Criminal Outline

lOMoARcPSD|6130268
Criminal Outline
Canadian Criminal Law (York University)
StuDocu is not sponsored or endorsed by any college or university

Downloaded by Juliana Mirkovic (juliana.mirkovic@gmail.com)
lOMoARcPSD|6130268
LK2016
Contents
PRINCIPLES AND PURPOSES OF SENTENCING .................................................................................. 1
Cases ......................................................................................................................................................... 3
SENTENCING INDIGENOUS OFFENDERS ............................................................................................ 3
THE ADVERSARIAL SYSTEM ................................................................................................................. 3
DISCRETION AND STATE POWER ......................................................................................................... 4
Investigative Detentions............................................................................................................................ 4
Cases ..................................................................................................................................................... 4
s.8: Charter ........................................................................................................................................... 5
SOURCES OF CRIMINAL LAW ................................................................................................................ 5
Common Law............................................................................................................................................ 5
Statute ....................................................................................................................................................... 6
Division of Powers.................................................................................................................................... 6
THE CHARTER AND THE LIMITS OF CRIMINAL LAW...................................................................... 7
The Charter............................................................................................................................................... 7
The Purposive Approach........................................................................................................................... 7
Charter s.7 Challenge ............................................................................................................................... 7
Principles of Fundamental Justice......................................................................................................... 7
Recognizing New Principles of Fundamental Justice ............................................................................... 8
Malmo-Levine and the Harm Principle................................................................................................. 9
PRESUMPTION OF INNOCENCE AND BURDEN OF PROOF .............................................................. 9
Common Law............................................................................................................................................ 9
s.11(d) Charter.......................................................................................................................................... 9
Reasonable Doubt ................................................................................................................................... 10
Model Charge (R v. Lifchus) ............................................................................................................... 10
Revised W.(D.) Framework (p. 50) .................................................................................................... 11
Burdens ................................................................................................................................................... 11
Declaration of Innocence ........................................................................................................................ 11
ELEMENTS OF THE OFFENCE .............................................................................................................. 12
ACTUS REUS ........................................................................................................................................ 12
Omissions............................................................................................................................................ 12
Voluntariness (p. 58) ........................................................................................................................... 13
Causation............................................................................................................................................. 14
CONTEMPORANEITY ......................................................................................................................... 17

lOMoARcPSD|6130268
LK2016
MENS REA ............................................................................................................................................ 17

Subjective Mens Rea ........................................................................................................................... 18
Objective Mens Rea ............................................................................................................................ 19
Regulatory Offences ........................................................................................................................... 21
Predicate Offences .............................................................................................................................. 22
Mens Rea & Homicide ........................................................................................................................ 25
CONSENT AND SEXUAL ASSAULT ..................................................................................................... 28
Sexual Assault......................................................................................................................................... 28
Code Provisions .................................................................................................................................. 28
Sexual Assault Test ............................................................................................................................. 29
Sexual Assault Jurisprudence.............................................................................................................. 29
Consent ................................................................................................................................................... 30
Code s. 273.1....................................................................................................................................... 30
Common Law Rules ........................................................................................................................... 30
Mistake of Fact: Mistaken Belief in Consent...................................................................................... 31
INCAPACITY ............................................................................................................................................ 33
Air of Reality Test .................................................................................................................................. 33
Mental Disorder ...................................................................................................................................... 33
Results of NCR Finding ...................................................................................................................... 34
NCR Test ............................................................................................................................................ 35
Automatism ............................................................................................................................................. 36
Summary of Automatism .................................................................................................................... 37
Extreme Intoxication ............................................................................................................................... 37
JUSTIFICATIONS AND EXCUSES ......................................................................................................... 39
Defence of Person ................................................................................................................................... 39
David Pacciacco’s 4-Part Defence of Person Test .............................................................................. 40
Provocation ............................................................................................................................................. 41
Code s.232: Provocation ..................................................................................................................... 41
2-Part Test for Provocation ................................................................................................................. 41
Necessity ................................................................................................................................................. 42
Necessity Test ..................................................................................................................................... 42
Duress ..................................................................................................................................................... 43
Code s.17: Duress ............................................................................................................................... 43
Common Law Duress ......................................................................................................................... 43
PARTY LIABILITY ................................................................................................................................... 45

lOMoARcPSD|6130268
LK2016
Aiding and Abetting................................................................................................................................ 45

Defence of Abandonment ....................................................................................................................... 45
Counselling ............................................................................................................................................. 46
PRINCIPLES AND PURPOSES OF SENTENCING

Cases
R v. Priest (1996) p.5
• Kid is sentenced to 1 year for stealing video games. Judge wanted to advance deterrence.
• Penalty too excessive.
• Sentence must reflect the gravity of the offence (i.e., the seriousness and degree of harm)
and the degree of responsibility of the offender (i.e., moral blameworthiness). Sentence
must be proportionate.
R v. Arcand (1996) p. 6
• Excerpt on s.718.
R v. CAM (1996) p. 8
• Is retribution a legitimate purpose of sentencing?
• Guy physically, sexually, emotionally abuses over number of years; receives 25 years.
• Retribution represents nothing less than the hallowed principle that criminal punishment, in
addition to advancing utilitarian considerations related to deterrence and rehab, should also be
imposed to sanction moral culpability of the offender
• Retribution is a legitimate principle of sentencing.
Code Provisions
S. 718  Purpose and principles of sentencing
SENTENCING INDIGENOUS OFFENDERS

R v. Gladue (1999)
• SCC unpacks 2 rationales and a 2-part process for applying s.718.2(e)
R v. Ipeelee (2012)
• Court explains how s.718.2(e) should apply in sentencing for breach of LTSOs.
• Addresses criticisms to s.718.2(e) and the Gladue decision.
Code Provisions
S. 718.2(2)  Sentencing Aboriginal offenders
THE ADVERSARIAL SYSTEM

R v. RDS (1997) p. 18

lOMoARcPSD|6130268
LK2016
• On value of diverse perspectives.

• Reasonable apprehension of bias.
DISCRETION AND STATE POWER

Investigative Detentions
• Power to detain for investigative detention called the “Waterfield test” (R v. Mann).
• Power to detain individuals for investigative purposes is a common law power, evolved
historically through the development of case law.
• On exam, would want to answer question as to whether a defence was lawful based on
sequence of two questions: has there been a detention; if so, has it been lawful? (see p. 29)
Investigative Detention Test:
1. Has there been a detention? (R v. Grant); if so,
2. Is that detention lawful? (R v. Mann)  detention viewed as reasonably necessary on an
objective view of the totality of the circumstances, informing the officer’s suspicion that
there is a clear nexus between the individual to be detained and a recent or on-going
criminal offence.
o Circumstances to be considered include:
• Extent to which interference necessary to perform officer’s duty.
• Liberty interfered with;
• Nature/extent of the interference (should be brief, shouldn’t become de facto
arrest.
Cases
R v. Mann (2004) p. 26  unlawful search, violation of s.8 rights.
• Police stop potential suspect, matching description “to a tee”. Pat him down for protective
search, pull out soft baggy of marijuana.
• Reasonable to pat down for safety but not to reach into pocket and pull out something soft.
• Court lays out common law governing police powers of investigative detention
• Search must be reasonably necessary on an objective view of the totality of the
circumstances.
R v. Grant (2009) p. 26  unlawful detention, violation of s.9 rights. Psychological detention.
• Detention under ss.9 and 10 of Charter refers to a suspension of individual’s liberty interest by
a significant psychological or physical restraint.
• Psychological detention is established either where individual has legal obligation to comply
with the restrictive demand (e.g., traffic stops) or a reasonable person would conclude by
reason of the state conduct that he or she had no choice but to comply.
• See p. 27 for factors for assessing psychological detention.
• Detention can be psychological or physical. Psychological detention can occur where:
“The police conduct would cause a reasonable person to conclude that he or she was not
free to go and had to comply with the police direction or demand.

lOMoARcPSD|6130268
LK2016
s.8: Charter
s. 8  Everyone has the right to be secure against unreasonable search or seizure.
• Sometimes detention includes searching somebody.
• Search needs to be reasonable and be done as part of a reasonable detention.
• If someone is subject to a search, they potentially have a s.8 claim; question becomes whether
the search was reasonable.
• Cases: R v. Mann
s. 9  Everyone has the right not to be arbitrarily detained or imprisoned.
• If being detained, one’s s.9 rights are implicated.
• If there are no reasonable grounds to detain, it is an arbitrary detention – violation of s.9 rights.
• Also possible that police interaction doesn’t rise to the level of detention.
• Cases: R v. Grant
s. 10  Everyone has the right on arrest or detention:
a) to be informed promptly of the reasons therefor;
b) to retain and instruct counsel without delay and to be informed of that right, and;
c) to have the validity of the detention determined by way of habeas corpus and to be
released if the detention is not lawful.
s. 24(2)  Exclusion of evidence
• When evidence is obtained through violation of a Charter right, claimant able to apply to have
this evidence excluded from the trial under this section.
SOURCES OF CRIMINAL LAW

Common Law
R v. Sedley (1727) p. 31
• Dude springs a leak off his balcony onto passersby while ham-showed.
• Court convicts him of breach of the king’s peace: broad term that can cover anything.
Frey v. Fedoruk (1950) p. 31  court abolishes “breach of king’s peace” offence.
• Frey peeps on Fedoruk’s changing mother. Fedoruk unlawfully detains him and police officer
unlawfully arrests him, because there is no specific statutory offence of peeping yet.
• Breach of king’s peace is too broad  blank cheque for judges.
• “I think it safer that no one shall be convicted of a crime unless the offence with which he is
charged is recognized as such in the Criminal Code or can be established by the authority of
some reported case as an offence known to the law. Criminal declaration should be made by
Parliament and not the courts.”
• Conduct should not be held as criminal unless it is specifically identified as such in the
Code or in common law.
SCC abolished common law offences in 1955
• Code s. 9: Notwithstanding anything in this act or any other Act, no person shall be
convicted… (a) of an offence at common law.
Doctrine of Precedent: p. 32
• As there are no more common law offences, statute is pre-eminent source of criminal law.

lOMoARcPSD|6130268
LK2016
• However, common law remains essential to CJS; many mental elements of crimes and
defences are defined by the common law rather than being specified in the Code.
• Also helps guide judicial reasoning through practise of relying on “precedents.”
• So, common law fills the gaps, but can’t overtake statute. Assists interpretation.
Statute
The words of an act are to be read in their entire context and their grammatical and
ordinary sense harmoniously with the scheme of the Act, the object of the Act, and
the intention of Parliament (Rizzo & Rizzo Shoes Ltd., 1998).
Modern R v. Clark (2005) p. 33  example of stat interpretation
Principle of • Dude masturbates near his window. Charged under s.173(1).
Statutory • Was Clark in a public place?
Interpretation • Judge interprets meaning using ordinary meaning and legislative context.
• Meaning of terms must be interpreted in accordance with both the plain
meaning of the word and the legislative context in which it was
considered.
• Both English and French versions considered equally authoritative.
Bilingual • SCC  “where one is ambiguous and the other is clear and unequivocal, the
Interpretation common meaning of the two versions will a priori be preferred.
• When one broader, common meaning favours more restrictive meaning.
R v. Goulis (1981) p. 34  excerpt.
• “ Criminal law remains the most dramatic and important incursion that the
state makes into individual liberty. The seriousness of imposing criminal
Strict penalties of any sort demands that reasonable doubts be resolved in favour of
Construction the accused.”
Want to ensure that you are only liable for punishment in criminal law if there is a
clear explanation by the State of what it is that you are not allowed to do.
R v. Pare (1987) p. 35
• Rapist murderer argues for strict construction of Code provision that indicates
that murder is first degree if it happens while committing sex assault.
• Wouldn’t make sense; would mean that extra time spent contemplating
murdering would have gotten him lesser sentence.
• Where Parliament’s intention is clear and easily interpreted, rule doesn’t
get triggered.
Division of Powers
The Constitution  see p. 37
• Limiting function; sets boundaries.
• See chart p. 37 for provincial and federal powers related to criminal law.
• SS. 91 and 92 set out the division of powers.
Goodwin v BC (Superintendent of Motor Vehicles)
• Points out tension in division of powers between federal and provincial government.

lOMoARcPSD|6130268
LK2016
• Controversy as to whether provincial law that allows police to impose punishment is outside of
provincial jurisdiction.
SS. 91 & 92
• S. 91  provincial powers
• S. 92  federal powers
THE CHARTER AND THE LIMITS OF CRIMINAL LAW

The Charter
S.1  The (Charter) guarantees the rights and freedoms set out in it subject only to such reasonable
limits prescribed by law as can be demonstrably justified in a free and democratic society. DOESN’T
APPLY FOR S.7
S.7  Everyone has the right to life, liberty, and security of the person and the right not to be deprived
thereof except in accordance with the principles of fundamental justice.
The Purposive Approach

