Table of Contents

- Introduction
o Trier of Law vs. Trier of Fact
o R. v. Stevens and Dudley = HOW TO INTREPRET CASES
- Sources of Criminal Law
o Common Law
 R. v. Sedley = CATCH ALL OFFENCES
 Frey v. Frederick = NO MORE COMMON LAW OFFENCES
 Precedent
o Statutes
 Bilingual Interpretation
 R v. Collins = LOOK AT PURPOSE OF STATUTE IF BILINGUAL DISCREPANCY
 Strict Construction
 R v. Goulis = LOOK AT PARLIAMENTS INTENTION WHEN AMBIGIOUS
 R. v. Pare = RECOGNIZES PRINCIPLES BUT SAYS STATUTES VERY UNLIKELY TO BE
AMBIGIOUS
 Purpose of statutes vs. purpose of common law
 R. v. Clark = INTREPRETTING STATUTE
THRESHOLD FOR OVERRIDING FACTUAL ERRORS “PALPABLE AND OVERRIDING ERROR”
 Criminology Findings
 Deterrents
o Division of Powers
 Federal vs. Provincial
 RE: Firearms Act = PITH AND SUBSTANCE TEST (looks at federalism question)
 Two ways a law can be invalid
 Hunter v. Southam = LOOKS AT CONSTITUTIONAL VALIDITY
o Charter
 Section 7
 Principles of Fundamental Justice
 Vague, overbroad, arbitrary and grossly disproportionate
 Spanking Case = ASKS IF LAW IS TOO VAGUE
 Bedford Case = ASKS IF LAWS ARE OVERBROAD, ARBRITARY AND GROSSLY
DISPROPORTIONATE
 Section 1
 Oakes Test = TEST TO SEE IF INVALID LAW CAN BE SAVED
 Section 1 and 7 Relationship
- Criminal Process
o Procedural Overview
 Three types of offences
 Steps in Criminal process
 Evidence
o Presumption of Innocence
 Onus on crown

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  Woolmington v. DPP (1935) = ONUS OF PROVING ALL ELEMENTS OF CRIME ON
CROWN
Why is there this presumption?
Reasonable doubt, legal meaning
 R. v. Lifichus = RD NOT IN EVERYDAY SENSE
 Credibility Contests
 Section 11d of Charter
 R. v. Oakes (1986 SCC) =REVERSE ONUS HARD TO BE SAVED UNDER SECTION 1
o Criminal Justice Policy
 Victims’ Rights
 Scope of Criminal Law
 R v. Malmo-Levine ** LEADING CASE ON PRINCIPLES OF NATURAL JUSTICE
o Adversary System
 VS Scientific System
 Basic Features
 Advantages vs. Disadvantages
 Women Rights in the System
 Aboriginal Peoples in the Criminal Justice System
 R. v. R.D.S = TEST FOR APPREHENSION OF BIAS
- Act Requirement
o Introduction
o Possession Offences
 Types of possession under the code
 Marshall v. R. = CONSENT IN JOINT POSSESSION, NO CONSENT = NO JOINT POSSESSION
 R. v. Terrence = CONTROL IN POSSESSION, NO CONTROL = NO POSSESSION **
LEADING CASE ON POSSESSION
 R. v. Morelli = CONTROL IN POSSESSION CHARGE
 R. v. Pham = CONSTRUCTIVE POSESSION
 R. v. Chalk = INNOCENT POSSESSION
o Consent making act lawful
 Type of “true” defense
 R v. Jobiden = WHEN CONSENT IS VITIATED, *** LEADING CASE for consent
limitations (on assault)
 R. v. Moquin = WHAT IS BODILY HARM
 R. v. Cuerrier = TEST FOR FRAUD, *** LEADING CASE for consent vitiated by fraud (for
STDs)
 R. v. Mabior = CLARIFICATION OF “significant risk of serious bodily harm” IN CUERRIR TEST FOR HIV
TRANSMISSION
 R v. Hutchinson = APPLIED CUERRIR TEST BY ANALOGY ON PREGNANCY
o Omissions
 General rule vs. exception
 Moral vs. Legal Duty to act
 Fagan v. Commissioner of Metropolitan Police = OMMISSION VS. ASSAULT, CONTINUITY
 When do legal duties to act come into play?

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  R. v. Miller = LEGAL DUTY TO COUNTERACT DANGEROUS CHAIN OF EVENTS SET IN MOTION (BUT
THIS IS AN ENGLISH CASE, NO CLEAR PRECEDENT)
 Moore v. R. = IF DUTY RECOGNIZED IN STATUTE (FEDERAL OR PROVINCIAL) OR IN COMMON LAW,
OMISSION CAN BECOME A CRIMINAL OFFENCE ***LEADING CASE ON OMMISSIONS
 R. v. Thorton = DUTIES FROM COMMON LAW, OR DUTY UNDER S. 216
 R. v. Browne = DEFINITION OF UNDERTAKING AN ACT, *** LEADING CASE FOR
UNDERTAKING AN ACT
 R. v. Peterson= BEING UNDER SOMEONE’S CHARGE, FOR FAILURE TO PROVIDE NECESSITIES OF LIFE
o Voluntariness
 Why is voluntariness important? (It negates actus reus)
 Absolute liability offences = if involuntary, then not liable since mens rea doesn’t
matter
 R v. Lucki = DON’T COMPARE INVOLUNTARINESS TO NEGLIGENCE, INVOLUNTARY IS ABOUT ACT,
NEGLIGENCE IS ABOUT FAULT ELEMENT
 R. v. Wolfe = REFLEXES ARE INVOLUNTARY, NO ACT = NO LIABILITY
 R v. Swaby = VOLUNTARY CONDUCT AND MAKING THE CHOICE IS NECESSARY FOR LIABILITY
 R v. Ryan = IF EVERYTHING BUT KILLING WAS VOLUNTARY, THEN STILL SHOULD BE LIABLE (NOT
CANADIAN CASE, JUST HAS PERSUASIVE VALUE)
 Kilbride v. Lake = INVOLUTNARY OMMISSION CASE, IN ABSOLUTE LIABILITY CASES, IF
INVOLUNTARY THEN NO LIABILITY
o Causation
 Two kinds of causation
 Causation in tort vs in criminal law
 Smithers v. R = TEST FOR CAUSATION IS CONTRIBUTING CAUSE OF DEATH OUTSIDE OF DE MINIMUS
RANGE***LEADING CAUSATION CASE IN CANADA
 R v. Harbottle = TEST FOR ELEVATING DEATH TO FIRST DEGREE UNDER S.231(5) IS ESSENTIAL,
SUBTIAL AND INTEGRAL PART OF KILLING
 R v. Nette = REWORDED SMITHERS TEST TO SAY IS ACT A SIGNIFIGANT CONTRIBUTING CAUSE OF
DEATH
 R v. Talbot = EXPLAINS DISTINCTION BETWEEN FACTUAL (BUT FOR TEST) AND LEGAL CAUSATION
 SITUATIONS IN CODE THAT DON’T COUNT AS INTERVENING CAUSE
 R. v. Smith = BAD MEDICAL TREATMENT NOT AN INTERVENING CAUSE, ***LEADING CASE FOR
INTERVENING CAUSE (NOT CANADIAN THOUGH)
 R. v. Blaue = VICTIMS REASONS NOT TO SEEK MEDICAL HELP IS NOT AN INTERVENING CAUSE
(APPLIED THIN SKULL RULE)
 R. v. Maybin = SIGNIFIGANT CONTRIBUTING CAUSE AND BUT FOR TEST AND ANALYTICAL
QUESTIONS APPLIED TO DETERMINE INTERVENING CAUSE,***ONLY CANADIAN CASE, CITE ON
INTERVENING CAUSE CASES
 Drag Racing
- Fault Requirement
o Introduction
 Subjective /Objective fault requirements
 R. v. Hundle = TEST OF NEGLIGENCE IS AN OBJECTIVE STANDARD
 R. v. Theroux = SUBJECTIVE MENS REA NOT RELATED TO ACCUSED SYSTEM OF BELIEFS
 R. v. Mulligan = CAN INFER INTENT FROM ACTIONS (DON’T HAVE TO RELY ON TESTIMONY)
 R. v. Ortt

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  R. v. Walle
o Regulatory Offenses
 Beaver v. R. = NO POSSESSION CHARGE WITHOUT KNOWLEDGE OF CHARACTER OF SUBSTANCE
AND DEFAULT FOR CRIMINAL OFFENSES IS SUBJECTIVE MENS REA
 R v. City of Sault Ste Marie= INTRODUCES STRICT LIABILITY AS FAULT, DEFAULT FAULT FOR
REGULATORY OFFENSES***LEADING CASE FOR FAULT IN REGULATORY OFFENSES
 R v. Wholesale Travel Group = LAYS OUT FACTORS TO HELP DIFFERENTIATE BETWEEN
REGULATORY AND CRIMINAL OFFENSE
 Charter standards for regulatory offenses
 RE: BC Motor Vehicle Act Reference = COMBINING ABSOLUTE LIABILITY AND
IMPRISONMENT IS CONTRARY TO SECTION 7
 R. v. Beauchamp = EXPRESS FAULT, SHOW DUE DILLIGENCE AND ASK IF PERSON IS DESERVING OF
PUNISHMENT?
o Murder
 Statutory provisions
 Section 222 (delineates homicide categories)
 Manslaughter vs. murder = fault element
 Section 229, section 229a lays out fault element for murder (ALWAYS CITE)
 Section 230
 Simpson v. R = FAULT ELEMENT IS SUBJECTIVE, BUT CAN USE WHAT A RESONABLE PERSON OUGHT
TO KNOW AS A WAY TO SEE INTENT
 R. v. Edelenbos = WHAT LIKELY MEANS UNDER SECTION 229A
 Constructive Murder (or felony murder) unconstitutional in Canada (s. 230)
 Vaillancourt v. R.= DEATH HAS TO BE FORESEEABLE TO ACCUSED FOR IT TO BE MURDER
(LOWEST MENS REA POSSIBLE IN MURDER IS OBJECTIVE)
 R. v. Martineau = MURDER REQUIRES SUBJECTIVE MENS REA, ***LEADING CASE ON
SUBJECTIVE MENS REA FOR MURDER
 Section 229 (c) (unlawful act murder) is read down
 R. v. Shand = 6 REQUIRMENTS FOR UNLAWFUL OBJECT MURDER
 First Degree Murder (section 231)
 R. v. Smith= 1ST DEGREE NEEDS TO BE BOTH PLANNED AND DELIBERATE, ***LEADING
CASE ON THE MEANING OF PLANNED AND DELIBERATE (S.231(2))
 R. v. Nygaard and Schimmens = CAN BE PLANNED AND DELIBERATE IF MEANT TO
CAUSE SERIOUS BODILY HARM KNOWING YOU MIGHT KILL THEM
 R. v. Collins= MUST KNOW VICTIM IS SPECIFIED 1ST DEGREE LIST ***LEADING CASE
ON KNOWING IF VICTIM ON LIST (S. 231(4))
 R. v. Arkell= SECTION 231 (5) NOT ARBITRARY, GROUPED BY UNLAWFUL DOMINATION
o Subjective mens rea
 Fault Ladder
 Where to know if subjective mens rea needed
 R. v. H (A.D) = CHILD ABANDONMENT REQUIRES SUBJECTIVE MENS REA
 States of mind that constitute subjective mens rea
 Motive
 Purpose/ Desire
o R. v. Hibbert = IN CC, PURPOSE MEANS INTENTION

