verdict (innocent) will create 2 classes of people: those found to be factually innocent and those who benefited from the presumption of
innocence and the high standard of proof BARD. You’d be calling a great majority who weren’t “factually innocent” and just got away with it. It’s a
dangerous distinction to make
R v Lifchus 1997
Suggested charge, not magical incantation; BARD ≠ ordinary everyday words; have legal specified meaning
Puts the trial judge in a bind. What if the jury still doesn’t understand?
SCC: Verdict won’t change if charge as whole doesn’t give misapprehension; if it does --> new trial
Suggested charge by SCC to have these points:

1. Standard of proof is BARD w/presumption of innocence
2. Burden of proof on the Crown; never shifts
3. RD ≠ doubt based on sympathy/prejudice
4. RD = doubt based on reason and common sense
5. Logically connected to (lack of) evidence
6. Juror shouldn’t feel that though intangible witness’s demeanour cannot be taken into consideration
7. Doesn’t involved absolute certainty
8. More than probably guilty --> if it’s probably, you must acquit
Should NOT say:

1. BARD is an ordinary expression
2. Asking jurors to use standard of proof for everyday living
3. Equating BARD with proof to moral certainty
4. Qualifying ‘doubt’ with anything other than ‘reasonable’
5. Before mentioning BARD, telling jurors to convict if they are ‘sure’
Presumption of Innocence and the Charter

R v Oakes 1986 SCC
Constitutionality of reverse onus; golden thread
Issue: Constitutionality of a persuasive burden on A as stated in Narcotics Control Act s. 8: possession of narcotic presumed in poss for
purpose of traicking unless A can prove to contrary. Def arg: Reverse onus unconstitutional b/c it violates s 11(d). Golden thread: duty of
Crown to prove prisoner’s guilt, subject to any statutory exception. Held: Persuasive burden on A for either ofence or defence
element violates Charter s. 11(d); except if saved under s. 1.
Reasoning
Unconstitutional b/c conviction can occur even with reasonable doubt. A raised RD but doesn’t convince jury on BOP. A shouldn’t
even have to raise RD! Conviction comes easier if he fails. Applied rational connection test in s. 1 analysis: basic fact may rationally
tend to prove a presumed fact, but still not BARD b/c it violates the presumption of innocence. Compels A to prove he is not guilty of
traicking. Not presumed innocent, subject to penalty if he can’t prove it. Radically inconsistent with social values of dignity / liberty,
against Charter s 11(d).
Jury charge problems

If this was what the trial judge said to the jury, did he/she get it right/wrong?
1a. If the accused cannot show that his actions were accidental, you must convict
Wrong. Shifts burden of proof to the accused.
1b. If there is no evidence that the accused’s actions were accidental, you must convict
Wrong. Starting position is wrong. We’re not looking for evidence for innocence b/c A is presumed innocent. We have to find evidence that
changes the starting position.
1c. You do not have to believe the testimony of the accused to acquit, s/he is only required to raise a reasonable doubt.
Partly wrong. Jury does not have to believe A to acquit; disbelieving A isn’t same as finding A guilty, but
Proving beyond BARD is Crown’s job. A isn’t required to raise anything, however it might be in A’s best interest to raise RD.
This statement reversed the onus: because I don’t believe her, she’s guilty.
He said/she said cases: credibility is hard to judge; disbelieving him doesn’t mean he’s guilty BARD.
2a. It is a presumption of law that an accused intends the natural consequences of an action
Wrong. Woolmington trial judge made this error.
2b. An accused is presumed to intend the natural consequences of an action, but is entitled to rebut that presumption
Wrong. Starting at the wrong end again with presumption of guilt.
2c. It is reasonable to assume that a person intends the natural consequences of an action.
Right. You can’t assume any other consequence. If they did it, then it’s safe to infer that they meant the action to result in the natural consequence
of that action. It is a reasonable inference = proof. A juror doesn’t give up their common sense. You’re entitled to draw natural inferences but
you’re not to presume it.
3. If you have a substantial doubt that the accused is guilty then you must acquit. You should only convict if you are sure he is guilty.
Wrong. Substantial and sure sound too much like absolute certainty. You have to use reasonable to describe doubt, but if you’ve explained BARD
many times, you might be able to use this sentence.
4. You need not be absolutely certain that the accused is guilty. You must be more certain than not—indeed, you must be
much more certain than not—but that is not to say that there cannot be any possible doubt.
Right. BARD is not beyond every conceivable doubt. You can doubt everything if you really think about it. It’s not imaginary, hypothetical doubt.
Much closer to absolute certainty.
R v Downey 1992 SCC

In absence of evidence to contrary, proof that person pimps out prostitutes (if he’s frequently in their company)
A challenged constitutionality. Held: 4-3 majority: violates s 11(d) but saved under s 1
Summarize presumption of innocence elements:

1. Presumption of innocence is infringed when A is liable to be convicted despite existence of RD

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2. Legal burden / evidentiary burden violate s 11(d) - A required to establish on BOP an element of the ofence or a defence
element. This provision would permit conviction despite RD
3. Even if rational connection exists between established fact and fact to be presumed, still insuicient to make valid a
presumption required A to disprove element of ofence
4. Statutory presumption will be valid if proof of substituted fact leads inexorably to the proof of the other (irrebuttable
presumption). It will still infringe s 11(d) if trier of fact is required to convict in spite of RD
5. Permissive assumption = may but not must drawn inference of guilt does not infringe s 11(d)
6. Provision with minor role in providing relief from conviction will be unconstitutional if A has to establish it (e.g. truth of a
statement)
7. Statutory presumptions that infringe s 11(d) may be justiied under s 1.
Rebuttable presumption: in the absence of evidence to the contrary, A has burden to rebut.
Irrebuttable presumption: conclusively presumed; essentially a deinition; A can’t disprove it
Basic fact presumption: on proof of x, y is presumed. (tie one box to another and push up the mountain)
Non-basic fact presumption: as soon as they are charged. (box is on a conveyor belt, shoots up the mountain)
Mandatory presumption: by statute only; judge/jury can be persuaded otherwise

Permissible presumption: usually not by statute, judge/jury may infer this, but they don’t have to.
Legal burden: A has to disprove the charge (push box down past BOP line). Proof of which lies on A.
Evidentiary burden: A has to raise RD (push box down past BARD line). Provide evidence to the contrary or unless the A establishes
Tactical burden: Not statutorily mandated; A isn’t required by law to do this, but if they don’t do it, they will be convicted b/c the Crown discharged onus.
Relationships:
TB and EB require A to do same amount of job (push box past BARD) but for different reasons
- TB: practical matter, otherwise convicted b/c Crown did a good job
- EB: statutorily mandated reverse onus to raise RD
EB and LB = mandatory presumptions

LB requires a lot more work: push down past BOP
All reverse onus either EB or LB violate s. 11(d) but they might be justiiable under s. 1.
TB does not violate s. 11(d).
Doubt Mountain
Crown at bottom; A at top; BARD line near top; BOP line in middle
Basic rules
Crown must push boxes (elements of ofence) past BARD line. If Crown fails with any one element, A is acquitted. A doesn’t have to
do anything. If Crown does a good job and all boxes are past BARD line, A has a tactical burden to push a box or 2 down back down,
just below BARD line, but this is not a statutory requirement
Changing the rules
Statutory presumptions; reverse onus
1. Legal burden: when burden shifts to A to disprove charge on a BOP
- More work for A; must actually prove something is false
- If A succeeds, we’re obliged to believe that A probably didn’t intend the charge.
2. Evidentiary burden: when burden shifts to A to raise RD
- “in the absence of evidence to the contrary” y is presumed
- A required to point to credible contrary evidence to doubt fact/question brought by Crown, if successful, presumption gone
- If A can’t do it, presumption = proved fact
- Woolmington: jury will convict even if A raised RD, shifts onus and allows for inding of guilt in presence of RD - standard and
onus of proof were wrong.
Onus of proof problems

1) What does the accused is required to do; 2) What (if anything) the Crown is required to do
57(3)
a) Legal burden: “proof of which lies on the A” = push down past BOP, disprove the charge
b) Non-basic fact presumption: as soon as they are charged with ofence, automatically presume no lawful excuse; conveyor
belt shoots up
348(2)
a) Evidentiary burden: “provide evidence to the contrary” = A has to raise RD, push box down past BARD
b) Basic fact presumption: Crown just has to prove one thing (prove possession), presume intent to traic. On proof of x, y will
be presumed. Crown gets to tie box to another.
258(1)(a)
a) Legal burden: “unless the A establishes”, meaning push down past BOP
b) Basic fact presumption: Crown has to prove one thing (drunk in the driver’s seat), presume you intended to drive it
354(2)
a) Evidentiary burden: “any evidence to the contrary”
b) Basic facts presumption: prove basic fact 1) person possess vehicle + basic fact 2) vehicle ID number is obliterate, presume
1) vehicle was stolen + 2) person in possession knew that it was stolen
198(2)
Irrebuttable presumption: “conclusively presumed”
175(2)
Permissive presumption. Not a reverse onus. One option to reason legitimately about the incident, can presume this. E.g. It’s a
permissible inference that a man desires the natural consequences of his action.

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4. Proving external elements of ofences

External element: actus reus
Observable external offence elements: conduct, circumstances, consequences
Every ofence = actus reus + mens rea; act requirement is usually self-evident, but it can be vague or minimal form of an act
R. v. Lohnes [1992] SCC
Steps to determine definition of an actus reus element; causing disturbance in a public place, s. 175(1)(a)
Facts: Milton, NS. L lives across street from P. P collects equipment on premises with loud motors. 2 occasions: L went to P’s house
and shouted obscenities at him. 2nd time, he says he’d shoot P if he had a gun. P iles complaint and is only Crown witness. No
evidence that others heard L or P’s conduct was afected by them.
History: Trial L convicted on 175(1)(a) b/c P was ‘disturbed’ by impugned conduct. Summary convictions appeal: upheld. NS Sup Ct
Appeal: refused leave from that decision. Appeal to SCC.
Element analysis of s. 175(1)(a)(i)

1. Not in a dwelling-house - circumstance - arguable if he was on the veranda = dwelling-house; SCC didn’t look at this one
2. Shouting and swearing - conduct - yes, proven
3. Causes disturbance - consequence - point of contention and legal question
4. In or near public place - circumstance - yes, proven (shouting across street and sidewalk = public place, deined in s. 150
Issue: What constitutes such a disturbance—mere annoyance, emotional disturbance of complainant or something more?
Held: Narrow interpretation of disturbance, conviction overturned, acquitted
Broad interp: emotional upset, covers P; Narrow: physical manifestation, doesn’t cover P
Trial convicted him on the ground that L’s conduct itself was disturbance. Policy rationale: SCC wants to make sure that
shouting/swearing isn’t seen as a disturbance unless it’s done in a public place.
3 sets of reasons for decision

1. Authorities
- Though not expressly stated, all precedents that held convictions under this section, disturbance had to be physically
observable, even if it was slight: causing someone to stop their work and look up.
- Mere emotional upset wasn’t enough though. Few convictions under 175(1)(a) absent overtly externally manifested
disturbance
2. Statutory Interpretation
- Purposive interpretation of ‘disturbance’ to best accord with Parliament intention
a. Ordinary meaning rule: disturb vs disturbance
- Disturbing people doesn’t amount to disturbance; disturb = emotional; disturbance = physically manifest
b. Context of 175(1)(a) wasn’t to protect public from mere emotional disturbance; public place ≠ mind
- If it were the objective, ‘in or near public place’ would be redundant nor would those conduct elements singled out
- Mental disturbance isn’t in public place; other acts can disturb us as well
- Purpose to protect public from disorder calculated to interfere with public’s normal activities
c. Subheading under the Part
- Interpretative aids, even though not deinitive, point publicly exhibited disorder: “Disorderly Conduct” = physically
observable
d. FR version ‘tapage’
- Connotes externally manifested disturbance involving violent noise or confusion disrupting tranquility
- uses Le Petit Robert: bruit violent, confus,… consistant à troubler la tranquilité des habitants en faisant du bruit, sans
motif légitime
e. Ref to 175(2)
- ‘relating to conduct of person’
- If peace oice has to be able to see this disturbance in order to give evidence, it has to be physically observable
- Permissive presumption
3. Policy
- Comes last b/c we should always look at what the statute says before trying to impute what it ought to say
a. Principle of legality - every person is entitled to know in advance whether their conduct is legal; broad interp makes it almost
impossible to ascertain if one’s conduct is causing unmanifested emotional upset
b. Balance peace and liberty - test for disturbance should allow court to weigh deg/intensity of conduct against deg/nature of
peace expected to prevail at any given time; broad interp won’t allow this; e.g. Church vs. Hockey game. You have dif nature
of peace.
c. Proper goals/limits of criminal law - criminal law isn’t there to prevent mental annoyance, upsetting people makes you a jerk,
but not a scum. Public streets can tolerate a lot of activity. Ask: Does this interfere with ordinary/customary use of the
premises?
Conclusion: Disturbance = externally manifested disturbance of the public peace, interfering with ordinary/customary use of the
premises by the public, either caused by the impugned act itself or a consequence of the act or through direct evidence or thru
inference made by police oicer.
Interference may be as small as a distraction from one’s work, but must be present and externally manisfested, reasonably foreseeable
Simultaneity
Ratios:
1. Simultaneity required to constitute crime: actus reus + mens rea at the same time
2. To solve simultaneity, use 1) duty theory (only statutory duties, not c/l as in Thornton/Miller) or 2) continuing act theory
3. Strong preference for positive acts rather than omission in Canada (ground liability in omission only through statute).
Legal duty theory

Where there is a legal duty to act, omission to discharge duty = criminal liability

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Guilty mind simultaneous to the omission. Creates liability for omission, but they won’t be guilty of the ofence charged, only criminal
negligence.
Duty theory only solves simultaneity when you can plausibly say that the person had a duty to act. Legal duties come from statute or
c/l (maybe).
R. v. Thornton Ont CA and Thornton v. R. (SCC)

Solving simultaneity with duty theory
Ont CA convicts him using c/l duty of not injuring neighbour to convict.
SCC chooses to use s. 216 instead and ignores the c/l duty theory.
Policy arg against c/l duties: CC s. 9 - you can’t be guilty of a c/l crime. If c/l duties were included, it means we’re creating c/l crime
again.
SCC ducked the question; ON trial judges can still be persuaded by CA decision, but not bound.
Continuing act theory

Continuing act is meant to capture when the action continues after physical performance of act has ceased. It is not the consequences of the act.
Stab someone = complete act; their pain and writhing isn’t part of your act. Consequences of the action is not part of the action itself.
Throw a ball = continuing act; not complete when ball leaves hand, physical exertion causes it to ly and land and roll. Physical
exertion may have ended but action is ongoing. Action may take some time to perform (e.g. 2 minutes to strangle someone), but it’s
still a completed act. One has to justify claim for continuing act - not easy to tell.
Fagan v. Commissioner of Metropolitan Police
Solving simultaneity with continuing act theory
Facts: Man accidentally runs car over oicer’s foot, lets the car stay on the foot. Def arg: no simultaneity. Omission (failing to move
the car) but no application of force after car is on foot. Held: guilty
Distinction between complete and continuing acts. Fagan’s action was not one point in time, but extending over a period of time.
Intention alos takes over an extended period of time. They overlap at mens rea inception = simultaneity.
Omission
Strong predisposition in law to require positive action for criminal liability. General (not absolute) rule: cannot be liable for omission.
Most ofences have an actus reus. Act = do something, ≠ not do something. Criminalizing omission is rare, but does occur:
None of these are straight failures though:
1. 145(2) criminally liable for failure to attend court when you promised you would attend court.
2. 393(1) criminally liable for failing to collect fare, but you were supposed to collect it and you didn’t.
3. 252(1) leeing scene of an accident that’s your fault = you failed to stop, meaning you acted by driving away; still an act
4. CRIMINAL NEGLIGENCE 219. (1) Every one is criminally negligent who (a) in doing anything, or (b) in omitting to do anything
that it is his duty to do, shows wanton or reckless disregard for the lives or safety of other persons.
For the purposes of this section, “duty” means a duty imposed by law.
Particular omission to act when there was a ‘duty’ to act.
None of these provisions deviate from the general proposition that omission is not a crime, simply watching something going on and failing
to act is not an offence, except in situations when there’s a duty to act and you failed to do so, you had committed a criminally liable
ofence
R. v. Miller 1983
Omission is not criminal.
Facts: Man sets mattress on ire with cigarette while sleeping, wakes up, moves to another bed, ire causes house to burn down.
Def arg: you can’t be guilty of omission; no simultaneity: guilty act of setting ire + sleeping (no guilty mind), then guilty mind (letting
mattress burn) + no guilty act (omission). Prosecution: using Fagan, incineration of mattress = continuing act, not complete. Mattress
still burning and had guilty mind in the process of that burning = simultaneity. Held: guilty, using duty theory instead.
First act causes the duty. When you have duty to act and you don’t, this occurs at same time as mental state, therefore simultaneity.
Why choose this reasoning instead of continuing act? Easier explanation to the jury - duty theory is easier to explain than continuing act.
What is the actual duty here? Prevent or reduce the risk of damage by his own efforts or by sending for help from fire brigade.
Why does he have that duty? He set it up for himself when he lit the mattress on fire.
Where did the duty come from? Not statutory. The judge made up the duty.
Miller doesn’t it Canada’s approach to law, even more extreme than Thornton (CA) by creating a c/l duty to it; at least Thorton (CA)
used an existing c/l duty.
Causation
Determination of causation requires A to cause death of another both in fact and in law.
Overview
1. Causation is relevant only when there’s an external element of consequence - look for words like ‘causing’ or ‘by’
2. When there is a consequence element, ask 2 things:
a. Did the consequence occur?
b. Did the act cause the consequence?
3. Rules of causation
a. Factual causation (Smithers test)
- factual element that is ‘not insigniicant’, inquiry about how the victim came to death, medical/mechanical/physical sense,
did A contribute to that?
- Once factual causation established, must establish legal causation.
b. Legal causation (Harbottle test - blameworthiness)
- imputable causation or moral/value judgment - question whether A should be held criminally responsible in law for death,
e.g. on manslaughter charges; usually if a person is proved to have intended the result that occurred, it’s hard to raise RD
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- This upholds PFJ: the morally innocent shouldn’t be punished. This is what distinguishes Smith from the soldier who
carried the victim to medical help despite dropping him twice.
Causation analysis should included blameworthiness analysis, but practically speaking, Court doesn’t talk about it b/c
blameworthiness is covered under mens rea. However, in a manslaughter charge or where there is multiple accused, where there
isn’t mens rea, you might have to engage in a blameworthy analysis.. Still talk about legal causation for the exam.
The accused’s act must be the only cause of the result. False. The accused’s act doesn’t need to be the only cause.
The accused’s act must be the major cause of the result. False. The accused’s act doesn’t need to be a major cause, just not
insigniicant.
The accused must intend the result. False. The accused doesn’t have to intend the result (e.g. manslaughter vs murder)
The result must be foreseeable. False. Thin-skull rule - liability for all consequences, even unforeseen ones. Law as deterrent, knowable,
holding people responsible for max efect of their acts. Mitigate harshness of sentence in other areas.
The accused’s act does not have to be the medical and mechanical cause of death in order to be a contributing cause. True. Kicking
someone in the shins or preventing someone from being rescued while your cronies beat the guy up = contributing cause that is not
insigniicant, principle and party to murder.
The accused’s act must be operating at the time of the result. True.
Smithers v R 1978 SCC

Ratio: Thin-skull rule: take victim as you find them; factual causation test: contributing cause that is not significant
Facts: A convicted of manslaughter when victim died after aspiration resulting from A’s kick
Primary rule: contributing cause, more than trivial / which is not insignificant
SCC: don’t use ‘de minimis’ - hard to understand for jury, use ‘not insigniicant’ or ‘signiicant’ b/c Latin is hard to understand for jury.
What is the efect on the jury? Inconsistency (higher threshold for causation if judge uses ‘signiicant’). Trial judges who think person
should be guilty will use ‘not insigniicant’, however trial judges are allowed to state opinions on factual evidence as long as it’s clear
that jury is not bound by opinion.
R v Blaue 1975 CA
Illustration of thin-skull rule
Facts: A stabbed woman four times after she refused to have sex with him. Woman is JW. Lost a lot of blood, staggered to neighbour’s house and
collapsed. Girl was awake to refused blood transfusion via writing and died as a result.
Def arg: she didn’t have to die, survived if she got the blood transfusion. Chose to die by refusing. Held: guilty.
She didn’t die b/c she was a JW; she died b/c she was stabbed. Criminal law is about blameworthiness: Blaue is just as blameworthy
as regardless of the situation. CC 224. Where a person, by an act or omission, does any thing that results in the death of a human
being, he causes the death of that human being notwithstanding that death from that cause might have been prevented by resorting
to proper means - covers Bingapore, Blaue. Just b/c she didn’t seek treatment doesn’t mean Blaue didn’t cause death.
CC 226. Where a person causes to a human being a bodily injury that results in death, he causes the death of that human being
notwithstanding that the efect of the bodily injury is only to accelerate his death from a disease or disorder arising from some other
cause. - covers the guy who was about to have a heart attack.
R v Harbottle 1993 SCC (test for irst deg murder causation)

Harbottle test: substantial cause for first degree murder
Facts: A with companion forcibly confined young woman. Companion raped woman while A watched. Both discussed ways to kill her. A held victim’s
legs to prevent her from continuing to kick and struggle while his companion strangled her. A was convicted of first deg murder. CA upheld.
Issue: Whether A’s participation was such that he could be found guilty of first de murder? Held: Court dismissed appeal, conviction stands.
Purpose – irst degree murder is an aggravated from of murder and not a distinct substantive ofence; in essence a sentencing
provision: murder receives mandatory life sentence – then have to decide whether aggravating circumstances make it appropriate to
make accused ineligible for parole for 25 years.
Must contain substantial and high degree of blameworthiness. Gravity and severity of sentence indicate that substantial and high deg of
blameworthiness, above and beyond that of (second deg) murder must be established in order to convict an A of irst deg murder
Harbottle Test
Conviction only if Crown establishes that A has committed an act or series of acts which constitute substantial and integral cause of the death
Factual causation + blameworthiness, meaning Crown has to prove causation twice (if it meets Harbottle, it meets Smithers). Test
requires A play a very active role, usually a physical role (though not necessarily), in the killing. Requirement is much higher than
that described in Smithers. Physical involvement is usually an indicator of irst deg murder, but not necessarily. Preventing rescuers is
an essential cause of the death; cause does not have to be medical.
Jury charge:
Accused may be found guilty of irst deg murder if Crown established BARD that:
1) A was guilty of underlying crime of domination or of attempting to commit that crime
2) A was guilty of murder of the victim
3) A participated in the murder in such a manner that he was a substantial cause of the death of the victim
4) There was no intervening act of another which resulted in the A no longer being substantially connected to the death of the
victim
5) Crimes of domination and murder were part of the same transaction (death caused while committing crime of domination)
Ambiguity: does Harbottle apply to all irst deg murder or only irst deg murder “while committing listed ofence”
- if rationale is just consequence, applies to every form of irst deg murder
- If rationale is wording, Harbottle only applies to murder while committing one of the listed ofences
Note on life sentence

- mandatory life sentence for all murders - stay in prison until you die
- First deg murder: possibility for parole at 25 years, may not get it though

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- Second deg murder: possibility for parole at 10 years
R v Nette 2001 SCC

Facts: A broke into house of 95 year old widow to rob the house, bound her hands and feet, wrapped clothing around her head, left her on the bed. She
died 24-48 hours later (dentures had come loose, clothing wrapped around her head had become tightly wound around her neck and she’d fallen from
the bed). A charged w/ first degree murder. A told police during sting that he was involved in robbery and death. At trial, A claimed he fabricated
admission. Said he had gone alone to house but it was open already and woman was dead. Convicted of 2nd deg murder using Harbottle, appealed that
jury was misdirected as to the test of causation.
Issue: Should A be judge on legal causation based on Harbottle for his second deg murder?
Held: SCC dismissed appeal, Smithers Test (lower threshold) applies for second deg murder. “Substantial cause” should be reserved for first deg only
so jury can understand difference.
Trial judge conveys legal and factual causation to be found before A can be held criminally responsible for death. Legal causation
diferent from mens rea. When unlawful act combined with requisite mental element, causation is usually not an issue. Contributing
cause that is signiicant is the same as not insigniicant; logically yes, but connotations are diferent. Easier for Crown to meet
Smithers than Harbottle; Smithers is worse for A. Harbottle is issue of consequence and blameworthiness (moral culpability). Meant to
be a much higher standard. Legal test for 231(2) usually won’t arise - if proven that A caused death and it was planned/deliberate =
Harbottle is met.
Dissent: Agrees with result, but not with suggestion that ‘not insignificant’ is same as ‘significant’ contributing cause - latter has more direct causal
relationship
R. v. Smith 1959 Cts Man App Ct

Ratio: The accused’s act must be operating at the time of the result.
Facts: Victim received 2 wounds; pierced lung, bleeding; another soldier tried to carry him to the medic and dropped him twice. Medic didn’t appreciate
seriousness of condition. Soldier dies. Held: Smith is guilty
Reasoning:
At time of death, original wound is still an operating cause and a substantial cause; death can properly be said to be the result of the
wound, even though some other cause of death is also operating. Dropping him twice wasn’t strong enough to overwhelm the original
wounding. Only when the original wounding = the setting on which another cause operates can it be said that the death does not
result from wound, only if second cause is so overwhelming as to make the original wound part of the history. A’s act and result, but
some intervening factor may break the chain of causation if it was overwhelming enough.
Did Smith the soldier who carried (and dropped) victim cause the death?
Contributing cause, yes. But didn’t commit a crime b/c no mens rea. Also, the dropping did not overwhelm the original wounding.
Overview
1. Blameworthiness is part of the causation analysis
2. Courts don’t talk about blameworthiness because they talk about it in mens rea.
3. Talk about blameworthiness on the exam.
R v Menezes 2002 Ont SCJ

Breaking the chain of causation
Issue: Was Menezes the cause of the other driver’s death? Held: No.
Reasoning:
1. Was Menezes a contributing cause that is not insignifcant? Yes. Mutuality of their contribution in race, jointly blameworthy,
egging each other on, high risk.
2. Is Menezes legally the cause of the other driver’s death? No. A had unwoven himself from the mutually hazardous situation
by abandoning the race, no longer an operating cause. Deceased drive chose on his own accord to keep driving at those high
speeds even after seeing A had left the race.
Involuntariness
Involuntariness means no actus reus; must exclude any conduct that is not the product of the free exercise of conscious volition
Strict liability ofence: liable w/o mens rea. If murder is a strict liability ofence, A would be guilty of murder even if A accidentally shot
B.
Actus reus presupposes an act, implies choice. If A has an epileptic seizure and sets of the gun that shoots B, there’s no actus reus
even if A’s movements caused B’s death. However, if murder is a strict liability ofence, epileptic seizure example is still not murder
b/c there’s not even actus reus, let alone mens rea. It’s against person’s autonomy to hold him accountable for conduct that he can’t
control.
R. v. Lucki 1955 SK Pol. Ct.