• S.7 is the key Charter right when it comes to constitutional limits on how Parliament can define
crimes. Charter limitations on what can be criminalized flow from s.7.
• Ultimately, s.7 is a vague provision, which is why the PURPOSIVE APPROACH important.
• Purposive approach is the statutory interpretation approach for the Charter and Constitution.
• Purposive approach: The Constitution requires a “broad, purposive analysis, which interprets
specific provisions of a constitutional document in light of its larger objects (Hunter v. Southam).
• Purpose of Charter is observance of rights and freedoms. As such, needs to be able to
develop and grow over time, “living tree analogy”.
Hunter v. Southam (1984)
• SCC outlines “purposive approach.”
• Interpreting Constitution different from statute  drafted with eye to the future.
• The Charter is purposive. Its purpose is to guarantee and protect, within the limits of reason, the
enjoyment of the rights and freedoms it enshrines. Meant to constrain governmental action
inconsistent with those rights and freedoms.
Charter s.7 Challenge

2 STEPS TO MOUNT A S.7 CHALLENGE
1. First, prove Charter infringement on a balance of probabilities.
2. Second, prove the infringement is not in accord with the principles of fundamental justice.
Principles of Fundamental Justice

• S.1 not used to justify infringement of s.7 because s.7 has own limitation built in.
• Any time someone’s life, liberty, or security of the person is limited, it must be in accordance
with the principles of fundamental justice.
• Essentially, any time gov’t is making a crime, they are implicating s.7 rights.
• Principles of fundamental justice not a pre-established category; Charter cases determine.

lOMoARcPSD|6130268
LK2016
• Vagueness: A law is unconstitutionally vague if it “does not provide an

adequate basis for legal debate and analysis”; “does not sufficiently
delineate any area of risk” or “is not intelligible.” The law must offer a
grasp to the judiciary. Certainty is not required.
Vagueness • When law is vague, we have excessive reliance on discretion of
p. 40 individuals. Thus, it is a principle of fundamental justice that if we are
putting people’s liberty at issue, there needs to be sufficient clarity so
people know what we’re talking about and so that people have the
ability to manage their affairs in the first place so as to avoid criminal
prosecution.
CFCYLC v. Canada (Attorney General) (2004)
• S. 43 of the Code accords with the fundamental principle of justice of
vagueness.
Arbitrariness • No rational connection between the effect of the law on
life/liberty/security of the person and the object of the law.
• The law goes too far and interferes with some conduct that bears no
Overbreadth connection to its objective.
• When law overreaches in its effect on others.
Gross • Effect of the law on life/liberty/security of the person is grossly
Disproportionality disproportionate to the law’s objective.
Canada v. Bedford (2013) SCC

1. Provisions infringe on life, liberty, or security of the person?
• Keeping a Common Bawdy House: confines hoes to outcalls and street prostitution. Prevents
screening (in synch with communication provision), resort to safe houses, preventative health
checks. Impacts security of the person.
• Living on the Avails of Prostitution: targets parasitic relationships but has broad reach; prevents
bodyguards, drivers, receptionists. Impacts security of the person.
• Communicating in a Public Place: disallows communication in public. But communication is
crucial to enhance hoes’ safety; allows for screening measures. Impacts security of the person.
2. Not in accord with principles of fundamental justice?
• Keeping a Common Bawdy House: grossly disproportionate  goal is to prevent nuisance to
public and prevent negative aesthetic, but effect is to make work significantly more dangerous for
sex workers.
• Living on Avails: overbroad  goal is to target parasitic relationships, but applies to non-parasitic
relationships as well; overbroad in that effect overreaches its objective.
• Communicating in a Public Place: grossly disproportionate  purpose of law is to avoid public
nuisance, but forces sex workers into secluded areas and prevents screening measures and other
bargaining measures that impact safety.
REMEDY: Laws inconsistent with Charter and voided.
Recognizing New Principles of Fundamental Justice

MALMO-LEVINE TEST FOR FUNDAMENTAL JUSTICE: (R v. Malmo-Levine)
1. It must be a legal principle;
2. There must be significant societal consensus that it is fundamental to the way the legal system
ought to operate.
3. It must be identified with sufficient legal precision to yield a manageable standard against
which to measure depravations of life, liberty, or security of the person.

lOMoARcPSD|6130268
LK2016
Malmo-Levine and the Harm Principle

R v. Malmo-Levine (2003) p. 46
The harm principle: “The only purpose for which power can be rightfully exercised over any member
of a civilized community, against his will, is to prevent harm to others.” (JS Mill).
1. Harm is not a legal principle; it is more of an important state interest. It is a general
philosophical principle. Has some normative impact on law but is not in itself a legal principle.
2. No societal consensus that only harmful behaviour should be prohibited. E.g., bestiality,
cannibalism, dueling; morality and societal interests also considered.
3. Not a manageable standard – no agreed definition of “harm.”
• The harm principle is not a fundamental principle of justice; Parliament is entitled to act
under criminal law power in protection of legitimate state interests other than avoidance
of harm to others, subjective to Charter limits.
PRESUMPTION OF INNOCENCE AND BURDEN OF PROOF

Common Law
Woolmington v. D.P.P (1935) p. 47  articulates common law presumption of innocence.
• TJ says, if victim died as consequence from injuries from shooting, there is prima facie
assumption of malice unless exculpatory circumstances proven by D.
• HL says NO! “No matter what the charge or where the trial, the principle that the prosecution
must prove the guilt of the prisoner is part of the common law and no attempt to whittle it
down can be entertained.
• Case sets out the common law principle; but the principle is now enshrined in the Charter
WOOLMINGTON TEST:
• “Throughout the web of the English Criminal Law one golden thread is always to be seen, that
it is the duty of the prosecution to prove the prisoners’ guilt […]
• If, at the end and on the whole of the case, there is reasonable doubt created by the evidence
given by either the prosecution or the prisoner, as to whether the prisoner killed the deceased
with a malicious intention, the prosecution has not made the case and the accused is entitled to
an acquittal.
s.11(d) Charter
s.11 Any person charged with an offence has the right…
(d) to be presumed innocent until proven guilty according to law in a fair and public hearing by an
independent and impartial tribunal.
R v. Oakes (1986)
• S.8 of the Narcotics Control Act held that anyone found in possession of narcotic was
presumed to possess the narcotic for the purpose of trafficking, unless accused can establish to
the contrary.
• SCC articulate three principles encompassed by s.11(d):
• “[The defendant] must be proven guilty beyond a reasonable doubt.”

lOMoARcPSD|6130268
LK2016
• “[I]t is the State which must bear the burden of proof.”

• “[C]riminal prosecutions must be carried out in accordance with lawful procedures and
fairness.”
• Where there is an onus on the accused, there is a prima facie s.11(d) violation, and it falls
on the government to justify the impugned legislation under s.1.
Reasonable Doubt
Reasonable Doubt:
• R v. Lifchus states relationship between presumption of innocence and burden of proof beyond
a reasonable doubt.
• Accused is presumed innocent – presumption remains until it is satisfied beyond a reasonable
doubt that he is guilty. This requires a high degree/quantum of proof.
• Linkage between reasonable doubt and presumption of innocence: We presume innocence,
so we need a high level of proof to show that this presumption should not be relied on –
presumption of innocence must be rebutted bye vidence.
• R v. Lifchus tells us what reasonable doubt looks like.
R v. Lifchus (1997)  tells us what reasonable doubt looks like
• TJ instructs jury on “beyond a reasonable doubt” saying those words should be understood in
their “ordinary, everyday, natural sense.” Accused appeals on basis of instructions.
• When instructing the jury as to the meaning of important criminal terms such as
“beyond a reasonable doubt”, judge must provide jury with an explanation of the section,
not just a plain language definition. This is a complex legal standard and it is totally
necessary that the trier of fact gets it right.
• Error in instructions only leads to overturning of verdict if jury could have been under
misapprehension as to the correct burden. But if charge as whole gives rise to reasonable
likelihood that they misapprehended, verdict set aside and new trial ordered.
• SEE MODEL CHARGE BELOW
R v. S(J.H.) (2008)  reasonable doubt as applied to credibility
• Trial judge is free to reject the complexity of the W.(D.) test as long as they make sure that the
jury is warned of the Crown’s burden of proof, that it is not just a choice between competing
versions, and that they may believe some, none, or all of any witness, including the accused.
Model Charge (R v. Lifchus)

The presumption of innocence remains unless and until the Crown proves the accused's guilt beyond a
reasonable doubt.
Reasonable doubt is not:

• “An imaginary or frivolous doubt”; or
• A doubt “based upon sympathy or prejudice”.
Reasonable doubt is:

• “Based on reason and common sense”; and
• “Logically derived from the evidence or absence of evidence” (though may be hard to
articulate).

lOMoARcPSD|6130268
LK2016
• The Crown need not prove guilt “to an absolute certainty”; however
• It is not enough for the Crown to prove that the accused is “probably guilty or likely
guilty”; in these cases, the accused get’s the benefit of the doubt and must be acquitted.
Revised W.(D.) Framework (p. 50)

• “First, if you believe the [exculpatory] evidence of the accused, obviously you must acquit.
• Second, if you do not believe [all of] the testimony of the accused but you are left in reasonable
doubt by [any part of the accused’s testimony], you must acquit.
• Third, even if you are not left in [reasonable] doubt by [any part of the accused’s testimony], you
must [consider all] of the evidence which you do accept, [and ask yourself whether that evidence
proves] the guilt of the accused [beyond a reasonable doubt].”
Burdens
Legal burden: onus is on the holder of the legal burden to prove a point. Party that bears legal burden
must win on the issue. Other side gets benefit of the doubt. The two legal burdens are beyond a
reasonable doubt and balance of probabilities.
• E.g., Crown must prove guilty beyond a reasonable doubt; accused must prove defence of
person on a balance of probabilities.
Tactical burden: is not technically a burden of proof; is not imposed as a matter of law. Rather, it is a
term given to the practical, common-sense pressure to offer evidence that is created by the
circumstance of the case. I.e., tactical burden to make your case.
• E.g., want to present evidence to rebut the Crown’s case; introduce reasonable doubt.
Evidentiary burden: the burden of pointing to evidence to put an issue into play
• E.g., self-defence; defence needs to bring issue into play first. Otherwise Crown would have to
pre-emptively attack all these arguments – would be inefficient.
• Low threshold: “air of reality”
Declaration of Innocence
R v. Mullins-Johnson (2007)
• Canadian law cannot render a finding of “factually innocent” – there are only 2 verdicts in
Canadian criminal law.
• See p. 51/52 long summary

lOMoARcPSD|6130268
LK2016
ELEMENTS OF THE OFFENCE

The components of a crime fall into two categories: actus reus and mens rea.
• Actus reus = “the prohibited act” – refers to the wrongful act or omission that comprises the
physical component of the crime. Can include act or omission, and in some cases the
consequences and/or circumstances.
• Mens rea = “the guilty mind” – refers to the knowledge or intention that comprises the mental
component of a crime
• Prosecutor has burden of proof: must prove both elements of the crime; if there is a missing
ingredient, there is no crime.
ACTUS REUS
Omissions
A failure to act (i.e., an omission) can constitute AR.
Criminal responsibility for omissions can arise where:
1. A statutory provision identifies a specific duty and criminalizes the failure to perform that
duty; or
2. A statutory offence criminalizes the failure to perform a legal duty in general. (The duty may
stem from statutory law or common law).
SPECIFIC DUTY (see p. 54)
s.215  Failure to provide the necessaries of life
• R v. Peterson  man convicted of failure to provide necessaries of life for his ailing father.
(Borins in dissent argues this is better dealt with by legislation).
GENERAL DUTY (see p. 56)
Omissions can also arise from general duties imposed in statute or common law. Though of course
there would have to be statutory invocation of the common law rule.
STATUTE
s.180  Nuisance
• Every one commits a common nuisance who does an unlawful act or fails to discharge a legal
duty and thereby… (see p. 56).
s.219  Criminal Negligence

• (1) Everyone is criminally negligent who…
• (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.
• (2) For purposes of this section, “duty” means a duty imposed by law.

lOMoARcPSD|6130268
LK2016
Duties imposed by law:

s.216  Undertaking to administer medical care
s.217.1  Undertaking to direct work
s.217  Undertaking to do an act where omission may be dangerous to life (see R v. Browne below)
Duty from an “undertaking”
R v. Browne  what is a s.217 undertaking?
• Calls a cab for his ODing friend instead of taking her to the hospital himself, after saying “I’ll
take you to the hospital.”
• For an act to be considered an undertaking, it has to have been made clearly, on which
reliance can reasonably be said to have been placed, with binding intent. Nothing short of
such binding commitment can give rise to a legal duty contemplated by s.217.
COMMON LAW
• R v. Thornton  common law duty to “refrain from conduct which could cause injury to
another person.
• R v. Popen  common law duty of a parent to “take reasonable steps to protect his or her
child from illegal violence used by the other parent or by a third person toward the child which
the parent foresees or ought to foresee.
• R v. Coyne  common law duty to take reasonable precautions when carrying a dangerous
weapon.
• Note: these are not common law offences, but common law duties. Someone who breaches a
common law duty would still be prosecuted under statutory provisions.
Voluntariness (p. 58)

VOLUNTARINESS: there is no actus reus if the act or omission is involuntary; that is, if the
defendant did not have conscious control over his actions.
• Voluntariness is treated as an AR component – a person not considered to have committed an
act if they did so voluntarily.
• It is a s.7 principle of FJ that we do not hold people criminally responsible for involuntary acts
(R v. Ruzic).
• Pure voluntariness (theoretical) is distinguished from the case law voluntariness (p. 58)
Case Law Definitions of Involuntariness
Rabey v. R  “The mind does not go with what is being done”
R v. Daviault  “The conduct in question is not willed”
R v. Stone  “The state of a person, though capable of action, is incapable of knowing that the act is
taking place (i.e., in the context of automatism).
IH Patient  voluntariness goes beyond lack of MR.
• A shoots target; B falls in front of target as he is shooting, dies. A’s act voluntary. Would not
get off if homicide was a strict liability offence.
• A is aiming at target; has epileptic fit and shoots B. A’s act not voluntary. Even if homicide
were a strict liability offence, would still get off because act = involuntary.
JURISPRUDENCE
R v. Lucki  there is no actus reus if an act is involuntary
• Responsible driver struck by a negligent driver into oncoming traffic lane; responsible driver
kills an oncoming driver. No AR, act not voluntary.
R v. Swaby  coincidence between knowledge and voluntarily acting on it.