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  Intention/Knowledge (Highest subjective mens rea required, required in
some offences)
o R. v. Buzzanga and Durocher = IF YOU FORSEE A CONSEQUENCE
SUBSTANTIALLY OCCURING, EVEN IF MEANT FOR ANOTHER CONSEQUENCE, STILL
INTEND FIRST CONSEQUENCE***LEADING CASE ON DEFNITION OF
INTENT
o R. v. Boulanger = INFERRING A MENS REA
 Recklessness
o R. v. Theroux = RECKLESSNESS IS KNOWING OF POSSIBLE CONSEQUENCES
(NO DESIRE FOR IT TO HAPPEN REQUIRED)
 Willful Blindness
o Sansregret v. R. = WILFULL BLINDNESS IS THE DELIBERATE SUPPRESSION OF
SUSPICION
o R. v. Briscoe = WILFULL BLINDNESS IS DELIBERATE IGNORANCE
o R. v. Lagace = MAKING INQUIRIES DOES NOT GET THEM OFF THE HOOK IF STILL
HAVE SUSPICIONS
o R. v. Blondin = IF BEING CHARGED WITH IMPORTING NARCOTIC, MUST KNOW IT
IS NARCOTIC, NOT WHICH EXACT KIND
o Objective Fault
 Question is, what level of fault are there going to be for criminal negligence causing
death and unlawful act causing death
 Criminal negligence causing … (s. 219) and unlawful act
 OGrady v. Sparling = FAULT LEVEL FOR CRIMINAL NEGLIGENCE IS SUBJECTIVE, BUT
IGNORED IN COURTS GOING FORWARD
 R. v. Tutton and Tutton = COURT SPLIT ON LEVEL OF FAULT REQUIRED IN CRIMINAL
NEGLIGENCE, BUT FOR CRIMINAL NEGLIGENCE (S. 219) FAULT LEVEL IS MARKED AND
SIGNIFIGANT DEPATURE FROM STANDARD
 Waite v. R. = SUBJECTIVE TOO HIGH A THRESHOLD
 R. v. Anderson = MARKED DEPATURE TEST TESTS FOR OBJECTIVE AND SUBJECTIVE
ELEMENTS
 R. v. Hundle = MODIFIED OBJECTIVE TEST IN DANGEROUS DRIVING IS OBJECTIVE BUT
TAKES IN SUBJECTIVE FACTORS
 R. v. Creighton= FOR ALL OBJECTIVE FAULT CRIMES, NEGLIGENCE HAS TO BE A MARKED
DEPARTURE FROM REASONABLE PERSON STANDARD, (dissent has more subjective
elements)***LEADING CASE FOR FAULT LEVEL IN OBJECTIVE FAULT CRIMES
 R. v. Beatty = MOMENTARY BAD DRIVING NOT MARKED DEPATURE FROM STANDARD
 Summary for different standards
 Crimes based on predicate offences
 Unlawful Act Manslaughter
o R. v. Creighton= TWO FAULT ELEMENTS REQUIRED, ONE FOR PREDICATE
OFFENCE AND SECOND, AN OBJECTIVE FORESEEABILITY OF RISK OF BODILY HARM,
FOR MANSLAUGHTER
 Aggravated Assault
o R v. Godin = FORESIGHT OF CONSEQUENCES (AGGRAVATED PART) NOT
REQUIRED, OBJECTIVE FORESIGHT OF BODILY HARM REQUIRED
o Normative theories of fault

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- Rape and Sexual Assault
o Rape laws in context
 History
 Social context
 Rape Myths
 Evidence Needed in the past
o Definition of the crime of rape
 Rape prior to 1982
 Mens Rea needed for Rape
 Pappajohn v. R. = MISTAKEN BELIEF IN CONSENT CAN NEGATE MENS REA (EVEN IF
MISTAKEN BELIEF IS UNREASONABLE)
 Sansregret v. R = MISTAKEN BELIEF (EVEN IF UNREASONABLE) HAS TO BE THAT CONSENT
WAS FREELY GIVEN ***LEADING CASE ON OLD RAPE LAWS
o Crimes of Sexual Assault
 New sexual assault codes (s. 271, 272, 273)
 R. v. Chase =OBJECTIVE TEST ON WHAT IS SEXUAL IN SEXUAL ASSAULT ***LEADING CASE ON
DEFINITION OF SEXUAL ASSAULT
o Consent and Mistaken Belief
 Defense – negates mens rea, codified in s. 265(4) but makes it more difficult to
prove than Pappajohn defense
 R. v. Bulmer = TEST FOR MISTAKEN BELIEF IS AIR OF REALITY
 R. v. Davis = NEED A SITUATION OF AMBIGUITY, NOT DIAMETRICALLY OPPOSED STORIES TO RAISE
THIS DEFENCE*** LEADING CASE ON ESTABLISHING AIR OF REALITY
 s. 273.2 (Limitations on this defense)
 R. v. Ewanchuk= ACCUSED MUST BELIEVE CONSENT WAS COMMUNICATED, SILENCE OR
AMBIGUITY NOT ENOUGH*** LEADING CASE ON THIS DEFENSE!!
 Consent in Sexual Assault (start here on exam) – list of ways it can be vitiated
 R v. A. (J.) = CONSENT IS A CONSIOUS AGREEMENT TO EVVERY SEXUAL ACT
- Mistake
o Mistake of Fact
 Valid type of defense (mistake of consent a type of mistake of fact defense)
 R v. Hess, R v. Nguyen = UNCONSTITUTIONAL TO NOT HAVE MISTAKE OF FACT DEFENSE FOR
STATUTORY RAPE
 2 views on when mistake of fact can exonerate
 R. v. Ladue = IF MISTAKEN BELIEF MORE SERIOUS, NOT A DEFENSE ***LEADING CASE
ON ACCUSED THOUGHT HIS CRIME WAS MORE SERIOUS
 R. v. Kundeus = IF SELLING SOMETHING MORE SERIOUS THAN THOUGHT, STILL CAN BE
CHARGED WITH MORE SERIOUS OFFENSE***LEADING CASE ON NOT KNOWING
WHICH DRUG SUBSTANCE
o Mistake of Law
 Not a Defense (s. 19 of CC)
 R. v. Esop = DIFFERENT CULTURAL PRACTICES NOT A DEFENSE
 R v. Campbell and Mlynarchuk = RELYING ON DIFFERENT INTREPRETATIONS OF THE LAW NOT A
VALID DEFENSE
 R v Macdonald = NOT KNOWING LAW OF THAT JURISDICTION STILL MISTAKE OF LAW, NOT VALID

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- Incapacity
o Age
 Child, 12 years under, is absolutely exempt
o Mental Disorder
 Section 16 lays out NCR requirements
 Cooper v. R. = DEFINES DISEASE OF MIND, AND WHAT DOES TO APPRECIATE MEAN***LEADING
CASE ON THIS DEFENSE
 Kjeldsen v. R. =DEFENSE ONLY APPLIES IF CANNOT APPRECIATE NATURE OF ACT, EVEN IF ACCUSED
HAS A MENTAL DISORDER (PSYCOPATHY NOT A DEFENSE)
 R. v. Abbey = FAILING TO APPRECIATE NATURE OF PENAL CONSEQUENCES NOT THE SAME AS
NATURE OF ACT
 R. v. Chaulk =THE MEANING OF WRONG APPLIES TO HOW THE PERSON THOUGHT IN THOSE
CIRUMSTANCES,NOT GENERALLY WRONG MORALLY OR LEGALLY ***LEADING
UNDERSTANDING OF WHAT WRONG MEANS
 R. v. Oommen= NOT GENERAL ABILITY TO KNOW RIGHT FROM WRONG, IT IS IN THE
CIRCUMSTANCES OF THE ACT
o Automatism
 When can it be used
 Amnesia
 R. v. Rabey = WHEN SOMETHING IS AN INTERNAL OR EXTERNAL BLOW, IF INTERNAL, THEN MENTAL
DISORDER***LEADING CASE FOR EXTERNAL VS. INTERNAL BLOW
 R v. Parks = EXPERT TESTIMONY CAN GIVE NMDA AIR OF REALITY AND MINORITY LAYS OUT
ANALYTICAL TOOLS TO HELP DISTINGUISH MDA AND NMDA
 R. v. Stone =ONUS TO SHOW AUTOMATISM ON ACCUSED, FACTORS TO CONSIDER TO SEE IF
AUTOMATISM REAL AND TRIAL JUDGE SHOULD START WITH MDA AND SEE IF EVIDENCE TO MOVE IT
OUT ***LEADING CASE ON THIS AUTOMATISM IN CANADA!
 R v. Luedecke = PUBLIC SAFETY LEGITIMATE CONCERN THAT IS WHY START WITH MDA, LOOK AT
LIKELYHOOD TO REPEAT (SLEEPWALKING CASES AFTER STONE ALL START WITH MDA NOW)
 R. v. Bouchard-Lebrun = MENTAL DISORDER OR SELF INDUCED INTOXICATION, FACTORS TO
CONSIDER
o Intoxication
 Voluntary vs. Involuntary
 R. v. Bernard = FOR SPECIFIC INTENT OFFENCES, INTOXICATION CAN BE A DEFENSE AND LOWER
MENS REA, FOR GENERAL INTENT, COURT UNCLEAR BUT SOME CASES CAN BE IN EXTREME
INTOXICATION
 R. v. Daviault = CHARTER REQUIRES MINIMUM DEFENSE OF INTOXICATION (IN EXTREME CASES
AKIN TO INVOLUNTARINESS) FOR GENERAL INTENT OFFENCES
 CC S. 33.1 removes Daviault defense for violent crimes (1995)
 R. v. Daley= 3 LEVELS OF INTOXICATION AND THEIR EFFECT ON MENS REA
 R. v. Bouchard-Lebrun = CLARIFIES S. 33.1 CONDITIONS THAT HAVE TO BE MET
- Justification and Excuses
o Introduction
 Sources of defense
 Only used in emergency situations
 Air of reality in defenses
 R. v. Cinous =WHEN IS THERE AN AIR OF REALITY TO RAISE A DEFENSE

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o Defense of Persons
 Section 34 of CC (Overall objective test, but can use subjective factors)
 R. v. Lavallee = BATTERED WOMEN, FACTORED IN SUBJECTIVE ELEMENTS IN UPHOLDING DEFENSE
o Necessity
 Perka v. R. = LAYS OUT 3 ELEMENTS FOR DEFENSE OF NECESSITY TO APPLY ***LEADING CASE
ON DEFENCE OF NECESSITY
 R. v. Latimer= MODIFIES ELEMENTS FOR DEFENSE OF NECESSITY TO INCLUDE SUBJECTIVE FACTORS
IN FIRST TWO, THIRD REMAINS OBJECTIVE
o Duress
 Defense is in statute (s. 17) (for principal offender)
 Defense is also a common law one (for secondary offender)
 R. v. Paquette = HOW TO DIFFERENTIATE BETWEEN PRINCIPAL AND SECONDARY OFFENDER,
PRINCIPAL OFFENDER ACTUALLY COMMITS THE OFFENSE
 R. v. Hibbert = DURESS CAN NEGATE MENS REA OR BE AN EXCUSE AND REAONSBLE LEGAL
ALTERNATIVE REQUIREMENT ADDED TO DETERMINE IF DEFENSE APPLIES
 R. v. Ruzic = STRUCK OUT IMMEDIACY AND PRESENCE REQUIRMENTS OF DEFENSE IN CC S. 17
 R. v. Ryan = CRIME MUST BE COMPELLED AGAINST INNOCENT THIRD PARTY AND DEFENSE APPLIES
TO A CERTAIN SITUATION***LEADING CASE ON DEFENSE OF DURESS
o Provocation (ONLY PARTIAL DEFENCE, ONLY APPLIES TO MURDER, REDUCES IT TO
MANSLAUGHTER)
 Limits liability
 S. 232 of CC
 R. v. Tran = OBJECTIVE AND SUBJECTIVE ELEMENTS OF THE DEFENSE
 R. v. Hill = DEFINES THE OBJECTIVE, ORDINARY PERSON STANDARD ***LEADING CASE ON
PROVOCATION
 3 archetypal cases for this defense
 Back up defense to self defense
 Controversy