C/l statement: a person who by an involuntary act for which he is not to blame gets onto the wrong side of the road is not guilty under the section in
question
Facts: A was driving, made a turn, skidded into oncoming lane and collided with another car. Ofence charged: driving on wrong side
of the road and thereby causing inconvenience to other persons using the same highway. Car was on the wrong side of the road, but
it got there via an involuntary act, so A didn’t drive on the wrong side of the road. There’s no actus reus to begin with, even though
judge goes on about mens rea. Held not guilty.
Kilbride v Lake 1962 NZ

Facts: A left car parked w/ warrant of itness displayed and left, when returned warrant of itness was gone. While he was away
someone took warrant of itness or it was somehow lost. D is ticketed. Charged: ofence to permit a motor vehicle to be on a road
whether the person operating it is present or not unless there is a warrant of itness - strict liability (mens rea not needed). This is not
A’s act, but an omission.
Issue: Was it a voluntary omission? Held not guilty, acquitted.

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Ratio: Altogether part from fault element, person cannot be criminally responsible for act/omission unless it was done or omitted in circumstances where
there was some other course open to him, i.e. unless he had the choice to act/omit. If he didn’t have that choice, act/omission = involuntary.
A left car on road and had warrant. Warrant stolen. A had no chance/choice to take dif course, omission was involuntary and
unrelated to ofence. Chain of causation broken.
Involuntariness is an issue only when there is no mens rea requirement. If there’s a mens rea requirement, usually can’t prove someone
intended acts done by others. If act is involuntary, it’s not A’s act, therefore actus reus not proven, which also means mens rea won’t be
proven.
Possession
R v Pham Deinition of possession
To prove possession, choose type, and ind evidence on factors. Deined in 4(3)
TYPE OF POSSESSION FACTORS
Personal possession 4(3)(a)(i) Knowledge
Constructive possession 4(3)(a)(ii) in any place for use/beneit of himself or of another, Knowledge / Control
even if place doesn’t belong to him
Joint possession 4(3)(b) Knowledge / Control / Consent
Joint possession
We’re in the room with the person who possesses the drug. Does that constitute joint possession? No, only the person who gave the
drug to B and B have possession. There isn’t control - we can’t force them to do anything with it. There’s no consent - we might not
even agree for them to have it there
Why isn’t ‘control’ listed for personal possession? It’s just too obvious. If it’s on you or in your poss knowingly, you have to have
control. Control needs to be an explicit factor for the other 2 types of possession b/c it’s not taken for granted.
How does possession mesh with external elements?

Possession with knowledge implies preceding act that resulted in possession of it? Control is an act. Consenting to someone else’s
possession of drugs is an omission - focus on what you did or didn’t do when you could’ve
Marshall v R 1969 Alta CA

Joint possession illustration; unlawful possession of marijuana for the purpose of trafficking
Def arg: must be an element of control in order for there to be poss. ‘consent’: voluntary agreement to or acquiescence in what
another proposes or desires, compliance, concurrence, permission
Issue: There is no doubt that Marshall knew the marijuana was there but did he consent to it being there? Held: not guilty.
Reasoning: Joint possession: knowledge, control, consent. Marshall had knowledge of presence of weed, but had no control, right to
ctrl, nor did he consent to its presence. Consented to himself being in the car, doesn’t mean he consented to the marijuana being in
the car. He had no power to control persons possessing the marijuana, not owner of car, not driver of the car. Wrong inference to
draw by trial judge. Passing on the pipe = passing on the squib? Relex?
R v Chalk 2007 CA
Possession illustration
Facts: Child porn videos on his computer. Aware for several months they were there. Downloaded and watched by himself and with
girlfriend. Told gf to delete them after arrest. Convicted at trial. Issue: Did he have possession? Held: yes.
Possession is:
1. Manual handling
2. Knowledge of what thing is
a. He knew what it showed, even if he didn’t know it was child porn
3. Coexistent with act of control outside public duty
a. Watching it isn’t necessary
b. Being able to decide what to do with the material is essential
Defence of Innocent Possession

Def arg: telling gf to delete is not intent to possess. Legitimate defence if it was used on the right facts; public duty defence; require
absence of blameworthy state of mind. Take control of contraband in order to: (1) Destroy it or (2) Give to authorities.
This is not applicable to the trial judge’s indings: porn was there for several months; He used the computer during that time, had
control to delete it then, but he didn’t, Owned computer, in his house, access to computer, Admitted that he watched it with his gf:
several months of “not deleting it” = control, making the choice to leave it there, Admitted that he deleted it b/c he feared police
would discover it when they examined the computer = manifestation of longstanding power/authority over the material. Control
existed for several months, not incidental to an innocent purpose
5. Proving fault elements of ofences

Fault element: subjective mens rea
Accused’s mental state: any one of intent, knowledge, recklessness or WB is subjective fault.
Intent and WB is knowledge. HOWEVER some ofences limited to “intent” only, e.g. “means to” “intentionally” “with intent”
“purpose” “knowingly”
Objective test (should have thought/foreseen) used only when actus reus of ofence is negligence/inadvertence or for ofences of
strict liability
Subjective test for mens rea

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Whether A actually thought consequences = possibility, looks at A’s intentions and facts as A would believe them to be
1. A’s system of values is irrelevant (morality, motive)
a. Whether A thought action = morally right is irrelevant i.e. defrauder can’t be acquitted just b/c he thought he’s honest
b. It’s whether A appreciated subjectively consequences would low from his/her acts
2. Crown need not show in every case precisely what A thought in his mind at time of criminal act
a. Subjective awareness can be inferred from act itself, barring some explanation casting doubt on such inference
b. Inference doesn’t detract from subjectivity
c. Committed fraud = infer that you had mens rea for fraud
d. The inference may be drawn, not must be drawn, though. It’s not a presumption in law for A to raise RD, but a permissible
presumption.
R v Hundal 1993 SCC

Mens rea is determined subjectively; distinction between one who was aware (subjective) and one who should have taken care irrespective of
awareness (objective)
Subjective test
What actually was in the mind of the A at the moment the ofence is alleged to have been committed. This A’s personality, situation,
circumstances, what he intended, knew, foresaw, draw/infer from his actions/words at time of act and in witness box. Crown can
prove BARD that A must have thought in the penalized way.
Objective test
A would have realized it if he had thought about it. Negligence to be determined objectively = standard of care of a reasonable
person. What A should have known or ought to have known.
R v Mulligan 1974 Ont CA

Intention is still state of mind. Circumstances/consequences are evidence, not absolute indicator, of intention.
Issue: Whether A when he caused death of his wife by repeatedly stabbing her meant to cause her death or meant to cause her bodily
harm that he knew was likely to cause her death and was reckless whether death ensued and thereby committed the crime of murder
as deined by CC 1970 s 212(a)(i) and (ii)
Consideration of all evidence: his acts, utterances, any other circumstances which might shed light on his state of mind. A did not
testify with respect to his state of mind - but if he did, it’d be relevant and admissible. Jury can reject A’s evidence and conclude
circumstances were consistent only with the existence of the necessary intent. Jury is entitled to reject A’s assertions. Harm resulting
from his actions that it’s proper to infer that he intended it, but that’s not a required inference. It’s not a presumption that a man always
intends the natural and probable consequences of his acts. The standpoint is always from A’s pov - what he know, foresee, expect,
intend. The jury can hear what A claims to have had in mind, and they can also reject it, but they can’t impute an objective standard
on A.
R v Ortt 1968 Ont CA

A natural inference may be drawn if warranted by the evidence, but it is not a presumption in law (permissible presumption).
On appeal from conviction of non-capital murder; ground for appeal: trial judge’s charge to jury that onus was on A to prove incapacity to
have intent. Appeal dismissed based on the whole charge is clear.
CA notes: It is an error in law to tell jury that it is a presumption of law that a person intends the natural consequences of his acts.
Presumption alone suggests onus on A to disprove or raise RD. Use “inference” instead: certain conclusion may be drawn if warranted
by evidence, if it’s reasonable, not must be drawn (presume).
Lewis v R 1979 SCC

Motive (specific intent) is irrelevant to the finding of mens rea (general intent)
Facts: A and T are charged with murder of T’s daughter and son-in-law. A admitted mailing package to victims for T but denied
knowledge that package contained a bomb. A convicted, then appealed.
Issue: Did A know at the time he mailed the package that it contained a bomb? Held: Appeal rejected all grounds.
Rejects one of A’s grounds for appeal: lack of motive; inancial motive was inconclusive. Intent and motive are distinct in law. Intent is
mens rea (fault element), exercise of free will to use particular means to produce particular result, does not include or necessarily
have to include motive (which precedes and induces exercise of free will, intent = meant to perform the action, regardless of motive
to do so.
Points to consider:
1. Proved presence of motive is always relevant and is admissible evidence.
2. Motive would be relevant to reasoning whether act was intentional or accidental.
3. Motive is relevant to credibility.
4. Motive is relevant to identifying culprit.
5. Motive is not part of the crime and is legally irrelevant to criminal responsibility. It’s not an essential element of the Crown’s
case as a matter of law.
6. Proved absence of motive is always relevant.
7. Absence of proved motive is irrelevant to Crown’s case.
Therefore, A mailed the package, knowing that it contained a bomb. That removes the materiality of motive as to proof of identity. Narrows
the necessary mental element to knowledge that parcel contained a bomb. Speciic intent is just matter of inference and irrelevant to his
conviction.
Symmetry Rule
General rule: each fact element have a corresponding fault element
If CC provides a fault element, use that one. e.g. “wilfully” or “intentionally”
Note: adding intentionally into the statute amounted to removing recklessness, since default contains recklessness, harder to prove
for Crown.
If CC doesn’t say, the default fault elements are:
Conduct = intent / recklessness

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Circumstance = knowledge / recklessness
Consequence = none (exception 1)
Exception 1: consequence element has no fault element
Rule of causation: you don’t have to intend or foresee the consequence to be guilty of causing it.
Exception 2: free-floating fault elements have no corresponding fact element
Extra intention that the Crown has to prove. “with intent to do such and such” always free-loating
Exception 3: questions of law do not have fault elements
Ignorance of the law is no excuse; Crown does not have to prove you knew what the law was. If Crown had to prove it, that would
mean ignorance is an excuse.
Problems with applying rules rigorously
1. Exactly the same word in two diferent sections of the Code might have two diferent meanings (e.g. ‘purpose’).
2. Non-standard words: Wilfully, Fraudulently, Corruptly
a.Diicult to tell: fraudulently, corruptly - external or fault? If fault, replaces fault or free-loating?
b.Mathe interpreted fraudulently as free-loating
c. Theroux interpreted fraudulent as part of fact element
EXTERNAL FAULT
393(1) 1. Fail to collect fare 1. Willfully
(a) 2. Have duty to collect 2. Knowledge / reckless
348(1) 1. Break and enter 1. Intent / reckless
(a) 2. Place is a dwelling house 2. Knowledge / reckless
3. Intend to commit indictable ofence - free-loating
140(1) 1. Cause P.O. to enter investigation 1. None
(c) 2. Report ofence committed 2. Intent / recklessness
3. Ofence is not committed 3. Knowledge / recklessness
4. Intent to mislead - most of the time you can probably infer
that fault 4 will be proven with the proof of the other elements
90(1) 1. Carries an item (conduct) 1. Intent / reckless
2. Item is weapon (circumstance) 2. Knowledge / reckless
3. Weapon is concealed (circumstance) 3. Knowledge / reckless
4. Not authorized under Firearms Act 4. No fault element b/c “authorization” is a question of law.
(circumstance)
Theft examples
CC 322
1. I go to a store and say “I’m going to steal that hat”, stick the hat on my head and walk out. Guilty, statement made.
2. I go to a store, tear the tags and theft detection device off a hate, stick the hat on my head and walk out. Guilty, act is indicative of
desire/intent.
3. I go to a store, think “I’m going to steal that hat and give it to charity”, stick the hat on my head and walk out. Guilty, speciic intent/
motive is irrelevant
4. I go to a store, think “I’m going to buy this hat”, put it on my head to carry it, forget I’m wearing it and walk out. Not guilty, not
reckless; perhaps negligent; perhaps should have occurred to me that I’d forget, but can’t use objective standard and say you
should have thought about it
5. I go to a store, think “I’m going to buy this hat”, put it on my head to carry it, think “gee, I’m really forgetful, I hope I don’t forget I’m
wearing it”, forget I’m wearing it, and walk out. Recklessness: you thought about the risk that you’re going to forget and still took the
risk
6. I rush into a store to find my wife, see her put a hat on her head, grab and pull her out of the store because of an emergency. Did I
intend to take the hat? Yes, virtual certainty is intention even w/o desire. Acc to Hibbert, say that he intended to steal the hat and
then give defence of necessity. Just b/c she can ling it of her head while running out doesn’t mean that I’m less guilty. She’s also
guilty.
R v Buzzanga and DuRocher 1979 Ont CA

“Wilfully” for 319(2) is subjective intent not extended to recklessness. Intent can be desire or virtual certainty.
Facts: 2 FR Cdns want to bolster FR lang school campaign. Schemed to print anti-FR flyer to get FR speakers to unite and get this school built.
Backfires and charged with what is now 319(2).
Issue: What does the word ‘wilfully’ mean in relation to 319(2)? If wilfully is intentional, does intention require element of desire? Held:
wilfully means intentionally and it does not require desire. SCC adopted Ont CA approach later on - binding decision.
Element Analysis: 319(2) Every one who, by communicating statements, other than in private conversation, wilfully promotes hatred
against any identiiable group
EXTERNAL FAULT
319(2) 1. Communicates 1. Intent / reckless
statement(s) 2. Knowledge / reckless
2. Not in private 3. Wilfully
3. Promotes hatred 4. Knowledge / reckless
4. Against any identifiable
group

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EXTERNAL FAULT
Crown’s 1. Admitted to distributing 1. Yes - admission, part of the plan
case pamphlets; wrote those 2. Knew that it was to be distributed, part of the plan
pamphlets; printed them 3. Wiilfully - the case hinges on this. Is the fact that they didn’t want to promote hatred
2. Distributed, many against FR Cdns mean that they didn’t wilfully promote hatred. Does wilfully include “desire or
copies want”? Because if it doesn’t, they aren’t guilty. But if it does, they maybe they did promote guilty.
3. Content of the writing - 4. Yes - they self-identify with FR Cdns, that’s the whole point of the flyers
let’s kill the FR. Pretty hateful
4. Against FR speaking
Cdns
1. Wilfully deinition - connect with s 429(1)
Deinition of ‘wilfully’ for Part XI of CC. 319 is not in Part XI, so this deinition can’t be applied directly. Assume CC is a consistent
whole - legal iction. 429(1) wilfully means ‘intentional / reckless’. Why would you have to restate this when if you didn’t put ‘wilfully’
it’d mean the same thing. That just means we’ll never get a inal answer. 319’s wilfully and 429’s wilfully don’t mesh well together.
Nevertheless, since wilfullly includes recklessness in Part XI and since that is a difference from the norm or usual meaning and since 319 isn’t in Part XI,
wilfully does not include recklessness, ergo wilfully means intentionally
2. Intent is virtual certainty for 319(2)

Rejects def arg: we didn’t desire promotion of hatred, therefore we didn’t intend it. Intent is virtual certainty, even without desire.
Getting people to hate our community in order for community to band together (even if that hate is impressionistic) it’s still for the
promotion of hatred.
Trial judge erred by 1) linking wilfully with the printing of the pamphlets and not with promoting hatred and 2) equating causing an
uproar with promoting hatred. Later on, Ont CA ruled that wilfully does include WB.
R v Hibbert 1995 SCC

“purpose” = subjective intent not extended to recklessness or WB
Facts: Hibbert has friend Cohen. C has enemy named Quasi. Q wants to shoot C. C has security in his building. C won’t buzz in Q, but C will buzz in H.
Q kidnaps H and forces H at gunpoint to buzz. C comes down. Q kidnaps C as well. Q shoots C, but doesn’t kill him. H gets charged with shooting C as
party to the offence, as someone who helped Q (principal). Q disappears. H is charged. Def arg: Not for the purpose of aiding Q, for the purpose not to
be shot
Element analysis:
21(1)(b) Every one is a party to an ofence who ... (b) does or omits to do anything for the purpose of aiding any person to commit it
OFFENCE EXTERNAL FAULT
21(1)(b) 1. Do anything 1. Intent / reckless
2. Purpose of aiding (free-
floating)
Crown’s 1. Pressed the 1. Voluntarily did it
case buzzer
Issue: Does purpose include desire? Held: No, but H has c/l defence of duress.
Does the fact that he doesn’t like what’s going to happen mean that it was not his purpose that it would happen? No. As long as H
understood he was aiding and intentional in doing it = purpose to aid, regardless of desire. H then is liable under 21(1)(b). Adding
desire would achieve absurd efect of letting a cold-blooded indiferent kill get of scot-free. Paquette case on 21(2): if someone is
under duress, does not have common purpose with the principal. H chooses diferent approach and overturn P ruling to unify
deinition of ‘purpose’ for both sections.
Justiication: make it easier for juries to understand, since H has the duress defence to save himself. Court can still achieve desired
just result even when interpreting purpose w/o desire element. Simply ask: Did H help Q when he buzzed C? Yes. Does being held at
gunpoint excuse his action? Yes. Otherwise judges have to talk about philosophy with juries - the idea that yes he intentionally
commits an ofence in order to save his own skin commits the ofence ‘on purpose’ but is ‘negated’ by duress. Strive to avoid
unnecessary complexity!
R v Mathe 1973 BCCA

“Fraudulently” is a free-floating element, requiring dishonest intent
Facts: Drunk man, goes into bank, says to teller, give me all your money, I have a gun. She counts $20 bills while pressing silent alarm. Then he says,
I’m just joking and he leaves. An hr later, he gets arrested. Defence: it was just a joke. Charged with attempting to steal (b/c he never got the money).
New facts: Pretend that she handed him the money and he handed them back saying it was a joke, so it’s not just an attempt, but actually theft.
Held not guilty.
Drunkenness doesn’t igure in. Generally speaking, the reason that he’s not guilty is that he was playing a prank. How does that
mean he’s not guilty? B/c he did not have the intent to steal seriously; he was ‘joking’. Some kind of lack of fault element that makes
him not guilty.
Element Analysis
Charged with stealing; s. 2 definition ‘steal’ is to commit theft; therefore, charged with 322 (Note: 334 indicates theft is an offence)

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EXTERNAL FAULT
Theft 1. Take a 1. Intent / recklessness
322(1)(a) thing 2. Knowledge / recklessness
2. Thing 3. With intent to deprive owner
owned by another
Rv 1. Yes 1. Yes, no one forced him to take it
Mathe because he took 2. Yes, he knew that the money was from the bank; he told her to hand over the cash
poss of the bills 3. Yes, has intent to deprive owner; knowing that he’s taking money that doesn’t belong to him - the
2. Yes point of the joke; even if he didn’t mean to keep it, he still meant to deprive the owner of the joke
because the Note that these external and fault elements are proven!
money was in the
bank
Case 1. Fraudulently (where should this be written? External or fault?)
hinges on 2. No colour of right (this has nothing to do with this case) for term 2
this:
Court 1. Fraudulently, meaning ‘dishonestly’
puts the He’s not taking for the intent to do anything dishonest with it. Cites R v Wilkins (guy who takes
inal police motorcycle for a joy ride while the cop writes his ticket). The intention to perpetrate this
element joke, stupid though it was, is incompatible with the evil intent which is inherent in the crime of
in fault theft.
category Free-loating means ‘fraudulently’ refers to the entire act, not just the ‘taking’.
as a free- If fraudulently is an external element, proving all elements = fraudulence. But then word would
loating be redundant and our operating assumption is that Parliament did not write anything
one redundantly. Extra ‘fraudulently’ word is to protect people who play practical jokes on people
from being charged criminally
However Mathe isn’t one way of looking at things. It can be misapplied. See Theroux.
R v Théroux 1993 SCC

Fraudulent can also mean an act that is dishonest/wicked (from society’s pov); WB is no defence
Facts: Théroux is building subdivision. Doesn’t have money to build, so does a presale. Takes down payment from people to build the
houses. He tells people that the money is insured, but he never got around to sending in the application to insure the money. Project
goes bankrupt, and people lose their deposits. He’s just incompetent. It’s not that he took the money and led to the Bahamas; he
was just a lousy businessman. Charged with fraud. A’s arg: no dishonest/evil intent based on Mathe. He fully expected that the
building was going to be built and the money was safe. Fraud requires evil intent; I had no evil intent; therefore, I can’t be guilty.
It doesn’t work! B/c it’s WB too.
Issue: What does fraudulent mean for crime of fraud? Held: Fraudulent is an external element, guilty
EXTERNAL FAULT
Fraud 1. Fraudulent act 1. Knowledge / recklessness
2. Causes deprivation 2. Knowledge / recklessness
Rv 1. Yes because he told people money was insured when it wasn’t 1. Knows he took the money and didn’t
Théroux 2. Yes money was lost due to bankruptcy insure it
2. Reckless, he took the risk not to insure
the money
Reasoning: Why wasn’t Mathe considered? Fraudulent wasn’t a fault element in this case.
In this case, they read ‘fraudulent’ as a question of fact, not whether T thought it was objectionable (that’s moral
thing); rather, it was whether he knows that he lied to people about insurance, and he did know that he was lying.
Fraudulent act here is an imposed value judgement - i.e. society thinks lying to people about whether their money was
insured is in itself a fraudulent act, rather than him needing to have fraudulent intent. In Mathe, it was A’s own value
judgement; In Theroux, society’s view of ‘fraudulent, corrupt, dishonest’. Courts tend to favour Theroux approach.
Mathe with 3. Fraudulently (i.e. Circumstance, settled by society; taking someone 3. Knowledge / recklessness
Theroux else’s property is in itself fraudulent/dishonest) Uncomfortable b/c people could be guilty of
approach criminal ofences for practical jokes
Theroux 1. Do anything 1. Knowledge / recklessness
with Mathe 2. Cause Deprivation 2. Knowledge / recklessness
approach 3. Fraudulent
This 3rd free-loating fault element would be
asking if Theroux had evil intent. Would he
then be guilty? No. He had good intentions;
he’s not running of to the Bahamas with all
that money.
Theroux A may introduce evidence negating that inference, such as evidence that his deceit was part of an innocent prank.
keeps Fraudulently v fraudulent = not a big diference.
alive The reason they don’t want to go with Mathe is b/c they don’t want to undercapture, that morally corrupt people would
Mathe go unpunished.
approach: However, court wonders if they are overcapturing, but they don’t believe so - not moving too far into incompetence.
Would Theroux had been guilty if the houses were built? By Court’s reasoning, he still would’ve been guilty b/c at one point he did put
people’s interests at risk for lying about insuring the money. Maybe that is overcapturing a little since the houses would have been
built? New cases: Theft and fraud have been settled, but as new cases arise, court will have to choose which approach to take. Court
tends to go with Theroux. Mathe will still ly for theft.