• Accused on trial for being in a car with a person he knew was in possession of a firearm,
s.91(3). Claims he only found out there was gun when police gave chase.

lOMoARcPSD|6130268
LK2016
• For conviction under s.91(3), there must be coincidence of knowledge of weapon and
occupancy of vehicle; if accused learns of presence of weapon while vehicle is in motion,
shouldn’t automatically be criminally liable – should have chance to remove himself or
weapon from vehicle.
• Idea is that individual needs to be a freely choosing agent in order to be responsible, if they are
not, it is perverse to punish them.
Causation
• Where the offence specifies a particular consequence, it must be determined that the accused
caused the consequence to occur, beyond a reasonable doubt (R v. Stuart).
• Causation in the criminal law has a factual and legal component.
• See p. 14 below for a brief causation summary.
FACTUAL CAUSATION (p. 61)

• Factual causation considers whether the prohibited act or omission resulted in the
consequences in a medical/physical/mechanical sense (R v. Nette). Once established, remaining
issue is legal causation.
• Factual causation has historically been established using the “but for” test. We ask: “is there
proof beyond a reasonable doubt that the consequences would have occurred BUT FOR the
act of the accused? (R v. Talbot).
• Has been criticized for being both over- and under-inclusive (p.61)
FACTUAL CAUSATION TEST
The factual causation test has been refined into these standards (treated as interchangeable).
• The act/omission must be a “contributing cause, beyond the de minimus range”
• The act/omission must be a “significant contributing cause”
COMMON LAW FACTUAL CAUSATION PRINCIPLES
R v. Smithers  the act/omission must be a “contributing cause, beyond the de minimus range”
• Hockey player kicks the dude with the malfunctioning epiglottis.
• Three ratios:
1. To prove causation for culpable homicide, the Crown need only establish that the
impugned act was a contributing cause of death, outside the de minimus range.
2. Thin skull rule may apply in criminal law as well as common law. Person who assaults
another must take victim as he finds him.
3. The trier of fact can use all evidence available – expert and non-expert – to establish
causation, provided that causation is established beyond a reasonable doubt.
R v. Nette  SCC refines the contributing cause test from Smithers.

• Expands the language of the Smithers test to include “significant contributing cause” (in
addition to “not insignificant”/beyond de minimus).
• L’Heureux-Dube doesn’t agree with this language shift (see p. 64).
R v. Talbot  punch was self-defence, kick wasn’t. But punch is what killed him.
• Court expressed preference for language of “significant contributing cause” but left open the
use of de minimus.
LEGAL CAUSATION (p. 62)

lOMoARcPSD|6130268
LK2016
• Legal causation (i.e., imputable causation) considers whether the accused person should be
held responsible in law for the consequence (R v. Nette).
• Whereas factual cause can generally be determined scientifically, that is not the case here.
• Legal causation is more of a normative consideration – there will be circumstances where there
is factual causation, but we don’t want to hold the person responsible for normative and policy
reasons.
• Legal causation is an umbrella term for a number of specific rules that go into the normative
inquiry; these are clear rules enshrined in the case law or in the Code.
COMMON LAW LEGAL CAUSATION PRINCIPLES
R v. Blaue  THIN SKULL
• “It has long been the policy of the law that those who use violence on other people must take
their victims as they find them. This in our judgment means the whole person, not just the
physical person.”
R v. Harbottle  substantial causation test for murder under s.231(5)

• Harbottle holds woman’s legs down so his friend can strangle her.
• Case sets out a higher standard of causation required for conviction under s.231(5) of the
Code: Accused’s act must be regarded as a substantial and integral cause of the victim’s
death.
• The increased causation required is not factual but an increased degree of legal causation;
additional layer on top of factual causation requirement.
R v. Maybin  Intervening Acts (see p. 67 for notes on intervening act).

• Test for Intervening Cause – Are you morally innocent?
1. Reasonably foreseeable – could you see more harm coming?
2. Independence – was intervening act sufficiently independent to sever the link?
• Only need one for liability – not both.
• These are both helpful analytical tools – but neither are sufficient in themselves. MOST
IMPORTANT: were the unlawful acts of the accused a significant contributing cause (Nette).
• General rule: unless it is totally unexpected and the act is totally unconnected, you will be
held responsible if you made some non-trivial contribution to the outcome
o Ask if it would be fair to contribute this result to the actor
o Liable if the act was reasonably foreseeable OR not independent – do not need both
Codal Legal Causation
s.224  Death that might have been prevented
s.225  Death from treatment of injury
s. 226  Acceleration of death (see p. 68)
Causation in the Code

• In some offences, the AR requires the causing of certain consequences
• S.222  homicide
• S.430  wilful damage to property
• S.433  arson
• S.221  criminal negligence causing bodily harm
• S.220  criminal negligence causing death (e.g., homicide, wilful damage to property,
arson.
• Code contains no general principles concerning causation but only a number of special rules
concerning homicide (s.222 & 224-228).

lOMoARcPSD|6130268
LK2016
Where the factual situation does not fall within one of the statutory rules of causation, general common
law principles apply to resolve causation issues.
BRIEF CAUSATION SUMMARY

• Causation is an issue where one of the “ingredients” for the crime is a consequence.
• Where causation is at issue, the Crown must prove causation beyond a reasonable doubt.
• Causation is to be determined by the trier of fact, taking into account all evidence, including
lay and expert testimony.
• Causation encompasses two concepts:
o Factual Causation: always at issue; a necessary (and sometimes sufficient) condition;
we start the analysis here.
o Legal Causation: sometimes at issue.
• Factual causation was historically determined via the “but for” test.
o Is not generally considered with relevance to two standards, which the SCC treats as
interchangeable:
▪ Smithers – a contributing cause beyond the de minimus range.
▪ Nette – a significant contributing cause.
• Legal Causation considers whether the accused person should be held responsible in law for
the consequence.
o Is not an invitation to undertake a freewheeling normative analysis.
o Rather, legal causation encompasses a number of established rules.
▪ Thin Skull  (Smithers, Blaue)
▪ “Substantial cause test” for FDM under S.231(5) Code (Harbottle)
▪ Intervening Acts (Maybin)
▪ Code ss. 224, 225 and 226

lOMoARcPSD|6130268
LK2016
CONTEMPORANEITY
Contemporaneity: “to constitute a crime, at some point the actus reus and mens rea or intent must
coincide (R v. Williams).
• Contemporaneity is the bridge between AR and MR.
• When MR and AR don’t overlap, there is no crime.
• P. 69
R v. Williams  HIV spreader; before he knew he had HIV, no MR; after he knew he had HIV, can’t
prove causation.
• Crown unable to prove that R’s conduct after knowing he had tested positive for HIV
endangered C’s life.
• To constitute a crime, the actus reus and mens rea must at some point coincide, and this must
be proven beyond a reasonable doubt.
• Aggravated assault is made out based on the consequences of an assault. If it cannot be proved
beyond a reasonable doubt that the accused’s intent to cause that consequence (MR) and actual
causing of that consequence (AR) coincide, the offence is not made out.
MENS REA
Actus non facit reum nisi mens sit rea  “An act does not become guilty unless the mind is guilty”
• The “guilty mind” or “fault” requirement.
• Mens rea  the knowledge and/or intention that comprises the mental component of the
crime.
• Fundamental principle underlying MR requirement: In criminal law, there should be no
liability without fault (Stuart).
• See p.71 for justifications for the mens rea requirement.
• In the Canadian context, there is a constitutional requirement of fault for any offence
threatening the liberty interest – only real issue is what the fault requirement actually entails.
SUBJECTIVE VS. OBJECTIVE MENS REA
Subjective mens rea: requires that the accused has intended the consequences of those acts, or that the
accused has proceeded recklessly in the face of risk (McLachlin). I.e., whether the accused appreciated
those consequences as at least s possibility.
• Requisite knowledge can be inferred directly from what accused said or says about mental
state, or indirectly from the act and its circumstances.
• Crown must prove some positive state of mind; must prove that D actually had the required
knowledge or state of mind in relation to the act/omission, circumstances, consequences.
• Ask: “what was the D actually thinking?

lOMoARcPSD|6130268
LK2016
Objective mens rea: is not concerned with what the accused intended or knew; rather, the mental fault
lies in the failure to direct the mind to a risk which the reasonable person would have appreciated.
• Crown must establish that a reasonable person in the D’s shoes would have had the required
knowledge/would have acted differently; the absence of the required state of mind suffices.
• Ask: “what should the D have been thinking?”
• Carelessness/negligence requires a marked departure from the reasonable person
standard.
Subjective Mens Rea

INTENT VS. RECKLESSNESS
Intent: construed in a “loose and colloquial sense of actual desire, end, purpose, aim, objective, or
design (Don Stuart).
• Another definition: the exercise of free will to use particular means to produce a particular
result.
• Intent is not synonymous with motive (see p. 74). I.e., you intend to kill; your motive is the
reason that you intend to kill. But motive is relevant as evidence of intent.
• Intent  the exercise of a free will to use particular means to produce a particular result.
• Motive  that which precedes and induces the exercise of the will. The mental element of a
crime ordinarily involves no reference to motive (R v. Lewis).
• See ulterior purpose p. 74.
Recklessness: denotes the subjective state of mind of a person who foresees that his conduct might
produce the prohibited result (i.e., “the result which the law, in creating the offence, seeks to prevent”),
but, nevertheless, takes a deliberate and unjustifiable risk in bringing it about” (S&C 476).
• Recklessness is another form of subjective MR, but somewhat less demanding than intent.
• I.e., one subjectively sees the risk, but doesn’t necessarily intend that it result.
• Mental state: knowing the result can happen, but carrying out the act anyways. Even if
you hope it doesn’t happen, you are still negligent if you take that risk.
R v. Buzzanga & Durocher  Certain/substantially certain result = intended.
• Make a fake hate newsletter to rally to French masses to build a French language high school.
• A person who foresees that a consequence is certain or substantially certain to result from an
act which he does in order to achieve some other purpose, intends that consequence
• The word “wilful” excludes recklessness for the purpose of s. 319(2).
KNOWLEDGE VS. WILFUL BLINDNESS

Knowledge:
• Knowledge can come about in one of two ways: as an explicit or implicit ingredient.
• Explicit – a distinct ingredient in the offence (e.g., in assault, need knowledge that there is no
consent).
• Implicit – forms part of some other ingredient, which could only exist with underlying
knowledge (e.g., Clark didn’t know anyone was watching him while he yanked it).
Wilful blindness: “The doctrine of willful blindness imputes knowledge to an accused whose
suspicion is aroused to the point where he or she sees the need for further inquiries, but deliberately
chooses not to make those inquiries.” (Briscoe, para. 21, in S&C at 494).
• Court can properly find wilful blindness only where it could be said that the D actually knew.
He suspected the fact, he realized its probability, but refrained from obtaining final
confirmation because he wanted in the event to be able to deny knowledge.

lOMoARcPSD|6130268
LK2016
• In all cases, wilful blindness can substitute for knowledge. Any time a Code provision
requires knowledge, wilful blindness can stand in.
• Also referred to as “constructive knowledge” – i.e., someone doesn’t “know”, but they know.
• (VS. recklessness: recklessness means subjectively appreciating the risk but taking it anyways;
wilful blindness is like: “I’m just not going to investigate this.”)
R v. Lagace  inquiring but remaining suspicious – wilful blindness.
• Even if an accused makes inquiries they can still be found wilfully blind if they remain
suspicious after inquiring.
• Culpability on basis of wilful blindness rests on a finding of deliberate ignorance. When
accused has made an inquiry, question remains as to whether he continued to harbor suspicions
after that inquiry and refrained from making further inquiries to remain ignorant of the truth.
R v. Briscoe  textbook example of wilful blindness
• “That’s what I seen, and I was like ‘ahh fuck’, I don’t wanna know”
• Wilful blindness can substitute for actual knowledge whenever knowledge is a component of
the MR.
• Court can properly find wilful blindness only where it could be said that the defendant actually
knew. He suspected the fact; he realised its probability, but refrained from obtaining final
confirmation because he wanted in the event to be able to deny knowledge. This and this alone
is wilful blindness.
• Is not simply a failure to inquire but “deliberate ignorance.”
Objective Mens Rea