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INTRODUCTION

- Criminal law is about offending actions and society decides that some acts are so bad that they
need to be punishable
- Trier of law vs. fact
o Trier of law
 Decides what the law is, explains it to the jury and then the trier of fact applies it
 In a jury case, it is the judge
 In a judge case, it’s the judge
o Trier of fact
 Decides the facts and apply the law and come up with a verdict
 In a jury case, it is the jury
 In a judge case, it is also the judge
- Common law, case law
o R. v. Dudley and Stephens (“The Queen and Dudley and Stephens”) (pg. 925)
 (QBC – Queen’s Bench, case from England)
 Facts:
 Four people stranded in a lifeboat after a shipwreck
 Starving, only had two cans of turnips and rainwater to drink
 Dudley and Stephens decided that the cabin boy, Richard Parker, should be
eaten
 On 20th day of shipwreck, Dudley did the killing
 Stephens agreed and helped
 Brooks did not agree
 All three ate him
 Rescued four days later
 (This is a special case, because the judge just wanted them to say the facts
and it will go to a higher court where other judges will decide the verdict)
 Charge:
 Murder
 Issue (the point of law that is at stake in this case):
 Is necessity a defence to murder?
o Necessity is the defence that some extreme emergency requires
committing a criminal act
 Holding/Decision:
 No, necessity is not a defense to murder (when a starving person kills and
eats another person to sustain life)
o Case law is very interpretable, and the thing in brackets can be
added (but don’t have to be part of it) helps it narrow down to just
this case
 And if this case if referenced and the defense wants to
distance itself from this case, they can make it more
specific

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  Necessity does not give you the right, in order to save your own life, to take
another life if they are not harming you or doing an illegal act
 Reasoning:
 Sometimes the duty is not to protect your own life, but to sacrifice your
own life to help others
 You cannot deem one life more important another
 If this is lawful, then it severs the link between morality and law because it
is immoral to kill this boy and allowing this severs law and morality, but law
needs to reflect the moral order
 You can argue the holding is more narrow (killing the weakest when others are
starving) or more broad (temptation does not necessitate murder) depending on
how you want to use this case for the case you are fighting

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SOURCES OF CRIMINAL LAW (in this hierarchy) (also in descending order of higher amount of law)
o 1. Constitution
o 2. Statutes
 Criminal Code is a federal statute
 Provincial statutes have regulatory offences (ex. For driving offences)
o 3. Common Law, case law
 R. v. Sedley (pg.1) charged with misdemeanour in King’s peace, no offense of what
he did in a case or statute, but it is thought to be bad so they use the catch all
phrase of “misdemeanour in King’s peace” to bring him to court
 It was open to judges to convict people of things that was thought to be
immoral
 Shows us the historical development of cases
 But not how it’s done anymore, after accepting of the criminal code 1892
 Can judges no longer punish people for immoral things or are we confined
to these statutes?
 Frey v. Frederick (1950-SCR – supreme court reports, from supreme court of
Canada)
 Worked from trial court (1 judge, all the witnesses speaking, all evidence
comes in), to appeals court (3 judges panel, no new evidence) to supreme
court (9 judge panel)
 Civil case, but it decides an important criminal law principle
 Fact:
o Frey was looking through Frederick’s window at his mom
o Frederick saw and chased him down and detained him till a police
officer came
o Frey is suing Frederick for detaining him and also the police officer
for imprisoning him
 Issue:
o Is Frey’s offense a criminal? (this is so because if it is not, then he
was wrongly detained)
 Holding:
o No, Frey’s offense is not criminal
 Reasons:
o If something is already not a crime in case law or in legislation,
then the courts will not find it a crime unless it is made into
statutes
 *landmark saying no more NEW common law offenses
 Advantages of this ruling:
 Makes justice more proactive rather than retroactive
 Disadvantages of this ruling:
 Makes the law less flexible
 In reaction to this case, in 1953, an offence was added that covered it (trespassing
at night) (and in 2005, voyeurism became an offence which would cover it)

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  In 1955, it took out all common law offenses from criminal code (except contempt
of court, the only common law that is an offence)
 So all offenses must be found in some kind of legislation
 But common law still present in criminal law, just not for offenses
 Common law used in defences, some in statutes too, fault element also
only common law
- Precedent
o Common law develops through precedent
o A common law rule has to be distilled from cases, they are not found in statutes
o Not everything said in a judgement is a binding law, the extraneous stuff is obter dicta
o Is a statement binding rule of law as a precedent? Ask these:
1. Which court made the statement (higher court judgments are binding to all lower
courts)
2. In which judgment? In appeals court and the supreme court where there are
multiple judges and they have a split decision: full court or majority judgment has
the binding rules of law, descenting judgments can hold persuasive value (based on
how good the reasoning of the descent was)
3. Which parts of the judgment are binding? The ratio (the proposition that the case
stands for) is the binding rule of law
- Henry helps us tell us how to find the ratio
o Two extreme views;
o Traditional view: precedentual value of the case is strictly by its facts
(ie. More narrower view)
 Allows for growth and creativity in the law, judges will be
minimally bound by the past
o Seller’s principle: everything said in the judgement is binding (most
broad view)
 Promotes certainty and structure in the law
o Judgment chooses a spot in the middle of the two extreme: The ratio
which is bound to the facts and any additional guidance intended for
guidance  ie. Some is binding and other is just obter dicta
o But it is important to distinguish current case with the common law
 If you are trying to use a common law to help your case, you
want to make sure to try and make it as close to your case as
possible
 If you don’t want this common law weakens your case, you
want to distinguish it as much as possible (and have a narrower
holding of the common law case)

Statutes

- Bilingual Interpretation (all statutes are enacted in both official languages)

o Sometimes when there are discrepancies between the two languages, the court tends to
favour the common meaning of the two, which in most cases is the more limited narrower
meaning

12
 o R. v. Collins
 Difference in could (French) vs should (English) and court looked at the purpose of
the statute and ruled according to what interpretation was closed to the purpose of
the statute (in this case 24(2))
- Strict Construction
o Principles that states that if a statute can reasonably mean two things, the interpretation
more favourable to the accused should be adopted
 Why? The accused has their liberties at stake so if they are going to be charged, it
should be in a way that is most clear to them (and therefore should be most lenient)
 A rule that tell us how to interpret eliminates ambiguity
 Our society values autonomy so if we are going to take it away, we should
err on the side of
 People are acting in accordance with the criminal statute so we should
interpret it in a way that people would, and people would in a more lenient
way
- Construing penal acts strictly or more leniently?
o In the Interpretation Act of Canada and Ontario say that every act should be seen as liberally
and in a way that helps the statute (not relied on heavily in criminal case because statute
meant to punish so should be interpreted broadly)
o R. v. Goulis
 Prior to this, the courts, when having to interpret the meaning of a word in a statute
if it had two meanings, would interpret it in a way that was more favourable for the
accused (called the rule of statutory construction)
 J. Martin says this should not be the case, and the courts should look to see which
sense the word was meant by Parliament, and if it is still ambiguous, the rule of
statutory construction should be used
o R. v. Pare
 Facts (SCC appeal – first or second degree?):
 Accused, 17, lured a boy,7, under a bridge, indecently assaulted him, boy
said he would tell his mother, accused threatened to kill him if he did,
accused felt the boy would tell nevertheless, held him down for two
minutes then killed him by strangling and hitting him with an oil filter
 Accused is on trial for first degree murder under the Criminal Code s.231 (5)
“murder is first degree murder…. When the death is caused … while
committing (number of offences) … an indecent assault”
o First degree is known as “planned and deliberate” but also
 Defendant claims that it is not first degree because the murder was not done “while
committing” the indecent assault, it was after (strict construction problem), it was
not simultaneously
 Defence says saying it can be simultaneously is a reasonable interpretation
and since it is, the strict construction principle favours the more lenient to
the defendant

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  J Wilson disagrees, stating past cases that it’s not a question of whether this
doctrine applies to the case (says it is not a case of strict construction because there
are no two interpretations), only one interpretation because:
 He says Parliament did not intend to mean simultaneously when they had
that statute written, it is hard to delineate what is the beginning and end of
the indecent assault
o Also, the lines drawn would be arbitrary at best if they were to
delineate these events
 He cites R. v. Stevens, where J. Martin states that where there is indecent
assault causing death, all the events can be seen as continuous and form a
single transaction
 He decodes section 231(5), which classifies first or second degree murder.
He says the difference between the two is that in the first class, the offenses
listed for first degree all involve the unlawful domination of people by other
people
 He concludes that “the murder was temporally and causally connected to
the underlying offense” and therefore believes it is first degree murder
 The Pare case recognizes that this principle exists but also points out that
the weakness in this principle because court does not view statutes as
ambiguous (if the defence relies on the strict construction principle, it has to
do a good job of making the second interpretation very reasonable)
- Purposes of criminal law statutes vs common law
o Codify and summarize legal principles (which most likely originated from common law)
o Change common law rules
- Purposes of criminal common law
o Decide principles not in statutes
o Interpret statutes
 Principles of statutory interpretation
 Words have to looked in their context and grammatical sense, harmoniously
with the purpose of the act and the intention of the parliament
o Sometimes they come into conflict with one another and it is the
job of the lawyer to use the interpretation that most helps their
case and argue that interpretation
o R. v. Clark (pg 11)
 Charge is indecent exposure
 2 versions of it: s.173(1)(a) and s.173(1)(b)
 Charged with the first version (willfully doing an indecent act in the presence of
other) but acquitted of second (no intend to insult)
 Section 150 defines public place “including any place the public has access
as of right or by invitation...”
 3 grounds for appeal at SCC:
 Was Clark’s living room a public place?

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 o Holding: Clark’s living room is not a public place because public
place has to be accessible in the physical sense, not just visual, so
his room is not a public place.
 Why?
 In section 174, it mentions private and public places
so it would make no sense that section 173 only
mentions public place (there would be no
distinction if public place meant public to physical
and visual sense)
 Access in the everyday sense mostly means physical
access
 a and b are limiting in individual ways, and a is
limited by the fact that it has to be a public place, b
is by the intention of offend
 Whether the S’s in his presence?
o No
 Whether Clark willfully did the act in their presence (he did not know they
were there)
 SCC only acquitted him based on the first grounds of appeal because it was
not a public place so therefore no crime. (did not elaborate on other
grounds but as a law student, we should).
 The appeal court was wrong because it disregarded the factual findings in
the trial (they said he was an exhibitionist but the trial judge factual findings
found he did not know people were watching)
o In order to override factual findings in trial there has to be a
“palpable and overriding error”  very high threshold to overturn
factual findings
 The trial judge is the only one that gets to see the witnesses
and see the evidence, so that is why a lot of importance on
the factual findings
 Appeals are to find any legal errors about interpreting the
law or applying it, the facts are not up for discussion in
appeals (it is not a new trial)
o Cannot be charged with a common law offence
- Criminology Findings
o Criminology = study of crime as a social phenomenon
o Crime is heterogeneous
 Various different kinds of crimes (and therefore different motivations)
 Likewise in the causes of crime, very various
o Limitations on what researches can do
 Controlled studies are not very feasible in the treatments and punishments of crime
 Research on rescinding and future dangerousness is not convincing, not many
concrete conclusions come out of it
- Deterrents

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 o Specific deterrents
 I do not like being punished so I am deterred, individual based
o General
 Society generally is deterred by people being punished (I do not want to do that
because this person got punished by doing it)
o Punishment as a deterrent?
 Studies say the certainty of punishment is more of a deterrent than the severity of
punishment
 Punishment work better for certain crimes than others as deterrent (good for traffic
violations but not as much for murders)
 Doob and Webster article:
 Sentencing severity has no effect on crime in society.
 The marginal effect of general deterrents is not supported by the research
literature (ex. From taking a sentence up from 5 to 7 years, it does not make
a difference) (this is not the same as starting to punish something when it
was not being punished (ex. Texting and driving fines) – that is the overall
effect of general deterrents)
o Also people very rarely calculate the line that they are not willing to
cross for something
o Also this is assuming people know the punishment beforehand and
the new one
 Conclusion: as long as we keep punishments within the realm of
reasonability in the Western society, increasing severity does not help
o Increasing severity misleads the society into a false sense of safety
 General deterrents are valid in the criminal code but need to be taken in
context with the research

- Division of Powers
o Several documents of the constitution, the 1867 and the 1982 constitution acts
o 2 big topics: federalism (division of powers between the different levels of government,
governed by the 1867 constitution act) and the charter of rights and freedoms (in the 1982
act)
o Have to follow both the federal and provincial laws as a citizen
o Federal vs. Provincial
o Section 91 and 92 contain lists of matters that each government can legislate on (the
matters are called heads of power)
 If they legislate on something they have the power to legislate on it called intravires
 If they legislate on something they do not have the power to legislate on it, called
ultravires
o Section 91 (27) says the federal government has power over criminal law (of both criminal
procedure and substantive law)