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R v Currie 1975 Ont CA

WB must be tested subjectively; “should have been suspicious or responsibility to inquire” are objective tests
Facts: A charge and convicted for uttering a forged document. Cheque endorsed by Gerada’s forged signature, stolen from his mailbox. A had acct with
CIBC for a while. He used his own name. G contacted police when he didn’t get his cheque. Police arrested A. A said someone paid him $5 to cash a
cheque when he was sitting having a beer. Trial conviction on WB: responsibility to inquire after cheque validity, WB to questionable nature and cashed
cheque.
Issue: What is Currie thinking?! Was he WB? Held: Retrial b/c trial error. Trial judge erred on deining WB using an objective test
(responsibility to inquire / should have been suspicious). Constructive knowledge has no place.
Sansregret v R 1985 SCC

Distinguish meanings of ‘recklessness’ and ‘WB’
Facts: Victim and A had been in a relationship for some period of time. Judge observes that it’s diicult to understand why they were
ever in a relationship because the victim is an up-and-coming professional and A is a complete loser. They did break up at some
point. A was intent on getting back together - the only way is to persuade her, break into her apt at night, hold her at knifepoint and
force her to talk to him. Forced her to stand naked in a door way while he ixed the broken window. A’s pov: we had a conversation
and we’re back together. Victim’s pov: terrorized at knifepoint. Victim convinces that they are back together. Have sex. Victim calls
the police the next day. A’s defence: I genuinely thought we were back together! Held guilty.
EXTERNAL FAULT
Sexual 1. Apply force - yes 1. Intent
assault 2. To other person - yes 2. Knowledge / recklessness
264.1 3. No consent - she consented at knifepoint, so 3. Knowledge / recklessness - Case hangs on this. You can find him
it’s not real consent guilty by not believing his statement that he thought they were back together.
4. Of a sexual nature (factual circumstance, no The problem is that the victim testified to that fact so the judge found him not
fault element required) - yes guilty.
WB is never listed as a fault element b/c WB = knowledge. SCC ind him guilty through a trick: Trial judge’s inding of fact doesn’t
amount to WB, but she did use the phrase “WB” to describe it. On a purely subjective test, he would not have amounted to being WB.
So SCC just says that since trial judge said he was WB, that equates with knowledge, therefore he’s guilty. SCC however doesn’t
mean to change the test for WB for the future.
NEGLIGENCE RECKLESSNESS WILFUL BLINDNESS

Civil liability - objective Criminal ofence - subjective Criminal ofence - subjective standard
standard standard
Act or omission Aware that there is danger that his Suspected the fact, realized its probability, refrained from
revealing less than conduct could bring about the illegal obtaining the inal conirmation b/c A wanted to be able to deny
reasonable care result, nevertheless persists, despite knowledge, intending to cheat administration of justice - can’t be
the risk any wider or it will be negligence
Failure to provide Doesn’t override defence of mistake Mistake of fact does not apply. Law presumes knowledge on A’s part.
standard of reasonable of fact. Mere honesty of the belief will
care support the ‘mistake of fact’ even if
unreasonable
Culpability justiied by A’s Culpability justiied by A’s fault in deliberately failing to inquire
consciousness of the risk and by when he knows there is reason for inquiry
proceeding in the face of it
R v Jorgensen 1996 SCC

WB is imputed knowledge, satisfies mens rea.
Facts: Sole employee of adult video store in Scarborough. Undercover cops bought 8 videos. Charged A and company with 8 counts of
knowingly selling obscene material w/o lawful justiication or excuse contrary to s 163(2)(a) of CC. Basic test: combine sex with
violence = obscenity (there are more, but for this case, it suices). Trial: 3 of 8 counts = obscene b/c sex coupled with violence and
coercion, or subordination which created risk of harm. CA upheld trial convictions.
Issue: Is obscenity a question of fact or question of A’s moral judgment of whether it is obscene?
Held: Obscenity is a question of fact, ilm combined sex and violence; since he knew those facts, knowledge that it was obscene is
attributed to him.
EXTERNAL FAULT
1. Sell thing 1. Intent / reckless
2. Thing is to sell
obscene 2. Know thing is
obscene
WB constitutes mens rea requirement. Deliberately choosing not to know something when given reason to believe further inquiry is
necessary = WB = knowledge. Did A shut his eyes b/c he knew or strongly suspected that looking would ix him with that knowledge?
If yes, guilty. Rejects Crown’s arg: prove ‘knowingly’ sold obscene material = suicient to prove A knew he was selling explicit sex
ilm. SCC: If that’s the case, then you can convict someone for doing something legal, knowledge has to be more than fact that it’s a
sex ilm, Crown has to prove that it’s an illegal sex ilm, meaning the seller had to have watched it to know. Seller knows that it is
porn, obviously. Crown has to prove that ilm = obscene, but Crown doesn’t have to prove that seller actually knows ilm is legally
obscene, he just has to be WB to the fact it is legally obscene. If the seller thinks some sexual exploitation was no big deal, not a
defence! Ignorance of legal deinition of obscenity is no defence. Ignorance of illegality of selling obscene material is also no defence.
Jorgensen-related handout
1. Yes, it’s knowledge. His thought showed that he suspected that it was illegal, WB at the very least.

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2. Follows Theroux: obscenity is an objective test. Mathe line of reasoning would be interested in whether the A subjectively thought
this was obscene.
3. Maybe not enough to convince us completely, but we’d have to examine the statement “I’d better not watch this one” mean that
he was virtually certain he’d see something with sex and violence (i.e. Obscene)?
4. At most, his suspicions should have been aroused, but in essence, who cares since he didn’t suspect it himself. In any case,
recklessness doesn’t count b/c the fault element has to be knowledge.
R v Duong 1998 Ont CA

WB turns on decision not to inquire when real suspicions arise; other possible connections and dishonesty of offender = irrelevant to A’s mens rea.
Facts: A charged with accessory after the fact to a murder committed by L. Two killed Dec 1993. L connected to murders. A and L
friends for 5 years. L called A and asked to stay at A’s apt, indicating he was in trouble, stayed for 2 weeks. Police raided, arrested, A
told L that he didn’t want to know more because he would be in trouble for helping him hide. L convicted with 2 counts of 2nd murder
and 2 counts of attempted murder. A convicted and and appealled. Held guilty for WB while holding Crown to higher standard for
23(1)
Element analysis
23(1) An accessory after the fact to an ofence is one who, knowing that a person has been a party to the ofence, receives, comforts
or assists that person for the purpose of enabling that person to escape.
EXTERNAL FAULT
1. That person is party to the 1. Knowledge was party to the offence
offence 2. Intent / recklessness
2. Receives, comforts, or assists 3. For the purpose of enabling the person to escape
person (consequence)
Crown must prove that alleged accessory knew that the person assisted was a party to that particular ofence, i.e. murder. Crown
meet burden if A proven to have actual knowledge of the ofence. Speciic case law: Crown to prove that A charged with being
accessory after the fact to a homicide had knowledge of ‘unlawful killing’. Other jurisdictions required prosecution to prove that A
knew of the speciic crime. Court rejects Crown’s arg that it’s ok A didn’t know of the speciic ofence. Parliament could’ve have
created a generic broad knowledge of crime but it didn’t. Just b/c A thought B committed crime x and helped him doesn’t mean that it
will make B escape justice for committing crime y. Crown is making more of a case for obstruction of justice (139(2)) rather than
accessory after the fact. Connect with Jorgensen - Crown wanted easier burden - to prove “an ofence” rather than “the ofence” of
murder and burden to prove “selling explicit sex ilms” rather than “obscene ilms”. If Crown got the easier burden, it’d mean that
those doing legal things might be charged too.
WB
Court rejects A’s arg b/c liability isn’t based on hypothetical result of inquiries never made (Lam wouldn’t have told me the truth even
if I did ask him); it turns on decision not to inquire once real suspicions arise. Actual suspicion, combined with conscious decision not
to make inquiries which could conirm that suspicion, is equated in the eyes of the criminal law with actual knowledge. If Crown
proves WB = culpable state of mind. Whether or not L will give A straight answer is irrelevant to what A chose not to do. Also rejects
A’s 2nd arg that it was unreasonable to convict b/c A may have contemplated other possible connections - irrelevant to the fact that
he suspected L was party to murder.
R v Blondin 1971 BCCA

Relaxing the symmetry rule: “knowledge that thing is a narcotic”
Facts: A imported hashish into Richmond, BC via his scuba gear. Charged with traicking Trial: acquittal; Crown appealed.
EXTERNAL FAULT
1. Import thing 1. Intent / recklessness
2. Into Canada 2. Knowledge / recklessness
3. Thing was cannabis 3. Knowledge / recklessness that it was cannabis resin a
resin narcotic
Crown tries to get lower standard
1. Knowledge that thing is illegal - Court rejects this b/c jail term is 7 years and someone who’s smuggling in fruit shouldn’t be
as blameworthy
2. Knowledge that thing is a narcotic - Court agrees, right level of blameworthiness, even if it’s military grade plutonium.
3. WB = knowledge and can be proved in this fashion
To get mens rea for ‘thing is cannabis resin’

Can convict if found A brought it into Canada and knew it was a narcotic. Can convict if they found substance was brought illegally,
and was reckless or WB shut his eyes to what it was and drew the inference that he suspected that it might be a narcotic. Possession
= manual handling, knowledge of what thing is, act of control. If he didn’t have knowledge, might be mitigation since he didn’t intend
improper use. Existence of knowledge can be inferred, recklessness or WB = conviction.
6. Proving the fault elements of ofences

Objective fault
Deinitions
Subjective mens rea - what was in the mind of the particular A at the time. Unless otherwise stated, most ofences presume subjective
mens rea. An honest mistake is not a crime, even if it’s unreasonable
To ind someone guilty with a subjective standard:
- Must prove the accused actually knew
- Higher penalty
- Honest mistake then not guilty
- More blameworthiness – knew what they were doing and did it any way

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- Subjective fault crime = all the fault elements must be subjective
Objective mens rea - what a reasonable person ought to have in mind (know or foresee). An honest mistake that’s not reasonable is still
an ofence
To ind someone guilty with an objective standard:
- must prove a reasonable person would have known or accused ought to have known
- Reasonable mistake then not guilty
- Less blameworthiness – just failed to live up to reasonable standard
- Lower penalty
- objective fault crime = objective fault in at least one place
- Anomalous list of ofences have objective fault element = haphazard approach
Reckless - saw the risk, took the chance

Negligent - ought to have seen the risk, acted in spite of the risk; acted that deviates from objective standard (reasonableness)
Advertence - turned your mind to it, thought about it in some way
Inadvertence - did not turn your mind to it, didn’t think about it, unintentional
Presumption - conclude a certain fact to be true, unless it can be rebutted
CC offence: presume subjective fault unless it states otherwise
Offences with words like: Reasonable care, Ought to, Good reason, Reasonable ground, Reasonably expected, Reasonable steps, Should have been
aware, irrespective of actual awareness
E.g. Parliament’s declaration that there can be no mistaken belief in consent defence to sexual assault charge unless reasonable
steps were taken
Sometimes courts resort to objective standard where it’s not expressly required
E.g. Ofences requiring criminal negligence
CRIMINAL NEGLIGENCE
219 (1) Everyone is criminally negligent who (a) in doing anything, or (b) In omitting to do anything that it is his duty to do shows
wanton or reckless disregard for the lives or safety of other persons.
- Wanton - not thinking
- Reckless - meaning in criminal law, which is subjective
Criminal negligence has to have something diferent from ordinary negligence even if it’s not a total objective fault
- something that harms society as a whole beitting the public nature of ofences
- Section includes omission; failure to do something
- heavier penalty
- Tort negligence - something harmful between 2 people
- Nonfeasance is not a tort, unless there existed a positive duty between the 2
220: Everyone person who by criminal negligence causes death to another person is guilty of an indictable ofence and liable (a)
where a irearm is used in the commission of the ofence, to imprisonment for life and to a minimum punishment of imprisonment for
a term of four years; and (b) In any other case, to imprisonment for life.
221: Every one who by criminal negligence causes bodily harm to another person is guilty of an indictable ofence and liable to
imprisonment for a term not exceeding ten years.
222
(1) A person commits homicide when, directly or indirectly, by any means, he causes the death of a human being
(4) Culpable homicide is murder or manslaughter or infanticide.
(5) A person commits culpable homicide when he causes the death of a human being, (a) by criminal negligence Tuttons, Anderson
234: Culpable homicide that is not murder or infanticide is manslaughter.

236: Every person who commits manslaughter is guilty of an indictable ofence and liable (a) where a irearm is used in the
commission of the ofence to imprisonment for life and to a min punishment of imprisonment for a term of four years; and (b) In any
other case, to imprisonment for life
R v Tutton and Tutton, [1989] 1 SCR 1392

Parents believe son’s diabetes healed by God, stops insulin, boy dies
219, 222(5)(b) - criminal negligence causing death, obj standard: marked and substantial departure
Facts: A (parents) are charged with manslaughter for death of diabetic son. A knew son needed insulin. Mom believed that son was healed through
prayer, stops insulin, son is hospitalized. Parents resume insulin. Mom receives another vision from God re son’s healing. Parents stop insulin. Son dies
from complications.
Trial: convicted
CA: set aside conviction, ordered new trial
- reversible error of trial judge: did not clearly explain reverse onus in respect of proving a lawful excuse on a BOP applied only in the case of
the included offence of failing to provide the necessaries of life (215(2))
- Criminal negligence through omission meant jury had to be satisfied that A knew there was risk to the life/safety of son and unjustifiably took
that risk or closed their minds to any such risk with disregard for either his life or his safety
- Crown appealed
SCC: confirmed order of new trial b/c error in jury charge re onus of proof
- also considered test for criminal negligence: 3-3 split
- 3 JJ: objective fault
- 3 JJ: subjective fault

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Tuttons made a mistake of fact (honest mistake): they believed their son was no longer diabetic. Under subjective standard = not guilty b/c knowledge
element is no proven. However, in this case, we’re using objective standard: not reasonable, it must be a reasonable mistake in order not to be guilty.
Issue:
1. Do we use objective or subjective fault?
a. Usually, subj or obj inquiries will lead to the same result, assume A is a reasonable person.
b. However Tuttons were thinking reasonably in this case, but subjectively they really believed their son was healed
2. If objective fault, what is the objective test? There are 3 options:
a. Really modified: take all personal characteristics/factors into account
b. Modified: take some relevant personal characteristics/factors into account
c. Uniform: don’t take any factors into account; same, consistent reasonableness standard, doesn’t change regardless the A
McIntyre and L’H-D JJ:

- 219 doesn’t have distinction between omission and commission
- Wanton and reckless must mean diferent things; wanton = objective, reckless = subjective
- Negligence by itself = objective, but this is criminal negligence
- Shows wanton or reckless disregard, not a feeling = objective
- Difference btwn murder and manslaughter = intent
- If intent was included into criminal negligence, having separate offences would become meaningless (i.e. what would make it different from
manslaughter then?)
- Should use objective test: reasonableness
- Proof of conduct: marked and substantial departure from the standard expected of a reasonably prudent person in the circumstances
- Application of obj test can’t be made in a vacuum, must consider surrounding circumstances
- A’s perception of the facts is considered to determine reasonableness, not intention
- D arg: mistake of fact, believed that son was cured and no longer needed insulin
- Honest though mistaken belief may be a defence BUT it must be a reasonable belief
- Reasonableness of belief is only required when using obj standard, not needed for subjective fault ofences
- Based on history of son’s disease, refusal of insulin and medical attn was a marked and substantial departure from the standard
observed by reasonably prudent parents
- W/drawal of insulin and belief of cure are not reasonable beliefs
Lamer J
- agrees with McIntyre that it’s an obj test, but wants a modified objective test
- wants generous allowance to A, such as age, mental developmt, and education
- This just means subj/obj will most often lead to the same result
Modiied objective test

1. Did the accused fail to keep those precautions which any reasonable man w/ normal capacities would in the circumstances
have taken?
2. Could the accused, given his mental and physical capacities, have taken those precautions?
Problems: If we start opening it up to modiication for youth, education, mental development, where do we draw the line?
- What about a young genius? Is this a separate reasonable person? Does it it into the educated reasonable person?Does it it
into the young reasonable person?
- What about drug addict? Can this be a separate category?
- An atheist? A Jehovah’s Witness? A Catholic?
Wilson, Dickson, La Forest JJ

- rejects obj standard b/c it would make criminal negligence an absolute liability ofence
- Doesn’t want to impose criminal liability in absence of guilty mind
- Wording of section is ambiguous
- ‘shows’ and ‘negligence’ - suggest obj
- Wanton on its own - element of randomness or arbitrariness akin to obj
- Wanton with recklessness - accentuates and more heinous, connotes WB
- Constitute prima facie evidence of mental element, in absence of evidence to the contrary, reference to
reasonable awareness will lead to conclusion that A was aware or WB
- Dangers of using obj standard
- Not adjusted to capacities of A, held criminally responsible for negligence even if they could not helped their failure to
comply with standard
- Modiied objective standard is a bad idea - jury will lower standard of conduct expected regardless of whether the A
attained the deg of guilty knowledge
- Objective standard has risk of being both overinclusive and underinclusive
- Overinclusive: reasonable doctor would know but this particular doctor is a bad doctor and doesn’t in fact know
- Underinclusive: a 16 y.o. who's more mature than the reasonable 16 y.o.
- But then, this is inherent problem w/ ANY objective test rather than specific to the modified objective test
- Subj standard is better - equal to all, consistent rather than altering obj standard for each individ dependent on their bkgd
Policy aspect: Should the Tuttons be considered criminals?

- Purpose of criminal law is to punish the worst behavior in society: Do the Tuttons meet that criteria?
- their religious belief is not like JW - who refuse blood transfusion for themselves and their children knowing that they might
die as a result
- this is not someone’s religious belief that they must let the child die
- They had a religious vision that the child was cured
- They did it purposively, but they didn’t know the consequences
- If you lived in a world where God talked to people directly, who would you believe? Doctors or God?
- Reasonably in her world (which she believes) then she’d trust God

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O’Grady v Sparling, [1960] SCR 804

Provincial offence of careless driving; division of powers; fault element of criminal negligence
Facts: A charged with provincial ofence of careless driving. At the time there was a federal ofence of criminally negligent driving. If
both provincial law and federal law do the same thing, prov legis is inoperative. A argued just that.
Held: appeal dismissed; they are 2 diferent ofences, so he can be charged under prov one
Criminal negligence in what is now s. 219 is a form of recklessness which connotes advertence (i.e. Subjective) whereas prov careless
driving is an objective fault ofence.
SCC rejected A’s arg b/c fault elements in the 2 ofences are diferent, therefore they are dif in kind, not degree
- Provincial ofence: negligence - inadvertence - objective
- CC ofence: recklessness - advertence - subjective
- Tort negligence is not thinking about things, objective
- Criminal negligence is subjective, reckless
- Negligence and recklessness don’t belong on a continuum
- Not a diference of degree, i.e. prov isn’t a little negligence, and fed isn’t great negligence
- Dangerous driving is not just “further along” than a provincial careless driving ofence
- overwhelming tendency for prov courts to ignore O’Grady and adopt obj standard for criminal negligence
- Asserting requirement of gross departure from objective norm
Criminal law tendencies:

Provincial ofences (regulatory ofences, there are also federal regulatory ofences): Less blameworthy, lower penalty
CC ofences: More blameworthy, higher penalty
R v Anderson, [1990] 1 SCR 265

222(5)(b) culpable homicide by criminal negligence, running red is not marked departure
Facts: Driving, over the legal limit for alcohol, drove through red light, hits and kills passenger in other car as a result.
222(5)(b)
EXTERNAL FAULT
1. Be criminally negligent 1. See 219 - to deine criminal negligence; subj or obj test?
2. Cause death of human 2. default is no fault element b/c it’s a consequence
***there is an exception to the general rule however. For now, work on the assumption that
consequence element has no fault element.
Trial: not guilty
Conduct must be marked departure from the norm IOT conclude that he had a wanton or reckless disregard…
His conduct: 1) drinking and driving; 2) ran red light, i.e. cannot look at the consequence of his action (killing someone), b/c it’s not
his ‘conduct’, but a consequence. Killing someone as a result of his action does not make conduct more or less risky Whether or not
he killed someone, is his conduct a marked departure from the standard of care? He was not impaired, just over the legal limit - these are
diferent questions in law
If he’s not drunk, the only conduct in question is running the red light. Is this a marked departure? No. Most people have ran reds. Some have ran them
deliberately. The greater the risk, easier it is to conclude that a reasonably prudent person would have foreseen the consequences. Likewise, easier to
conclude that A must have foreseen consequences. Therefore, as risk of harm increases, distinction of obj and subj standards decreases. Ultimately,
when the risk is so high, the consequences become the natural result of the conduct.
Problem: reasoning is that running reds is not a marked departure b/c everyone does it. But shouldn’t the standard be what the
licensing regime dictates? Response: proof of illegal activity does not automatically mean proof of negligence (same as tort).
R v Hundal, [1993] 1 SCR 867

249(1) dangerous driving causing death, Hundal Objective Test: context/circumstances,
Facts: Driving in downtown Vancouver, overloaded truck, road was slick with rain, runs through red, hits car that’s almost through the
intersection, kills driver. Claims he thought he can’t stop in time and honked at amber; but police oicer gave evidence that the light
was red before he entered the intersection. Charged with dangerous driving causing death.
s.249(1)
EXTERNAL FAULT
1. Operate thing 1. Intent / reckless
2. Thing is a motor vehicle 2. Know / reckless
3. Manner dangerous to the public 3. Subj or obj test? - crux of the case
4. Cause death 4. (nothing)
Does the A have to think actually that his conduct was dangerous? Or should he have known it was dangerous?
Held: “modified” objective test for dangerous
Analysis:
Is it subjective or objective? Objective
1) Licensing requirement
- Reasonable driver would know b/c they are tested to be a reasonable driver (otherwise they wouldn’t be licensed)
2) Automatic and relexive nature of driving
- Driving is so routine that people aren’t thinking subjectively, too hard to hold people to that standard. Driver might not even
know what’s on his mind at the time.