OBJECTIVE MENS REA
Objective Mens Rea: “An objective fault requirement requires only that a reasonable person in the
accused’s position would have had the required guilty knowledge or would have acted differently”
(Roach).
• “Objective MR is not concerned with what the accused intended or knew. Rather, the mental
fault lies in failure to direct the mind to a risk which a reasonable person would have
appreciated. Objective MR is not concerned with what was actually in the accused’s mind, but
with what should have been there, had the accused proceeded responsibly (R v. Creighton –
McLachlin).
• Negligence is another form of fault. Its basis is culpable inadvertence on the objective
reasonable person standard: not thinking at all when one ought to have been thinking, or
thinking in a certain way when one ought to have thought differently (Stuart).
• I.e., what SHOULD they have done? We are not concerned with what was actually in the
accused’s mind but what should have been in his mind had he proceeded reasonably.
HOW TO IDENTIFY AN OBJECTIVE MR OFFENCE
• Language  careless; negligence; ought to have; reasonable (care, steps, grounds).
• When these words are used, Parliament is telling us we are punishing people for failing to act
reasonably
• Where there is no word that indicates objective MR, and it is not clear from the offence, then
we assume the default  subjective MR.
THE MODIFIED OBJECTIVE TEST (p. 80)
1. Is the defendant’s conduct –
a. A marked departure from the objective norm? (gross negligence); or

lOMoARcPSD|6130268
LK2016
b. A marked and substantial departure from the objective norm? (s. 219 criminal
negligence). If part 1 is passed, we have a prima facie marked departure, and we move
on to step 2.
2. Does evidence about the defendant’s actual state of mind raise a reasonable doubt as to
whether a reasonable person in the defendant’s position would have been aware of the risk
created by the defendant’s conduct? I.e., were they operating on beliefs that made their actions
reasonable? And were those beliefs themselves reasonable?
R v. Creighton (1993)  SCC adopts modified objective approach for interpretation of all crimes with
objective MR. Court disagrees as to whether personal factors are relevant.
• Experiential, educational, and so-called “habitual factors” personal to the accused (i.e.,
personal characteristics) should not be taken into account in determining the reasonable
standard of care at part 2 of the modified objective test. This would soften the standard.
Only exception is incapacity to appreciate risk.
• Lamer in dissent argues for a personal standard.
• See p. 82 for welder example.
R v. Beatty (2008)  clarifies the modified objective test
• S.249: Dangerous operation of a motor vehicle.
• A modified objective test is the appropriate test to determine the requisite mens rea for
negligence based criminal offences
• Short of incapacity, personal traits are not relevant, but the reasonable person must be in the
context of the accused
• A temporary lapse of attention is not sufficient to constitute a marked departure from the
standard of a reasonably prudent driver.
• There is no need to prove bad intent to prove a marked departure from the reasonable standard,
BUT bad intent is relevant because if it can be proven, market departure is easily established.
• We don’t important the consequences of the negligence into our initial analysis of
whether a particular act is a marked departure.
Criminal Negligence
CRIMINAL NEGLIGENCE  use 1B of the modified objective test
s.219
(1)  Every one is criminally negligent who…
(b) in omitting to do anything that is his duty to do, shows wanton or reckless disregard
for the lives or safety of other persons. His “duty” to do – see duties imposed by law
p.10 under omissions.
(2)  For purposes of this section, “duty” means a duty imposed by law.
s. 220 (death); s. 221 (bodily harm)

What is the difference between marked and marked and substantial departure?
• Criminal negligence is a higher standard – requires a higher level of blameworthiness.
• In practise, it is judged in individual contexts. High standard. E.g., mother who leaves infant
son in tub doesn’t even meet marked and substantial. See p. 84.
• There is not a super clear distinction here – no obvious cut off.
• Takeaway: standard for criminal negligence is loose and varies from case-to-case.
• For our purposes, we just need to know that the standards are different on the modified
objective test for gross negligence and criminal negligence.

lOMoARcPSD|6130268
LK2016
Regulatory Offences
REGULATORY OFFENCES  also referred to as statutory offences or public welfare offences.
• Regulatory offences are the primary mechanisms employed by governments in Canada to
implement public policy objectives.
• Distinct from true crimes. In true crimes, presumptive MR is subjective; with regulatory
offences, presumed to be strict liability by default.
• Regulatory offences serve a social purpose – to protect people in a general way. Are not
labelled with the same stigma as criminal offences. Purpose is to maximize good outcomes as
opposed to addressing individual wrongful actions against individual victims.
• 2 justifications for making it easier to prosecute regulatory offences licensing justification,
and vulnerability justification. See p.85.
STRICT LIABILITY OFFENCES

Strict liability: Prohibited act prima facie imports the offence, but it is left open to the accused to
avoid liability by proving that he took all reasonable care (reverse onus). I.e., no need for prosecutor to
prove MR.
• Takes into account reasonable person standard.
• Defences of mistake of fact or due diligence.
D has option of defending themselves on the basis of due diligence/reasonable care

• If D can show that their behaviour is not entirely negligent – that a reasonable person would
have acted as they did – they are off the hook.
• BUT this is a reverse onus situation – D has to prove they were acting reasonably on a balance
of probabilities.
• Crown doesn’t need to prove MR, just act component.
ABSOLUTE LIABILITY OFFENCES

Absolute liability: Act alone imports the offence; not open to accused to exculpate himself of liability
by showing that he was free of fault. I.e., NO FAULT REQUIREMENT.
• Applies only to those offences where the legislation makes it clear. Regulatory pattern of
legislature, subject matter of legislation, importance of penalty, and precision of language all
taken into account.
REGULATORY OFFENCE JURISPRUDENCE

R v. City of SSM (1976)  SCC recognizes a third category of offence in addition to absolute liability
and true crime – strict liability. “Halfway house between fill MR and AL.” Also establishes defence of
due diligence/reasonable care.
• Should recognize a third category of offence: strict liability  impugned act imports prima
facie offence but accused can avoid liability by proving he took reasonable care.
• Defence for SL  due diligence.

lOMoARcPSD|6130268
LK2016
• Presumption for regulatory offences = strict liability unless otherwise indicated.

• Also outlines difference between true crimes and regulatory offences – true crimes attract MR
requirements whereas regulatory offences attract either strict or absolute liability.
Reference re: s.94(2) of the Motor Vehicle Act (BC) (1985)
• The potential for imprisonment can’t be confined with an absolute liability offence. I.e., an
offence punishable by imprisonment cannot be an absolute liability offence.
• I.e., a law enacting an absolute liability offence will violate s.7 of the Charter only if and to
the extent that it has the potential of depriving life, liberty, or security of the person.
• An offence has that potential as of the moment it is open to the judge the impose
imprisonment. Does not need to be mandatory imprisonment.
• Says s.7 violates principles of fundamental justice. BUT Charter doesn’t say that gov’t shall
not pass laws contrary to principles of FJ – RATHER, it says you can’t be deprived of life,
liberty, or security of the person in accordance with the principle of fundamental justice. SO, as
long as AL offence doesn’t affect any of these 3 things – it is fine.
R v. Wholesale Travel Group Inc. (1991)
• Sets out rules to distinguish between regulatory and true crime offences (see p.90).
• These are all unhelpful because the lines are blurred. See below for helpful rules of thumb.
Rules of thumb to distinguish between regulatory and true crime offences

1. If it is in the Code, we can be confident it is a true crime.
2. If it is a drug offence, can be secure in thinking it is a true crime.
3. If it is in another federal act, can be pretty sure it is a regulatory offence.
Predicate Offences
PREDICATE OFFENCES
Predicate offences: Essentially, predicate offences are offences where there is a particular
consequence, and where the MR associated with that consequence is really attenuated or minimal.
• “The fault requirement regarding the consequences of the underlying offence is much reduced
but constitutional.”
• I.e., the blameworthiness for the higher offence is based on the mens rea requirement for the
lesser offence
• Think of predicate offences in the general sense: “to base something on.”
• This will be a situation where there is an underlying crime, and then you add a consequence
which changes the nature of it, but we don’t do much to change the MR requirement.
• See p. 92
• Fault requirement is objective foreseeability of bodily harm when AR is death.
• There are three crimes in this category of predicate offences.
Murder cannot be based on a predicate offence
R v. Vallaincourt  “[T]here are, though very few in number, certain crimes where, because of the
special nature of the stigma attached to a conviction therefor or the available penalties, the principles of
fundamental justice require a mens rea reflecting the particular nature of that crime [...] Murder is
another such offence.”

lOMoARcPSD|6130268
LK2016
Martineau  “[I]n a free and democratic society that values the autonomy and free will of the
individual, the stigma and punishment attaching to the most serious of crimes, murder, should be
reserved for those who choose to intentionally cause death or who choose to inflict bodily harm that
they know is likely to cause death. The essential role of requiring subjective foresight of death in the
context of murder is to maintain a proportionality between the stigma and punishment attached to a
murder conviction and the moral blameworthiness of the offender.” (S&C, 432)
o “I conclude that it is a principle of fundamental justice that a conviction for murder
cannot rest on anything less than proof beyond a reasonable doubt of subjective
foresight of death.” (S&C, 435) (Lamer)
What is the MR requirement sufficient for murder?

• Subjective foresight of death  intent or recklessness.
• Also says essential role is to maintain proportionality between stigma and punishment attached
to murder conviction.
• When there is the stigma of murder and a life sentence, we need to make sure we are doing this
in a context where blameworthiness is proportionate – where there is intent or recklessness.
• No MR requirement for murder is not consistent with proportionality.
What offences require a subjective MR?
• “[T]here are, though very few in number, certain crimes where, because of the special nature of
the stigma attached to a conviction therefor or the available penalties, the principles of
fundamental justice require a mens rea reflecting the particular nature of that crime. Such is
theft, where, in my view, a conviction requries proof of some dishonesty. Murder is
another such offence.”
• Lamer says theft and murder. These require subjective MR.
• For other offences lower on the fault ladder, stigma and seriousness of punishment are not
sufficient to surpass the hurdle of requiring subjective MR.
Unlawfully Causing Bodily Harm

UNLAWFULLY CAUSING BODILY HARM
s. 269. Every one who unlawfully causes bodily harm to any person is guilty of
(a) An indictable offence and liable to imprisonment for a term not exceeding ten years; or
(b) An offence punishable on summary conviction and liable to imprisonment for a term not
exceeding 18 months.
R v. DeSousa (1992)  new year’s beer bottle hurler
1. MR requirement for a predicate offence can be a true crime or a strict liability offence. Cannot
be an absolute liability offence as per possibility of imprisonment.
2. Requisite MR for unlawfully causing bodily harm is objective foreseeability of non-trivial
bodily harm. (I.e., unlawful act that is likely to result in non-trivial harm).
3. Stigma associated with unlawfully causing bodily harm is not sufficient to require a subjective
MR requirement.
4. As long as MR for predicate offence is constitutionally sufficient, offence can be made out.
Manslaughter
MANSLAUGHTER
S. 234.  Culpable homicide that is not murder or infanticide is manslaughter.
S.236  Every one who commits manslaughter is guilty of an indictable offence and liable

lOMoARcPSD|6130268
LK2016
(a) Where a firearm is used in the commission of the offence, to imprisonment for life and to a
minimum punishment of imprisonment for a term of four years; and
(b) In any other case, to imprisonment for life.
R v. Creighton (1993)  injects cocaine into her arm, she dies; predicate offence = trafficking.
• MR requirement for manslaughter requires MR for the underlying offence and objective
foreseeability of bodily harm that is not trivial or transitory.
• Manslaughter doesn’t attract the stigma or penalties associated with murder; stigma and
penalties not sufficient to require a hire MR.
• Symmetry is just a rule of thumb – not a principle of fundamental justice.
Aggravated Assault
AGGRAVATED ASSAULT
Predicate Offence: Assault
S. 265
1) A person commits an assault when
a) Without the consent of another person, he applies force intentionally to that other person,
directly or indirectly.
2) This section applies to all forms of assault.
Aggravated Assault
S. 268 (1) Every one commits an aggravated assault who wounds, maims, disfigures, or endangers the
life of the complainant.
R v. Williams
• MR for underlying offence and objective foreseeability of bodily harm.
Test for Predicate Offences

1. Underlying true crime or strict liability offence with constitutional MR requirement?
2. Meet the AR and MR requirements for the underlying offence?
3. Impugned consequence (e.g., death in manslaughter)?
4. Objective foreseeability of non-trivial bodily harm?