16
o There are also provincial heads of power that can give rise to offenses, such as their power
over property and civil rights (ex. highway traffic act), and in s. 92(15) it gives them the
power to give punishment over the laws of the province
 Provincial offences are known as regulatory offenses. (They are not called criminal
offenses!)
o Both can make jails: Provincial jails called jails (2 years or less served here), federal jails
called penitentiaries (2 years plus served here)
o Courts are legislated by both (maintenance of them)
o Pg 33. Reference Firearms Act (government brings an act to the court to see if it is
constitutionally valid) RE firearms act
 Government of Alberta thought the firearms act of Canada was ultravires: firearms
are property and civil rights. But government of Canada said it has the power
because of its residual power of peace order and also of the criminal head of power
it has
 Court says 2 steps to analyse a federalism problem
 1) Determine pith and substance of law (what is it fundamentally about)
o Purpose of law? It’s effect?
 Purpose of this was to protect public safety, supported by
how it was introduced by federal government officials, and
the problem it is trying to solve is the misuse of firearms
and the link between guns and disorder, and the threat it
poses to public safety = purpose of it is to enhance public
safety
 Historically gun control is mostly about safety
 Alberta argued it was going to be ineffective (criminals are
not going to register their guns anyway)  court says
efficacious of law does not matter in this case, even if it is
not effective, it is still in their jurisdiction
 2) Which head of power the pith and substance falls under
o Falls under criminal law power:
 1) valid criminal law purpose (1) a prohibited behaviour, 2) a
punishment and 3) a purpose for these) – there are
prohibited behaviours, there are penalties and the purpose
is public safety
- Should criminal law track morality? THEME in course.
o When we ally criminal law with morality, we take one side
of the moral argument which not everyone might agree
with (ex. prostitution)
- Alberta says federal government should regulate immoral acts, but
owning a firearm is not immoral
o The court says it is not about firearms, it is about the misuse
of firearms which can be seen

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 - Alberta government is trying to appeal to the large farmer
population and so they try to use federalism case against the
legislation
- A more common scenario is the opposite where the provincial
government puts stiff penalty for things and the federal government
brings a case saying that is not their jurisdiction
- There is a fine line between the two powers, but sometimes there is
overlap and it can fit in either one or can have incidental effects
o Common in motor vehicle legislation (ex. highway traffic act
is provincial, motor vehicle act is federal)

- The Charter is part of the constitution therefore of the highest standing

- 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 force and democratic society
- The law can be constitutionally invalid in two ways
- Ultravires (federalism question)
- Contrary to the Constitution
- Hunter v. Southan, by J. Dickson
- “The judiciary are the guardians of the constitution”
- Law has to have a purposive role
 Broad purpose is to protect rights and look at each section and the purpose behind
them
- About Section 8 of the Charter – the right to be secure against unreasonable search and
seizure
 This serves the purpose of the interest of privacy
- Therefore has to be reasonable grounds for search and a judge has to sign off on a warrant

Charter (Limits on Substantive Criminal Law )

- Section 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 principle of fundamental justice
- Important for criminal law because prison involves losing some liberty
- In order to show a violation of section 7: 1) We have to have a deprivation of one of these
three rights and 2) no violation of the principle of fundamental justice
- = the government can take away these three rights but they have to do this fair way (“in
accordance with the principle of fundamental justice”)  not only procedural (fair trial) but
also
- What are the principle of fundamental justice ?
 Fair procedure
 Also Substantive principles
 Law must not be …
1. Vague

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  Unclear or imprecise (Sedley case)
 Can be contrary to section 7
 (Can also be criminally vague under section 1 that says it
needs to be prescribed by law, but prescribed means it has
limits)
 Why cannot it be vague? POLICY behind this
 People need to know if what they are doing is
criminal  fair notice
 People who are imposing the law need to know
what is and is not illegal, so it is not up to their
discretion  want to have a rule of law not rules of
people
2. Overly broad
 Too wide or expansive, goes beyond what is acceptably
defined as criminal
3. Arbitrary
 Unfixed or dependent on someone’s discretion/whim rather
than a principle
4. Grossly disproportional
 Provides for a punishment that is way too harsh for the
circumstances

“Spanking case”

- Against section 43 provides a defense against assault

- The law allows for such touching of a child by the parent, teacher, or person in place of parent if it is:
1) Force has to be corrective / educative
2) Force has to be reasonable
- A group brought this section to court under section 7 that it is too vague
- J. McLaughlin says it is too vague if it is not adequate basis for legal debate and if it is
unintelligible
 She applies a test that asks if it “delineates a risk zone for criminal sanction” if it
does not delineate a risk zone for criminal sanction, then too vague (the fact that it
is a zone and not a line means it doesn’t have to be exact)
 She says the law is not too vague because there are explicit limitations in the statute
(educative and proportional) and from there, there are implicit limitations you can
draw out from there
 Educative  there needs to be some kind of purpose, cannot just go off on
a child
 Reasonableness: “minor corrective force of transitory nature”, mentions
age about how under 2 years is not ok, how to punish, no objects  she
draws on social norms, psychological studies, the UN’s place on this
 Very detailed interpretation of the statute
- Descent by J. Arbour (only one to descent)
 Past cases of section 43 show it is not successful in framing a legal debate

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  Ex. whipping your child with an electrical wire was seen as reasonable in
one case
 This standard effects the security of the child, and we cannot be vague in
this case.
 The majority had to make a long list of provisions to make sure it was not
vague, and it becomes not an interpretation but just adding their owns
 Also talks about a risk zone of the child, when their physical integrity is
under harm
 Believes it is unconstitutional because it violates the security of the person,
the child, and also because it is vague
- Class’s thoughts?
 It is vague, have to go into so much research to even interpret it
 Had to come up with something because of the broad implications by striking down
the law
 Would it have broad implications? Debateable because many countries have
banned corporal punishments
 Do we need section 43 in the code?
 Psychological literature is fairly firm on the psychological effects of corporal
punishments
 Parenting is such a personal view and should there be this case that
legislates this?
 Children are a vulnerable group and require more protection
 Trying to strike a balance between rights of parents and rights of children
 A blanket ban would be a clearer legislation
 What are the practical implications of the ban? How can teachers protect
children if they cannot touch them?

Bedford Case

- Section 7 challenge to the criminal code against prostitution

- Three former sex workers who brought an application to the constitutionally of section 7 (more of a
reference case)
- J. McLaughlin writing on behalf a unanimous decision to strike down all three sections
- Three sections of the criminal code were challenged
- Prostitution itself is not illegal but these three provisions make it more harmful to engage in
this activities (government says it is to discourage prostitution – just like doing cocaine isn’t
illegal but possession of it is)
- 1) being able to communicate is an essential tool in order to screen clients in order to
ensure safety and if that’s illegal, it pushes prostitutes to a more remote location that is
more dangerous for them
- 2) living on the avails of prostitution is illegal and it was aimed at pimps, but could apply to
their security guards which they might need in order to be safe
- 3) common body houses were illegal – but the judge said it was the safest form of
prostitution

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 - Therefore it said these provisions make it more dangerous and so it effects the interest of
the security of persons
- Rules she uses:
 Says laws can be inadequately connected to their objective
 If it is overly broad, some but not all limits it places on section 7 rights have no
connection to goal of law
 If it is arbitrary, it places limits section 7 rights which are not connected to goal of
law
 If it is grossly disproportionate if impact on section 7 rights is so serious that out of
sync with its goal

In all cases, have to see the negative effects on section 7 rights and the goals of the law

- Application to case:
 Body house provision:
 Objective of law: prevents nuisance related community harms, safeguard
public health
 Effect on section 7: they no longer have a safe place to conduct their
business
 Therefore grossly disproportionate because grave implications on sex
workers safety and the objective is not serious enough to warrant this
 Avails of prostitution
 Objective: prevents pimps
 Effect of section 7: can’t have body guards or receptionists to help them
facilitate their practice and make it safe
 Therefore overly broad (nothing wrong with its objective but its
unconnected to some areas of the application of the law
 Prevent communication for purposes of prostitution
 Objective: prevent nuisance
 Effect on section 7 rights: has serious effects on safety and cannot screen
clients, and displaced them to less safe places to have those conversations
 Therefore this is grossly disproportionate because endangers them by not
allowing them to screen and the objective seems trivial in comparison
- Three laws struck down in this case
- Reinvigorating courts ability to strike down laws that are found to be irrational
- Judges become involved in the legislation and policy choices, some critics of this
- 2 views on prostitution/sex work
 Sex work should be seen as any other form of work and legislation should not make it
unsafe to do
 Prostitution is seen as inherently exploitive and degrading to women and suggests a higher
level of legislation is needed to protect them
 Conservative government is more leaning toward this view, so they created new
legislation based on the laws struck down by the Bedford case

21
  New legislation, which has an objective of criminalizing prostitution because of the
dangerous and exploitative practice
 Is asymmetrical in one case, which criminalizes the purchasing of sex work
but not the sale of it
o The purchasing of sex work being criminalized is the harshest
provision yet
o Still have the displacement effects because they will not be able to
do it in public, still same security of persons at risk
o But in this, the objective is to prevent exploitation and violence
o So it makes it harder to strike down the law because of the balance
is now more equal than an objective of nuisance
o This asymmetric model is taken from Nordic countries but those
countries also have social nets for those marginalized people that
partake in those activities which Canada does not, how will it work
without those?
 Introduced a new one for the pimping scenario, but less broad
 Criminalizes communication for prostitution that is near school,
playgrounds, daycares (narrows down the one struck down)
o What does near mean?
 Is this going to be constitutional?

- Section 1:
 The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in
its subject only to such reasonable limits prescribed by law as can be demonstrably justified
in a free and democratic society
 What are these reasonable limits?
- A law can infringe a Charter right but can be saved by section 1 because it is a reasonable limit on
the right
- Someone has to claim a charter right being infringed (ie. Sue the government) and once it has been
seen to breach that right, they then go to section 1 to see if it can be saved
- The party invoking section 1, the government trying to pass the law, has the onus on proving that is
can be saved, the standard of proof is a balance of profanities but rigorously applied

- Oakes test, test to see if it is a reasonable limit

1) Pressing and substantial objective that the law is trying to achieve
2) Proportionality test (balance the rights of individuals vs rights of groups/society)
a. Rational connection (b/w objective and means chosen by government, legislative
strategy)
b. Minimal impairment (right should be impaired as little as possible)
 Tends to be the most difficult to show for government
c. Balancing test/proportionality of effects (balance bad effects on law on charter rights to
the objectives the law wants to have (but not looking at the effect of the law, comparing
bad effects to goal))

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Relationship between section 7 and section 1

- It would be difficult to uphold a law under section 1 that violated section 7 because those are the
fundamental laws and rights, it has never happened in our history
- Section 7 is comparing laws purpose at face value to the negative effects of law on life, liberty and
security of the person
- Section 7 has no quantitative aspect, it is about individual rights, even if one persons’ right to life,
liberty and security is breached, section 7 is breached
- Section 1 is about an overarching public goal limiting charter rights
- Section 1 can have a quantitative aspect, we can see how many people are effected by the violation
and how many are protected by the public goal of the objective
- In Bedford case, says section 1 is not applicable because the goals were too unbalanced

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CRIMINAL PROCESS

- Procedural overview
 3 types of offences
 Summary conviction (less serious) (judge only)
 Indictable offences (most serious) (judge or jury)
 Hybrid offences (crown can choose summary or indictment)
 (and a 4th type of regulatory offence, contravension)
 Indictment Only
 More serious offences
 Most offences have punishment set out but it not, s. 743 says maximum 5 years
imprisonment
 The accused has to be present at all stages of proceeding
 3 types of processes offered:
 Most serious offences: in exclusive jurisdiction of superior court of criminal
jurisdiction (in ON, that is Ontario Superior Court of Justice (highest level of
trial court) – s. 469 (has option for preliminary inquiry and jury)
 Least serious offences: absolute jurisdiction of provincial court judge (in ON:
Ontario court of justice, no jury) – s. 553
 Offences in the middle: accused can choose mode of trial – s. 536 (2)
outlines process of choice
 **the most process for the most serious crimes:
Preliminary inquiry – trial by judge and jury
 Preliminary inquiry: mini-trial before provincial court, prosecution shows
evidence that there is a basis (prima facie) for case (if not, acquittal, if there
is, case continues)
 How to categorize an offence?
 Look at offence in CC
 If indictment, see if in s. 469, s. 553 to see if most or least serious and if not in
either, then middle offence
 Summary conviction offences
 Maximum penalty is $5000 or 6 months in prison or both
 Accused doesn’t have to appear unless judge orders
 Always tried in provincial court, judge only
 Doesn’t require a preliminary inquiry
 Hybrid Offences (crown election offences)
 Things the crown considers before deciding
 Higher penalty for indictable offences
 If they have a prior criminal record
 If they want the accused to be present at all proceedings
 1994 – parliament increased punishment for crown election offences that
proceeded by way of summary to max 18 months of prison
 If crown chooses summary, then accused doesn’t have choice between judge and
jury and they don’t get a preliminary inquiry