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- He doesn’t have to subjectively think that he’s doing a dangerous deed; he just has to think that he will drive through the red
light. Objectively, that is a dangerous act.
3) Wording of 249
- Parliament intended this to be objective
4) Statistics
- Good arg for Parliament to make this objective fault crim
- Stats don’t demonstrate what Parliament was thinking at the time of legislating
The Sedley question: Should this be against the law? created c/l crime
The Clark question: Did Parliament say this is against the law? court tries to igure out if he was violating the law that Parliament
wrote
SCC reasons are more answers to the Sedley question, not the Clark question
Which objective test to use? “Modified” objective

- Cory cites McIntyre as source of MOT, but actually McIntyre’s was a UOT; actually Lamer suggests the real MOT
- Cory’s MOT:
- Taking into account the circumstances/facts
- This is not the same as holding people to a diferent standard based on personal characteristics
- McLachlin calls Cory out on this
- Agrees with his decision, but disagrees with his terminology
- Wants to be clear about calling which one MOT; Lamer agrees with McLachlin’s objection to terminology
- McLachlin agrees with McIntyre (who calls it UOT) and Cory on the actual content of the standard
- No one agrees with Lamer on using his MOT
The Two MOTs:

1. Cory J’s MOT: Take into circumstances into account OR
2. Lamer J’s MOT: Higher / lower objective standard based on A’s personal characteristics
Problems:
1. Hundal Test - contexts and circumstances, but not characteristics
a. Easy in this context with licensing requirement, not easy in others
b. Take into context/circumstances, not create new obj standard using personal characteristics
i. if you reasonably believe there’s gas in the room, then it’s reasonable not to light the torch
ii. If you reasonably believe there’s no gas in the room, then it’s reasonable to light the torch
iii. Whether you are a welder or not is not relevant
2. Lamer’s MOT is too ambiguous
a. Dif reasonable standards for everyone
b. A young driver still is held to a reasonably competent driver standard
c. But in other contexts, a young person may be held to a lower standard.
R v Beatty, [2008] 1 SCR 49, paras 41-49

249(1) dangerous driving causing death
Facts: A charged with 3 counts of dangerous driving, truck crossed the solid centre line for no apparent reason and hit the oncoming
vehicle, killing all 3 occupants. Vehicle was driven properly before. No mechanical failure in the car. No intoxicants. A said he didn’t
know what happened - lost consciousness or fallen asleep b/c of heat stroke.
Trial: acquitted: Few secs of negligent driving w/o more could fall within continuum of civil negligence, but didn’t find a marked departure from the
standard of care of a reasonably prudent driver for conviction
CA: acquittals set aside, ordered new trial; A’s conduct of crossing the centre line into the path of oncoming traffic is objectively dangerous and marked
departure from the requisite standard of care
SCC: appeal allowed, acquittals restored; 3 separate opinions but unanimous in decisions
For ‘fraudulently’ it does matter which column you put it under.

For ‘marked departure’ it doesn’t matter since it’s an obj standard, it’s a fact-inding question instead. It’s about what should be in
their head, not what actually was. However, even though this is an obj fault crime, you can still convict someone if you prove subj
thinking that they will do sth dangerous when driving = more than enough to convict. Obj fault however means even if you can’t ind
subj fault, point to conduct that is dangerous = objectively = crime
Beatty’s modiied objective test

1. Take circumstances into account
2. Marked departure as opposed to merely a departure
R v F(J), 2008 SCC 60

Facts: Death of the child, FJ is not the one who caused the death, FJ = one who didn’t do enough to stop abuse
Charged with 2 ofences
1. 215(2) - failed duty to get child away from abusive partner - acquitted
2. 222(5)(b) - criminal negligence causing death - convicted
SCC: new trial ordered

- you can’t convict someone on a higher standard when they’ve been acquitted on a lower one. New
- Criminal negligence is settled: objective fault
- Objective standard: marked and substantial departure
The 3 objective mens rea standards:

1. Departure from standard of care - provincial careless driving - negligent
2. Marked departure from standard of care - most objective fault crimes - really negligent

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3. Marked and substantial departure from criminal negligence (objective fault crime based on criminal negligence); this is
diferent from Anderson - really really negligent
Anderson: momentary inattention, not a marked departure
Beatty: momentary sleep at the wheel, not a marked departure
Hundal: ran several red lights, honked knowing that he’d run the red, marked departure
This means that the Anderson charge is harder to prove while Hundal is easier to prove - so people with dangerous driving is just
marked departure whereas criminal negligence is marked and substantial departure. Failure to provide the necessities of life -
marked departure from the conduct of a reasonably prudent parent
Would the real modified objective test please stand up?

- change the standard of care depending on the personal characteristics
- Hold professionals to a higher standard
- Hold children and seniors to a lower standard
- Hold skilled workers to a higher standard
Creighton: Don’t use this test for offences
Hibbert: Use this test for defences
Beatty:
- They use the modiied objective test terminology to describe marked departure from reasonable standard
- This is NOT the same meaning as used in Creighton
Usual objective test: taking into account context and circumstances

- Non-issue: you can’t think about a reasonable person standard without taking into account of context/circumstances
- It would be impossible not to take them into account
Objective fault and the Charter

Levels of fault, from less risk of conviction and down, i.e. more work for Crown and down
Subjective fault
killing with intention to kill
|
---> modiied objective test (expert in the particular ield, worse for A)
|
Objective fault
killing when you should have known death will ensue
|
---> modiied objective test (young ofender, better for A)
|
Absolute liability
(no longer the same as tort’s strict liability after 1970s)
no fault elements at all - death happens when you’re holding a weapon
Vaillancourt v R SCC 1987

Felony murder, constructive murder; all offences must have at least objective fault; offences cannot be absolute liability; 230(d)
Convicted of second deg murder. A challenged constitutional validity of 230 alone and in combo with 21(2); argued that PFJ require that before
Parliament impose criminal liability for causing particular result, some deg of subj mens rea must be present. Court refused to deal with 21(2), stuck with
230(d) (then 213(d)).
Held: s. 213(d) violates s. 7 & s. 11(d) of Charter and isn’t saved under s. 1 - no force or effect, repealed
229 Culpable homicide is murder

(a) where the person who causes the death of a human being
(i) means to cause his death, … = subjective fault crime
(c) where a person, for an unlawful object, does anything that he knows or ought to know is likely to cause death, and thereby causes
death to a human being, ... = objective fault crime
The now repealed 230(d)/213(d):

213. Culpable homicide is murder where a person causes the death of a human being while committing or attempting to commit high
treason or treason or an ofence (listed)...
(d) he uses a weapon or has it upon his person
(i) during or at the time he commits or attempts to commit the ofence, or
(ii) during or at the time of his light after committing or attempting to commit the ofence,
and the death ensues as a consequence. = absolute liability crime
This is the inal relaxation, culpable homicide during commission of ofence X (listed) and a weapon is found on him. Whether or not
the person means to cause death to any human or whether or not he knows that death is likely to be caused = Proof that A
committed ofence X while carrying a weapon substitutes proof of subjective foresight for death. Potential for A to be convicted of
murder just by committing an obj fault or absolute liability ofence. There are no fault elements relevant to the death. Nothing in (d)
talks about the A having subjective or objective contemplation of the death. Vaillancourt’s charge was doubly removed - he not only
didn’t commit the subjective fault, but also not the objective fault; the guy he was with did this crime.
Note the external elements

Homicide 222(1)
1. Cause death of human being
Culpable homicide (manslaughter)

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222(5)(b)
2. By [criminal negligence]
222(5)(a)
2. By means of [an unlawful act] (plug in elements of unlawful act)
To elevate manslaughter to murder

1. Cause death of human and means to cause death
2. By means of an [unlawful act]
Constructive murder 230(d)

2. By means of [unlawful act]
3. Committed listed ofence
4. Have weapon at the time
- Note there’s no added fault element as seen above in changing manslaughter to murder; that’s what the courts had a problem with
- ‘constructive’ meaning take death and something unrelated = murder, from ‘felony murder’ of the Brits
- Even if the fault element was obj, there is still a Charter problem
Issue: Does 213(d) impair s. 7 rights? Yes. If so, is it saved under s. 1? No.
1. Violates s. 7
- PFJ requires subj mens rea if stigma and punishment attached to ofence deprives person of s. 7 rights
- Re Motor Vehicles Act - whenever the state resorts to the restriction of liberty, such as jail, to assist in the enforcement of a law,
even in this prov regulatory offence, there is, as a PFJ, minimum mental state which is an essential element of the offence
- Sault Ste Marie: subj mens rea is already presumed in any provision that doesn’t specific fault element
- Murder has this special stigma status; meaning, murder cannot rest on anything less than proof BARD of subj
mens rea
- 213(d) doesn’t even allow obj mens rea, therefore violates s. 7
2. Oakes Test s. 1 - not saved
- Sufficiently important objective - yes (deter use of weapons during commission of certain offences where risk of death would increase)
- Rational connection - yes
- Minimal impairment - no
- Unduly impair rights/freedoms
- Not necessary to convict of murder people who didn’t foresee death and who couldn’t have foreseen death in order to deter others
from using weapons
- Punish the use of weapons, not convict them of murders
Application of s. 7 analysis to case

1. Did 230(d) violate life, liberty, OR security? Yes - guaranteed jail time, liberty violated
2. Is it in acc with PFJs?
This is before Malmo-Levine PFJ test
What are our choices of PFJs?
a. All ofences have subj mens rea
i. This is rejected in Martineau later; most ofences are presumed subj mens rea even if it’s not guaranteed
ii. e.g. Criminal negligence is an obj fault crime
b. Some offences must have subj mens rea (Martineau)
i. High stigma, high punishment ones
c. All offences must have at least obj mens rea (Vaillancourt) = absolute liability offends PFJs.
i. Absent proof BARD of at least obj foreseeability, there cannot be a murder conviction
ii. You can still have absolute liability: 1) saved under s. 1, though not likely, 2) as long as you don’t violate s. 7 (e.g. No jail
time)
d. Some ofences must have at least obj mens rea
i. This isn’t contemplated, but still guaranteed since the statement above guarantees more than this one
e. No ofence is required to have mens rea (can’t have no protection at all!)
R v Martineau, SCC 1990

High stigma, high punishment crimes must have subjective fault; punishment must be proportional to blameworthiness; 230(a)
Martineau in 4 sentences - Lamer’s justification for the use of PFJ 2 - high punishment side
1. The worst punishment must be reserved for the worst ofences/ofenders
2. Intentional bad behaviour is worse than unintentional bad behaviour
3. Unintentional bad behaviour cannot be the worst behaviour (b/c there’s something worse - the intentional bad behaviour)
4. Therefore the worst punishments cannot be given to unintentional behaviour (which is what convicting someone to murder
on the basis of objective fault would be doing; punishment for unintentional behaviour).
OR
Blameworthiness ≡ mental state
Sentence ≡ blameworthiness
∴ sentence ≡ mental state
∴ worst sentence ≡ worst mental state (e.g. Subjective fault)
L’Heureux-Dubé dissenting: Test of obj fault doesn’t violate PFJ or V. Social stigma overemphasized - causing death should get you higher stigma.
Vaillancourt: All offences must have at least objective fault; Offences cannot be absolute liability
Martineau: High stigma, high punishment crimes must have subjective fault; Punishment must be proportional to blameworthiness;

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Worst penalties reserved for the worst crimes. Guarantee is for currently: murder, attempted murder, accessory liability to ofence
constitutionally requiring subj mens rea, war crimes, and crimes against humanity. Guarantee has been rejected for: unlawful acts
causing BH (DeSousa), dangerous driving (Hundal), manslaughter (Creighton)… etc. Lamer’s obiter - include theft.
Few crimes guaranteed subj fault does not displace c/l presumption that all crimes as a matter of fact have subj fault unless
Parliament has clearly expressed a contrary intention. Martineau establishes that for a few crimes, even if Parliament wants obj fault,
ofence must have subj fault nonetheless
STAT INTERP IN C/L: WHAT IS TRUE CHARTER: WHAT MUST BE TRUE
Subjective Presumption Guarantee subjective mens rea for ofences below

- All ofences are guaranteed at least objective (s. 7 test)
fault, but generally, they are presumed with subjective - Potential imprisonment
fault - High stigma / high punishment
Objective - reasonable person’ Guarantee objective mens rea for ofences below
- Language in statute that displaces presumption - Potential imprisonment (this is in fact true
of every crime)
Regulatory In between absolute liability

ofences
Absolute liability Possible absolute liability ofence: no imprisonment
Three types of crimes since Creighton

1. Subjective mens rea - aware of risk, all individual factors, e.g. Murder, assault, B&E, theft, possession ofences
2. Objective negligence - marked departure from obj norm, no individual factors short of incapacity, e.g. Dangerous driving,
careless irearms, failure to provide necessaries
3. Offences based on predicate offences - obj foresight of harm, no individual factors, no marked limit, except for predicate
ofences of negligence, e.g. Unlawful act of manslaughter, unlawfully causing bodily harm, aggravated assault
R v DeSousa 1992 SCC

269 unlawfully causing BH; exception to rule of no fault element with consequences
Facts: A gets in fight with X at NYE party. A throws bottle against wall, glass fragments strike Y. Charge: unlawfully causing BH contrary to 269. Not
charged under 267(b) b/c he caused BH to Y while fighting with X.
269
EXTERNAL FAULT
1. [Unlawful act] 1. A) At least objective fault (but probably will be subjective) - the
(predicate ofence) consequence of 269 is not considered in the fault --> Charter
2. Cause bodily harm B) Objective foresight of the risk of bodily harm --> c/l stipulation
2. Presume no fault element for consequences
(but it won’t change anything if you think of 1B as fault element 2)
Predicate ofence + consequence --> new ofence
Airmed presumption of no fault element for consequences in the absence of an express legis direction
- Parliament can treat crimes with certain consequences more serious than crimes w/o them
- Reason: implicit rationale of law = It IS worse that this assault caused BH or death than an assault that didn’t. E.g. Higher
penalties for ofences with more serious consequences.
- SCC inconsistency b/c this is what L’H-D says in dissent in Martineau.
- To require fault for these would restructure CC too much
- Symmetry rule needs to be relaxed in this case
- one is not morally innocent simply b/c a particular unforeseen consequence occurred
- In punishing for unforeseen consequences that did happen, law is not punishing morally innocent but those who cause
injury through avoidable unlawful action - they are criminals already!
- Fault element for 269 = fault element of predicate ofence + additional obj foresight of BH
- But there’s no constitutional req’mt that intent (subj or obj) needs to be extended to the consequences of the acts
Therefore:
Predicate unlawful act cannot be absolute liability (Vaillancourt).
If predicate unlawful act is a high stigma, high punishment offence, fault element is guaranteed subjective fault (Martineau).
- Underlying ofence must be constitutionally suicient in its own right before it can be plugged into this new ofence
- 269 itself isn’t always a subjective fault crime, depends on the predicate ofence.
- But even then, it at least has obj fault
The predicate offence has to be something at least objectively dangerous to be unlawful.

- objectively dangerous b/c require objective foresight of risk of BH
- 2nd fault element for predicate ofence, but it looks like fault element for consequence element
- Act must be both unlawful and one that is likely to subject another person to danger of harm or injury
- Must be more than merely trivial or transitory in nature and will in most cases involve violence
- 269 also does not have the stigma or punishment to require a higher mens rea
Charter point of the case: there doesn’t have to be a fault element with the consequence
C/l analysis says: but there is - exception to the rule

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Remedy: Render 269 Charter compliant by reading in ‘objective fault crimes or higher’ rather than striking out the section.
R v Creighton, [1993] 3 SCR 3

222(5)(a) unlawfully causing death; relaxation of symmetry for consequences; uniform objective test for all offences
Facts: A injected cocaine into victim’s body who died as a result = trafficking under Narcotics Control Act 4(1). Charged with manslaughter - death as
direct consequence of unlawful act. This is similar to Tuttons 222(5)(b) - criminal negligence causing death and DeSousa 269 - unlawfully causing BH.
Trial: entered conviction

CA: upheld conviction
- Where A had committed an unlawful act, obj foreseeability of risk of BH which is neither trivial nor transitory is sufficient
- i.e. foreseeability of risk of death is not required
Issue: Whether definition of unlawful act manslaughter violated Charter s. 7

Held: no (5-4 split on issue whether obj test for unlawful act manslaughter required reasonable foresight of death
222(5)(a) - the only dif from this and DeSousa is ‘causing death’ not ‘causing BH’
EXTERNAL FAULT
1. [Unlaw 1. At least objective fault
ful act] Objective foresight of the risk of bodily harm
(predicate i) Enforce symmetry, change obj to subj b/c high stigma, high punishment (Martineau)? No
ofence) ii) Enforce symmetry, change bodily harm to death? No (Lamer wants it, no one gets his judgment)
2. Cause Element analysis depends on the predicate ofence, but it’s not unconstitutional to have an ofence that depends
death on a predicate ofence as long as the predicate ofence is not absolute liability (DeSousa)
Is manslaughter is high stigma, high punishment crime? No.

- Not high punishment: has lexible sentencing (proportionate)
- Not high stigma: just the appropriate level. Deining characteristic of manslaughter is that it’s not murder, less serious - right
kind of stigma
- All 9 judges agree that objective foresight is ine
- Creighton gives us some calibration for stigma concept: If manslaughter is not high stigma, then there aren’t a lot of things
that aren’t high stigma.
Symmetry is not a PFJ

- if it is (i.e. Charter mandated), it will contradict the thin-skull rule, i.e. you’d still be guilty even if you caused BH but the
victim dies
- unlawful act must be objectively dangerous, likely to injure someone
- Criminal negligence manslaughter: require marked departure from standards of reasonable person in all circumstances, but
doesn’t require foreseeability of death
- Presume symmetry, but symmetry can be rebutted; not a principle of universal application, but as a rule of stat interp;
Constitution does not mandate it; ‘universal application’ idea is translated into Malmo-Levine test later on = signiicant societal
consensus
Objective foreseeability of BH which is neither trivial nor transitory in the context of a dangerous act is constitutionally sufficient for predicate offence
manslaughter.
Summary of Creighton - reviewing rules of stat interp under the Charter

1. Presume subjective fault
2. Presume symmetry
Modified objective test debate

Uniform objective test used for all offence elements
Lamer wants to use MOT, he’d be held him to higher standard as a drug addict (expert) with skill set
- held to know what a safe amount of cocaine is b/c he uses it often
- Uniform obj test whenever the question is an offence element
- Which uniform obj test is this? Wait for Steve’s answer.
7. Public Welfare ofences

Gradation of mens rea
Subjective (best for A)
Presume for all crimes unless otherwise stated
Conviction on fault: Crown prove BARD that A knew
|
Objective
Some crimes
Conviction on fault: Crown prove BARD that A should have known
|
Strict liability
Presume for regulatory ofences
Objective fault + reverse legal onus = defence of due diligence
Reverse legal onus = prove to the contrary on a BOP
Conviction on fault: A couldn’t prove a reasonable person wouldn’t know
|

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Absolute liability (worst for A)
Some regulatory offences
Conviction on fault: none; no fault elements required
PROVINCIAL / REGULATORY FEDERAL / CRIME
Objective Subjective
Negligence Recklessness
Inadvertence Advertence
Should know Knowledge
Reasonable mistake Honest mistake
Lower penalty Higher penalty
Less blameworthy (not the conduct, but the efects of the conduct - More blameworthy (or even inherently blameworthy - a
not a moral judgment; harmful efects of otherwise lawful behaviour) moral judgment; inherently immoral/unlawful behaviour)
Regulatory scheme (here are ways you can/can’t do it) Absolute prohibition
Purpose of crime
Prohibit behaviour that is abhorrent to basic societal values, designed to condemn and punish past, inherently wrong conduct
- Crim law: doctrine of the guilty mind with intention or recklessness, but not negligence
- PWO discussion should not dilute this presumption of subj mens rea for crimes
Purpose of PWO
Public welfare ofence = Regulatory ofence = Administrative ofence
Absolute liability ofence - one of the categories of public ofence
No regulation would result in dangerous conditions for public. Shift from protection of individual interests to deterrence and punishment for the protection
of public interests. Designed to prevent future harm through enforcement of min standards of conduct and care
- concerned with results/efects, not values
- Mechanisms used by gov’t to implement public policy objs, for our protection
- More complex the activity, the greater the need for and greater our reliance upon regulation and enforcement
- signiicantly less degree of culpability than conviction of a true crime (reasonableness standard, not same level of moral
blameworthiness). Conviction means D didn’t meet prescribed standard of care. However, as social values change, moral
blameworthiness change as well; those who commit PWOs may inlict serious harm on large segments of society
- Regulatory, public welfare, strict responsibility, absolute liability, statutory
- this isn’t criminal, but prohibited for public interest
- Civil in nature, admin law rather than criminal
= the two have different concept of fault

Which one is not normally a feature of public welfare offences?
Focus on consequences, not conduct (again, not morality Which of the following is a defence to an absolute liability offence:
based, just prevention of harmful efects) Honest mistake of fact
Directed at future harm, not past conduct (not about morality, Involuntariness - defence to the actus reus (since there’s no mens
but just prevention of harm) rea in abs liability)
Complete prohibition - too absolute, most regulatory offence is to Reasonable mistake of fact
regulate conduct Due diligence
Concern with adverse efects of other lawful behaviour (you
can hunt ducks, just there is seasons for it) Which of the following statements about strict liability offences is true
Crown must prove actus reus and mens rea
Which of the following does not help differentiate between public Crown need not prove anything
welfare offences and crimes: Crown only needs to prove actus reus (at which point burden moves
Licensing req’mt to the A - due diligence)
Inherent wrongfulness of behaviour Crown only needs to prove mens rea
Committing offence causes harm to others
Presence of a regulatory scheme Which of the following terms is not a type of regulatory offence?
Absolute liability
Which of the following statements is true: Strict liability
A fed non-Code ofence must be regulatory Technical offence - sport context
A fed non-Code offence could be criminal - Youth Criminal Justice Full mens rea ofence
Act, Firearms Act, Control Substances Act, etc.
A provincial ofence might not be regulatory Which of the following statements is not true:
A provincial ofence cannot have subjective mens rea For crimes, assume subjective fault is needed unless there is a
reason not to
How many categories of regulatory offences are there? For regulatory ofence, assume there is a due diligence defence
One unless there is a reason not to
Two Assume a regulatory ofence is strict liability unless there is a
Three reason not to
1. Full mens rea For regulatory offences, assume Crown need not prove the actus
2. Strict liability reus
3. Absolute liability
Four Acquittal on a strict liability offence will occur when
A proves there was no negligence (burden of proof is not on the
If an offence is classified as a regulatory offence, the default Crown)
assumption is: Crown fails to prove negligence
Strict liability A shows doubt whether there was negligence
Absolute liability Crown fails to prove subjective fault
Full mens rea
Provincial Public welfare offence has subjective mens rea only if

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Statute says so Assume objective fault for both
It is strict liability
It is absolute liability Which of the following term is not like the other:
It is Thursday Due diligence
Defence to strict liability
The defence of due diligence means Reasonable mistake of law proven on BOP
Crown was not able to show the A’s belief is unreasonable Reasonable mistake of fact prove on BOP
A showed doubt about whether his/her belief is reasonable
A showed s/he made an honest mistake about the facts Which of the following is not cited as a reason to think false advertising
A showed s/he made a reasonable mistake about the facts (reverse is a regulatory offence:
legal burden on A, reasonable, not honest) It was taken out of the CC (not a crime since it’s not there)
It is part of a comprehensive scheme (regulatory schemes)
Which of the following reasons does not help justify shifting the onus for It does not have prison as penalty - false ad does carry a potential
a strict liability offence: prison term
Only the A will know the relevant info It was amended to add a due diligence defence (characteristic
Public welfare ofences are a judicial creation of strict liability ofences)
This shift does not violate s. 11(d) - pre-Charter case so Sault Ste
Marie can’t talk about this Acc to Sault Ste Maire, which word does not imply mens rea?
The alternative is absolute liability Willingly
Knowingly
Which of the following terms is not a synonym for the others: Permit
Not negligent Intentionally
Made a reasonable mistake of fact
Met the objective standard If an offence is classified as a regulatory offence, we should assume
Took all possible precaution that
It has a due diligence defence (assume strict liability = assume it has
The defence of due diligence combines: due diligence offence)
Objective mens rea and reverse evidentiary onus It has no defences
Subjective mens rea and reverse legal onus It has subjective mens rea
Objective mens rea and reverse legal onus It has no mens rea
Subjective mens rea and reverse evidentiary onus
A ‘full mens rea’ regulatory offence has what mens rea:
Which one is true: Modiied objective
Assume objective fault for regulatory offences but subjective for Whatever the statute says - the statute has to refute the assumption of
crimes strict liability
Assume subjective fault for crimes and no fault elements for Intention
regulatory ofences Subjective
Assume subjective fault for both
R v City of Sault Ste Marie, SCC 1978

Regulatory offences: due diligence defence + reverse legal onus = min c/l standard for any offence that violates liberty
Facts: City agreemt with Cherokee Disposal for disposing all refuse originating in City. Terms: City to furnish site, labour, material, equipment. Site
bordered Creek and runs into River. ‘Continuous slope’ method of sanitary land fill used. In due course, high mound sloping toward and within 20 ft of
creek polluted creek. Cherokee convicted of breach of regulatory offence.
City was also charged: ‘did discharge or cause to be discharged or permitted to be discharged or deposited materials in Creek and River… or in such
place along the side that might impair the quality of the water therein.
Issue: Is the City guilty?