lOMoARcPSD|6130268
LK2016
Mens Rea & Homicide

HOMICIDE
s. 222.
1) A person commits homicide when, directly or indirectly, by any means, he causes the death of
a human being.
2) Homicide is culpable or not culpable.
3) Homicide that is not culpable is not an offence.
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 means of an unlawful act,
b) By criminal negligence,
c) By causing that human being, by threats or fear of violence or by deception, to do anything
that causes his death, or
d) By wilfully frightening that human being, in the case of a child or sick person.
Notes:
• Treat s. 222(5)(b) as though it were hyperlinked to s.220 – criminal negligence causing death
• Exact same elements need to be proven – objective MR  marked and substantial departure
• It is double-written because the first time it was drafted, juries were getting cold feet, so they
made a new offence of criminal negligence causing death. Encompasses both acts and
omissions.
• If someone has committed culpable homicide, we know they have committed MURDER,
MANSLAUGHTER, or INFANTICIDE.
MURDER
S. 229  Culpable homicide is murder
(a) Where the person who causes the death of a human being (subjective intent or recklessness,
constitutionally required for murder)
i. Means to cause his death, or
ii. Means to cause him bodily harm that he knows is likely to cause his death, and is
reckless whether death ensues or not. Use of the term “likely” here is not so
demanding as to require a balance of probabilities. But you do have to show that it is
more than a possibility. I.e., “it could well happen.”
(b) Where a person, meaning to cause death to a human being or meaning to cause him bodily
harm that he knows is likely to cause his death, and being reckless whether death ensues or not,
by accident or mistake causes death to another human being, notwithstanding that he does not
mean to cause death or bodily harm to that human being; I.e., doesn’t matter if death was
caused to a different person than intended.
(c) Where a person, for an unlawful object, does anything he knows or ought to know is likely to
cause death, and thereby causes death to a human being, notwithstanding that he desires to
effect his object without causing death or bodily harm to any human being. I.e., even if they are
not doing something with the motive of killing, doesn’t matter – even if they hope they can
achieve object without killing. But OUGHT language is unconstitutional and should be
stricken.

lOMoARcPSD|6130268
LK2016
CLASSIFICATION OF MURDER
S.231
1) Murder is first degree murder or second degree murder. Both carry mandatory life sentence; for
first degree, no parole for 25 years; for second degree, can get parole eligibility after 10 years.
2) Murder is first degree when it is planned and deliberate. Word AND matters here – needs to
be both – see note below*
3) Murder for hire is planned and deliberate. Both are planning and deliberating.
5) Irrespective of whether a murder is planned and deliberate on the part of any person, murder is
first degree murder in respect of a person when the death is caused by that person while
committing or attempting to commit […hijacking an aircraft; sexual assault; kidnapping and
forcible confinement, etc…] I.e., even if it is not planned and deliberate – if it happens in the
context of domination, we kick it into FDM category (e.g., Harbottle).
6) If victim is police officer, peace officer, prison employee – we kick it up to FDM. This is a
policy decision. Attacking people doing this job is especially bad. Needs to be in the course of
their duties; D has to actually know about their status. In practise, basically just uniform
officers.
7) All murder that is not first degree murder is second degree murder.
*Word AND matters here  need to prove both.

• Planned  talking about a calculated scheme. Something carefully thought out with
consequence considered and weighed.
• The plan itself can be quite simple. Can occur pretty immediately before the act.
• Trying to distinguish between instances when people kill in a rash and emotive way
than when they kill per a plan.
• Deliberate  wilful, carefully thought out implementation of plan.
• Plan does not need to be D’s own plan – it is enough if he learns of the plan, adopts it,
executes it.
Can reckless murder be planned and deliberate?
• Yes, subjective MR is intent OR recklessness.
• If actions are planned and deliberate (e.g., planned to and deliberately beat up dude for not
paying cheque) and carried out with a recklessness about death  FDM.
• So you can either intend to cause death, or intend to cause bodily harm that you know
can result in death (reckless).
• See p. 98.
MANSLAUGHTER
S.234  Culpable homicide that is not murder or infanticide is manslaughter.
S.236  Every one who commits manslaughter is guilty of an indictable offence and liable
(a) Where a firearm is used in the commission of the offence, to imprisonment for life and to a
minimum punishment of imprisonment for a term of four years; and
(b) In any other case, to imprisonment for life.
Notes:
• Manslaughter is a lesser included offence to murder; SDM is a lesser included offence to FDM.
• Homicide that satisfies the requirements of s. 222(5) and no subjective intent – manslaughter.

lOMoARcPSD|6130268
LK2016
• Big range in sentencing. If not carried out with a firearm, can result in anywhere from a non-
custodial sentence to life in prison.
• Unlawful act, without subjective mental state. We just have to prove whatever goes with the
underlying unlawful act (i.e., predicate offence).
• Underlying offence needs constitutionally sufficient MR. Baseline is objective MR, plus
objective foreseeability of non-trivial bodily harm.
• Key thing we need to know: we need an underlying unlawful act (criminal act or omission),
causation, and objective foreseeability of bodily harm that is non-trivial
MR Requirements for Culpable Homicide

s.220  Criminal negligence causing death
• MR requirement: modified objective test: a marked and substantial departure from the
objective norm, and a reasonable person in the defendant’s position would have been aware of
the risk created by their conduct.
s.229  Murder
• MR requirement: subjective intent – intends murder or is reckless as to possibility of death
• First degree: subjective intent + planned and deliberate or in the contest of domination
(231(5)).
• So you can either intent to cause death, or intend to cause bodily harm that you know can result
in death (reckless)
s.234  Manslaughter
• MR requirement: Underlying offence needs constitutionally sufficient MR (i.e., strict liability
or true crime – objective is baseline) AND objective foreseeability of non-trivial bodily harm.
• Note: we need an underlying unlawful act (criminal act or omission), causation, and objective
foreseeability of bodily harm that is non-trivial.

lOMoARcPSD|6130268
LK2016
CONSENT AND SEXUAL ASSAULT

Sexual Assault
Elements of the offence:
• AR  application of force; lack of consent (subjective – from the perspective of the victim);
sexual nature of contact (objective)
• MR  intention to apply force; knowledge of lack of consent (no culpability where D honestly
but mistakenly believed consent was present, subject to s.273.2)
Code Provisions
SEXUAL ASSAULT
Assault
s.265(1) A person commits an assault when
(a) Without the consent of another person, he applies force intentionally to that other person,
directly or indirectly.
(b) He attempts or threatens, by an act or gesture, to apply force to another person, if he has, or
causes that other person to believe on reasonable grounds that he has, present ability to effect
his purpose; or
(c) While openly wearing or carrying a weapon or an imitation thereof, he accosts or impedes
another person or begs.
Sexual Assault
s.271 Every one who commits a sexual assault is guilty of
(a) An indictable offence and is liable to imprisonment for a term of not more than 10 years or, if
the complainant is under the age of 16 years, to imprisonment for a term of not more than 14
years and to a minimum punishment of imprisonment for a term of one year, or
(b) An offence punishable on summary conviction and is liable to imprisonment for a term of not
more than 18 months or, if the complainant is under the age of 16 years, to imprisonment for a
term of not more than 2 years less a day and to a minimum punishment of imprisonment for a
term of 6 months.
Sexual Assault with a Weapon

s.272(1) Every person commits and offence who, in committing a sexual assault,
(a) Carries, uses or threatens to use a weapon or an imitation of a weapon;
(b) Threatens to cause bodily harm to a person other than the complainant;
(c) Causes bodily harm to the complainant; or
(d) Is a party to the offence with any third person.
Aggravated Sexual Assault

s.273 (1) Every one commits and aggravated sexual assault who, in committing a sexual assault,
wounds, maims, disfigures, or endangers the life of the complainant.

lOMoARcPSD|6130268
LK2016
Sexual Assault Test

SEXUAL ASSAULT TEST (R v. Chase)
Sexual assault is an assault within any one of the definitions of that concept in s. 265 of the Criminal
Code, which is committed in circumstances of a sexual nature, such that the integrity of the victim is
violated. The test to be applied in determining whether the impugned conduct has the requisite sexual
nature is an objective one (R v. Chase).
Objective Test: Viewed in light of all the circumstances, is the sexual or carnal context of the assault
visible to a reasonable observer?
• Part of body touched, nature of contact, situation in which it occurred, words and gestures
accompanying the act, and all other circumstances surrounding the conduct, including threats
which may or may not be accompanied by force, will be relevant.
• Intent or purpose of committing act may also be relevant.
• If motive is sexual gratification, to the extent that this may appear from the evidence, it
may be a factor in determining whether conduct is sexual. But this is just one of many
considerations whose importance will vary depending on the context.
General intent: Implicit in this view of sexual assault is the notion that the offence is one requiring
general intent only.
• To import an added element of specific intent in such offences would unreasonably hamper the
enforcement process; would open question of defence of drunkenness.
• Offence should be one of general rather than specific intent.
Sexual Assault Jurisprudence

R v. Chase (1987)  Court defines and sets out the test for sexual assault. Creep neighbour.
• Sexual assault is an assault within any one of the definitions of the concept in is s. 265(1) of
the Code) which is committed in circumstances of a sexual nature, such that the sexual
integrity of the victim is violated.
• The test to be applied in determining whether the impugned conduct has the requisite sexual
nature is an objective one:
• Viewed in light of all the circumstances, is the sexual or carnal context of the assault visible to
a reasonable observer?
• Implicit in this view of sexual assault is the notion that the offence is one requiring general
intent only.
R v. V.(K.B.) (1993)  dude squeezes his toddler son’s testicles to discipline him. Court applies the
test set out in R v. Chase.
• Motive of sexual gratification is only one of a number of considerations to be weighted in
determining whether conduct was sexual in nature. Not necessary or sufficient.
• Sexual integrity of his son was violated; on this basis, it is ruled as a sexual assault, even
though there was apparently no motive of sexual gratification.
• Sopinka in dissent puts more weight on sexual gratification element to say this doesn’t fit.

lOMoARcPSD|6130268
LK2016
Consent
Code s. 273.1
MEANING OF CONSENT
s.273.1 Meaning of “consent”
(1) Subject to subsection (2) and subsection 265(3), consent means, for the purpose of ss. 271, 272, and
273, the voluntary agreement of the complainant to engage in the sexual activity in question.
(2) No consent is obtained, for the purposes of ss 271, 272 and 273, where
(a) The agreement is expressed by the conducts or words of a person other than the complainant;
(b) The complainant is incapable of consenting to the activity;
(c) The accused induces the complainant to engage in the activity by abusing a position of trust,
power, or authority;
(d) The complainant expressed, by words or conduct, a lack of agreement to engage in the activity;
or
(e) The complainant, having consented to engage in sexual activity, expresses, by words or
conduct, a lack of agreement to continue engaging in the activity.
Note:
• Additional rules have developed through common law; some apply to assault generally,
some apply specifically in the context of sexual assault.
Common Law Rules

R v. Jobidon (1991)  bar fight; punching an unconscious dude in his head
• Consent between adults to intentionally apply force causing serious hurt or non-trivial
bodily harm to each other in the course of a fist fight or brawl is not a defence to the
offence of assault.
• Court says assault provision was written broadly – it was intended to be filled in by the court.
Uses this old common law rule to interpret that statute and introduces a new rule of interp.
• Sopinka in dissent says, “we can’t create a common law offence.”
R v. JA (2011)  dude chokes his wife out and sticks a dildo in her anus; was consensual.
• Definition of consent for sexual assault requires complainant to provide active consent
throughout every phase of sexual activity (i.e., contemporaneous consent). Not possible for an
unconscious person to satisfy this requirement, even if expresses consent in advance.
• Any sexual activity with an individual who is incapable of consciously evaluating whether she
is consenting is therefore not consensual within the meaning of the Code.
• 273.1(2)(b) requires capability of giving consent; 273.1(2)(e) requires she be conscious so she
is capable of revoking consent.

lOMoARcPSD|6130268
LK2016
When does fraud vitiate consent?