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- Steps in Criminal process
1. Charge  charging document given (place of offence, time and nature of conduct, tells
charged if proceeding by summary or indictment)
2. Decide what type of offence it is
3. Option for plea bargaining (agreement of guilty plea and decide what punishment is)
4. Arraignment (charges read and plea given by accused (guilty or not guilty))
5. Trial
6. Closing statements
7. Verdict (if jury, must be unanimous)
8. Sentencing
9. Appeals (accused has more rights to appeal, easier to appeal if error of law, not fact)
- Interpretation Act
 Should there just be a single federal trial court that handles all criminal trials in each
province?
 Most cases are seen by provincial courts who are overloaded = systematic delays
- Law Reform Commission of Canada – Jury in Criminal Trials
 Facts decided by jury
 Law decided by judge
 Who applies law to the facts?
 Jury, but the judge needs to tell them the law in a manner that is
 Accurate
 In a way that the jury understands
 = many times, jury doesn’t understand the law and cannot apply it = not a just case
- Evidence
 Crown has obligation to prove allegations, do so through evidence
 Evidence can be
 1) oral testimony – question becomes qualification and credibility of witness, less
about relevance (direct evidence)
 2) circumstantial evidence - question becomes that of relevancy
 (policy) Reasons why evidence might be excluded
 Inability of trier of fact to adequately asses evidence
 Concerns of harming values inherent in adversary system
 Protect some relationships in society (those compete with value of truth)
 How to determine intent?
 Accused’s story AND other evidence
 Mental states, intent are proven by circumstantial evidence just as much as
testimony

- Presumption of Innocence

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  Onus on the crown: “crown must prove to a standard of proof beyond a reasonable doubt”
(s. 11d of Charter)
 Common law
 Woolmington v. DPP (1935)
 Facts: man killed his wife, he says by accident after gun went off
 Trial judge said the facts show that she died because of the gunshot but it is
on the defendant to prove the circumstances of accident, necessity or
infirmity
 Issue: does the accused have to prove it was an accident
 Holding: No, contrary to presumption of innocence
o R. v. Abramovitch lays down principle that onus is on prosecution to
show guilt and accused is then innocent, and his case needs to show
reasonable doubt in that guilt
 Why is there this presumption?
 “it is only when there is a reasonable and uniform probability of guilty persons being
detected and convicted that we can allow humane doubt to prevail over security”
 = greater injustice to imprison innocent people
 Reasonable doubt, legal meaning
 It has a legal meaning
 R. v. Lifichus
 The reading of reasonable doubt should include:
o Not based on sympathy or prejudice
o Based on reason and common sense, logically connected to
evidence or lack of
o It is not just the common meaning
o Not to a moral certainty = probably guilty is not good enough
o Not the same standard as making choices in everyday situations
o Not an absolute certainty but more than probably guilty
 R v. Starr
 Meaning of reasonable doubt is closer to absolute certainty than balance of
probabilities
 Credibility Contests
 In many sexual assault cases, comes down to credibility of victim and accused
 In jury trial, being incredible does not mean guilty however
 R. v. S
 Called into question the “W.D. questions”
 Which say, not choosing one side over the other side but looking at
everything as a whole and seeing if you have a reasonable doubt that the
accused is guilty
 Onus never shifts from the crown, they have to prove every element of the
crime and the defense has to show there is reasonable doubt in the case
they are making
- Section 11d of Charter
 Persuasive burdens of proof:

26
  Known who bears the burden and it never shifts
 Normally on the crown to prove beyond reasonable doubt
 Sometimes, parliament or courts place this on the accused with the standard being
balance of probabilities = reverse onus
 This is always against section 11d, but can be saved under section 1
 R. v. Oakes (1986 SCC)
 Appeal by the crown because s. 8 of Narcotic control act says if someone is
found in possession of narcotics, it is assumed for the purposes of trafficking
and accused has to establish the contrary (reverse onus)
 Ontario court of appeal held it was unconstitutional, violates section 11d of
Charter
 SCC looked at purpose of section 11d and it is presumption of innocence
 Concludes that “a provision which requires an accused to disprove on a
balance of probabilities the existence of a presumed fact … vilates the
presumption of innocence in section 11d”
 Section 8 of the narcotics act was unconstitutional
 Then you analyze if it can be saved under section 1, apply rational
connection test and still could not be saved

Criminal Justice Policy

- Victims’ rights
 Bill C-32 (Canadian Victims Bill of Rights Act) specifies some of the rights they have (pg. 109)
 Victims feel (bill tries to rectify these)
 Marginalized
 Kept in the dark
 Little power to influence
 Humiliation during cross examination
 Now there are rape shield laws, victim services
 People call for more victims’ rights and accused having too many rights, but proceed with
caution:
 Criminal trial is about determining guilt and punishment of accused, not about personal
redress of victim
 Victim is just a witness, trial not between the two of them
 There are also victim impact statements  how much should judge take them into account?
 Then you get different results based on who victim was (ex. 17 y.o. girl vs. homeless
man)
 If there should be no difference, what is the point of this?
 Valuable to victims healing?
- Scope
 “prevent harm to others” vs. “acts of wickedness so gross and outrageous that they must be
prevented as far as possible” (more moralistic)
 When is the state justified to intervene?
 One principle is according to harm principle:
 = only harmful conduct to others should be criminalized

27
  Canadian committee on corrections (ouimet report, 1969)
 Should not be criminally prosecuted unless substantially damaging to
society
 Should not be criminal prohibited if it can be controlled by social forces
(public opinion, legislation)
 Should not give rise to social/personal damage greater than it was meant to
prevent
 = criminal system should be last resort
 Law reform commission of Canada report (1976)
 Criminal law is a blunt tool, should be last resort (does not have human
sensitivity of other institutions like schools, churches, and it is costly)
 Not be diluted by overkill (=too many laws, offences)
 Scope should be restrained to
o Wrongfulness is a necessary but not sufficient condition of
criminality
o Should satisfy 3 conditions
 Must cause harm to other people/society
 Must be serious in degree and nature
 Must cause harm that is best dealt with through mechanism
of criminal law
 = themes of these reports: should be used as a last resort
 R v. Malmo-Levine (2003, SCC) (Constitutional challenge against marijuana laws)** LC on
PRINCIPLE OF FUNDAMENTAL JUSTICE
 Binnie J. (majority, only one dissent by Arbour)
 Issue: MJ does not harm to others, harm principle is one of the fundamental
principles under s. 7 therefore prohibiting MJ is unconstitutional
 Describes harm principle:
o Writing of J.S. Mill says only reason state can exercise power
without persons consent is to prevent harm to others
o The sake of ones’ own good is not enough of a good reason = rejects
paternalism
o Also rejects moral harm, if something is immoral, does not mean it
should be criminal
 Asks is harm principle is a principle of fundamental justice
o What is a principle of fundamental justice?
 Legal principle
 Significant societal consensus that its fundamental
 Has to be identified with precision that yields manageable
standards to see deprivation of those liberties
 Rejected notion that it is a principle of fundamental justice under section 7
o We have laws not in accordance with harm principles (ex. Incest,
bestiality)
o We have paternalistic laws (ex. Seat belts) and not viewed as unjust

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 o ‘harm” is not able to be identified with precision and not a
manageable standard (harm is a broad term and can be seen as
subjective)
 Adversary system vs. scientific system
o Scientific system has judge active in the investigation of the facts
 Does adversary system get closer to truth?
o Goal of the lawyer is to present best picture of client
o Assumes equality between parties, but not the truth
o Based on witness testimonies that have their own biases (but how can a system get around
that)
o Guilty pleas can be problematic
- Adversary System of trial in Canada (both civil and criminal)
- Fundamental argument between facts
- 3 basic features
o Party control
 Parties are in control of the trial, they decide who are the witnesses, what
questions to ask, they bring the charges
 They instigate the proceeding and decide which evidence they bring forward
o Passive judge
 Watching the context unfold, there to keep the parties following the rules
 Like an umpire
 Should be mostly silent (don’t have to be)
o Highly formalized rules
 Procedure, kinds of evidence used
- The trial is a contest between two parties, and it needs to be fair
- Advantages?
o Because they are competing, they are highly motivated to bring forward all the evidence
and therefore will get a better picture of the facts = therefore better way to get facts
o The judge will not become biased because they are not associated with either side =
impartiality in the system
o Satisfaction = there is a satisfaction that comes from putting their case from their point
of view from the point of the view of the accused
- Disadvantages?
o The resolution is a win-lose, can’t be win-win
o Presumes both parties start out on equal standing (since it’s a competition, to be fair,
they should start off fair), and most cases they are not
o If judge was involved, then someone who is directly involved in finding the truth is more
efficient than just two sides trying to put their sides there
o The combat effect – the parties can get in the way for the search for the truth if that is in
their best interest (ex. Burying evidence under motions)
- Coglin article:
o Prosecutor not supposed to act in an adversary way towards the defence:
o SCC explains role of prosecutor as excluding the notion of winning or losing

29
 o Many decisions get made without the adversary system, ex. On bail or by agreements
o Guilty pleas are common
o Lots of cooperation between lawyers and crown, there is a lot of action in the meta
system and not the actual adversarial system – this is still part of the adversary system
because the parties have control to make bargains and agreements, and the meta
system is based on the adversary system because those rates are based on the
adversary system
o = Role of lawyers is not adversarial, that is only in trial
- Women’s right in this system?
o Are there aspects in this system that are against women’s rights?
o Feminists argue that law is based on male psychology and behaviour, values are
rationality, objectivity, hierarchy, competition whereas women’s approach to moral
reasoning is different, more about ethics of care, inclusivity, understanding
 Law takes a competition of rights approach and can be improved by taking a less
binary approach, which it has by more emphasis on alternative dispute
resolution (less so in criminal system)
 These are just a case of different values, don’t have to be genderized
o Judicial impartiality vs. making the judiciary more diverse (gender, race, religion)
 In 2003 about more than a quarter of federal judiciary are women
 What’s the point if people are supposed to be neutral?
 Justice is a lot about public confidence and the more it appears neutral
by having it reflective of the diversity in Canada, the more they have
confidence in it
- Bertha Wilson – will women judges have a difference?
o Depends if you think having women will have a different view than if men were to be on the
bench
o Her take is in some laws it will have a bigger effect, like in criminal law
o Why is diversity important – having diverse bench shatters stereotypes, in order for the
impartiality to be seen, the bench should be reflective of the society
o Women have a different ethical sense
o *need womens perspective because that is part of the whole societal perspective
o Debate about neutrality and diversity still very much alive

Aboriginal Peoples in the Criminal Justice System (pg 143)

- They are over represented in the prison system (4% of total population, but 25% of federal
prisons) (this was recognized in the a case, R v. Gladue)
- Still increasing however, especially aboriginal women in prison
- Why?
o Systemic discrimination (actors in the system that are consciously acting on bias) and
procedural discrimination
o They have social conditions and history that has led them to substance abuse, violence,
trauma that has made them more into the criminal system
- Law Reform of Canada Study on this