Trial: acquittal: City is removed from actual disposal operations. Cherokee = indep contractor (not City employees)
Trial de novo: offence is strict liability, conviction entered
Appeal: conviction quashed; charge is duplicitous, require mens rea with respect to ‘causing’ or ‘permitting’
CA: new trial, conviction can’t be quashed b/c there’s no challenge to facts, agreed mens rea required, no sufficient evidence to establish mens rea. CA
dissent: City knew of potential impairment of Creek and River and failed to exercise powers of control
SCC: allowed appeal and cross appeal b/c of the legal issues
Issue 1: mens rea

Distinction between true crime and PWO is important
Crime: Crown to establish fault element, intent or recklessness or knowledge or WB; excludes mere negligence (i.e. Failing to make
reasonable inquiries or fails to know facts one should have know is not guilty)
Absolute liability: conviction on proof merely that D committed a prohibited actus reus; no matching fault; may be morally innocent, but
that’s no defence.
PWO = conflicting values

- balance essential for soc to maintain through efective enforcement, high standards of public health and safety vs revulsion
against punishment of the morally innocent
- PWOs shift emphasis from protection of individ interests (crim) to protection of social/public interests
Justifications for PWOs

1. Protection of soc interests requires high standard of care and attn on the part of those who follow certain pursuits; such
persons will more likely follow those standards if they know that ignorance or mistake will not excuse them
2. Admin eiciency - diiculty proving mental culpability + # of petty crimes = too great a burden of time and money for
Crown
a. Req’mt of proof of individual intent means almost every violator would go free
b. Most eicient and efective way of ensuring compliance with minor PWOs

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c. Achieve social ends of such importance as to override the unfortunate by-product of punishing those may be free of moral
turpitude…
3. Slight penalties, conviction of PWO doesn’t carry same stigma assoc’d with crimes
Counterarguments
1. Violates fundamental principles of penal liability
2. Rests on assumptions which haven’t been and cannot be empirically established
a. No evidence that higher standard of care will result from absolute liability
b. If person is already taking every reasonable precautionary measure, is he likely to take additional measures knowing it won’t
be a valid defence in event of a breach?
c. If he gets convicted anyway, injustice might lead to cynicism and disrespect for the law
3. Stigma arg doesn’t withstand analysis
4. Admin eiciency arg is weak
5. Historically penalties are slight, but now they rack up a lot of fees
Traditional categories of PWO

- traditionally there are 2: 1) full mens rea or 2) absolute liability
- C/l wants middle road to avoid punishing the entirely blameless
- It’s fundamentally unsound to convict A for a crime involving substantial jail time w/o giving him the opportunity to show
that his action was due to an honest or reasonable mistake of fact or that he acted w/o mens rea
- A could avoid the PF ofence through exercise of reasonable care and proof of that
- 3rd category: strict liability
- Due diligence: A can exculpate himself by proving airmatively that he was not negligent
- Defence of reasonable mistake of fact
- Defence that all reasonable care was taken
- Once this is accepted, there’s no barrier to acceptance of due diligence defence
Strict liability / due diligence approach

1. Crown to prove BARD of actus reus
2. Once proved, PRESUME NEGLIGENCE
3. Reverse legal onus, open to A to prove on a BOP that he has defence of reasonable care
a. Relieve Crown of burden of proving mens rea (virtually impossible to prove wrongful intention)
b. A has evidence of lack of wrongful intention, proper to ask him to show that
New categories of PWO

1. Full mens rea (intent, know, reckless, WB, inference from nature of act committed or additional evidence, wilful,
intentional…)
2. Strict liability (proof of actus reus established PF liability, reverse legal onus for A (due diligence defence) to show he took all
reasonable care, based on reasonable mistake of fact. If true = not guilty.)
3. Absolute liability (proof of actus reus = liability, no defence; must be included within regulatory scheme)
Harshness of sentence would be lexible
Issue 2: the charge in question

OWRA is a prov statute; a prov statute can’t create criminal ofence; therefore there’s no presumption of full mens rea = PWO indeed
(protection of waters)
Interpretation of ‘cause’ and ‘permit’

- Absent words of intention and words of absolute liability = strict liability
- Ergo A is allowed to prove that City took reasonable care
- New trial ordered
Assume (though often not true):

All CC ofences = crimes
All prov law in CC = crimes
The only diicult one to decide: federally imposed ofence not in CC (regulation or crime?)
Mens Rea Decision Tree
Regulation Crime
Absolute Strict Full mens rea Objective Subjective
Mens Rea Continuum

| |
Absolute Subjective
Spectrum its when talking about Hundal - dangerous driving is quasi-criminal, so no need to go all the way to subjective
R v Chapin, SCC 1979

C/l presumption of strict liability for PWO, punishment imposed w/o fault isn’t right

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Facts: Chapin = duck hunting, talking to friend, not paying attention. 2 ducks later, arrested for stepping on small pile of grain. Chapin didn’t see the
grain, no intention, didn’t know it was grain until officer pointed it out to her. No idea whose grain it was.
Migratory Birds Regulation: unlawful to hunt for migratory birds w/in ¼ mi of place where bait has been deposited
Issue: Is this absolute, strict, or mens rea?
Trial history: no judge seems to be agree
Crown: absolute, but if not, strict
D arg: mens rea, but if not strict
Held: strict and not guilty (D discharged onus to show that she had taken reasonable care)
1. Not mens rea

- not crime, summary conviction, absent words of intention
- Regulatory statute for public welfare of Cdns and ducks
- PWO ergo no presumption of full mens rea
2. Not absolute liability

- no strict prohibition on hunting, but rather controlled w/in certain limits as to season, methods, etc.
- PWO are prima facie strict liability unless otherwise stated
- Rejects Crown arg that summary conviction = mens rea; nature of penalty isn’t solely indicative of category
- Crown’s best arg for abs liability: giving defence of reasonable care would weaken enforcement of legislation
- Even this is weak: penalties are too severe
- Untenable position that reasonable care is not a valid defence: hunter would be required to search circular area for illegally
placed bait irst - this is diicult due to terrain, also the nature of hunting doesn’t permit this
- regulation as a whole: doesn’t seek to impose abs obligation on hunter who innocently hunts in a place where there isn’t
supposed to be illegally placed bait
- A cannot control bait depositer’s actions --> A would be guilty b/c of someone else’s illegal act, not A’s own. Punishment
would be imposed w/o fault. This is not right.
Reference re s. 94(2) of the Motor Vehicle Act (BC), 1985 SCC

PFJ: Absolute liability offence cannot have jail time sentence
Facts: reference re constitutionality of the BC Motor Vehicles Act s 94(2). Absolute liability PLUS potential imprisonment offends PFJ.
Options for BC:
1. Keep it and use Charter s. 33 notwithstanding clause (politically not viable)
2. Keep absolute liability, remove jail time
3. Change to strict liability, keep jail time (= add due diligence defence)
A violation of s. 7 theoretically can be saved under s. 1 but it has never been in reality; for reasons of admin expediency, s. 1 may be
used to protect s. 7 violation, but only in exceptional conditions: war, epidemics, natural disasters, and the like
Charter PFJs should cover substantive and procedural law
R v Wholesale Travel Group Inc, SCC 1991

Absolute liability + jail time violates Charter s. 7, affirms Sault Ste Marie c/l decision
Facts: Travel agency charged with various counts of misleading advertising contrary to Competition Act 60(2). Indictment: fine at discretion of court or 5
yrs or both. Summary conviction: $25K fine or 1 yr+.
Are the following issues constitutional?
ISSUE ACCUSED MINORITY MAJORITY CROWN
Objective mens rea No - high stigma arg (similar to theft, dishonesty stigma for Yes Yes
corps)
Reverse legal onus No - BOP is too much; evidentiary burden (less impairing, raise No (4) Yes (3+2) Yes
doubt)
Timely retraction No No Yes
Analysis:
Charter review of crime and PWO
1. Licensing justiication
a. Crim: Did A make a choice to act in the manner alleged?
i. Crim law ixes the outer limits of acceptable conduct
ii. Assume all are free to choose, crim liability when they choose to act that way
b. PWO: Since D chose to enter regulated sphere, did D fulill the responsibilities attending that decision?
i. Choosing to participate in regulated activity = responsible to act with regulation and accept consequences of not doing so
ii. Conduct must comply with certain min standard of care
iii. Concept of control: they entered the regulated ield, they are in the best position to control against the harm that may
result
iv. Of course, there’s always apparently harmless conduct that may cause harm, so PWO doesn’t cover everything
2. Vulnerability justiication
Charter is not for the well-positioned to roll back legis protection for the vulnerable. Gov’t regulation is designed to protect the
vulnerable. Justiies diferential treatment of PWOs
The Act and the ofence

Competition Act aims to regulate unacceptable business activity, eliminate activities that reduce competition in mktplace
= regulatory
Competition Act 37.3(2)

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1. Objective fault and
2. Reverse legal onus PLUS
3. Timely retraction
This places the section in between strict liability and absolute liability
Legislative purpose
- provision within comprehensive reg framework
- Taken out of the CC and written in Comp Act, shows Parliament didn’t think it’s a ‘true crime’, addded defence of due
diligence
- Jail time is NOT indicative of criminal nature
- Stigma of dishonesty?
- Not the focus b/c PWO is concerned with consequences of otherwise lawful conduct (advertising)
- D made a representation to public that was misleading and wasn’t able to establish due diligence to prevent error
- Connotes negligence rather than moral turpitude
- = Less of a stigma
Held 1: You cannot move strict liability down (e.g. by adding timely retraction as another element)
1. Objective fault - potential s. 7 claim
2. Defence of reasonable mistake and reverse legal onus - potential s. 11(d) claim
To get a conviction for a …
Crime
1. Crown proves external elements
2. Crown proves assumed or speciied fault elements
PWO with mens rea

2. Crown proves speciied fault elements
PWO with strict liability

2. D fails to prove on a BOP that s/he met the reasonable person standard (failure to discharge due diligence)
PWO with absolute liability

2. No second step
37.3(2)
2. A fails to prove on a BOP that s/he met the reasonable person standard
3. A fails to prove on a BOP that s/he retracted the ad in a timely fashion
OR
2. A proves on a BOP that s/he met the reasonable standard BUT
3. A fails to prove that s/he retracted the ad in a timely fashion
What then is ‘timely’?

- The timely retraction section is essentially absolute liability
- Not based on when A realizes it (mens rea)
- Not based on a reasonable person who should have realized it (obj)
- Based on ‘forthwith’ (absolute liability)
- Parliament took the strict liability ofence of false advertising, added the abs liability element ‘forthwith’ and added jail time
- = violates PFJ that there can’t an absolute liability ofence and jail time
- Objective fault + reverse legal onus + anything else = violation of Charter
- Sault Ste Marie: c/l decision - you can’t give less protection that strict liability
- Wholesale Travel: Charter review - Sault Ste Marie was correct, s. 7 demands it
Remedy
1. Separate into 2 ofences
a. Keep strict liability of false advertising
b. Keep absolute liability of timely retraction w/o jail time
2. Assess timely fashion by reasonable person standard (i.e. Give due diligence defence)
3. Strike out timely retraction subsection
4. Strike out jail time
Held 2: You cannot move strict liability up

Response to D arg for evidentiary burden rather than legal burden, i.e. move strict liability up to just below subj mens rea; claims
legal burden fails s. 1 analysis for minimal impairment
- minority says legal burden violates 11(d), isn’t saved
- majority 3 say does violate 11(d), but it’s saved
- anyone can show some evidence of reasonableness, which means burden would still be on the Crown, which means it’s not
strict liability but rather objective mens rea
- Saved under s. 1 to keep strict liability
- majority 2 say doesn’t violate 11(d) at all

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- Same arg as Iacobucci, Coughlan doesn’t think that it follows that it doesn’t violate 11(d)
- Cory’s 11(d) analysis should be done in s. 1: choose to enter regulated environment = by implication you’ve accepted
reverse onus to prove that you complied with rules
- Court is very conscious of not allowing Cdn Constitution to beneit the well-positioned at the expense of the vulnerable like
it did in the US.
Changing PWO to crime - problems

E.g. Pollution is a regulatory ofence, so presume strict liability. But it’s often argued that we don’t value harm to the environment
highly enough in law, should make it criminal to pollute. BUT if it’s a crime, you’d need to give subj mens rea, meaning burden for
Crown is much higher than before. Must balance: more serious consequences/sentencing means we need to build in more protection
for A. Therefore changing something from PWO to crime is a big deal.
IMPORTANT:
1. Presume subj mens rea goes with crimes because there’s no reason not to; this is the default position.
2. If we want to take it of the subj mens rea level, then we ask does the Charter allow it?
a. Only then do we consider, is it high stigma, high punishment?
Summary
Sault Ste Marie: strict liability is minimum c/l standard for any PWO with jail time
BC Motor Vehicles: Charter airmation of Sault Ste Marie
Wholesale Travel: Ofence in between strict and abs with jail time violates s. 7; reverse onus does not violate Charter
8. Defences
Crown’s job
1. Prove BARD all elements of the ofence
2. Prove BARD all elements of the defence does not apply
a. Elements judged objectively - reasonable person standard, even if A didn’t him/herself see a way out
b. No symmetry
Exception: defence of involuntariness amounts to Crown not being able to prove actus reus
CC 9 invalidates all c/l offences but 8(3) validates all c/l defences
Statutory defences > c/l defences
“except in so far as they are altered by or are inconsistent with this Act or any other Act of Parliament”
- Self-defence (statutory replaced c/l)
- Duress (c/l for parties + statutory for principals)
- Necessity (c/l only)
Charter limitations
- if CC denies someone defence in cases where Charter says they should have one, strike down ofence or change req’mts of
ofence to conform to Charter
- Charter applies to c/l and stat defences
- SCC can create new c/l defences: necessity (1990), oicially induced error (1995)
- Often these c/l defences start getting used by lower courts b/c of SCC obiter
- Later SCC airms them
EXCULPATORY NON-EXCULPATORY
You did commit the ofence, but you’re not What you did is blameworthy and wrong, but you’re shielded
guilty under law b/c you had good reason. e.g. diplomatic immunity
You’re not blameworthy enough to be It was not okay for you to run that person down with a car, but our country has
convicted under criminal law. agreed not to charge you for foreign policy reasons. We agree not to prosecute
e.g. self-defence or defence of third party e.g. entrapment
Police cause someone to commit a crime that they otherwise would not have
committed
JUSTIFICATION EXCUSE
Praise - you did Pardon - you did
the right thing something wrong, but
we forgive you
Mistake of fact
R v Cinous, SCC 2002
Air of reality rule
Crown has burden to prove BARD that defence does not apply only if there’s air of reality to the defence
- Defence is available if it has air of reality whether or not A is the one who raises it
- Practically, A usually does raise defence, so A has what can be called a ‘burden’ to demonstrate air of reality
- Eventually, it’s judge who has decides whether defence has air of reality
- If there is, judge has to instruct jury with the defence
- If there isn’t, judge will not instruct jury with the defence
- It is an error of law for a judge to instruct on a defence where there is no air of reality and not to instruct when there’s air of reality
Basis for appeal of trial decision

1. On the point of an erroneous jury charge OR
2. On a conclusion that could not have been raised on the facts

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Appeal courts cannot question trial inding of facts, only errors of law. Appeals can be denied if it’s just a harmless error of law &
would not have led to a diferent outcome.
Case at bar
Trial judge made an error in explaining self-defence to A’s beneit, but it was a harmless error b/c there’s no air of reality to defence
in the irst place. A was not entitled to have jury charge about self-defence at all b/c A wasn’t going to succeed. He got convicted
anyway, so no point in having a new trial.
Air of reality rule

1. Assume all A’s version of facts are true
2. Is there something that might justify each element of the defence
E.g. if there’s absolutely no fact that justiies ‘urgent circumstances’, there’s no air of reality (no need to move onto other elements)
But if there is air of reality for all elements, Crown has prove BARD that defence is invalid.
Note inconsistent language in Cinous:

- SCC calls air of reality test an evidentiary burden
- 11(d) draw distinction of burdens:
1. Legal (statutory, prove on a BOP)
2. Evidentiary (statutory, raise RD)
3. Tactical (not statutory, good defence strategy)
- air of reality is actually just a tactical burden
- If A wants to put defence into play, come up with facts to justify this
R v Ladue YTCA 1965

Symmetry bars mistake of fact defence: interfere with dead body
EXTERNAL FAULT
1. Interferes with thing - yes 1. Intent / reckless - yes
2. Thing is dead body - yes 2. Know / reckless that thing is a dead body - no
How was Ladue found guilty?
If he didn’t know the thing is dead, then thing must be alive --> he'd be guilty of a worse crime, i.e. rape
Didn’t consider recklessness b/c he didn’t even think “I wonder if she’s dead.”
He cannot plead ‘mistake of fact‘ because he didn’t think he was acting innocently anyway. This doesn’t it with Blondin who didn’t
have the guilty intent at all that the thing was a narcotic.
Mistaken belief in consent

R v Darrach Ont CA 1998
Mistaken belief in consent: sexual assault, 273.2(b), general intent crime
Assault elements are straightforward, but sexual assault doesn’t have the same clarity.
EXTERNAL FAULT
1. Apply force 1. Intent
2. To person 2. Know / reckless
3. No consent 3. Know / reckless
4. Force is of a sexual nature 4. Know or be reckless that he is applying the force
Sexual nature is measured on an objective standard

- general intent, not speciic intent
- no extra: ‘for the purpose of sexual gratiication’ added to assault elements
- Sexual nature is determined on an objective standard (A doesn’t have to know that he’s applying force of a sexual nature,
just applying force)
- Gendered crime - usually male perps, female victims; bmbiguity always favours men
- Policy reason: this should not be so
- Similar to Theroux: doesn’t have to think that it’s fraudulent, it just is
- Similar to Jorgensen: doesn’t have to know or think it is subjectively, it just is obscene
Defence for sexual assault is also an element of the offence = honest mistaken belief of consent
- Sansregret made a honest mistake of fact, or in sexual assault cases: honest mistaken belief of consent
- BUT defence has to have air of reality; if there isn’t AOR, don’t think about defence
- Inconsistency: ignoring honest mistaken belief of consent means one of the elements isn’t proven. Some courts want to see
this as a defence, others see it as failure to prove element
- In a sexual assault context, this allows us to eliminate spurious claims
To evaluate the existence of consent in assault context: 265(3)

(3) For the purposes of this section, no consent is obtained where the complainant submits or does not resist by reason of
(a) the application of force to the complainant or to a person other than the complainant;
(b) threats or fear of the application of force to the complainant or to a person other than the complainant;
- This can apply to Sansregret: it’s not real consent b/c he threatened her to get it
(c) fraud; or
(d) the exercise of authority
Similarly 273.2(b) re sexual assault

It is not a defence to a charge under section 271, 272 or 273 that the accused believed that the complainant consented to the activity that
forms the subject-matter of the charge, where

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(b) the accused did not take reasonable steps, in the circumstances known to the accused at the time, to ascertain that the
complainant was consenting.
- using the language of defence to discuss the failure to prove an element of the ofence
- Sounds like an objective standard: essentially rewriting fault element for ‘no consent’ to ‘should know’
- A should’ve known whether or not there was consent b/c he should have take reasonable steps to ascertain it
- Charter issues?
- If sexual assault is a high stigma, high punishment crime
- Sexual assault isn’t… b/c it can cover a gamut of behaviour from kissing someone to rape
- Ont CA doesn’t think it is, but says even if it is, it’s still not an objective standard: after you have taken reasonable
steps to ascertain consent and you still came to the subjective but wrong conclusion for consent, you will not be
found guilty
- Found it constitutional, but diminished its power
- Thus it’s not a solution to sexual assault that Parliament had hope it would be
R v Ewanchuk, SCC 1999

Mens rea for sexual assault: tactical burden on A to prove complainant said yes
Mens rea for sexual assault is not only satisied when it is shown that the A knew that the complainant was saying ‘no’ but is also
satisied when it shown that the A knew that the complainant was essentially not saying ‘yes’.
- past ambiguity favoured A: he didn’t know she said no, so he’s not guilty
- After Ewanchuk, ambiguity favours complainant: he didn’t know she said yes, so he’s guilty
- Efectively places tactical burden on person who wants sex to make sure that the other person wants it too rather than
person who does not want to have sex to prove that she said no
- Crown then must prove BARD that there was no evidence that she said yes
- Far more successful way to deal with ambiguity and accord with moral sense of who should be found guilty
Mistake of law
Exception to ignorance of the law is no defence rule
99% of cases - CC 19: Ignorance of the law by a person who commits an ofence is not an excuse for committing that ofence.
Exceptions to s. 19
1. Oicially induced error (Levis)
2. Colour of right (Dorosh)
3. Mistake of law and fact (Prue & Baril)
R v Campbell and Mlynarchuk, Alta Dist Ct, 1972

Application of s. 19; mistake of law
Facts: stripper performs in the nude; immoral performance within the meaning of (now)167(2)
Jan - diferent strip club’s nude dancer acquitted of ‘immoral performance’
Feb - Campbell’s boss tells her that nude dancing is legal, Campbell dances nude
Mar - ABCA overturns trial decision of Jan nude dancer
Apr - Campbell goes on trial. Campbell claims mistake of fact.
Held: guilty
- You didn’t make a mistake b/c at the time it wasn’t illegal. You actually made a mistake of law, but s. 19 applies, so you’re
guilty
- Despite the illogical timeline, Platonic idea that law remains (trial decision simply made a wrong decision on the law). The
law doesn’t change back and forth.
- A isn’t blameworthy, but must ind A guilty. Gives absolute discharge however (no punishment, no record)
The real irony

May - SCC airms trial judge’s decision of the other case
- means Campbell was right about the law and her trial judge was wrong
- She can appeal her conviction, but it’s not worth it
- If she had been imprisoned for her conviction, she’d still have to serve her time
Despite this obvious unfairness, why do we still have s. 19? Policy > justice
- not fair but necessary b/c of WB
- You thought through in advance by choosing not to turn your mind toward ascertaining whether your suspicions were true
and so avoided knowing about it
- W/o s. 19, people would be encouraged to remain ignorant of the law on purpose b/c they then wouldn’t be found guilty for
not knowing
- That’s why subj mens rea of knowledge includes WB
- this prevention of ignorance however doesn’t apply to Campbell b/c she and her boss actively tried to igure out what the
law is so they wouldn’t do anything illegal
- The events actually punished her for trying to ind out the law
- sub-policy: stay on action to prevent Crown from pursuing charges until law is clear, waste of $, don’t know why Crown in
this case even chose to prosecute in the irst place
Lévis v Tétreault; Lévis v 2629-4470 QC Inc, SCC 2006

Exception to s. 19: officially induced error of law
Facts: Ds are late paying registration fees. D1 claims misread expiration date. D2 claims it was relying on reminder letter they were promised even
though they were told due date the last time they paid it. Both strict liability offences; did not discharge due diligence, therefore convicted.
Defence of officially induced error of law

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- from the obiter of the Jorgensen case (followed provincial regulation, but still charged with selling obscene material)
- Lamer CJ wanted this defence; other JJ didn’t rule on it b/c J was already acquitted by other means
- Lower courts started using defence, SCC conirms it here
Steps:
After ofence elements are proven BARD, then A must prove 6 elements of this defence:
1. A made error of law or of mixed law and fact
2. A considered the legality of their actions
3. A obtained advice from appropriate oicial
4. Advice was reasonable (i.e. A can’t just use unreasonable advice to satisfy this element)
5. Advice was erroneous
6. A relied on the advice in committing the act
Rationale: A’s onus is an exception, usually it’s Crown that has to prove these elements are not made out.
- people who tried to ind out what the law is, tried to behave legally in reliance of oicial’s advice, but nonetheless didn’t
should not be found guilty b/c it’s not their fault
- Still complies s. 19 policy reason of not encouraging deliberate ignorance
R v Dorosh, Sask CA, 2004

Colour of right for property offences
Facts: A trades for van with things incl a trailer. Seller doesn’t train him on how to use it, finds there’s liens on van so seller shouldn’t have sold it to him.
A thinks he’s been cheated, tries to call seller who doesn’t return calls. A takes back ‘his own’ trailer. Convicted of theft. Appeals on grounds that trial
judge erred in charging jury re colour of right
EXTERNAL FAULT
1. Take thing 1. Intent / reckless
2. Property of other 2. Know / reckless
3. Intent to
deprive
4. Fraudulently
5. No colour of
right
Issue: Did A have colour of right?
What is colour of right?