THE MABIOR/CUERRIER TEST: When does fraud vitiate consent under s.265(3)(c) of the
Code?
1. A dishonest act (falsehood; failure to disclose HIV+ status)
2. A deprivation (denying the complainant knowledge which would have caused her to refuse
sexual relations that exposed her to a significant risk of serious bodily harm).
• Mabior: “significant risk” requires a realistic probability of the transmission of HIV.
• If accused’s viral load is low and condom is used – no realistic possibility.
• If either of these factors are absent, we meet threshold of realistic possibility at step 2 of
the Cuerrier test.
• Hutchinson: “bodily harm” can include depriving a woman of the capacity to choose to
protect herself from an increased risk of pregnancy by using effective birth control.”
Note: the test is narrow as it grew up with regard to HIV; but it has been expanded to other things as
well, such as unwanted pregnancy (Hutchinson).
R v. Mabior (2012)  HIV+ has sex with 9 women and doesn’t disclose his status
• The requirement of a “significant risk” in the Cuerrier test should be read as requiring
disclosure of HIV status if there is a realistic possibility of transmission of HIV.
• Where there is a realistic possibility of the transmission of HIV, a significant risk of bodily
harm is established, and deprivation element of Cuerrier test is met.
• As a general matter, a realistic possibility of transmission of HIV is negated if: (i) the
accused’s viral load at the time of sexual relations was low, and (ii) condom protection
was used. If either of these factors are absent – there is a realistic possibility.
R v. Hutchinson (2014)  boyfriend sabotages girlfriend’s birth control
• Bodily harm can include depriving a woman of the capacity to choose to protect herself
from an increased risk of pregnancy by using effective birth control.
Mistake of Fact: Mistaken Belief in Consent

MISTAKE OF FACT: MISTAKEN BELIEF IN CONSENT
Mistake of fact: At common law, an honest belief in the existence of circumstances which, if
true, would make the act for which a prisoner is indicted an innocent act, have always been a
good defence. Honest but mistaken belief in consent.
• Defence of mistake of fact rests on the proposition that the mistaken belief, if honestly
held, deprives the accused of the requisite MR for the offence.
• The defence of mistake of fact is simply a denial of MR – it does not impose any
burden of proof on the accused. Accused need not testify.
Offences
Subjective MR offences: mistake must be honest. Even if it is a stupid mistake that no one
else would make it still counts; we are concerned with subjective intent. NOTE THAT THIS
STANDARD WAS MODIFIED FOR SEXUAL ASSAULT WITH PARLIAMENT’S
IMPLEMENTATION OF S.273.2 (SEE MISTAKE OF FACT 2.0)
Objective MR offences: mistake must be honest and reasonable. If honest but unreasonable
mistake, they are still on the hook.

lOMoARcPSD|6130268
LK2016
Strict liability offences: mistake must be honest and reasonable; goes to the due diligence
defence; onus on the D to prove on a balance of probabilities.
Absolute liability offences: mistake of fact irrelevant. We don’t care about MR in AL offences.
MISTAKE OF FACT IN SEXUAL ASSAULT

• Sexual assault requires subjective intent. As such, all we need is an honest belief in consent,
even if it is unreasonable. Changes with s.273.2
R v. Pappajohn (1980)  assault on real estate agent
• In order for a judge to instruct the jury on the mistake of fact defence, there needs to be some
evidence in the form of fact or narrative that could lead a jury to believe in its veracity. I.e., D
can’t just stand up and say they had a mistaken belief in fact without any factual evidence. I.e.,
a mistake of fact defence, including a mistaken belief in consent, can only go to the jury if
there is an air of reality. Has to be at least a modicum of evidence for a jury to believe.
• Mistake of fact must be honest but need not be reasonable for sexual assault
R v. Sansregret (1985)  Crazy D rapes his terrified ex who tries to convince him of reconciliation
• Where an accused is deliberately ignorant as a result of blinding himself to reality, the law
presumes knowledge (wilful blindness), and their belief in another state of facts is irrelevant.
• I.e., Sansregret tells us that you cannot succeed with a mistake of fact defence if in fact you are
just wilfully blind. Imputing knowledge.
R v. Ewanchuck (1999)  post-s.273.2 reform of mistake of fact defence in sex assault
• There is no defence of implied consent in sexual assault.
• Consent is relevant at both the AR and MR phases of analysis for sexual assault.
• AR  did complainant subjectively lack consent?
• MR  did D have knowledge of no consent – no culpability where D honestly but
mistakenly believed consent was present, subject to s.273.3.
Code s.273.2: Where Belief in Consent Not a Defence

WHERE BELIEF IN CONSENT NOT A DEFENCE
s.273.2  It is not a defence to a charge under s.271, 272, or 273 that the accused believed that the
complainant consented to the activity that forms the subject matter of the charge, where
(a) The accused’s belief arose from the accused’s
i. Self-induced intoxication; or
ii. Recklessness or wilful blindness; or
(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.
Notes:
• (b) is key  nowadays, honest belief in consent must be qualified by REASONABLE
STEPS TO CONFIRM – reasonable steps to ascertain that complainant was consenting.
• So if we had Sansregret after this provision had come in, we would say there were no
reasonable steps taken to ascertain consent.
• Here we look to the reasonable person. Would they have concern about consent? And
what would they do to confirm that?

lOMoARcPSD|6130268
LK2016
• This essentially makes sexual assault a HYBRID SUBJECTIVE/OBJECTIVE

OFFENCE, because this is an objective standard. Because even if there is subjective
belief in consent, if it is not a reasonable belief, he is still on the hook.
• So this is basically a provision Parliament added in to deal with concerns about wild
beliefs based on socially retrograde beliefs in consent leading to a defence of honest belief
in consent.
• Basically amounts to a requirement for affirmative confirmation of consent.
Mistake of Fact 2.0 (i.e., post s.273.2)

• Subjective MR offences: mistake must be honest
o Sexual assault  mistake must be honest; can’t arise from recklessness/wilful
blindness/self-induced intoxication; and the accused must have taken reasonable
steps in the circumstances known to the accused, to ascertain that there was consent.
• Objective MR: mistake must be honest and reasonable.
• Strict liability: mistake must be honest and reasonable; goes to the due diligence; onus on
defendant.
• Absolute liability: mistake of fact irrelevant.
INCAPACITY
Incapacity: prosecutor cannot prove the MR for a crime because the accused didn’t have the state of
mind for their actions to be voluntary.
• Distinct from substantive defences – these are claims that negate the moral blameworthiness
of the offender. I.e., the elements of the offence are proven by the prosecutor, but there is some
justification or excuse that negates blameworthiness.
• Incapacity is a “sort of” defence.
• All three incapacity defences we look at have the same burden of proof and the same reverse
onus. I.e., defence first has to have an air of reality to be instructed to the jury; then, D has to
prove defence on a balance of probabilities.
Air of Reality Test

• “The test is whether there is evidence on the record upon which a properly instructed jury acting
reasonably could acquit.” (R. v. Cinous, S&C, p. 898)
• See p. 117.
• Air of reality test relates to evidentiary burden on the D; D is usually the one motivated to put it
forward but defence can come from anywhere.
Mental Disorder
• Air of reality test to get issue into pay; reverse onus on D; once defence is established, must be
proven on a balance of probabilities.
CODE
S. 16

lOMoARcPSD|6130268
LK2016
(1)  No person is criminally responsible for an act committed or an omission made while suffering
from a mental disorder that rendered that person incapable of appreciating the nature and quality of the
act or omission or of knowing that it was wrong.
• What evidence do we need to be able to prove this?
• See below for the test for the NCR defence.
(2)  Every person is presumed not to suffer from a mental disorder so as to be exempt from criminal
responsibility by virtue of subsection (1), until the contrary is proved on a balance of probabilities.
• Again, assumption of not suffering mental disorder.
• First have to prove that it should be in play (evidentiary burden) – then have to prove that there
is a mental disorder on the balance of probabilities (legal burden)
• Part of this reverse onus is a historical accident from M’Naughten, and part of it simply
recognizes the difficulty of proving beyond a reasonable doubt that there was no mental
disorder for the prosecutor.
(3)  The burden of proof that an accused was suffering from a mental disorder so as to be exempt
from criminal responsibility is on the party that raises the issue.
• There are circumstances where NCR finding can leave you worse off than a conviction. E.g., if
you’re facing a low-level assault offence and not looking at much time – can end up with
indefinite sentence.
• So, sometimes it might be the prosecutor that raises the defence.
• Example: R v. Cooper  Crown is incentivized to bring NCR defence on the table because
accused is arguing there is no MR, which would get him off entirely. But there needs to be
evidence in the first place for Crown to bring issue into play, otherwise we’d be able to scoop
people up without intent.
Results of NCR Finding

CODE
s.672.45
(1) Where a verdict of NCR on account of mental disorder or unfit to stand trial is rendered in respect
of an accused, the court may of its own motion, and shall on application by the accused or the
prosecutor, hold a disposition hearing.
(1.1) If the court does not hold a hearing under subsection (1), it shall send without delay, following the
verdict, (the court file) to the Review Board that has jurisdiction in respect of the matter.
• Review Board of those found NCR and those found unfit to stand. They determine what
happens with these people, and have 45 days to have a disposition hearing.
s.672.54
When a court or review board makes a disposition, it shall, taking into account the safety of the public,
which is the paramount consideration, the mental condition of the accused, the reintegration of the
accused into society and the other needs of the accused, make one of the following dispositons that is
necessary and appropriate in the circumstances
(a) By order, direct that the accused be discharged absolutely.
(b) By order, direct that the accused be discharged subject to conditions as the Court or Review
Board considers appropriate; or
(c) By order, direct that the accused be detained in custody in a hospital, subject to such conditions
as the court or Review Board considers appropriate.

lOMoARcPSD|6130268
LK2016
NCR Test
NCR Defence Test:
(1) Accused was suffering from a mental disorder at the time of the act/omission; AND
(2) The mental disorder EITHER
i. Rendered the accused incapable of appreciating the nature and quality of the
act/omission; OR
ii. Rendered the accused incapable of knowing that the act/omission was wrong.
Cooper v. R (1979)  Chokes girl to death; not knowing throttling would kill; at a dance
• What does it mean to appreciate the nature of the offence? “The requirement, unique to
Canada, is that of perception, an ability to perceive the consequences, impact and results of a
physical act.” (S&C at p. 773).
• The true test necessarily is: Was the accused person at the very time of the offence by
reason of disease of the mind, unable fully to appreciate not only the nature of the act
but the natural consequences that would flow from it? In other words was the
accused person, by reason of the disease of the mind, deprived of the mental capacity
to foresee and measure the consequences of the act?
• Disease of the mine embraces any illness, disorder, or abnormal condition which impairs the
human mind and its functioning, excluding, however, self-induced states caused by alcohol or
drugs, as well as transitory mental states such as hysteria or concussion.” (S&C at p. 771).
• It is an issue of law for the trial judge “to determine what mental conditions are within the
meaning of that phrase and whether there is any evidence that an accused suffers from an
abnormal mental condition comprehended by that term.”
R v. Abbey (1982)  “naturally, cocaine”
• Inability to appreciate the penal consequences is really irrelevant to the question of legal
insanity.
• “Appreciating the nature and quality of the act or omission” in s.16(1) is concerned with the
immediate consequences of the accused’s act; not the penal consequences. I.e., consequences
of the act itself.
Kjeldsen v. R (1981)
• “[The NCR defence does not extend] to one who […] merely lacks appropriate feelings for the
victim or lacks feelings of remorse or guilt for what he has done, even though such lack of
feeling stems from the ‘disease of the mind’.
• I.e., the fact that you have a lack of affect as to whether something is wrong, doesn’t matter.
We don’t care about your emotive response or your perception of the legal consequences of
your actions.
R v. Chaulk (1990)
• The term ‘wrong’ as used in s. 16(1) must mean more than simply a legal wrong. A person
may know that the act is legally wrong, but because of a disease of the mind, be incapable of
knowing that it is morally wrong according to the ordinary morals of his society, and is
entitled to the defence.
• “It is possible that a person may be aware that it is ordinarily wrong to commit a crime but, by
reason of a disease of the mind, believes that it would be ‘right’ according to the ordinary
morals of his society to commit the crime in a particular context. In this situation, the accused
would be entitled to be acquitted by reason of insanity.” (S&C, p. 782)

lOMoARcPSD|6130268
LK2016
• McLachlin in dissent says knowledge of moral or legal wrong should suffice.
Automatism
Automatism: “Automatism is a term used to describe unconscious, involuntary behaviour; the state of
a person who, though capable of action, is not conscious of what he is doing. It means an unconscious
involuntary act where the mind does not go with what is being done (Rabey v. R, 1980, 2 SCR).
• “A person in a state of automatism cannot perform a voluntary willed act since the automatism
has deprived the person of the ability to carry out such an act” (R v. Daviault, 1994, 3 SCR 63).
• “It is a principle of fundamental justice that only voluntary conduct – behaviour that is the
product of a free will and controlled body… - should attract the penalty and stigma of penal
liability” (R v. Ruzic, 2001 SCR 687).
• Automatism = full-on acquittal.
• Mental disorder vs. automatism p. 125.
• Air of reality = evidentiary burden; then judge has to decide whether to instruct the jury
on insane automatism (i.e., NCR) or non-insane automatism; balance of probabilities =
legal burden.
R v. Rabey (1980)  The rule for “psychological blow”
• The ordinary stresses and disappointments of life which are the common lot of mankind do
not constitute an external cause constituting an explanation for a malfunctioning of the mind
which takes it out of the category of a ‘disease of the mind’.” (Rabey v. R., [1980] 2 S.C.R.
513).
• Someone who goes into dissociative state as the result of an ordinary life stress clearly has
some sort of underlying issue; maybe NCR.
• So, when you have psychological blow cases, if it is an extreme blow that would cause a
breakdown in many people, this will militate in favour of automatism.
R v. Parks (1992)  sets out the internal/external and continuing danger language.
• The two main concerns with cases such as this are the protection of society, and the likelihood
of recurrences, not punishment. Recurring conditions should be treated as insanity because of
the danger to public and internally caused conditions should be treated as insanity because of
the danger of recurrence. This is not a determinative test, but an analytical tool. This all
contributes to non-insane automatism. Internal/external cause; continuing danger.
• Non-insane automatism: where automatism is caused by external factors, is not continual,
and not linked to any disease of the mind.
R v. Stone (1999)  Bastarache establishes a higher threshold for automatism – is later reversed
• Bastarache says, to get automatism before the jury, accused must show air of reality and
involuntariness on balance of probabilities – later overruled; only need to show air of reality –
it is for trier of fact to determine whether it is proven on balance of probabilities. Bases this on
presumption of voluntariness and ease of malingering automatism.
• Bastarache identifies the policy consideration underlying internal cause and continuing danger:
do we want this person out on the streets? Says continuing danger is the salient consideration,
i.e., if cause is internal, there is a greater likelihood it will happen again.
• Bastarache identifies a list of considerations for (now, the jury) to take into account to
determine whether automatism proven on a balance (see p. 130).
POST-STONE  Bastarache overruled.
• “[T]here is language in Stone that can be read as requiring trial judges, before putting the
defence of mental disorder automatism to the jury, to satisfy themselves that the accused has
not just met the evidential burden but appears to have discharged the persuasive burden as