30
 o Different tribes, but have common themes:
 Believe Criminal Justice System does more harm than good
 Criminal offending by aboriginal people should be dealt with by aboriginal
people and built on aboriginal values
 How do we know which cases we should formal criminal system and
which ones the aboriginal dispute resolution applies?
 What if the victim and accused want different systems?
 If they feel alienated, does giving them their own system work? How
much should we work towards integration?
 Pro:
o Will be culturally sensitive and remove the systemic bias in our
system
 Cons:
 One of the aims of our system is that similar acts should have similar
punishments and within the Aboriginal system, it is said it will not be
homogenous – how can these differences be reconciled?
 Why is this different from any other cultural group?
o They lived here before our country was formed and had their
own legal system and they get those systems recognized by the
Constitution, and different from other communities that have
come here to Canada
- Dancing with a ghost, Rupert Ross
o Describes Whitehorse dealing with Native justice issues
o Where’s the factual determination of what happened? Where’s the sentencing?
 This is coming from a lens of our system
 Let’s figure out where their perspective comes from?
 They want to put the incident behind them and move on and restore
harmony
 We believe in rehabilitation too but only after you have served
punishment, whereas they skip right to rehabilitation
- R v. R.D.S. (pg 148)
o 15 y.o black youth arrested for assault of officer when he interfered with the arrest of
another youth
o In the trial, came down to different stories of accused and police officer
o Judge Sparks, believed the story of the accused and told her judgement (pg. 149)
o An appeal was made because her judgment was said to show apprehension of bias
o Court is in agreement of the test to see if there was an apprehension of bias:
 Test: Would a reasonable well-informed person aware of all the circumstances,
conclude that there was a reasonable apprehension of bias?
 (if yes, then acquittal squashed and have to order a new trial)

Judge Cory J (2) Major J (3) L’H-D J (2) Gonther J (2)

Reasons - Remarks were - Remarks - Remarks were - Agrees with
about worrisome, unacceptable appropriate Cory J analysis

31
remark close to line because she - Example of and also with
because no was making a contextualized L’H-D
evidence in the finding that judging  the - Thinks they are
case to suggest officer was judge was appropriate
racism and acting out of acknowledging
judgement has racism which a dynamic that
to be made in was not shown is well known
frame of facts in the facts in this
- Relying just on - She was community
the concerning stereotyping - They should
words, could police officers not be
be construed as racist and as expected to
as liars divorce their
stereotypical life experience
- But in context, from the
did not give bench
rise to - A headlock for
apprehension a 15 year old is
of bias (in an
context, overreaction
improper for and can be
crown to say said to
have to believe
police officer
because he is a
police officer
and she
suggested a
reason why
not to believe
the officer)
Result - No reasonable - There was a - No - No
apprehension of reasonable reasonable reasonable
bias apprehensio apprehensio apprehensio
n of bias n of bias n of bias

- 6-3 judgement for no reasonable apprehension of bias so the acquittal is reinstated

- But 5-4 judgment for thinking that those remarks were at least worrisome and judges should
avoid this language in the future
- So difficult to look at ratio, the leading statement would be Cory J. (in majority in both cases),
and the one thing that all judges agree about it you cannot make factual findings that are not
based in evidence but instead based in stereotypes

32
THE ACT REQUIRMENT

Introduction

- Elements of the offence are the ones the crown has to prove to convict the accused, two
different kinds of elements (all criminal offences have to have an act and a fault element)
- External elements (actus rea)
o Act*** (externally manifested act) NEEDED. – the act element is always in the provision
that creates the offence
o Circumstances (don’t have to be included) (ex. trespassing at night (night is
circumstances)
o Consequences (don’t have to be included) (ex. stab someone with the intent of murder,
but did not die, and person actually has to die for the offence of murder)
- Fault elements
o Mens rea (mental element, ex. intention)
o Negligence (no intention but did something dangerous)
- Ex. escaping from lawful custody?
o Act: escaping
o Circumstances: from lawful custody
- Why do we require an act element?
o We all have negative thoughts/intentions, we would all be in jail if act was not the basis
= unacceptably stretch criminal system by punishing for non-act related things
o Harder to prove what you are thinking without external manifestations

Possession Offences

- What do you have to do to “possess” something? Talking about the ACT element
- Types of Possession in the Code (these are the definitions for possession in the whole code)
o Personal possession s.4(3)(a)
 Having something “on” you, or in your bag, etc..
o Constructive possession s.4(3)(a) (i) and (ii)
 Knowing something is somewhere and keeping it there with the intention of
using it/viewing it
o Joint possession s.4(3)(b)
 When 1 or 2 people in a group, with the knowledge and consent of the rest has
anything in his custody or possession, shall be deeded to be in possession of all
of them
- Marshall v. R.
o 16 y.o. accused of possession of marijuana
o Went to a car, found out it had marijuana in it, once they were asked to follow a police
car and threw it out, then after they went to pick it up but he said no but they didn’t
listen, he did not smoke it but passed along a pipe
o Only possession he was in was joint possession
 Could he have said to be in personal possession?

33
  He did pass on the pipe which is possession
o Defence said that is a reflex action and should not be taken
seriously
o Court of appeal said he did not have consent of it so was not guilty of possession
 He had the choice to leave the car and it would have been wiser to do so
 Class agreed it was not wiser to do so
 All consented to being in the car himself but did not consent to having the weed
there, but did not have control over that

- The leading case on possession:

- R. v. Terrence
o Terrence charged with possession of a stolen vehicle, he was in the passenger seat of a
car that was stolen and was driving with the thief (and will say for this case he knew it
was stolen)
o Does section 4(3)(b) – does the person charged with possession have to be in control of
the item?
 RATIO: there has to be some measure of control over the possessed thing
(narrower: for constructive possession) (broader: control is required for any
form of possession)

- R. v. Morelli
o Looked at child pornography on his computer, some were saved in his cache
o Is this enough to be possession?
 No. Court said it was stored in a remote location. He does not have a requisite
level of control on the image. Knowledge and control was essential for
possession. Needed control of underlying data file which is more consistent with
traditional understanding of possession (ie. Can be transferred and has
permanence)
 The internet cache has some permanence but he did not know and did not
access his cache to see them
 There is a separate offense for access child pornography
- R. v. Pham
o Dealing drugs from her apartment, boyfriend moved in with her, she left for a few
weeks while boyfriend was still there and visitor also came, police came and found
cocaine in her bathroom and charged her with possession (even though she was not
there)
o They said she had constructive possession (either joint or without her boyfriend)
o Defence said it could be her boyfriends or the visitor brought it in
o Even if someone else brought them, it was clear she was in drug trafficking and so they
could be hers and she would have control over them – the court relied heavily on the
circumstantial evidence of her running a drug business
o Court said yes she was in possession

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  Dissent: not in possession, enough evidence to say someone else could have put
them there without her knowledge (the circumstantial evidence for him was not
enough to remove reasonable doubt)
- R v. Chalk
o Control: power or authority over the item
o Defence: he did not have control and did not demonstrate control because he told his
girlfriend to delete the files, and he had control to destroy (similar to cases of innocent
possession) but not control for possession
o Doesn’t work because he had possession and control over them and only
wanted to destroy them after he was arrested, therefore possession wasn’t
innocent all along
o Important element of this case is innocent possession, which was not the case in
this situation
o Finding: did have control over the videos and therefore possessed them

Consent making an act lawful

- Type of defense
- Consent is part of the act element for many cases, sometimes an act is only unlawful when done
without consent (ex. assault)
o Absence of consent has to be proved by the crown
o Defence of Consent: a big issue in sexual assault cases
 Defense =_ any argument defence makes to help get acquitted
 Narrowly, a “true” “defence” is a circumstance that justifies / excuses conduct when
all elements of the crime have been proven
 A defense of consent is not a “true defence”, instead it’s a way of negating
unlawful act element (ex. its not unlawful because there was consent)
 For consent to be accepted, needs to be to be valid, if consent is invalid in eyes of
the law, it is said to be vitiated (ex. consent of children during sexual assault)

R v. Jobiden (1991) ** LEADING CASE for consent limitations (on assault)

- Facts: victim and defendant got into a fist fight, victim died due to punches suffered by J
- Trial judge found both consented to the fight, but J did not know he was killing him, ie. Did not
exceed consent
- Charged with manslaughter (unlawful act manslaughter)
- Defence said there was no unlawful act because it was not assault because assault requires without
consent because there was consent
- Was there consent? Was the consent valid?
o If yes and yes, then no conviction
- Trial judge said yes and yes, therefore no unlawful act and no manslaughter and J was acquitted
- Ontario court of appeal: acquittal was squashed, said he was guilty and therefore was convicted
- Trial went to SCC by right
- S. 14 says no one consents to being killed and also code has age of consent

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 o What other limits on consent are there?
- Court says consent had been vitiated and therefore he should be convicted, consent is not always a
defense for assault
- Analysis:
o In statute says lack of consent is part of crime – statutes are above common law, and no
limits on this kind of consent
o Court has found limits on consent in the case of assault, therefore case law is criminalizing
conduct that is not in code which is not allowed
o So how did they get around this?
 J. Gontier:
 1) There were limits on consent in common law (s.8 continues to apply
when not inconsistent, s8.3 preserves common law defences including
consent (which are actually supposed to help accused, but he wants to use
it for benefit of crown and uses the broader definition of defence)  can
still look at common law for limits on consent
 2) policy based limits on defence of consent are fact specific and difficult to
layout in advance (and parliament cannot list all the ways consent can be
vitiated) and easier to go case by case for these limits on balancing
individual autonomy and other interests – common law limits on consent
are good policy ***
o No social utility in fist fights and harmful, against public interest to
have adults harming each other and therefore erasing limits on
consents would be regressive and seemingly condone fist fights
o Morally unseemly for law to justify these actions
o Ex. do not apply to other things like for sporting events, there is
consent for the actions that are customary in the game that have
social value (in MMA, is it social value or capital value?), stunt man
creating socially valuable products, surgeries, and where minor
harm is caused  obiter but still important and leading case for
consent limitations even in sporting events
 A distinction or a line was not drawn on social value, social
utility still remains ambiguous
 3) Looked at English case law where common law limits consent in assaults
 What’s the limit the court puts?
 Pg 214 RATIO – adults in a fist fight or brawl, if they intentionally cause
serious injury and non-trivial harm, consent is vitiated
o Cannot be broader than this, it only applies in fist fight between
adults (can apply by analogy to other cases but not directly)
o Bodily harm has to be both intended and caused – this was implied
and a limitation on the vitiation of consent
 J. Sopinka
 The language is clear, consent is a valid defence
 But you have to scrutinize the consent

36
  When someone is seriously injured, the victim clearly did not consent to be
punched when he was unconscious (and he assumed J knew he was
unconscious, which was not stated in the facts)
 Agree with decision but for a different reason
 Does not believe in policy based decision but instead have to scrutinize the
consent
o What does bodily harm mean?
 Gontier: bodily harm is defined in section 2 of code and this applies to bodily harm
in assault

R. v. Moquin

- Judge said anything less than 1 month is not bodily harm

- Appeal judge said no, some bodily harm can be less than a month, bodily harm is less than serious
bodily harm and higher threshold for aggravated assault: bodily harm < serious bodily harm <
aggravated assault
- In many cases, the statute vitiates consent and there is no reason to invoke the common law, ex. if
consent is obtained by fraud
- What kinds of fraud vitiates consent? Historically it has been very narrow but has changed

R. v. Cuerrier (**LEADING CASE FOR CONSENT VITIATED BY FRAUD)

- Did his failure to disclose his HIV + status vitiate the consent of sex of his partners
- Unanimous decision but 4 different reasons
- Cory J. (is the leading test for this)
o Fraud has 2 things: 1) deceiving and 2) depriving them
o TEST: Dishonesty that exposes a person to significant risk of serious bodily harm vitiates
consent, and the greater the risk the greater the duty to disclose
o Failure to disclose HIV status vitiates consents
o (Middle ground of the three judgments)
- L’Heureux Dube J.:
o Fraud in common law is too strict, by enacting s 263, parliament intended to
o TEST: Fraud vitiates consent where deceit deprives person to their ability to exercise free
will in relation to physical integrity
 Any fraud that causes a person to consent, it is vitiated
 (most broad of the three judgments)
 Problem: sometimes there is some dishonestly that may encourage to consent (ex.
say they are committed to long term relationship but not but says it to just have sex
– does that vitiate consent? Not good behaviour but does not merit sexual assault
conviction)
- McLachlin J.
o Previous fraud still vitiates
o Have to recognize other cases but not criminalize trivial bad behaviour
o She wants to narrow it for HIV transmission