Honest and mistaken belief that you had legal rights to the property (i.e. Exception to s. 19)
This exception only occurs when ‘no colour of right’ is an element of the ofence (e.g. Part XI ofences (property) and 429(2))
Who has burden of proof?

For Part XI ofences, A must prove on a BOP that he had colour of right
For theft - onus of proof is on the Crown BARD
= CC will state who has burden
R v Prue; R v Baril, SCC 1979

Exception to s. 19: mistake of mixed law and fact
External element that is a question of law has no fault element.
E.g. 90(1) Every person commits an who carries a weapon, a prohibited device or any prohibited ammunition concealed, unless the
person is authorized under the Firearms Act to carry it concealed. Not authorized under the Firearms Act cannot have a fault element.
If ‘know / reckless’ relects it for fault, Crown must then prove that A knew the law, which means if A didn’t know the law, he wouldn’t
be guilty (which is against s. 19).
Case at bar: 238(3)

EXTERNAL FAULT
1. Drive thing 1. Intent / reckless
2. Thing is motor 2. Know / reckless
vehicle 3. Know / reckless
3. In Canada 4. ? (It is accepted fact that As did not know their licences
4. Licence were suspended.)
suspended by law
Issue: Is the 4th external element a question of law or question of fact? If question of law: guilty; If question of fact: not guilty
Held: not guilty
Dissent: nature of the mistake is a legal Q (they knew the law & thought they’d be getting a notice), and therefore, no fault element.
Majority: reasons in the opposite direction; they don’t want to ind them not guilty, so they reason that it’s a mistake of fact
- don’t want to ind someone criminal on a prov legis
- Don’t want to subject someone to greater penalty w/o adding more fault elements, more blameworthy only if they had more
Mental disorder
Terms
Non-insane automatism = non-mental disorder automatism
Insanity defence includes but isn’t limited to insane automatism = mental disorder automatism
Drunkenness
Drunkenness akin to automatism

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s. 7 Charter issues
s. 11(d) Presumption of innocence issues
Symmetry
Simultaneity
Section 16: Defence of mental disorder

16. (1) No person is criminally responsible for an act committed or an omission made while sufering from a mental disorder that
rendered the person incapable of appreciating the nature and quality of the act or omission or of knowing that it was wrong.
Presumption
(2) Every person is presumed not to sufer from a mental disorder so as to be exempt from criminal responsibility by virtue of
subsection (1), until the contrary is proved on the balance of probabilities.
Burden of proof
(3) The burden of proof that an accused was sufering from a mental disorder so as to be exempt from criminal responsibility is on the
party that raises the issue.
Aside from guilty and not guilty, there’s this new category: sick (in need of medical treatment, institutionalization)
- guilt is irrelevant here, not about blameworthiness
Cooper v R, SCC 1979

s. 16: defence of mental disorder on manslaughter conviction; ‘appreciate’ and ‘disease of the mind’ definitions
Element of s. 16
1. Sufer mental disorder: Cooper & Rabey
2. Incapable of appreciating nature/quality of act/omission: Cooper
OR
2. Incapable of knowing it was wrong: Chaulk
Crown’s job is to prove BARD all ofence elements separate from the defence of s. 16. A is convicted of manslaughter, i.e. did not
have speciic intent required for murder. A wants to a chance to claim that he’s not guilty of manslaughter and does not want to claim
s. 16 because that would mean institutionalization if successful. Successful s. 16 defence means that he does not have general intent
to cause death because he was incapable of appreciating the nature/quality of his act (because he had a disease of the mind).
Issue on appeal: whether there was evidence from which a properly charged jury could conclude, on a BOP, that the appellant had
disease of the mind to an extent that rendered him incapable of appreciating the nature and quality of the act of which he was
charged or of knowing that it was wrong (legally wrong)
Appreciation of the nature/quality of his acts

- Q of capacity: it’s not Did A appreciate? But Is A capable of appreciating?
- Appreciate = know the physical act you’re committing + understanding / estimation of the consequences that will likely low
from act
- Cooper knew he was choking the victim (had his hands around her throat)
- But did he appreciate that the consequence of choking was her death?
Disease of the mind as the reason why he is incapable of appreciating

Legal term, not a medical question:
- Embraces any illness/disorder/abnormal condition which impairs the human mind and its function, excluding however, self-induced
states caused by alcohol or drugs as well as transitory mental states such as hysteria or concussion
- Trial judge erred in letting medical expert dictate that this was a disease of the mind. Dr’s testimony is just contributing
evidence, not determinative; it’s supposed to be a question for the jury to decide
- Policy considerations are worked out at this step
- Same facts will settle whether he has the fault elements for culpable homicide or disease of the mind
- You use medical evidence in conjunction with other evidence to decide how to treat the person: criminally or medically
- When he raises s. 16, there’s no ‘not guilty’ option
R v Chaulk, SCC 1990

S. 16 element: incapable of knowing it was wrong; distinction of legal and moral wrong is irrelevant
Second possible element of s. 16, “it” means the speciic act A committed
Issue: Does ‘wrong’ mean morally wrong or legally wrong? We need a standard to test A.
Schwartz: wrong is legally wrong; meaning the person who knew it was legally wrong to murder but felt morally right in killing someone because God told
them so is not covered by this defence.
Chaulk “overturns” Schwartz, but the judges confuse each other.
The options (NB: it’s “incapable of knowing”)

1. Know it’s legally and morally wrong
2. Don’t know it’s legally and morally wrong
3. Know it’s legally wrong but don’t know it’s morally wrong
4. Don’t know it’s legally wrong but know it’s morally wrong
In essence, it’s 3 choices: the last 2 are the same = know it is wrong in at least one aspect
Lamer: person 3/4 is incapable of knowing it’s wrong in 1 of 2 ways, therefore the person is incapable of knowing it’s wrong
McLachlin: person 3/4 is capable of knowing it’s wrong in 1 of 2 ways, therefore we can’t say the person is incapable of knowing it’s
wrong
- Both are right, but Lamer is the majority judgment
- Therefore, if you’re person 3/4, you’re treated like you’re person 2.
- Therefore, you’re captured by s. 16 - we don’t distinguish which way you’re incapable of knowing

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The distinction is irrelevant: incapable of knowing something is wrong in one way = incapable of knowing it is wrong
R v Rabey, 1997 OntCA, Rabey v R, 1980 SCC

Sane automatism: involuntariess; external/internal cause distinction for dissociative states
Facts: R = third year uni student, enamoured by Miss X, she rejects him. He discovers this in a letter she wrote to someone else and mentions R as only
a friend, etc. Next day, he has talk with her, she tells him just that. He ‘blacks out’, takes out a rock he got from the lab, hits her, and chokes her. Thinks
he’s killed her. ‘Wakes up’, threatens witness. Witnesses described him ‘disoriented, glassy-eyed, pale, sweating’.
Defence: automatism (mind not controlling body)

EXTERNAL FAULT
Apply force Intent
Other person Know /
No consent reckless
Cause death Know /
reckless
Intent to kill
CA judgment
Internal cause = disease of the mind
External cause ≠ disease of the mind
External causes: physical blow mostly, doesn’t rule out psych blow, but ordinary stresses and strains of life is not one for sure
Options
Believe he’s not in a dissociative state - guilty OR
Believe he’s in a dissociative state:
1) has disease of the mind (s. 16) or
2) not guilty b/c actus reus element is not proven (involuntariness)
- This also means ‘guilty’ is not an option anymore b/c you can’t send someone in a dissociative state to jail
- Automaton can’t be guilty, no voluntariness, no crime
Case at bar
Trial judge made a factual inding that R was in a dissociative state, therefore they can’t ind him guilty on appeal
The only choices are 1) s. 16 or 2) not guilty by involuntariness
Issue: Does R have disease of the mind or not?
Automatism
1. Sane automatism = involuntariness --> acquittal (Rabey & Parks)
2. Insane automatism part of larger category of disease of the mind --> s. 16 mental disorder defence
Insanity, s. 16
1. Insane, but not automaton (Cooper)
2. Insane automaton (overlap with automatism)
Elements of s. 16
1. Sufer mental disorder (Rabey through disease of the mind automatism but tries to argue out of this by claiming ‘psych
blow’)
2. Incapable of appreciating nature/quality of act/omission (Cooper)
OR
1. Incapable of knowing it was wrong (Chaulk - legal and moral wrong = irrelevant)
Mental disorder = disease of the mind, acc to CC 2 - just the old way of saying it
R’s arg:
Sufered psychological blow - analogous a physical blow - involuntary rather than insane
Majority
External cause by physical blow ≠ disease of the mind
Internal cause = disease of the mind
(Parks shows that it’s not that simple)
Doesn’t reject R’s arg out of hand in theory, but the psych blow needs to be more than the ordinary stresses of life
- what R sufered was just ordinary
- A psych blow has to be extreme to be a valid external cause
Dissent
- Dickson doesn’t like the internal/external test
- Rather: likelihood of repetition in order to justify gov’t intervention
Deinition of automatism
Absence of volition in respect of the act involved = always defence to a crime
Middle ground between criminal responsibility and legal insanity.
R v Parks, SCC 1992

Automatism: killing mother-in-law while sleepwalking; expands disease of the mind test
Facts: Asleep man drives across town and kills mother-in-law and injures father-in-law

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Rabey and Parks have the same issue:

Does A have a disease of the mind? If not, acquittal b/c involuntary. If so, s. 16 and treatment.
These are just theories, not set legal tests and they are related
Continuing danger
Condition likely to present a recurring danger to the public = insanity
Evidence shows: no likelihood of recurrent violent somnambulism
Therefore inding of insanity is less likely, but determinative of acquittal
Internal / external cause

Condition stemming from psych or emotional makeup of A, not an external factor
Ordinary stresses do not amount to external psych blows, but there’s an internal side of how you process stress
Sleepwalking can be genetic - isn’t that internal?
This theory is concerned with the same continuing danger concept:
- Internal = disease of the mind, more likely to occur again b/c there’s no control on his part = state should intervene to
prevent harm to others, but then… even if it’s internal and not likely to occur again, we might still call it a disease of the mind
- External = not disease of the mind, less likely to occur again, A will have control to make sure it doesn’t
Additional factors
These 2 tests aren’t enough - must think about other factors
- availability of treatment
- Sleepwalking ‘treatment’ = good sleep hygiene, not psych treatment
- Diiculty to feign = sleepwalking is pretty hard to feign! He’s not faking it
Therefore, SCC will take a nuanced, case-by-case approach to see if a particular case of sleepwalking is disease or not
Problematic post facto analysis? Less certainty of the law, don’t know if you violated the law or not
- Counter: this is ok b/c automatons can’t in advance plan to be automaton so it doesn’t make a diference
If Parks is an automaton...
EXTERNAL CROWN FAULT CROWN
Apply force Can’t prove - conduct elements can’t be proved, no capacity Intent Can’t prove
Other person Yes Know / Can’t prove
No consent Yes reckless Can’t prove
Cause death Yes Know / Can’t prove
reckless
Intent to kill
At trial: the options for the jury

1. Parks is not an automaton --> guilty
2. Parks is an automaton --> not guilty (i.e. Don’t bother bringing in insanity plea)
In the future: the options are

1. Not automaton --> guilty
2. Insane automaton --> not guilty, treatment
3. Sane automaton --> not guilty
Did the trial judge err in leaving the defence of automatism rather than insanity with the jury?
Presumption of voluntariness + A has evidentiary burden to RD
Judge’s 2-step process:
1. Air of reality test for defence of automatism
2. Is it a disease of the mind?
This doesn’t resolve the issue though
R v Bernard, SCC 1988

Drunkenness as automatism for defence against sexual assault causing bodily harm
Facts: A sexually assaulted victim. Defence: so drunk that he was involuntary, so no actus reus
Robbery
EXTERNAL FAULT
Apply force Intent
Other person Know / reckless
No consent Know / reckless
Intent to steal (specific intent)
If you robbed someone while drunk, you can’t claim no intent to apply force, but you may claim no intent to steal (speciic intent)
For general intent: drunkenness is never a defence
- where A raises this as a defence to raise doubt as A’s voluntariness, Crown can use intent to voluntarily get drunk/high to
substitute for intent to commit illegal act
- simultaneity problem: intent to get drunk may have occurred earlier than commission of the act
- Goes against the equivalent blameworthiness principle in Martineau: A gets charged for doing something illegal
- not even for non-self-induced intoxication; although Crown probably won’t charge them in those contexts
For speciic intent crime (e.g. robbery): drunkenness may be a defence

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Sexual assault
EXTERNAL FAULT
Apply force Intent (general)
Force of a sexual nature Intent (specific or general?)
Issue 1: Is sexual assault a general intent or speciic intent ofence?
General intent ofence

Intent involved relates solely to the act in question, w/o further ulterior intent
Speciic intent ofence
Intent involves the performance of the actus reus AND intent going beyond the performance e.g. assault someone with intent to steal
(robbery). In order that drunkenness not be used as a defence, sexual assault = general intent
Issue 2: whether evidence of self-induced drunkenness is relevant to the issue of guilt/innocence of general intent offence
Drunkenness deinitely will prevent A from forming speciic intent for murder; reduced to manslaughter BUT rape is a general intent
ofence, so drunkenness is not a defence. Despite criticism of illogic and false distinction between general and speciic intent, this is a
policy decision.
(illogic: intent to get smashingly drunk is still not on par with intent to commit the crime)
R v Daviault, SCC 1994

Drunkenness amounting to automatism defence; CC 33.1 reversal; Charter issues
Facts: A assaults physically disabled victim after excessive drinking (any other person would be dead). Held: new trial ordered
EXTERNAL FAULT
Apply force Intent (general)
Force of a sexual nature Intent (general)
Self-induced intoxication is not a defence for general intent, i.e. you cannot claim involuntariness when you voluntarily got
intoxicated. The problem is that Daviault, as an alcoholic, has built up so much tolerance that he doesn’t die from the amount of
alcohol that would kill any other person and acts like an automaton instead and commits sexual assault. Is he guilty then?
Charter issues
Statutory presumption will be valid if proof of the substituted fact leads inexorably to proof of the other.
If there’s RD and the A is still convicted, this will infringe:
- 11(d) if A is convicted in spite of RD. That’s precisely the problem: there is RD here. Not everyone who drinks has the intent
to assault someone - it does not lead inexorably to that result - no mens rea to apply force
- Vaillancourt PFJ: A is convicted on the ofence by proof of intent to drink (absolute liability) for a crime that needs at least obj
fault
- Also, if A was indeed was an automaton, A did not apply force voluntarily = conviction of ofence w/o actus reus nor mens
rea
- Even if symmetry is relaxed (which it is), it still doesn’t work, b/c you are convicting someone for doing something legal
(drinking alcohol)
This forces SCC to come to the conclusion that IOT comply with Charter, Daviault = automaton in a small area of overlap.
However, for this one area, A has burden of proof on a BOP that he was drunk akin to automatism.
- this is also a potential violation of 11(d) (again!) but saves it under s. 1
- The only person who can raise facts to constitute defence has blacked out in the midst of committing it, so it’s really hard to
prove this, which means it would rarely succeed. Expert evidence would be required (and not the pharmacologist in the trial)
Sopinka doesn’t like this: I don’t see how you’re less blameworthy when you commit sexual assault while drunk.
This caused revision of CC: 33.1 which reverses partly the majority decision: applies to assault and interference/threat of interference
with the bodily integrity of the person. Daviault defence remains for other ofences like theft, just not sexual assault
This doesn’t change that 33.1 = same rules that SCC found violated the Charter. Bill C-72 (‘Whereas…’) = Parliament’s s. 1
argument. Hasn’t been challenged yet in the SCC; has been struck down in ON trials for some cases
R v Stone, SCC 1999 R v Fontaine, SCC 2004
Automaton kills wife after fight, flies to Mexico in a daze Marijuana use amounting to automatism
Issue: Automaton or no? Insane or non-insane? In Stone:
1. Majority: automaton defence is so silly, lying through his teeth. Binnie’s dissent: why do you think jury will be less skeptical
than us?
a. Majority decision amounted to: air of reality of and onus of proof for sane automatism is on A on a BOP (insane automatism
onus of proof on a BOP is on A by virtue of s. 16; Stone now says it’s the same standard and onus for sane automatism)
b. Agrees with Daviault defence, claims to be saved by s. 1
c. Fontaine reverses partially: A does not have to prove air of reality of defence on a BOP
2. Trial judge decide: automaton or no? Insane or non-insane? Present jury with one of the choices.
Starting presumption: A sufers from disease of the mind (i.e. Insane)
3. Defence must make assertion of involuntariness, call expert in to conirm, other factors: severity of the stimulus,
corroborating witness evidence, medical history of dissociative states, evidence for motive for crime, whether alleged trigger is
also the victim
Self-defence

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Relevant sections: 34(1), 34(2), 35, 37
Self-defence requires more than air of reality
To justify bringing multiple self-defence sections to the jury, there has to be something new in second defence section.
34(1) 34(2) 35 37
Broad object Use of non-deadly force Use of deadly force Use of deadly force by Defence of a third party
This isn’t always the case since you initial aggressor
could have used deadly force & still be
covered
Trigger Accused was unlawfully assaulted Accused was unlawfully assaulted A assaulted other A preventing assault or
person without intent to repetition of assault
cause death or GBH
e.g. A intended to start
a small ight
Provocation Did not provoke assault [Not mentioned] Even if A provoked the [Not mentioned]
Means A could have provoked the assault without
assault on A. Net efect: why would justification
initial aggressors use 35 when 34(2)
is available to them? (35 has an
extra ‘retreat’ obligation when 34(2)
doesn’t)
Intention / Did not intend to cause death / GBH Cause death / GBH Didn’t try to cause death Protect self / person under
result of death/ Anomaly is using ‘intend to’. In Result element. Not a rational / GBH until need arose protection
GBH efect, you can still ‘cause death’ opposite of 34(1). Should have been
even if you ‘didn’t intend to cause ‘intend to cause’ or
death’ and thus be covered under 34(1) should have been ‘did not
34(1) and 34(2). Pintar: pick the one cause’. Pintar: read as ‘even if intend
that really applies to’ (available to A who kills in self-
defence, whether intentionally or
not)
Apprehension [Not applicable] Reasonable apprehension of death / Reasonable [Not mentioned]
GBH apprehension of death/
Efect of 34(1) and 34(2) in this way, GBH
it’s better to have caused death
rather than not caused death.
Use of force Use no more force than necessary Belief on reasonable grounds cannot Reasonable belief that Use no more force than
Factual, not ‘reasonable belief’ here otherwise preserve self force was necessary necessary, not excessive
or s. 37. A doesn’t have to judge to Objective standard, not subjective force
a scientiic nicety, but 34(2) is still belief Not a reasonable standard.
more favourable to the A A has to have in fact used
more force than
necessary.
Retreat
R v Pintar, 1996 SCC

Pick one defence to put to jury
Facts: Deceased blamed A for the break-up of his marriage; both deceased went to A’s house to threaten, take swing at A, threaten to
kill A’s dog, A threw them out of the house, but R came back and threatened to kill A and family. A got a rile. They fought over the
gun; A shoots them in the struggle. Jury given s. 34(1), 34(2), 35, and 37 as possible self-defence claims. Jury convicted A on
manslaughter. A appeals.
SCC: if jury ruled out wider provision of 34(2), unlikely they will accept 34(1) since it’s narrower. So don’t give it to the jury. New trial.
R v Deegan, 1979 Alta CA

Retreat unnecessary for self-defence or defence of property if A did not initiate fight
Retreat is not longer imperative for plea of self-defence, just as it for defence of property. Rationale: A is not required to have
detached relection in the presence of an uplifted knife. Failure to retreat is only a circumstance to consider with all the other
evidence IOT determine whether D went farther than he was justiied in doing. Not determinative of guilt.
R v Lavallee, 1990 SCC

Battered woman kills abusive husband, 34(2)
Facts: battered woman in c/l relationship; shoots partner in the back of the head one night after he threatens her and gives her the
gun
Issue: what A reasonably perceived given her situation and her experience as a battered woman
(not what an outsider would have reasonably perceived)
- she’s also not expected to retreat since she lives in that home too
- Analogous to hostage situation
Issues around 34(2)

1. Reasonable apprehension of death / GBH - house guests were there
2. Believes on reasonable grounds cannot otherwise preserve self - she had a gun
Acquittal because:
- 34(2) does not require ‘imminence’, has been read in before b/c a delay usually bespeaks revenge rather than self-defence
- in the case of battered women, imminence is untenable
- modiied objective test of a reasonable battered woman

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- Uses Walker Cycle Theory of Violence (expert evidence)
- Mental state of A at the critical moment cannot be understood except in terms of the cumulative efect of months or years
of brutality
- ‘expertise’ in understanding when her partner will escalate
- MOT is okay for defences
Critique:
- too much hearsay
- Crown wanted to cross-examine A but didn’t get chance
- Cycle of learned helplessness - medicalized problem and discounted voice of the woman
- Walker theory = psychobabble
R v Kong, 2006 SCC

gang fight in alleyway
Facts: 2 groups of friends ight. M’s brother hits member of K’s group. K and group drew knives. M ran back to help brother, fatally
stabbed to the stomach by K. K charged with second deg murder.
Trial: K’s defence: I didn’t stab victim. In the alternative, no intent for murder, self-defence under 34(2), evidence of witnesses conflict
CA: trial was correct in rejecting self-defence claim
Dissent: 34(1) but not 34(2); leave it to the jury to determine whether force used by A, in using the knife, was done in self-defence and whether it was
proportional to protect himself.
SCC agreed with CA dissent
Provocation
Provocation: partial defence to murder s. 232; ordinary person standard issues
Elements of the murder charge have to be proven irst, including speciic intent to kill. Then provocation arises as a partial defence
for murder. Tactical burden on A to show air of reality to the claim of provocation. If successful, onus on Crown to prove BARD that A
was not provoked. If Crown doesn’t do this, murder charge --> manslaughter.
Note: this doesn’t wipe away the speciic intent to kill already established in the murder charge. A did have an intent to kill, but was
excused because he was really (really really) mad. Provocation to the point of losing control has to be judged on a reasonable person
standard, not just subjectively mad.
Self-defence: A made a measured, rational, reasonable response to the situation

Provocation: A snapped, no inhibitions
Elements (R v Tran), 232

1. Objective
a. Wrongful act or insult
i. What is a wrongful act? Doesn’t have to be illegal, just something society would frown up. Victim in Thibert who taunted
him was doing something ‘wrongful’.
ii. Exception: someone who has lawful power to do what they are doing (e.g. Police arrest)
iii. This is diferent from the general rule that you have legal power to do anything the law doesn’t prohibit
1. Thibert: taunting
2. Hill: unwanted non-violent sexual advances
b. Ordinary person would lose self-control = hardest part
i. Who is the ordinary person? Modiied objective test
ii. Hill: court used ordinary young male - illustration of modiied objective test use in defence situations
2. Subjective
a. A lost self-control
b. On the sudden (A snapped)
i. Sudden wrongful act or insult
ii. Followed by sudden response
Why is provocation an available partial defence?