lOMoARcPSD|6130268
LK2016
well. The Chief Justice and Bastarache J. made it plain in Cinous, however, that this is not the
state of the law.” (R. v. Fontaine, 2004 SCC 27)
• I.e., subsequently ruled that the accused need only satisfy the evidential burden to bring the
issue into play (air of reality); it is for the jury (not the judge) to decide whether it has been
proven on a balance of probabilities.
• List of factors delineated by Bastarache are for jury – EXPERT EVIDENCE IS IN
PRACTISE THE MOST IMPORTANT.
R v. Luedecke (2008)
• Following Stone, it is very hard to prove automatism, unless it is a truly one-off external event
like some extreme psychological blow.
• What this means in practise is that most people who claim automatism get NCR. But this is not
such a bad thing because we are no longer in the pre-Parks era of indefinite detention for those
found NCR. Review Board can decide on absolute discharge.
Summary of Automatism
• Automatism applies if D’s actions are involuntary – i.e., their actions don’t reflect their will.
• If someone wants to claim automatism, they first have to satisfy the evidentiary burden – have to
show that there is an air of reality (as with any defence).
• Then it goes to the TJ to determine whether the evidence presented actually indicates automatism
or rather points towards NCR-MD.
o S.16(2) tells us to presume that people do not have a mental disorder. So default starting
point is that, if there is automatism, it is non-insane automatism.
o We also know, especially from Luedecke and post-Stone jurisprudence, in practise it is
almost always the case that cases of automatism are almost always presented as “insane-
automatism” to the jury.
• So, cases where individuals actually succeed at getting automatism claims before the jury are
cases where there is a truly one-time event. i.e., a blow to the head or extreme emotional shock.
• Also, we know that when a claim does come before the jury, the persuasive burden is on the D to
point to evidence to prove on a balance of probabilities that they were automatistic (reverse
onus).
o In other words, jury starts from assumption that defence is not made out. Balance of
probabilities to satisfy the reverse onus burden.
Extreme Intoxication
Extreme intoxication is automatism caused by drugs or alcohol. But not every instance where
someone is drunk or high = automatism.
• Automatism requires accused having had no control over actions – this would require an
EXTREME level of intoxication.
• Three levels of intoxication (see p. 131).
• Advanced intoxication can negate MR in specific intent offences; not general intent.
• Note Cooper: “[I]n a legal sense, ‘disease of the mind’ embraces any illness, disorder or
abnormal condition which impairs the human mind and its functioning, excluding, however,
self-induced states caused by alcohol or drugs, as well as transitory mental states such as
hysteria or concussion.” (S&C at p. 771).

lOMoARcPSD|6130268
LK2016
R v. Daviault (1994)  .400-.600 BAC; rapes his disabled neighbour and gets his nuts squeezed hard.
• Voluntary intoxication can act as a defence in crimes of general intent if the intoxication was
such that the person was in a state of automatism. Otherwise, allowing people to be convicted
when acts were involuntary would violate s.7 and 11(d) of Charter.
• Reverse onus defence – needs to prove air of reality for judge to instruct, and then on a
balance of probabilities to be acquitted. In practise only possible with expert evidence.
Code s. 33.1  Paraliament’s response to Daviault (see p. 134)
• Bottom line of provision is clear: If a person 1) becomes voluntarily intoxicated, 2) commits a
crime that involves an element of assault, threatens or interferes with another person’s bodily
integrity, then that person cannot get off on the bais that they lack MR or voluntariness due to
extreme intoxication.
• So, the extreme intoxication defence only applies for non-violent crimes. E.g., dude breaks
into a building while extremely intoxicated and assaults some dude. He gets away with the
break-and-enter because he is extremely intoxicated, but he still gets the assault charge.
• For our purposes: s.33.1 is a controversial law. But it is the governing law – just apply it.
Hasn’t been overturned. The distinction between violent and non-violent crimes is an ongoing
question.

lOMoARcPSD|6130268
LK2016
JUSTIFICATIONS AND EXCUSES

• Justifications and excuses are substantive defences. Of the 4 we look at, all are complete
defences except provocation.
• As with all defences, first step is to prove air of reality. But for substantive defences, once air
of reality is proven, Crown has to prove beyond a reasonable doubt that defence is not
made out.
• So jury basically starts out with assumption that defence is legit; if there is a reasonable doubt
as to whether it is or isn’t legitimate, they have to acquit.
Defence of Person
Defence of person covers both self-defence and defence of third persons.
• Rationale for the defence is rooted in basic idea that it is morally correct to fight back against
an assailant.
• New defence of person provision in 2013 – makes person not guilty of “an offence” for
performing “an act” in defence of person. I.e., applies to any offence committed in defence of
person, such as commandeering a car.
DEFENCE OF PERSON
s.34
(1) A person is not guilty of an offence if (an offence means any crime. E.g., if you steal a car to
defend yourself against an assailant, it can be considered self-defence).
(a) They believe on reasonable ground that force is being used against them or another
person or that a threat of force is being made against them or another person
(b) The act that constitutes the offence is committed for the purpose of defending or
protecting themselves or the other person from that use or threat of force; and
(c) The act committed is reasonable in the circumstances.
(2) In determining whether the act committed in reasonable in the circumstances, the court shall
consider the relevant circumstances of the person, the other parties, and the act, including, but
not limited to, the following factors:
a. The nature of the force or threat (how serious was the force or threat?)
b. The extent to which the use or force was imminent and whether there were other means
available to respond to the potential use of force; (if something was an imminent threat and
there is a limited option for escape, will militate in favour of being reasonable).
c. The person’s role in the incident (did they provoke the incident?).
d. Whether any party to the incident used or threatened to use a weapon
e. The size, age, gender, and physical capabilities of the parties to the incident (more extreme
level of force is justified if ability to escape based on physical capability, for example, is
diminished).
f. The nature, duration, and history between the parties to the incident, including any prior
use or threat of force and the nature of that force or threat.
(f.1) Any history of interaction or communication between the parties to the incident.
g. The nature and proportionality of the person’s response to the use or threat of force
(overall reasonableness analysis – objective test here; e.g., Forcillo – first volley was
reasonable, second wasn’t).

lOMoARcPSD|6130268
LK2016
h. Whether the act committed was in response to a threat or use of force that the person knew
was lawful (redundant, ignore).
(3) No defence  Subsection (1) does not apply if the force is used or threatened by another
person for the purpose of doing something that they are required or authorized by law to do in
the administration or enforcement of the law, unless the person who commits the act that
constitutes the offence believes on reasonable grounds that the other person is acting
unlawfully
David Pacciacco’s 4-Part Defence of Person Test

(18 Can. Crim. L. Rev. 269) (October 2014) “The New Defence Against Force”
Condition 1: relates to s.34(1)(a)

• (a) Force was being used/threatened against the accused/another person; OR
• (b-i) The accused subjectively believed force was being threatened/used against them or
another person; AND
• (b-ii) The accused’s subjective belief that force was being used/threatened against them or
another person was reasonable. Apply the modified objective analysis.
• Modified objective analysis: The modified objective analysis takes into account any personal
characteristics or experiences of the accused that could reasonably have affected their
perception of harm; and any externally caused transient conditions that could affect their
perception, excluding self-induced intoxication. Differs from penal negligence in that it
considers personal characteristics of accused
Condition 2: relates to s.34(3)

(a) Force/threat of force defended against was unlawful; OR
(b) Accused reasonably but mistakenly believed in a state of facts that, if true, would have made
the force/threat of force that the accused defended against unlawful.
Condition 3: relates to s.34(1)(b)

• Throughout the act sought to be defended, the accused was acting for the purpose of defending
against the force/threat of force that was occurring, or that the accused reasonably believed to
be occurring. (We’re not asking whether it was reasonable or not – just concerned with the
purpose. E.g., did he subjectively think he was defending himself? If so, he passes this
condition. Reasonableness isn’t assessed until the 4th condition).
Condition 4: Reasonableness Analysis – s.34(1)(c)

• Was the act reasonable in the circumstances? (Consider the factors in s.34(2)).
R v. Short (2016)  defence of person analysis is individuated and context-sensitive.
R v. Lavallee (1990)  battered woman syndrome
• In the “battered woman” context, a reasonable apprehension of death or grievous bodily harm
doesn’t require that an attack be imminent as it is normally understood.
• Battered women’s unique sensitivity to the cyclical nature of their relationship can mean they
might reasonably apprehend death or grievous bodily harm as imminent in situations where the
“ordinary man” wouldn’t.
• The standard is not, however, what an outsider would have reasonably perceive but what the
accused reasonably perceived, given her situation and her experience.

lOMoARcPSD|6130268
LK2016
Provocation
Provocation – the “heat of passion” defence
• Is only a partial defence.
• Only applies to murder – best it can do is get a murder conviction reduced to a manslaughter
conviction.
• Historically, defence was pretty wide open. Now only applies where provocation is an
indictable offence.
• Subjective and objective components:
• Subjective – accused actually has to have been provoked; must be acting in the heat of
passion.
• Objective – wrongful act or insult has to be one that would deprive the ordinary person of
self-control (and must now be an indictable offence).
Code s.232: Provocation

CODE
s.232  Provocation
(1) Culpable homicide that would otherwise be murder may be reduced to manslaughter if the
person who committed it did so in the heat of passion caused by sudden provocation.
(2) Conduct of the victim that would constitute an indictable offence under this Act that is
punishable by five or more years of imprisonment and that is of such a nature as to be
sufficient to deprive an ordinary person of the power of self-control is provocation for the
purposes of this section, if the accused acted on it on the sudden and before there was time for
their passion to cool. (Act done to provoke has to be a serious crime – cheating doesn’t count).
2-Part Test for Provocation

1. Objective test: the alleged provocation
(a) Would constitute an indictable offence punishable by five years or more; AND
(b) Would deprive the ordinary person of self-control.
*If objective test is satisfied, move on to subjective test.
2. Subjective test: The accused actually acted upon the provocation, before her passions had time
to cool.
Notes:
• This test is not the same as automatism – not a state of being totally disoriented/dissociated.
• We saw in R v. Stone that dude stabbed his wife 47 times. He didn’t get off on automatism, but
successfully pled provocation because it was thought that a reasonable person would react to
such verbal abuse that way. BUT TODAY it would play out differently because the
provocation has to be an indictable offence.
• Provocation relates to self-defence
• You can imagine a situation where a person can’t establish defence of person because their
response was disproportionate, or maybe because they were motivated by anger. If
someone is in that situation, they may have a provocation defence.
• This will only be in situations where a person has actually committed a homicide, because
provocation only applies to homicide.