37
 o (most narrow of the three judgments)
o Test: when there is deception for a sexually transmitted disease giving rise to a serious risk
of infecting the partner
 Her’s is a much narrower approach and treats STDs are their own category

R.v Mabior

- Was HIV+, low viral load, had sex with 9 people without telling them, also sometimes used a
condom – did his undisclosure constitute as fraud that vitiates the sexual consent?
o At the trial judge level, he was convicted of all 9 for sexual assault because consent was
vitiated
- Test if significant risk of serious bodily harm – were they at “significant risk of serious bodily harm”
given his low viral load and use of condoms
- Deals with uncertainty of the Cuerrir test, and McLachlin (similar to spanking case) says she will clear
up the uncertainty
o McLachlin J. s
 Actual transmission of HIV would be serious bodily harm
 In the context of HIV, (does not apply to other STDS) she means if there a
realistic possibility of transmission
 Where a condom was used and a low viral load, there is no realistic possibility of
transmission (risk of infection in vaginal intercourse is 1 in 1000, condom use
brings it down 80% and low viral load brings it down 90%) – therefore no
responsibility to disclose
 Therefore where he used both a condom and had a low viral risk, he
was acquitted from those

- This is a very temporal decision because the drugs and research around HIV is changing and it is
becoming a more manageable disease
- This branch of the law creates a stigma for people with HIV and make you question whether the law
has gone in the right direction

R. v Hutchinson

- Nature of the fraud is very different, but can we apply the test of serious bodily harm to risk of
pregnancy
- Boyfriend poked holes in condom, girlfriend got pregnant and had to have an abortion
- All judges agree he is guilty of aggravated assault
- But differed as to why there was no effective consent:
o Hutchinson issue – no effective consent because:
 1) complainant never consented at all OR
 Because she would have to consent to an ineffective condom but she did
consent to that (minority view)
 2) Complainant did consent but consent was vitiated?

38
  Majority view: did consent to sex but it was vitiated by fraud
 There is a definition of consent specifically for sexual assault in code
(voluntary agreement to sexual activity in question)
o If the activity was just sexual intercourse, then she did but if the
activity was sexual intercourse with defective condom then she did
not
o The majority took the broader view and said the activity was just
intercourse
o It was fraud because there was dishonesty and the significant risk of
serious bodily harm test does not apply directly because that is for
STDs
o There was a deception that deprived her of her choice to become
pregnant or not
o Can apply by analogy can say to deprive a women of choice of
having kids is a significant health and physiological harms
o This was a serious deprivation of choice and does not equate to
deprivation of smaller things, such as sadness or financial loss, and
smaller deprivations are not serious enough to warrant vitiating
consent

Omissions

- Have to have an act and fault element

- General rule vs. exception
- Sometimes the act can be established by the omission to act – when is not acting a criminal act?
o General rule: failure to act do not give rise to criminal liability
o Exception: an omission can ground criminal liability where the is a legal duty to act
- Moral vs. Legal duties to act
o Moral duty can sometimes be to help people in trouble – “good Samaritan”
 There is no legal duty to even act even if it would cause no risk or expense to the
person (there is no legal duty to even call the police when they see something)
 Should there be a general duty to rescue?
 Against duty to rescues?
o Opens an unlimited breadth of possibilities where you can be liable
to because there are so many people that are in need
o Once you become involved, you are on the hook to act so people
should be free to not become involved – libertarian focus
 For duty to rescue?
o In Quebec, there is a general duty to assist people in peril (rooted in
civil law tradition) (pg 251)
o But not helping people in trouble is not a criminal act, the moral duties are much broader
than the legal duties
- What is an omission?
o Fagan v. Commissioner of Metropolitan Police **

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  Police tells Fagan to park his car somewhere, he drives and lands on police officer’s
foot, the police officer said he was on his foot, and Fagan tells him he can wait, and
then police again says to remove his car, and finally Fagan does
 Fagan is convicted of assault of police
 James J. (majority)
 A mere omission to act cannot be an assault, if all this is an omission then it
is not assault
 In assault, the act and the fault have to occur at the same time
 Here, the argument was that it was not at the same time
o The act was driving on his foot (and assume it was an accident)
o Then it was the fault because he did not remove it
 Court says there was simultaneous because the act was continuous and
started when he drove on his foot and ended when he took it off
 Same as stepping on someone’s foot and staying there, and he used the car
as a median
o It is good that the court recognizes the car as not its own thing, it is
being controlled and an extension of the person driving it
 Bridge J. (dissenting)
 Agreed that Fagan acted deplorably
 No assault because no simultaneity
 After fault started, the only conduct was an omission to remove the car and
an omission cannot be an assault
- When do legal duties come into play?
o When is there a legal duty to act?
 If it exists in a statutes
 If it exists under common law
o Legal duties to act (pg. 255) ***
o Two kinds of cases where an offence can be done by omission
 1) The criminal code explicitly makes a duty and makes it an offence to not act
 Ex. Failure to provide necessity of life (s. 215(1) creates duty (not an
offence) s. 215(2) is the offence of not doing that duty)
 2) some offences are broadly worded enough that they can be done by omission
and legal duty to act is found in another place (other statute or common law) (this
legal duty needs to exist though!)
 Ex. common nuisance (fail to discharge a legal duty, then have to find that
discharge duty)
o R. v. Miller (example of legal duty that arises from common law) (ENGLISH CASE) (1983)
 Falls asleep squatting in a house while smoking, woke up to small fire, nothing to put
it out so moved to other and then house was on fire
 Charged with arson, but looks like omission because did not put out fire
 The act was putting the fire but he was sleeping when that happened so no
fault at the same time and when fault
 Lord Diplock: 2 ways court analyzes it

40
  1) continuous act theory – one act that started when the fire was put and
ended when he did not do nothing (and fault is part of that act)
o No liability for omission question comes up
 2) legal duty analysis – by having started the fire (unintentional), he came
under a legal duty to put the fire out
o This analysis does have a liability for the omission to act by not
putting the fire out
 Doesn’t matter which way you choose, but better to go with legal duty
analysis since easier to explain to jury
o Where a person unwittingly sets in motion a chain of events that
poses an obvious risk and danger, a legal duty arises to counteract
that chain of events (RATIO)
 No clear precedent since English case but can be cited in Canadian cases
o Moore v. R. (SCC – LEADING CASE!!) (1979)
 Moore is charged with obstructing a police officer because he did not give his name
to a police officer who chased him after he ran a red light on his bicycle
 This “resisting or willfully obstructing” wording is broad enough to say there
can be omission
 Spence. J. (majority)
 There is a provision in BC motors act to give information when asked by
police, but not a motor vehicle (so not statutory duty)
 But was under a legal duty to give his name
o Here the police saw him do the infraction of running the red light
and the duty arises because he was seen committing this infraction
o Reciprocal duty analysis: The police officer has a duty to enforce the
law, by ticketing Moore, and that gives Moore a reciprocal duty to
give his name when he seeks it (pg. 260)
 This is limited by the fact that the police saw him actually
running the red light (this reciprocal duty only applies to a
case where the police saw him)
 This is the court limiting this duty
 Dickson J. (dissent)
 Concern about the disproportionality by now committing such a serious
offence after only doing a petty traffic offence
 No statutory and common law duty to recognize themselves to the police in
this case,
o And finds that the other judges invented this duty
 Short of arrest, people have no duty to help or answer police
 The fact that the police has a duty to identify the person does not create a
duty on the other person to identify themselves – the duties are
independent of one another
 Dufraimont: has the right to silence on his side but everyone in the case
agrees that he could have been duty had it said in the provincial BC motors
act

41
 o But this is problematic because criminal acts are federal but it is
province specific issue where he has to identify himself in BC –
federalism issue
o Common law duties – looks like a common law offence when this
omission is seen as a crime (are common laws allowed to recognize
duties and turn actions into offences when they are not allowed to)
 RATIO: There can be criminal offence for omission when a duty is recognized in a
statute, federal or provincial, or in common law
o R. v. Thorton
 Issue: Was there a legal duty to refrain from donating tainted blood?
 Preliminary issue: why is this an omission case? Donating blood looks like an act but
it was a failure to disclose but it was really a failure to not donate tainted blood
 Common nuisance (what he was charged with) is either:
 Commit an unlawful act (which needs to be an offence – donating tainted
blood is not an offence) or
 Failed to discharge a legal duty
 So he breached a legal duty
 Gallogan J. (OCA)
 Common law duty, from tort liability: Duty to refrain from conduct that
could cause injury to another person and can be the basis for the
discharging of legal duty in the common nuisance
o Can you have a common law duty in tort in criminal law? That
means all tort laws are now criminal laws
o Unclear if this common law duty from torts is a common law in
criminal law ** can use this as a possible source for argument
because has not been overruled
 Lamer C.J. (SCC)
 Did not address whether the common law duty from torts applies here (did
not refute it but did not use it either) – it’s in limbo, available as an
agreement but will not always succeed
 Instead, said his actions breached s 216 where there is duty of care on those
doing lawful acts which endangers others’ lives
o R. v. Browne (1997) (LEADING CASE FOR UNDERTAKING AN ACT)
 Brown and partner were drug dealing, partner swallowed a bag of crack when being
searched, but later she was vomiting and clearly overdosed and he told her he
would take her to the hospital
 Charged with criminal negligence causing death (s. 219)
 S. 219 is one that can be done by omission
 Argument: a duty on brown to take partner immediately to hospital
 Trial judge said: the undertaking required brown to have called ambulance and not
taxi because did not take her
 OCA: did not make an undertaking, no legal duty and not guilty of criminal
negligence
 Abella J.

42
 o Some legal duties flow from legal duties between parties
o S. 217 the legal duty flows from the undertaking and not because of
a pre-existing relationship between brown and partner
o Undertaking =_ binding commitment, must be clearly made with
binding intent
o Mere expression of words indicating willingness does not constitute
an undertaking
o Instead an undertaking requires a commitment (generally reliance
will have been placed on the commitment, person A has done
something specifically in relying on person B on doing something)
 She did not swallow the bags relying on Brown to save her
had she overdosed
 = restrict definition of undertaking because unclear how you
can make it, what would a binding commitment look like?
High standard of what an undertaking is
 Dufraimont: another way to look at it, he made an
undertaking to take her to the hospital and he did
o R. v. Peterson (2005)
 Lived in separate apartments in same house, Arnold lived in unhygienic conditions
and had
 Dennis locked his own apartment and did not call agencies to help
 Arnold is found collapsed in street, and committed in nursing home
 Dennis charged with failing to provide necessities of life
 Was Arnold under Dennis’ charge?
 Weiler J.
 Being under charge means having control by one party and dependency on
the other party’s
 Dennis was the person Arnold was returned to by the community when he
went astray
 Family relationship also played into this
 Dennis controlled Arnold’s living conditions (locked him out of working
toilet and kitchen)
 Arnold was incapacitated by his dementia and
 Arnold was unable to discharge his charge from Dennis because of his age
and illness
 Therefore many indicators that Arnold was under Dennis’ charge
 Control and dependency create the relationship under charge (215.1c)
 Financial ability is a defense to failure to provide necessities of life
 Dissent in Peterson case
o Legislation is required to deal with problems regarding care of elderly by
their children, shouldn’t be using criminal law
- Elderly people refusing service in note
o People who are competent are allowed to refuse service, cannot assume elderly people are
incompetent and therefore refuse service

43
 o Might be treating elderly people as presumptively incompetent (but there are elderly people
who aren’t competent and a danger to themselves)