Acknowledged that all human beings are subject to uncontrollable outbursts of passion and ager which may lead them to do violent
acts. Provoking acts had to be suicient to excite an ordinary or reasonable person under the circumstances.
R. v. Hill, [1986] 1 SCR 313

Provocation: modified objective test for ordinary person, unwanted homosexual advances
1b: Would ordinary person be deprived of self-control by the act or insult?
- Ordinary person = objective standards
- Take into acct Hill’s age and sex; trial: no; CA: yes
2a: Did A in fact act in response to those provocative acts?

- question of fact, subjective
2b: Was A’s action on the sudden before there was time for his passion to cool?
- question of fact
Test used (similar to Tran)

1. Provoking act of such a nature that it would deprive an ordinary person of the power of self-control (obj)
2. A actually was provoked (subjective)
3. A acted on the provocation on the sudden and before passion cooled (Q of fact)

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UK Camplin case law: gradual recognition that ordinary person needs to be modiied objective
Cdn case law: prior to Hill, no modiication

- Concern was that too many subjective characteristics water down the standard.
- This is problematic when race/ethnicity is central to the ofence: a white person wouldn’t react same way as a black person
- Tricky cross-cultural dimension to this case
- Recent case law: take into acct all external events putting pressure on A
- SCC: it’s impossible to conceptualize an ageless, sexless ordinary person
- In some instances, some chars will be irrelevant
- In others, some are highly relevant
- Even though trial judge didn’t tell jury, jury will naturally think so
- Doesn’t think trial judge made a huge error
- Jury won’t think ordinary elderly female if A is a young male
- Not necessary to list out the chars that the jury needs to take into account
- As for the subj part of the test: A’s mental state and psych temperament should be taken into acct
- SCC not ready to follow UK approach just yet
R. v. Thibert, [1996] 1 SCR 37

Provocation: being taunted by wife’s lover
The straw that broke the camel’s back is a legal doctrine; past history of relationship is relevant, i.e. man with whom his wife is
sleeping and using her as a human shield vs someone else doing that = vastly diferent for A.
Objective ordinary person

Same age, sex, shared with A other factors as would give act/insult in question special signiicance
Each case must be considered in the context of its particular facts.
Dissent:
Bad policy to use defence in context of extramarital aiairs.
Victim’s actions weren’t unreasonable; it’s improper to expect victims to act a certain way when accosted with a gun
R. v. Humaid, 2006 Ont CA

A tries to argue being Muslim he was hit harder by wife’s infidelity
Held: leave to appeal dismissed
A’s arg: ordinary Muslim who’s more provoked b/c of infidelity b/c of religious faith
- What should we do about cultural beliefs that are irreconcilable with the criminal justice system?
- Can’t allow them - if we did, we’d be saying that Muslim women do not have the same claim to provocation (b/c it’s only
Muslim men who have this cultural advantage)
- Sim to shaia murders - honour killings are contrary to Cdn values, illegal
Onus on Crown to prove BARD all elements. Then if provocation is raised, Crown has to prove BARD that provocation didn’t happen.
Provocation fails if one or more of defence elements isn’t made out.
Two points out of the case

1. No air of reality to claim
a. There is evidence that some group of Muslim men hold this attitude; doesn’t mean that A is among this group
b. Challenge to Hill: Humaid denies that there’s an ordinary person of this group, i.e. Deconstruction of notion that there is an
ordinary Muslim
c. Act wasn’t provoking for him as much as it would be for Muslim men of that group
d. Cultural/religious aspect doesn’t need to be included BECAUSE A’s beliefs are not the target of the assault
2. Contrary to Cdn values
a. Matter of criminal law policy that provocation is for someone who snaps and kills out of blind anger that aligns with Cdn values
b. Ordinary person cannot be ixed with beliefs that are irreconcilable with fundamental Canadian values.
c. But are Cdn values (traditionally viewed) the white Northern European values? If we’re rejecting cultural values, shouldn’t we
be rejecting these values too?
Necessity
Perka v R, 1985 SCC
C/l defence of necessity; drug smugglers to US forced to beach in Canada
Distinction of justification and excuse
Justiication: applaud, praise for doing the right thing
Excuse: forgiveness, pardon for doing the wrong thing
Dickson CJ:
Claiming justiication = challenging nature of the law and following A’s own moral law.
SCC: allow only necessity as an excuse
Moral involuntariness
Analogous to physical involuntariness - you have no choice; circumstances have forced you to do this, no alternative form of action
Pertinent points
1. Defence of necessity: conceptualized as justiication or excuse
2. In Canada: should be excuse
3. Excuse does not vindicate the wrongfulness of A’s act

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4. Necessity requires moral involuntariness: if no moral involuntariness, A is disentitled
5. Involuntariness measured by society’s expectation of appropriate and normal resistance to pressure
6. Negligence or involvement in criminal or immoral activity doesn’t disentitle from using necessity
7. Existence of reasonable legal alternative similarly disentitles: to be involuntary, act must be inevitable, unavoidable, and
aford no reasonable opportunity for an alternative course of action that does not involve a breach the law
8. Applies only when imminence is present, i.e. Action taken to avoid direct and immediate peril
9. A places before court suicient evidence to raise issue; onus on Crown to meet it BARD
Elements of necessity
1. Urgent situation of clear, imminent peril = modified objective
2. No reasonable legal alternative to disobeying the law = modified objective
a. Does ‘legal’ part matter? If there was something illegal that causes less harm that what he did, doesn’t that preclude him from
claiming this defence?
3. Proportionality between harm inlicted and harm avoided = uniform objective
a. This can be comparable, as long as totally disproportionate
Elements 1 and 2 = moral involuntariness

- Sim to physical involuntariness: force A’s to kill another by threatening to kill A’s family
- technically diferent since A did intentionally did the A
- Literally it’s the same - A had no moral choice
- Classic stranded alpine skier story: justiication and excuse are kind of vague labels
- Implicit proportionality
By Latimer, MOT used with defences.
Parallelism between self-defence and necessity
34(2)
1. Unlawfully assault
2. Cause death / GBH
3. Reasonable apprehension of death / GBH
4. Believes on reasonable grounds that he cannot otherwise preserve self from death / GBH
1 and 3 it ‘clear imminent peril; 4 its ‘no reasonable legal alternative’; 2 and 4 are implicitly ‘proportionality’
37
1. Prevent assault or repetition of assault
2. Use force to protect self or anyone under his protection
3. Use no more force than necessary, not excessive force
1 its 1; 2 and 3 it the last 2 of necessity
= similar motivating principles underlying self-defence and necessity

SCC insists on self-defence being justiication and necessity being excuse
- false distinction
- necessity: respond to ‘some clear and imminent peril’ with ‘some harm inlicted’
- self-defence is a specialized version of necessity principles: cause death/GBH to avoid death/GBH
Should necessity element 1 be 2 elements?

1. Urgent circumstances
2. Clear, imminent peril
- Lavallee: Crown argued that A’s husband’s threat ≠ imminent. Court: CC doesn’t require imminence.
- Hostage example would demand this split
- Imminence doesn’t always accompany urgent circumstances
Case at bar:
Crown: Perka was behaving illegally in the irst place, therefore barred from defence.
Court:
1. Necessity is about an illegal action, so illegality is irrelevant
2. Even if it were relevant, they weren’t doing anything illegal for Canada: bringing drugs through int’l waters from SAmerica to
Alaska ≠ illegal in Canada (Cdn law says nothing about that). When they landed in Canada, they were driven by necessity at that
point. Caveat: you can’t create your own emergency.
Analogous 232(3) where you can’t provoke someone so they can assault you so you can kill them and claim provocation
R v Latimer, 2001 SCC

12-year-old with cerebral palsy and a lot of difficulties, father took her life rather than see her in pain
Issue: Is there an air of reality to elements of defence of necessity for A?
Held: No for all 3 elements
Air of reality issue for necessity

Defence wanted to plead it, needed judge to decide on air of reality. Judge says I didn’t make up my mind, go ahead and argue it. After trial, judge
decides there’s air of reality. Not good. Was he right?
Practically speaking, look at element 3 right away and it should conclude it. SCC concludes that there is no air of reality for any of the
elements.

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Duress
Special instance of necessity - same underlying principles
Statute pasted over c/l. If statute is repealed, c/l stands still. Duress exists in stat and c/l versions.
Element of c/l duress (Langlois)

1. Explicit or implicit threats of death or serious injury
2. No safe avenue of escape
3. Show reasonable courage
Similarities between duress and necessity

Conceptually, just a version of necessity
1. Explicit or implicit threats of death or serious injury = urgent circumstances of imminent peril
2. No safe avenue of escape = no reasonable legal alternative
3. Show reasonable courage = nothing disproportionate, endure rather than pass harm to someone else
Standard of review
Langlois (QCCA): ‘society expects a higher standard or additional deg of courage from someone who has chosen a calling that
normally requires courage, such as a police oicer. Penitentiary employees were also expected to show ‘the kind of courage one does
not demand of an accountant or schoolteacher’ = modified objective test, not SCC though
Elements of statutory duress (CC 17)

1. Compulsion by threats of death or bodily harm
2. Threats are immediate
3. Threatener is present
4. Believe threats
5. Not party to conspiracy (that will make you subject to compulsion, such as a gang)
6. Not applicable to listed ofences
1-3 = precise manifestations of irst 2 elements of c/l necessity and duress

6 = no matter what you did, it cannot outweigh listed ofences, i.e. Rough and ready proportionality test (a lot more rigid, doesn’t
allow case by case analysis like c/l defences do)
8(3) Every rule and principle of the common law that renders any circumstance a justiication or excuse for an act or a defence to a
charge continues in force and applies in respect of proceedings for an ofence under this Act or any other Act of Parliament except in
so far as they are altered by or are inconsistent with this Act or any other Act of Parliament.
- bolded words mean that c/l self-defence no longer exists
- Issue is though is c/l duress gone b/c of the alteration in 17? (see Carker)
R v Carker (No 2), 1967 SCC

Statutory duress: narrow interpretation of s.17; prisoner breaks plumbing under compulsion
Facts: Prisoners are rioting by destroying plumbing at same time in separate cells. Carker doesn’t want to, threatened with a knife in the back at first
opportunity, so he does it and is charged with breaking the plumbing. Pleads CC 17 duress.
Held: guilty, defence does not succeed
1. Threats weren’t immediate
2. Threateners weren’t present
Fair? No! CC 17 interpreted narrowly and is shown to be very limited. Case law following are reacts to the narrowness.
R v Paquette, 1977 SCC

C/l duress available to aider and abetter; 21(2) common intention not proved
Facts: A gets forced at gunpoint to drive to the Pop Shoppe for a robbery. Innocent bystander gets killed during the robbery.
A would be guilty of robbery aiding and abetting the principals who committed the robbery unless:
1. Party vs principal of the ofence
- s. 17 opening words: “a person who commits an ofence” interpreted as the “principal to the ofence” not the “aider/abetter”
- Therefore, c/l duress available to parties to an ofence, not principals
- Statutory duress available to principals, not parties
2. No intention in common
- A is charged under 21(2) - intention in common to commit some offence
- I.e. If 2 people form common intention to commit robbery and one person commits murder, everyone is guilty of murder
that the one permitted
- A doesn’t have intention in common to commit the offence the principals wanted to: he only drove them there b/c they
threatened him, intention was not to rob the place, intention was not to be killed, charge fails
- I.e. A doesn’t need duress defence b/c elements of 21(2) not proven = simply not guilty
R v Hibbert, 1995 SCC

Overwriting Paquette using 21(1)(b), simpler for jury to apply duress after offence elements proved
Facts: Hibbert has friend Cohen. C has enemy named Quasi. Q wants to shoot C. C has security in his building. C won’t buzz in Q, but
C will buzz in H. Q kidnaps H and forces H at gunpoint to buzz. C comes down. Q kidnaps C as well. Q shoots C, but doesn’t kill him. H
gets charged with shooting C as party to the ofence, as someone who helped Q (principal). Q disappears. H is charged. Def arg: Not
for the purpose of aiding Q, for the purpose not to be shot.
Modiied objective test makes an appearance again

Creighton: uniform objective standard for offences
Hibbert: modified objective standard for defences, unless otherwise stated by statut

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Hibbert’s arg against 21(1)(b) charge

“purpose” = “intent + desire” and I didn’t desire to shoot my friend, therefore I’m not guilty of 21(1)(b)
- Court rejects this: “purpose” = intent only, and you intended to do the act you did even if you didn’t desire it; however,
‘purpose’ can be interpreted to include ‘desire’ in other questions, but for this section it doesn’t.
- Court says, just use duress to get him of, easier for jury to igure out
- Overturns Paquette interp for 21(2) as well & Paquette gets of using duress defence
R v Ruzic, 2001 SCC

Statutory duress applying to principal to the offence, modified
Facts: Ruzic forced to smuggle narcotics from former Yugoslavia where threatener threatened life of her family.
Elements of s. 17
1. Compulsion by threats of death or bodily harm - yes (to her and her mother; threat doesn’t have to target A)
2. Threats are immediate - no (future threat)
3. Threatener is present - no (threatener didn’t go to Canada with her)
4. Believe threats - yes
5. Not party to conspiracy - yes
6. Not applicable to listed ofences - yes; importing narcotic is not listed ofence
Charter challenge to change the statute - s. 7 claim

1. Violation of life, liberty, security of the person
- provincial courts: yes
- someone is threatened at gunpoint to do something = not morally blameworthy; convicting someone who’s not morally
blameworthy = violation of Martineau, against the Charter
- SCC: no
- Prov cts are using justiication reasoning, should be excuse reasoning; Moral blameworthiness of an ofence = the proven
fault elements
2. Violation of PFJ
- SCC: yes, b/c she was morally involuntary (new PFJ!)
- Physical involuntariness is a PFJ (can’t convict)
- Analogous to moral involuntariness (can’t convict)
- A ‘theoretical’ gun to the head
Sensibly, it should be struck down entirely, but SCC chooses to strike down only elements 2 and 3. In replacement, c/l duress
immediacy rule comes in = a lot more lexible interpretation possible.
Statutory duress for principals is a stat-c/l amalgam

Future Charter problems:
- there is a possibility of committing listed ofences without moral voluntariness
- Lower courts have already struck robbery from list
- challenging the proportionality and imminence requirements (same hostage example)
9. Parties to a Crime and Attempts

Secondary liability. Relevant ss: 21, 22, 23, 23.1
Classic example: getaway driver. Only contribution is driving the car, not the robbery. But A will still be guilty of robbery, not using
robbery elements, but using 21(1) elements.
Potential overlap of principal and party

Harbottle: A held down the legs while another killed the victim. Charged with murder (assault causing death).
A could be convicted as party to the offence (didn’t kill her, just held her down) OR
A could be convicted as principal to the offence (holding down is applying force w/o consent) and that did cause her death.
Ambiguity in term
Party is a general term for anyone who is responsible for the crime, including principal, see 21(1)(a) “actually commits it”
Party is also a term for anyone who is the accomplice, see 21(1)(b)&(c) “aid and abet”
Most of the time, party and principal are distinguished, but sometimes party can refer to both.
This is because of sections like 23(1): An accessory after the fact to an ofence is one who, knowing that a person has been a party to
the ofence, receives, comforts or assists that person for the purpose of enabling that person to escape.
Section 21(1)
21(1)(b) used in Hibbert
EXTERNAL FAULT
1. Do a thing 1. Intent / reckless
2. Purpose of aiding to commit
the ofence
21(1)(c) abetting = encouraging

EXTERNAL FAULT
1. Encourages a person to commit 1. Intent
the ofence
Most of the time, courts don’t distinguish between the two

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Gradation of liability
21(1)(a) actually committing the ofence
21(1)(b) helping to commit the ofence
21(1)(c) encouraging someone to commit the ofence
Omission, mere presence (no liability)
What is encouragement
- words, actions
- But when behaviour is mere presence, no longer covered under 21(1)(c)
- Standard of review is fact-driven
- Actively helping, passively helping, actively encouraging, passively encouraging, mere presence…?
- Usually if Crown can prove A did something, it’s easy to capture them under 21
- Cases below are about the fuzzy line between 21(1)(c) and mere presence
Dunlop and Sylvester v R, 1979 SCC, s. 21(1)(c)

Aiding and abetting; presence during gang rape
Facts: 2 A identified by rape victim as the ones who committed the rape. They claim they only brought beers to the party, not involved.
If jury believes victim: A = principals, guilty

However, judge also instructed jury on secondary liability
SCC: jury can only consider 21 if jury does not believe complainant’s version of the events
If jury believes A, then,

Issue: Did the A’s conduct constitute more than mere presence, i.e. Aiding or abetting the offence?
Held: no, their bringing beers and watching ≠ aiding or abetting, acquittals b/c this is their third retrial.
Mere presence at scene of crime is not sufficient to find culpability, must have taken active steps
However court also says, presence at times could be encouragement in some circumstances (accompanied by certain factors, e.g. presence with prior
knowledge rather than accidental presence), but that’s for jury to decide.
R v Laurencelle, BCCA 1999, 21(1)(c)

Party to the offence, unlawful confinement, by living in the same house
Facts: A didn’t know abducted victim was in her house until after the fact, not clear that it’s her house, tried to make victim comfortable, claims was afraid
of the principals. Issue: is she a party to the offence? Held: no.
Facts that show she ‘encouraged’ the ofence:

- she didn’t call the police, she didn’t leave the house = but these are only omissions, not guilty
- This is a borderline case, b/c she comforted him and gave him water
- Held that acts of kindness do not amount to aiding and abetting the ofence of unlawful coninement
Section 21(2)
21(1) is about one offence
21(2) is about 2 different offences, i.e. 2 people agree to commit offence X together, and 1 of them commits offence Y during the commission of offence
X, the other may be guilty of offence Y as well.
EXTERNAL FAULT
1. Form common intention to commit ofence X 1. Intent (you have to intentionally form the intention of
2. Other person commits ofence Y (in the course of course)
committing X) 2. Knew or ought to know ofence Y was probable
E.g. consequence
1. Form common intention to commit robbery
2. Other person commits assault in the course of (That is, don’t choose a hothead to be your robbery partner, b/c if
committing robbery you did, you ought to have known he’d commit assault)
R v Logan, 1990 SCC, 21(2)

Attempted murder, Charter challenge to objective standard in 21(2)
Facts: A accused of attempted murder when person was shot and injured during robbery. A admits to robbery but stated that he had
no intention to shoot. Challenged constitutionality of “ought to have known” component, arg: should be inoperative for all ofences
Charter issue: Fault element ‘ought to know’ makes 21(2) a potentially objective fault crime for the accomplice but not the principal,
i.e. Accomplice who ‘ought to know’ that principal was going to commit assault would be convicted on an obj standard while principal
would only be convicted of assault on subj standard
CA: PFJ that party to any offence cannot be found guilty of the offence based on a lower mens rea standard than that req’d for principal (claims this
follows Vaillancourt)

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SCC: no, not a PFJ

- Flexibility to adjust sentencing to match blameworthiness for parties; therefore lower mens rea standard for parties is okay
for some ofences
- However, 21(2) will restrict violate s. 7 if ofence is a high punishment, high stigma ofence, such as murder
Test
1. Is there a min deg of mens rea required as a PFJ before one can be convicted as a principal to this ofence?
2. If no, obj mens rea component of 21(2) operates w/o violating Charter
3. If yes, that same min deg of mens rea required as PFJ is required to convict party to that ofence as well.
Basis for constitutionally min deg of mens rea is social stigma assoc’d with conviction, not the punishment level.
- attempted murder stigma is the same as murder (same murderous intent)
- Consistent with Martineau and Ancio (pre-Charter, speciic intent to kill = mens rea req’mt for principal to attempted
murder)
Section 1 analysis
Keeping obj standard for all ofences does not pass proportionality test: ‘ought to know’ allows for possibility where A didn’t consider/
accept the risk that accomplice may do something with intent to kill in furtherance of common purpose, which means A could be
found guilty of murder through negligence.
Obj fault component of 21(2) does not violate the Charter unless offence Y is a Martineau high stigma/punishment crime
Counselling, s. 22
Criminal counselling = active inducement
22(1) Where a person counsels another person to be a party to an ofence and that other person is afterwards a party to that ofence,
the person who counselled is a party to that ofence, notwithstanding that the ofence was committed in a way diferent from that
which was counselled.
Elements of ‘counselling’
EXTERNAL FAULT
Deliberate Intent or (recklessness) conscious disregard for the substantial and unjustiied risk inherent in the
encouragement or counselling
active inducement of
the commission of an = A intended the ofence counselled be committed OR
ofence = A knowingly counselled commission of ofence while aware of the risk that the ofence counselled was
likely to be committed as a result of the counselling, i.e. recklessness
EXTERNAL FAULT
Say ‘commit ofence Intent / reckless (general)
X’ Intent / reckless that ofence X be committed (speciic)
22(1) stands along with the actual ofence the other person committed, not free-standing.
vs
241. Every one who (a) counsels a person to commit suicide…

- suicide is not an ofence, therefore counselling suicide is a free-standing ofence
- speciic intent crime (not just say ‘go commit suicide’, but also mean for them to commit suicide’), so drunkenness is a
defence against 241
vs
464. Except where otherwise expressly provided by law, the following provisions apply in respect of persons who counsel other
persons to commit ofences, namely,
(a) every one who counsels another person to commit an indictable ofence is, if the ofence is not committed, guilty of an
indictable ofence and liable to the same punishment to which a person who attempts to commit that ofence is liable (sentencing
in 463); and
(b) every one who counsels another person to commit an ofence punishable on summary conviction is, if the ofence is not
committed, guilty of an ofence punishable on summary conviction.
- free-standing ofence
- 22: convicted only if ofence has actually been committed
- 464: convicted even if ofence has not been committed
22(2) Charter issue

Every one who counsels another person to be a party to an ofence is a party to every ofence that the other commits in consequence
of the counselling that the person who counselled knew or ought to have known was likely to be committed in consequence of the
counselling.
- Logan principle probably applies here as it did for 21(2), but no case on it yet
Accessory after the fact, ss. 23, 23.1

Free-standing ofence, doesn’t need another ofence along with it.
Not party to an ofence, but helped another escape after they committed the ofence.