lOMoARcPSD|6130268
LK2016
Necessity
Necessity describes situations where a person doesn’t have a choice but to commit the offence because
of some extreme exigent danger.
• Necessity and duress are related – both are classic defences, like defence of person.
• Air of reality, and then onus flips to prosecutor to prove beyond a reasonable doubt.
• A justification challenges the wrongfulness of an action. An excuse concedes the wrongfulness
of an action but asserts that the circumstances are such that it cannot be attributed to the actor
• Our willingness to excuse behaviour is tied into the concept of voluntariness. Voluntariness is
discussed in a broader sense – the act is voluntary in the physical sense, but it does not reflect
the D’s will – no reasonable choice:
o “The excuse of necessity does not go to voluntariness in [the literal, physical sense].
The lost alpinist who on the point of freezing to death breaks open an isolated
mountain cabin is not literally behaving in an involuntary fashion. He has control over
his actions to the extent of being physically capable of abstaining from the act.
Realistically, however, his act is not a ‘voluntary’ one. His ‘choice’ to break the law is
no true choice at all’ it is remorselessly compelled by normal human instincts. This
sort of involuntariness is often described as ‘moral or normative involuntariness’.”
(S&C, 934) (Essentially saying that necessity is a defence available in situations where
the person really didn’t have any choice – not blameworthy in the full sense of the
term).
o “At the heart of [the necessity] defence is the perceived injustice of punishing
violations of the law in circumstances in which the person had no other viable of
reasonable choice available […]” (S&C, 934)
Necessity Test
1. There must be imminent peril or danger [modified objective test]; i.e., would a reasonable
person in the situation of the accused have perceived there to be imminent peril or danger?
2. The accused must have no reasonable legal alternative to the course of action she undertook
[modified objective test]; i.e., would a reasonable person with the accused’s knowledge,
capacities, and resources perceive themselves to have an alternative course of action?
3. There must be proportionality between the harm inflicted and the harm avoided [objective test].
This part is fully objective. As objective, reasonable, morally sentient individuals, do we think
there was proportionality here? (Must accept some degree of personal harm to yourself to
avoid radically more harm to others.
R v. Perka  Samarkanda carrying 33 tonnes of dope, docks in Canada out of necessity.
• If an accused is committing a crime when the necessity to commit another crime arises – that
first crime is punishable, but the necessity defence can still apply to subsequent conduct. Mere
negligence or involvement in criminal or immoral activity when the emergency arose, will not
disentitle an accused from relying upon the defence.
• Where it was contemplated or ought to have been contemplated by the accused that his
actions would likely give rise to an emergency requiring the breach of the law it may not
be open to him to claim his response was involuntary.
• I.e., if the person should have perceived that they were going down a path that was going
to create an imminent risk, they can’t argue necessity. You voluntarily invited that risk:
shouldn’t have put yourself in that situation in the first place.
• Where sufficient evidence is placed before the Court to raise the issue of necessity the onus
falls upon the Crown to meet the defence and prove beyond a reasonable doubt that the
accused's act was voluntary.
R v. Latimer  court clarifies whose perspectives matter at the different parts of the test

lOMoARcPSD|6130268
LK2016
• See necessity test above.
Duress
Duress – similar to necessity; except, here, necessity arises from another person threatening you.
• Two types: common law and statutory.
• Classic defence – air of reality and then onus on Crown to disprove beyond reasonable doubt.
Code s.17: Duress

s.17  Duress: A person who commits an offence under compulsion by threats of immediate death or
bodily harm from a person who is present when the offence is committed is excused for committing the
offence if the person believes that the threats will be carried out, and if the person is not a party to a
conspiracy or association whereby the person is subject to compulsion.
• S.17 applies to a person who commits an offence. SCC has interpreted this to mean some but
not all defendants. To understand this we need an idea of party liability. See p. 146.
Common Law Duress

• If accused can’t get themselves under s.17 category, they can still claim the residual common
law defence to the extent that it hasn’t been codified in the Code. Historical accident.
• They can claim the common law defence because of s.8 of the Code.
• Duress applies when you are being threatened to “do the crime or else” (Ryan)
• Below is common law duress – below that are the cases that set it out – Ruzic and Ryan.
COMMON LAW & STAT DURESS
This applies to both common law and statutory duress.
1. Explicit/implicit threat of present or future death or bodily harm, directed at either the accused or a
third party; basically meant that there has to be a threat. Bodily harm = any hurt that interferes
with the health or comfort of a person and is more than trivial or transitory in nature – doesn’t need
to be more extreme than this because we have proportionality requirement (Ryan).
2. Accused reasonably believes the threat will be carried out; if threat is only idle or absurd and
unreasonable for accused to be motivated by that threat, then they are not under duress.
3. No safe avenue of escape [modified objective standard]; Would a reasonable person in the situation
think there was some avenue for escape? Or was this the only option?
4. Close temporal connection between threat, harm threatened; Threat has to be something in the
reasonably near future – has to do with the idea of escape. E.g., if it’s going to happen 10 years
from now, we have time to think of a plan.
5. Proportionality between harm threatened, harm inflicted by the accused - harm caused by the
accused must be no greater than harm threatened [modified objective standard]; AND; here this is a
modified objective test, unlike in necessity where it is an objective test.
• Two-part modified objective test: 1) harm threatened greater than harm inflicted? Must be
greater to or equal; 2) accused act according to how society would expect a reasonable person
similarly situated would? In essence, is the accused’s response reasonable?
6. Accused must not be a party to a conspiracy or association whereby accused is subject to
compulsion and actually knew that threats/coercion to commit offences were a possible result of
this criminal activity/conspiracy/association. Subjective test – did this person know what they
were signing up for? Basically means if you are willingly sign up to be part of a mafia or a gang,

lOMoARcPSD|6130268
LK2016
can’t say you are normatively innocent. You made a choice to get in with these people and put
yourself in that circumstance knowing that you would face these sorts of situations.
Note: this list applies to both common law and statutory defences, to principals and
aiders/abettors. But when we deal with statutory, we add requirement that it not be one of the
excluded offences (also statutory only applies to principals). See end of section for outline of how to
approach exam question.
COMMON LAW VERSUS STATUTORY DURESS
The difference between statutory duress and common law duress is that statutory duress has
EXCLUDED crimes.
S.17 does not apply to:

• High treason; treason
• Murder; attempted murder
• Piracy
• Sexual assault; sexual assault with a weapon, threats to a third party or causing bodily harm;
aggravated sexual assault
• Forcible abduction; hostage taking; abduction and detention of young persons
• Robbery
• Assault with a weapon or causing bodily harm; aggravated assault
• Unlawfully causing bodily harm
• Arson
In common law, these defences aren’t excluded. Parties to an offence can raise duress for ALL crimes.
Note: these statutory exclusions are thought to be constitutionally suspect. Haven’t been challenged yet
but may be at some point in the future.
DURESS – JURISPRUDENCE
R v. Ruzic (2001)  Serbian war criminal threatens to hurt mother if doesn’t transport heroin
• Court recognizes principle of fundamental justice of voluntariness: “It is a principle of
fundamental justice that only voluntary conduct – behaviour that is the product of a free will
and controlled body, unhindered by external constraints – should attract the penalty and stigma
of criminal liability.” (S&C 969)
• Court reads out the immediacy and presence of threatener requirements from s.17.
• Section 17 of the Criminal Code violated section 7 of the Charter on the basis that its
requirements were too restrictive by requiring presence and immediacy. The requirements
meant that the defence was unavailable in situations where the threat is to a third party or
involves harm in the future.
• Blameworthiness ruled not to be a principle of FJ because is too loosely defined.
R v. Ryan (2013)  Ryan hires hitman to kill her husband – not self-defence because long-term plan.
• Duress applies when you are being threatened to “do the crime or else”
• Court adds common law duress requirement of “close temporal connection between
threat and harm.
• Since they got rid of the immediacy and presence requirements in Ruzic, they add
requirement of “close temporal connection” between threat and harm to make it a fully
realized test.
• Court also makes general clarifications to common law duress defence, as reflected in blue
under “COMMON LAW & STAT DURESS ABOVE”

lOMoARcPSD|6130268
LK2016
STEPS TO APPROACHING AN EXAM QUESTION

1. Principal or aider and abettor? If principal – apply s.17; then apply test above and cite Ryan and
Ruzic as the case that elaborate this test.
2. Additionally, you would check to see if the crime was on the excluded list in s.17. But if the person is
just aider and abettor, just apply common law and there are no excluded offences. Can cite Paquette
for that.
PARTY LIABILITY
CODE
s.21
(1) Every one is a party to an offence who
(a) actually commits it;
(b) does or omits to do anything for the purpose of aiding any person to commit it; or
(c) abets any person in committing it.
(2) Where two or more persons form an intention in common to carry out an unlawful purpose and to
assist each other therein and any one of them, in carrying out the common purpose, commits an
offence, each of them who knew or ought to have known that the commission of the offence would be
a probable consequence of carrying out the common purpose is a party to that offence.
• Applies if 2 people get together and decide to do something illegal, as long as all people are
participating in the understanding that they are committing some unlawful activity.
• Ought to have known language doesn’t apply to murder – see p. 151.
Aiding and Abetting

When you aid and abet you are charged with the crime you are accused of aiding and abetting. BUT
they usually get lower sentences because of proportionality. But mandatory minimum still applies if
there is one. Crown needs only to prove aiding OR abetting.
• Aiding: assisting or helping the principal to commit the crime.
• Abetting: encouraging, instigating, promoting, or procuring the crime to be committed.
MR FOR AIDING AND ABETTING
• Aiding: knowledge and intent. Have to intend to help/assist person, and have to know there is
some crime happening/in progress.
• Abetting: knowledge and intent. Have to intent to help/assist, and know there is a crime.
R v. Briscoe (2010)
• Wilful blindness (as always) subs for knowledge
Defence of Abandonment
1) There was an intention to abandon or withdraw from the unlawful purpose;
2) There was timely communication of this abandonment/withdrawal to those who wished to
continue;
3) The communication served unequivocal notice upon those who wished to continue; AND

lOMoARcPSD|6130268
LK2016
4) The accused took, in a manner proportionate to her/his participation in the commission of the
planned offence, reasonable steps in the circumstances to neutralize/cancel out the effects
of her/his participation or to prevent the commission of the offence.
Counselling
• Counselling include procure, solicit, or insight.
• So counselling looks extremely similar to abetting.
• These are in many ways overlapping offences. The biggest difference between them is that
counselling is often applied for something that happens before the crime is committed, where a
person is suggesting to someone they should commit a crime.

lOMoARcPSD|6130268
LK2016

Criminal Outline

Uploaded by

Document Information

Original Title

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

Criminal Outline

Uploaded by

Copyright:

Available Formats

lOMoARcPSD|6130268

Canadian Criminal Law (York University)

StuDocu is not sponsored or endorsed by any college or university

Downloaded by Juliana Mirkovic (juliana.mirkovic@gmail.com)

MENS REA ............................................................................................................................................ 17

Downloaded by Juliana Mirkovic (juliana.mirkovic@gmail.com)

Aiding and Abetting................................................................................................................................ 45

PRINCIPLES AND PURPOSES OF SENTENCING

SENTENCING INDIGENOUS OFFENDERS

THE ADVERSARIAL SYSTEM

Downloaded by Juliana Mirkovic (juliana.mirkovic@gmail.com)

• On value of diverse perspectives.

DISCRETION AND STATE POWER

Downloaded by Juliana Mirkovic (juliana.mirkovic@gmail.com)

SOURCES OF CRIMINAL LAW

Downloaded by Juliana Mirkovic (juliana.mirkovic@gmail.com)

Downloaded by Juliana Mirkovic (juliana.mirkovic@gmail.com)

THE CHARTER AND THE LIMITS OF CRIMINAL LAW

The Purposive Approach

Charter s.7 Challenge

Principles of Fundamental Justice

Downloaded by Juliana Mirkovic (juliana.mirkovic@gmail.com)

• Vagueness: A law is unconstitutionally vague if it “does not provide an

Canada v. Bedford (2013) SCC

Recognizing New Principles of Fundamental Justice

Downloaded by Juliana Mirkovic (juliana.mirkovic@gmail.com)

Malmo-Levine and the Harm Principle

PRESUMPTION OF INNOCENCE AND BURDEN OF PROOF

Downloaded by Juliana Mirkovic (juliana.mirkovic@gmail.com)

• “[I]t is the State which must bear the burden of proof.”

Model Charge (R v. Lifchus)

Reasonable doubt is not:

Reasonable doubt is:

Downloaded by Juliana Mirkovic (juliana.mirkovic@gmail.com)

Revised W.(D.) Framework (p. 50)

Downloaded by Juliana Mirkovic (juliana.mirkovic@gmail.com)

ELEMENTS OF THE OFFENCE

s.219  Criminal Negligence

Downloaded by Juliana Mirkovic (juliana.mirkovic@gmail.com)

Duties imposed by law:

Voluntariness (p. 58)

R v. Swaby  coincidence between knowledge and voluntarily acting on it.

Downloaded by Juliana Mirkovic (juliana.mirkovic@gmail.com)

FACTUAL CAUSATION (p. 61)

R v. Nette  SCC refines the contributing cause test from Smithers.

LEGAL CAUSATION (p. 62)

Downloaded by Juliana Mirkovic (juliana.mirkovic@gmail.com)

R v. Harbottle  substantial causation test for murder under s.231(5)

R v. Maybin  Intervening Acts (see p. 67 for notes on intervening act).

Causation in the Code

Downloaded by Juliana Mirkovic (juliana.mirkovic@gmail.com)

BRIEF CAUSATION SUMMARY

Downloaded by Juliana Mirkovic (juliana.mirkovic@gmail.com)

Downloaded by Juliana Mirkovic (juliana.mirkovic@gmail.com)

Subjective Mens Rea

KNOWLEDGE VS. WILFUL BLINDNESS

Downloaded by Juliana Mirkovic (juliana.mirkovic@gmail.com)

Objective Mens Rea

Downloaded by Juliana Mirkovic (juliana.mirkovic@gmail.com)

s. 220 (death); s. 221 (bodily harm)

Downloaded by Juliana Mirkovic (juliana.mirkovic@gmail.com)

STRICT LIABILITY OFFENCES

D has option of defending themselves on the basis of due diligence/reasonable care