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EXTERNAL FAULT
1. Person X is party to 1. Know (includes WB) that person B is party to ofence Y
ofence Y (either party or 2. Intent / reckless
principal) 3. Purpose (doesn’t include desire, following Hibbert) enabling X to
2. Receives/comforts/assists escape
person B
Duong: knowledge includes WB & claiming you wouldn’t have been told the truth had you asked is no excuse
Theoretically, Crown needs to prove that Person B committed Ofence Y IOT prove A committed s. 23.
However, 23.1: Person B doesn’t have to found guilty in B’s trial for A to be convicted in A’s trial.
- classic example: Person B ‘cannot be convicted’ by reason of mental disorder
Wider interpretation of ‘Person B cannot be convicted’: Shalaan

Facts: Victim killed in own home. Those present: wife and wife’s brother. Brother charged with murder. Wife with s. 23. Bro is acquitted at trial.
Wife’s trial: judge persuaded of Bro’s guilt BARD (i.e. disagree with acquittal) but since principal has been acquitted, accessory after the fact must be
too.
CA: overturned acquittal, clear from CC that it is not necessary to convict principal IOT convict accessory, lang is broad enough for this interpretation.
SCC affirmed CA decision.
This seems counterintuitive.

Reasoning: Wife’s trial judge’s finding of principal’s guilt IOT convict wife doesn’t actually affect principal himself. Technically not a perverse verdict b/c
they aren’t finding him guilty in a trial that concerns him. Even if the brother’s acquittal gets appealed to the SCC and SCC affirms that he’s not guilty, it
won’t have bearing on how wife’s trial gets decided.
Sentencing discounts: 463

Attempts, s. 24
Element analysis is anomalous because there’s actually no actus reus since by deinition you didn’t commit the crime.
EXTERNAL FAULT
1. Do thing for 1. Intent / reckless
purpose of carrying out 2. Have intent to commit ofence
intention The conduct has to connect directly with this second specific intent.
Key standard for act: ‘beyond The specific intent here is most important; it’s what ultimately makes you guilty of an attempt.
mere preparation’ e.g. If the alleged offence is murder, A has to have intent to commit murder (rather than constructive murder during
commission of another listed offence)
Example 245(b)
When does A’s action go beyond mere preparation…?
1. Decide to serve noxious preserves to victim at Thanksgiving (we have intent)
2. Jan - buy mason jar and cranberries
3. Feb - buy weedkiller
Could argue this since we know the intent already, all preparation complete (even if acts are innocent in themselves, even if there’s
no risk, even if there isn’t anything wrong in anyway if we hadn’t known the intent)
4. Mar - make cranberry/weedkiller preserves
Could argue this for the same reason as for 3
5. Apr - invite victim for Thanksgiving
Could argue that this sets things in motion (behaviour doesn’t have to unequivocally lead to the crime; could be attempt even if
there’s an innocent alternative explanation)
6. Thanksgiving dinner - put cranberry/weedkiller preserves in dish on table
This is probably already the commission, not the attempt: e.g. intended victim came over and scooped some for himself, there’s
causation, so it’s not an attempt, but actual commission by this step
7. Thanksgiving dinner - ofer preserves to victim
If we have clear proof of intent, we can call something an ‘attempt’ much earlier.
If we don’t have clear proof of intent, we would need to go much lower down the list.
Summary of Attempt Principles

1. Proof of intent is key, since by deinition the actus reus of the ofence has not been performed.
a. Simultaneity is not a consideration because by deinition the actus reus did not happen.
2. Attempt does not have to lead inevitably to the intended consequences.
3. The same facts might be used to prove both intent and actus reus of attempt.
4. Facts which are suicient to prove the actus reus of attempt if there is other clear evidence of intent might not be suicient
on their own to prove intent.
5. When the preparation to commit a crime is complete, the next step is an attempt.
6. Proximity in time and location are relevant but not determinative:
a. There can be intervening time between the attempt and the likely commission
b. Passage of time does not make an attempt cease to be an attempt
c. Proximity in time can turn preparation into an attempt
7. Starting a transaction which, if uninterrupted, will lead to the commission of the ofence is an attempt
8. However, the fact that more steps are required (i.e. principle 7 is not determinative) does not mean there was not an
attempt. (Use this to argue for step 3 above).
9. The attempt need not be the last step before commission of the full ofence. (Step 5 is arguably the last step).

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R v Ancio, SCC 1984
Specific intent to kill required for attempted murder
Facts: A and wife separated; wife lives with K; A wants to talk to wife, brings sawed of shotgun to K’s home. K throws chair with jacket
on it at him; they ight; A’s gun goes of accidentally, shoots through chair and jacket. A ights with K right up to when police arrived.
Trial conviction; CA quashed conviction, new trial ordered; Crown appealed that CA erred in holding intent for attempted murder has
to be ‘intent to cause death or cause BH’
What is Crown’s reasoning to charge Ancio with attempted murder?

He committed B&E and had K been killed during this, this constitutes intent for murder charge under 230.
Since death did not occur, A committed attempted constructive murder. Crown claims that this is the same as attempted intentional
murder where you shoot at someone and miss. (This is before Vaillancourt where constructive murder is struck down).
SCC does not agree

Criminal attempt is separate from crime alleged to be attempted.
Mens rea = intent to commit the ofence in question
Actus reus = some step towards the commission of the ofence attempted going beyond mere acts of preparation
Criminality lies much more in intention: Intent to commit the desired ofence is a basic element of the ofence of attempt.
Crime of attempt may be complete without the actual commission of any other ofence and even without the performance of any act
unlawful in itself. Criminal element may solely lie in the intent.
The completed ofence of murder requiring intention to kill. Therefore attempted murder must also include an intention to kill
239 is not a separate attempt ofence from s. 24; it’s more a sentencing section
24 is the general section for attempts, therefore it’s necessary to read in the ofence attempted, i.e. having the intent to commit
murder
Intent to kill is the highest intent in murder and there is no logical reason why an attempt to murder, aimed at the completion of the
full crime of murder should have any lesser intent. If there is any illogic in the matter, it is in the statutory characterization of
unintentional killing as murder (which is what was struck down in Vaillancourt).
R v Sorrell and Bondett, Ont CA 1978

Mens rea required for attempted robbery
Facts: 2 A showed up at Aunt Lucy’s fried chicken store in balaclavas with concealed weapon just before closing time. Store had
closed up 15 mins earlier, manager locked up and started cleaning. A came to door and knock on window, employee saw a gun, mgr
indicated they were closed. 2 A left. Police called, followed them, they threw something away, arrested and charged. They found 2 ski
masks matching description given by employees on side of the road. Trial acquittal: judge had reasonable doubt of requisite intent to
rob. Crown appealed.
Held: not guilty of attempted robbery
Elements of s. 24, robbery plugged in

EXTERNAL FAULT
1. Took steps in carrying out the 1. Intent /
intent which amounted to more than reckless
mere preparation 2. Intend
to rob
Same facts used to answer both elements. Facts enough to prove ‘beyond mere preparation’ might not be enough to prove intent.
CA: Steps were indeed beyond mere preparation and personally thinks it enough to prove intent as well. However, has to uphold trial judge’s decision re
intent because the issue of intent is a question of fact, not law and therefore not available for appeal.
24(2) says ‘beyond mere preparation’ is a question of law and available to appeal.
This skews the case law b/c although intent is the more important element for attempts, there’s more case law on ‘beyond mere
prep’
R v Deutsch, SCC 1986

Attempt to procure: distinction of ‘beyond mere preparation’
Facts: A’s job postings for secretary required woman to have sex with potential clients to close deals.
Trial: acquittal b/c it’s not procurement until job was actually ofered to interviewees, all steps before = mere preparation
CA: dismissed appeal on ‘common prostitution’ but allowed appeal on ‘attempting to procure’
Issues:
1. Whether CA erred in holding that sexual intercourse contemplated by A would be illicit sexual intercourse within s. 195(1)(a):
No.
2. Whether CA erred in holding that the acts/statements of A could constitute an attempt to procure rather than mere
preparation: No.
Held: conviction
Trial was wrong to have held that illicit sex had to have occurred before attempt can be charged.CA is right: if A had necessary intent to procure, and
then held out big $ rewards during interviews where the necessity of having sex for the job is disclosed = actus reus of attempt to procure. SCC wants a
‘qualitative’ proximity test between actus reus and specific intent.
US v Dynar, SCC 1997

Attempts to commit impossibilities; failed US sting operation for money laundering
Facts: Man is targeted in sting op to launder money; he agrees; but money isn’t stolen and it isn’t actually delivered to him. Under
Cdn law, that’s not a crime (at the time, now amended to ‘believe that money is proceeds of crime’). US wants extradition.
24(1) Every one who, having an intent to commit an ofence, does or omits to do anything for the purpose of carrying out the
intention is guilty of an attempt to commit the ofence whether or not it was possible under the circumstances to commit the ofence.

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Doesn’t matter that A couldn’t possibly have succeeded in laundering money that was supposed to be proceeds of a crime.
D’s argument for distinction of factual and legal possibilities

Factual distinction: Attempt runs up against some intervening obstacle and for that reason can’t be completed
E.g. Pickpocket who tries to steal a wallet from a back pocket, but there’s no wallet there
Legal distinction: Attempt to do something legally impossible - even if it were completed, it’s not a crime
E.g. Stealing an umbrella only to discover that it’s yours
Dynar claims he was attempting a legal impossibility, and therefore he can’t be guilty of an attempt. SCC: this distinction is not
tenable. There’s no such thing as ‘legal impossibility’ in Canada.
Factual and legal possibilities come with the same mens rea
- attempt to steal a wallet that’s not there or steal an umbrella that’s actually yours = still the same intent to steal
- umbrella guy doesn’t succeed based on a mistaken understanding of the facts, but that doesn’t change his intent to steal
- Mistaken belief cannot be eliminated from description of fault elements just b/c it’s mistake
- There is no dif between one thwarted by physical impossibility and one thwarted following completion. Both are thwarted by
circumstance, a fact, but both still had the intention to commit
HOWEVER there is a distinction: 1) imaginary crimes and 2) attempts to do the factually impossible.
Imaginary crimes
e.g. Importing sugar into Canada thinking that it’s illegal
That’s an imaginary crime. On the other hand, a pickpocket who tries to steal a wallet that’s not there has mens rea of a thief.
Sugar smuggler has no mens rea know to law, not a crime, therefore, can’t have an attempt to commit something that’s not a crime,
therefore can’t be guilty. Vague willingness to break the law, perhaps, but the act isn’t even illegal
A attempted to do the impossible but didn’t attempt to commit an imaginary crime (i.e. Laundering money is a real crime). He
attempted the factually impossible (even though he claimed he did the legally impossible); no defence. 24(1) draws no distinction
between attempts to do the possible by inadequate means, attempts to do the impossible, attempts to do something that turns out to
be impossible upon completion. All are crimes, all are factually impossible. A did exactly this - attempted to commit a crime known to
law, thwarted by facts, therefore = should be extradited.
10. Adversary system and legal ethics

From lecture
The adversary system
Neutral, passive decision maker
Passive part is what distinguishes adversary system from inquisitorial system (used in most civil law country)
Judge in inquisitorial system is chief investigator
Judge is responsible for going out and inding the truth rather than having facts presented to him/her and deciding what truth is
Simply decide b/w merits of 2 positions, don’t intervene
Bias is supposed to be minimized by passive role
Party presentation of evidence
Enlisting self interest
Assumes each side will fully and diligently present all the material facts which have evidentiary value to support their respective
positions
People most interested in outcome are ones responsible for presenting all the evidence in support of their position
Keener of inding all the facts that will help their side than an inquisitorial judge might be
Theory is this is the best way of inding out all the relevant information
Formal rules
Evidence
Procedure
Govern how information is to be brought before the judge
Court is concerned w/ truth only so far as accepts submissions as true or rejects testimony as unworthy of belief
Doesn’t embark on quest for scientiic truth
Idea is that it promotes the inest approximation of the truth
Problems
Presupposes equality b/w parties
When not equal, often the stronger party wins
Goal is to present best picture of client’s position, not the most complete picture
Mostly past facts being looked at so dependent on oral testimony
Personal knowledge might be better described as personal beliefs as to the facts they think they observed
Can’t replicate the facts in a lab and test the hypothesis
Guesses more than actual facts
The law compromises – it must provide a forum for resolving disputes b/w parties who couldn’t resolve them themselves so it must be
done in a way that ensures social tranquility and acceptable to both parties
Everyone had their say and decision was made by impartial third party
Criminal justice system not always adversarial system
70-90% of the accused plead guilty (often as a result of a plea bargain)
Sometimes judge involved, sometimes just Crown and defence counsel
Sometimes long discussion other times just hurried hallway discussion
Sometimes can be traced to discussion b/w accused and police w/o lawyer being involved
Generally claimed that Canada operates under the adversary system and that this is the best way of doing things
Some others argue that this is a stupid way of getting at the truth and other methods would be better
Can also challenge factual claim that Canada operates under the adversary system
Duties of the prosecutor

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Prime duty is not to seek a conviction but rather to present before the trial court all available credible evidence relevant to the
alleged crime in order
Crown’s job is not (as would be in strict adversarial system) to do best to convict someone regardless of evidence
Duty to disclose all relevant evidence to accused whether that evidence supports conviction or acquittal
Not pure adversarial role
Prosecution must proceed and charges must be vigorously prosecuted even in the face of threats and attempts at intimidation to self
or family
Often overworked and underpaid but must still ind inventive ways of adequately preparing each case
Must have absolute integrity and above all suspicion of favouritism
Duties of defence counsel
Protect client from conviction as far as possible notwithstanding private opinion
May rely on all available evidence or defences including so-called technicalities not known to be false or fraudulent
Doesn’t matter whether believe client or not
Knowing something to be false and believing/disbelieving client are not the same thing
Admissions made by the accused to the lawyer impose limitations on lawyers actions – accused should be made aware of this
If accused clearly admits to lawyer the mental and factual elements necessary to constitute the ofence, the lawyer, if convinced the
admissions are true and voluntary, cannot suggest some other person committed the rime or call evidence the lawyer believes to be
false based on the admissions
Can’t set up an airmative case inconsistent with the admissions
Can’t call evidence in support of an alibi intended to show the accused could not have done the crime
Can object to jurisdiction, form of indictment, admissibility or suiciency of evidence
Can test the evidence given by each individual witness and argue that whole of the evidence is insuicient to amount to proof that
accused s guilty but can’t go further than that
Must defend client regardless of heinous nature of crimes and public or even court perception of both act/client (and defence counsel
being associated w/ both)
Put forward any reasonable defence on the part of client and strive to ensure that only the guilty are convicted
Guiding principles – lawyer as advocate
Duty to client is “fearlessly to raise every issue, advance every argument, and ask every question, however distasteful, which he
thinks will help his client’s case” and to endeavor “to obtain for his client the beneit of any and every remedy and defence which is
authorized by law”
BUT must be discharged by fair and honourable means, w/o illegality and in a manner consistent w. the lawyer’s duty to treat the
court w/ candor, fairness, courtesy and respect
Duty to hold in strict conidence all information concerning the client and not to divulge that information except as expressly or
impliedly authorized by the client, required by law or otherwise required by the CBA Code of Professional Conduct
EXCEPTION: lawyer believes on reasonable grounds that there’s an imminent risk to an identiiable person or group of death or
serious bodily harm, including serious psychological harm, lawyer can disclose conidential information in order to prevent the death
or harm but can’t disclose more information than necessary
Prohibited conduct
Knowingly assist or permit client to do anything that the lawyer considers to be dishonest or dishonourable
Knowingly attempt to deceive or participate in the deception of a tribunal or inluence the course of justice by ofering false evidence,
misstating facts or law, presenting or relying upon a false or deceptive aidavit, suppressing what ought to be disclosed or otherwise
assisting in any fraud, crime or illegal conduct
Whether as Crown you don’t believe or as defence you do believe your client, you can’t state it in court
Not important whether you believe or not
The Adversary System Excuse
Lying isn’t pretty but a job is a job and that’s what the job is
Idea that only duty advocate knows is that to his client
No one else’s moral rights matter
Moral theory doesn’t apply
Afect to others is irrelevant
Institutional excuses: can a person appeal to a social institution in which he or she occupies a role in order to excuse conduct that
would be morally culpable were anyone else to do it?
Not murder when a soldier kills
Then again, concentration camp commandant can’t use job as excuse
Important factor seems to be whether institution itself is justiied
Does the adversary system really justify this idea?
Argument that no moral responsibility b/c guilt determined when jury decision comes down and not before so don’t really know truth
until then
Thing is not made true or not true by court pronouncing on it
Lawyer can reach conclusions about an issue w/o having a judge tell him what to think
Bias of the justice system is to ind guilt
Counter this bias by presumption of innocence and defence counsel
Defence counsel is the one person who starts with the assumption that the authorities must be mistaken
Looks at every fact w/ the view that the client is innocent
What he is accused of may not be a crime or he may not have done the alleged acts
Defence counsel must act on the assumption that whatever the defendant says is true
Must act on the assumption that accusers are mistaken
From textbook
- method of inquiry: adversarial (not inquisitorial as in science)
- Relative passivity of the judge = make ultimate inding of the faces, but not personally investigate
- Judge the merits of the 2 positions
- Trial judge’s too frequent intervention during trial runs risk of being reversed on appeal and new trial ordered
- Contestants seek to establish through relevant supporting evidence, before an impartial trier of facts, those events or happenings
which form the bases of their allegations

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CR IMIN A L 54
- Obtain the fairest decision when 2 argue as unfairly as possible on opposite sides; for then it is certain that no important
consideration will altogether escape notice
- Decision-maker bias lessened if he/she plays less active role
- Allowing parties to attack the other’s case will make their own case more vigourous
- Presupposes for success some equality between parties, but if lacking, truth becomes the view of the more powerful
- Judges confess they often want to even the match
- Inquisitorial method is used in every aspect of life, except for c/l
- System based on past facts - oral testimony, personal ‘knowledge’ of events, but really are personal beliefs about what they
remember as facts which they believe they observed
- Facts in court = guesses of actual facts, subjectivity piled on subjectivity; belief or opinion about someone else’s belief or opinion at
best
- Modern form of the duel or feud; resolution of the conlict must be done in a way which ensures social tranquility generally and is
also acceptable to individual parties, leave the court feeling they had their say, case presented in the best possible light and judged
by an impartial trier
- Society’s last line of defence to secure peaceful settlement of conlicts, last-ditch process
- At stake is the conidence of the public in the court’s impartiality
- Large % of accused plead guilty - 70-90%
- Large number of these are b/c of plea bargains - agreement for A to plead guilty with a view to some consideration -
relating to charge or sentence
- Discussion between Crown and defence counsels
- Sometimes between A and police oicer w/o lawyer present
Menkel-Meadow, “Portia in a Diferent Voice: Speculation on a Women’s Lawyering

Process”, 1985
- much of what has been written about human psych development has been based on studies of male subjects exclusively
- Girls/women not described, or ‘failed’ to develop on the scales based on male norms
- Feminists observed the law based on male values and behaviours
- Rational, objective, abstract, principled like men
- Not irrational, subjective, contextualized, or personalized like women
- Women excluded from practice of law, and so these traits assoc’d with women aren’t greatly valued
- for women: moral problem arises from conlicting responsibilities rather than from competing rights and requires for its
resolution a mode of thinking that is contextual and narrative rather than formal and abstract
- Kohlberg experiment - Jake vs. Amy
- Heinz’s wife is dying of cancer, drug needed to save her is too expensive, should H steal it?
- Jake: yes; life > property - logic of justice
- Choice of right (Jake’s) is important, but not the only way of looking at things
- Amy: wants to know more facts, sit down and talk, consider a loan, etc. - ethic of care
- Amy seeks to keep people engaged - needs of the parties are constant, hopes to satisfy both in negotiation, rather
than choosing winner (lawsuit)
- Attempts to ind a resolution that will hurt least the one who can least bear the hurt
- If H steals the drug, and goes to jail, who will take of his wife?
- Concerned with how the dilemma is resolved - the process by which parties communicate
- current system - maximizing individual gain = winning
- Would Amy create a diferent model?
- Go outside the rules to ind a solution that satisies the needs of both parties
- Change the rules to preserve the relationships
- Amy wants to change the process - she’s not the arbitrator, but believes in communication
- The system prevents the expression of concern for the other side - if the other side neglects a doc that is harmful to my case
- Female legal system = mediation
- Attempt to modify the harshness of the adversarial process and expand kinds of solutions
- sense of empathy and ethic of care in women - more interested in it?
- More active role in settlement process rather than court-ordered relief - broader conception of parties, participation by those
afected by dispute (ethic of inclusion)
- Woman who conforms to the female stereotype of being soft or weak = bad trial lawyer; but woman who’s tough or strong =
acting inappropriately for a woman
- Women’s strength seemed to be only permitted in female spheres
- Trial advocacy - urge jurors to examine their own perceptions and values and encourage them to think for themselves -
created relationship with fact-inding jury; based on trust and mutual respect rather than dramatics, power, and intimidation
- More cooperative, less warlike system - solutions are mutually agreed upon rather than dictated by outsider
Madam Justice Bertha Wilson, “Will Women Judges Really Make a Diference?”, 1990
- is judicial impartiality even a realistic requirement of judges? Does it even exist?
- Is existing law the product of neutrality?
- Will women judges honour or upset traditional judicial impartiality?
- Most principles and underlying premises are too far entrenched to be changed - such as contracts, property, and commercial
law
- Other areas - male perspective is clear; should be revisited when the opp presents itself
- Changes to criminal law areas that presupposes nature of women and nature of sexuality that are ludicrous
- more female judges lead to theories that shatter gender stereotypes, keep public’s trust in ability of courts to respond to all
classes of people
- Educative function
- Perspective afecting substantive law and Impact on decision-making itself
- Men - competing rights
- Women - competing obligations

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CR IMIN A L 55
- lawyers need to tell stories - help judges enter into their shoes
Rupert Ross, “Dancing with a Ghost: Exploring Indian Reality”, 1992

- it had never occurred to me that in their eyes it might not be the right thing to do
- Aboriginal belief in consensus decision-making; adversarial system = foreign and inappropriate
- Representing Elder was to counsel their side of the dispute until all bad feelings were gone and the spirit was cleansed and
made whole again
- Once panel convened, Elder would pass the pipe along if the matter has been cleansed - restored to the community and to
himself
- Function of traditional Native dispute resolution system was the real resolution of disputes
- Our society is a society of strangers - do not aim at restoring friendship or harmony, b/c they don’t exist between strangers
- Native approach focuses on the interpersonal dysfunctions which caused the problem in the irst place

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CRIM2261 - 2016 - Summary Criminal Law

Criminal Law (Thompson Rivers University)

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CRIM 2261 - 2016

1. Role of the Criminal Justice System 1 R v DeSousa 1992 SCC 1

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1. Role of the Criminal Justice System

LaBaye Test for Indecency

Q: Is LaBaye inconsistent with Malmo-Levine in using the harm principle to acquit?

Morality is the de facto PFJ for criminal law.

2. Sources of Criminal Law

C/l contribution to criminal law:

Statute contribution to criminal law:

R. v. Clark 2005 SCC

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Element analysis of section not at issue

173(1)(b) - not guilty

Element analysis of section at issue

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Reference re Firearms Act (Canada) 2000 SCC

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1949 Margarine Reference

Calgary Street Prostitution

Constitutional Law: Charter

Example: Applying Test for PFJ to “a law cannot be vague”

Violation of PFJ: test for overbreadth

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Violation of PFJ: vagueness

R v Oakes 1986 SCC

Burden of proof is upon the party seeking to uphold the limitation

Standard of proof = BOP, not BARD

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Heywood Application: Test for Charter Violation

3. Procedural Aspects of Criminal Law

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Woolmington v DPP 1935 HL

R v S (JH) 2008 SCC

R v Mullins-Johnson 2007 SCC

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Suggested charge by SCC to have these points:

Should NOT say:

Presumption of Innocence and the Charter

Jury charge problems

R v Downey 1992 SCC

Summarize presumption of innocence elements:

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Mandatory presumption: by statute only; judge/jury can be persuaded otherwise

EB and LB = mandatory presumptions

Onus of proof problems

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4. Proving external elements of ofences

Element analysis of s. 175(1)(a)(i)

3 sets of reasons for decision

Legal duty theory

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R. v. Thornton Ont CA and Thornton v. R. (SCC)

Continuing act theory

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Smithers v R 1978 SCC

R v Harbottle 1993 SCC (test for irst deg murder causation)

Note on life sentence

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