Voluntariness

- Why is it important?
- Part of act requirement (not part of mens rea)
- An act can only be criminal if done voluntarily
- Dickson, J (Rabey)
o No act can be a criminal act if is done involuntarily
- If an act is involuntary, then that is not an act all
- Crown has to prove a voluntary act
- Voluntary act = has to be an act where there is will power to do the act, result of willing mind
making a choice
- Involuntary when unconscious or no control over actions (no physical control over actions) (ex.
Sleepwalking, seizure, someone else physically maneuvering your hand/body, reflex, slip and fall)
- Issue is not whether if person is unconscious or conscious, can still be conscious and do involuntary
actions
- Why won’t criminal for involuntary actions?
o No element of choice
o No point in punishing them, no point having deterrence in place for this because not a
choice
o Unjust (could not have done otherwise)
- Absolute liability offenses
o Criminal offenses require an act and fault element
o Absolute liability offenses are not true criminal offenses, only require act element
o Involuntary acts is a defense both to criminal and absolute offences
- HLA Heart, Acts if Will and Responsibility
o Involuntary actions don’t occur by agents plan of actions
o If unconscious, agent does not think he is doing anything
o Lack of knowledge of consequences (fault element) are not true involuntariness (lack of
planning to do action at all)
- L.H Patient, examples of voluntary and involuntariness (pg. 291)
- R v. Lucki (1955)
o Driving between 10-15mph, made a right turn and car kept sliding on other side of road
(black ice) and hits car on other side
o Charged with inconveniencing other drivers by driving on other side
o Trial judge said it was not negligence, but an involuntary act (same as being hit from
behind), therefore not guilty
o Mistake in reasoning because says it negates mens rea, but fault element does not factor in
because if involuntary, means no actus rea
- R v. Wolfe (1975)
o Owned a hotel, complainant told to stay out, complainant came in and Wolfe told him to
leave, and he does not so Wolfe goes to call the police, while on the phone, complainant

44
 punches in him in the head, Wolfe spins around and hits the complainant in the head with
the telephone receiver and complainant gets a gash in his head
o Charged with assault causing bodily harm
o Trial judge said it was a reflex action but still found him guilty
o On appeal, said fact was he was a reflex, therefore involuntary therefore no actus reus and
he was acquitted
- R v. Swaby (2001)
o Driving a car, passenger, J, ran out of the car in a backyard, J was later found there with a
gun unregistered, J pled guilty to have the gun, Swaby testified that the gun was J and he did
not know it was there until trial
o Swaby was charged with being occupant in a vehicle knowing there was a unregistered gun
in the car (act, being in car, mens rea, knowing there was a gun)
o Convicted at trial
o Did trial prove voluntary act?
o If he learned about the gun while driving in the car, but court of appeal said can’t be guilty if
find out during car ride, needs to be given some opportunity to deal with situation
o Therefore acts can be involuntary when actor had no choice in the matter – question of
choice becomes important (similar to innocent possession)
o Holding: voluntary conduct is a necessary aspect for criminal liability
 Dissent:
 Swaby said he didn’t know about it till during trial, and J said he knew the
whole time so there is no evidence of the facts that there was a
voluntariness problem
- R v. Ryan (1967) (NO PRECENDTIAL VALUE, NOT CANADIAN!!)
o Accused imaged himself as a hero, planned to rob someone and put it to good use, held up
gas station attendant, had a sawed off shotgun at his head, attendant made sudden
movement and Ryan was startled and finger twitched and shot and killed attendant
o Brought a defense of accident, did not intend to shoot the person
o Should jury had been instructed that shooting was involuntary
o Court says no it was not involuntary, jury should not have been instructed, conviction
upheld
 Put a person in grave danger, complex set of actions that went on during this
situation and everything was voluntary, only question about voluntariness was
pulling the trigger, and that is not enough to raise the question of voluntariness
 PROF: but there was no intention but still made the situation dangerous
 In Canadian law, it would most likely be manslaughter or criminal negligence causing
death
- Kilbride v. Lake (1962)
o Person parked, came back and had a ticket for failing on displaying current warrant of
fitness (even though he had it, there when he left but not there when he came back)
o Was he guilty even though he did not have anything to do with ticket not being there
o INVOLUNTARY OMMISSION CASE
o No voluntary act, therefore no conviction, had no choice in the matter (did not have a choice
in the card being gone)

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 o Mens rea does not matter in this case, no act so no criminal liability

Causation

- This is an issue when consequences matter (murder involves killing someone, arson involves causing
damage by fire/explosion, anything causing death/bodily harm)
- 2 kinds of causation, factual and legal (both need to be proven)
o Factual = physical or mechanical cause of death/arson
o Legal = legal responsibility for the outcome, was the act connected closely enough to
consequence such that it can be just to recognize that the act caused the consequence
- Causation in tort vs in criminal law
o Always need to be proven, in criminal only needs to be proven where cases causation is
an element of the crime (not common)
o Standard for legal causation in tort is objective, but for criminal law has special tests for
causation
- Depending on consequences of illegal act, penalties are stiffer
o Is this just? Level of moral blameworthiness is same because did the same thing
o But law takes the view that consequences matter
- Code takes precedence over common law, so make sure to look is causation issues raised is in code!!
- Smithers v. R. ***LEADING CASE ON CAUSATION IN CANADA
o Midget hockey game, got rough, racial slurs thrown to Smithers, after game, Smithers
ran after the guy, and punched him twice, then kicked him in stomach, accused fell to
ground and soon died (did not intend to murder him), victim choked on his own vomit,
had malfunctioning epiglottis
o Charged with unlawful act manslaughter (unlawful act is assault)
o Did kick cause the death? Or was the malfunctioning epiglottis cause the death?
o Issue1 : distinction between expert and lay witnesses
o Defence said jury should only put expert witness on medical evidence, but SCC said jury
can consider all evidence and not limited to medical evidence in these cases
o Issue 2: distinguish between factual and legal causation
 Crown had proven factual causation
o Issue 3: what is the test for causation?
 Pg. 310: RATIO: is the act a contributing cause of death outside de minimus
range? (de minimus means trivial things)
 Kick was at least a contributing cause of death outside of de minimus range
 For manslaughter, if illegal act was contributing cause, then yes
 Does not have the main or only cause of death, contributing cause is a low
standard
o Issue 4: medical concern causes the
 Only thing that could broke the chain of causation was malfunctioning epiglottis
 But does not matter if that was also a cause of death

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  Even if kick only caused the vomiting, it was still a contributing cause and the
epiglottis caused the choking (crown does not need to prove that kick caused
both) but test is for contributing cause
 Thin skull rule application (must take victim as he finds him) and some frailty in
victim that worsened consequences does not mean accused is not responsible
- R v. Harbottle
o Accused and companion forcibly confined a women, companion sexually assaulted her,
then they discussed ways to kills her, he held down her legs while companion strangled
her
o Under 231(5), requires underlying offence and killed happened while offence is being
committing, and therefore convicted of first degree murder (killed during forcible
confinement)
o Whats the causation standard for s.231(5)
o Defense: does causation require something else in this section?
o To cause death under s.231(5)
 Accused actions had to be a substantial and integral part of the death (pg. 314)
 Therefore: test for elevating death from second to first under s.231(5) is
actions have to be an essential, substantial and integral part of killing
 More onerous than other homicide offences – pg. 315 has list of things that
need to be proven for murder under s. 231(5)
 This substantial test does not apply to any first degree murder, only s.231(5)!!
- R v. Nette
o 95 year old widow was victim of robbery, bound and clothes left on her head, died of
asphyxiation 24-48hrs later
o Did robber cause her death?
 Yes, convicted of second degree murder, upheld by SCC
 Arbour J.
 Factual causation: question of cause of death in medical sense
 Legal causation: question of whether someone should be held
responsible for consequence, informed by statute and interpretation
 Separate issues but dealt with them together (test covers both)
 Smithers test applies to all homicide cases, but rephrased in this case:
siginifigant contributing cause test**GENERAL TEST FOR CAUSATION IN
ALL CAUSATION CASES
 Harbottle requires a different test, higher threshold
 L’heureux Dube
 Thinks changing the words changes the test and meaning
- Tests for Causation
o Smithers = to be a cause, act would have to be a contributing cause outside de minimus
range
o Nette = reworded that test to ask is criminal act was significant contributing cause
**MAIN TEST FOR CAUSATION IN CANADIAN LAW (FOR ALL CANADIAN CAUSATION
CASES, including homicide)
o Harbottle = substantial cause test that only applies for first degree under 231(5)

47
(Murder …

- Crown has to show there was a murder and use Nette test to see if they are
- then move to is it was first degree or second degree (and then apply Harbottle test for first
degree)

R v. Talbot

- factual causation: ask the “but for” test (but for the criminal act, would the same harm still be
there) to see if there was causation (except when there was multiple perpetrators all
contributing to the harm)
- legal causation is a moral consequence, even if it was a “but for” act, was the accused actions
close enough to the consequences that he should be held responsible
- believes Nette test covers both factual and legal causation

Situations in the Code that don’t count as intervening cause

Criminal Act -----------(intervening cause?) --------- Consequence

What happens if there is an intervening cause that leads to the consequence?

- When the criminal code upholds the chain of causation (links criminal act to consequence
regardless if there is an intervening cause)
o S 222(5) (c) (causes death by threats, fear or deception regardless of who did act)
o S 224 (nothing done to prevent death)
o S 225 (treatment acts that are improper)
o S 226 (acts that acceleration death from other cause, still cause death)
- When an intervening cause breaks the chain of causation
o R. v. Smith (1959) LEADING CASE FROM COMMON LAW FOR INTERVENING CAUSE**
(BUT NOT A CANADIAN CASE)
 Victim stabbed twice, once in arm and once in back (no one saw the one in the
back)
 Medical team did not realize how bad he was and received bad treatment (he
was dropped twice and given chest compressions when he should not have)
 Smith: did guilty of homicide because death was caused by bad medical
treatment
 Judgment: was deemed guilty of homicide, bad treatment was not an
intervening cause
 Holding: in order to be an intervening cause, the subsequent causes have to be
overwhelming enough to make first cause merely part of the history
 Was the real reason the person died that he was dropped and got CPR?
They are not so overwhelming that they become the cause of death
 Court: causation requirement does not require the criminal act to be the only
causal factor
o How would it be decided in Canada (given the Canadian laws and codes)
 Smith: stabbing was a significant contributing cause (Nette test) and:

48
  Refer to code s. 225 where it says treatment acts that are improper do
not break the causal link
 The code is always upheld over the Nette test because the Nette test is common
law --- ex. If the wounds had almost healed and then some really bad medical
treatment was given, you could argue that the stab wound was no longer a
significant contributing cause but the code would trump that and say it is an
intervening act that did not break the chain of causation because of s. 225

o R. v. Blaue (again not in Canada)

 Blaue came to victim demanding sex, she said no and he stabbed her four times
and she ran away and got attention of neighbors and got to the hospital
 Victim needed a blood transfusion because she was a Jehovah’s witness and
signed a paper to that affect saying she does not matter if she died she does not
want a blood transfusion
 Blaue: she caused her own death because she did not
 Decision: yes the stabbing did cause the death even if her refusal to get a blood
transfusion was a cause of her death, the stabbing was still also clearly a cause
as well
 Defense said her choice was unreasonable enough to break chain of
causation
o Court says religious beliefs cannot be said to be unreasonable
o Court refers to thin skull rule and take the person as you find
them, including their beliefs
 Prosecution said that if she had gotten the blood transfusion she would not
have died, but the court said that does not matter
 In Canada …
 Section 224 would apply which says even if her death would have been
prevented by taking proper means, that is not an intervening cause
therefore decided the same way

o R. v. Maybin (CANADIAN CASE!!!) (CITE ON INTERVENING CAUSE ISSUE BECAUSE SCC

RULING ON CAUSATION (SAY CAN USE BUT FOR TEST FOR FACTUAL CAUSATION AND
SIGNIFIGANT CONTRIBUTING CAUSE))
 Maybin brothers beat up victim and left him unconscious on pool table
 Bouncer asked who started fight, someone said the victim, bouncer punched
victim in head and threw him out
 Victim died of a brain injury in hospital (unsure who’s assault caused his death)
 Trial judge acquitted all of them from manslaughter because could not
 An important factual finding was that the trial judge said it was two
separate transactions and have to look at them separately (therefore
can apply but for test)
 Court of Appeal squashed Maybin brothers accuital, bouncer acquittal upheld
 SCC: Maybin should not be acquitted and bouncer still acquittal

49
  But for (factual causation) – Maybin brothers do not satisfy but for
cause because but for their actions, he would not have been harmed
but the bouncers assault can be in but for test because victim could still
have died even if bouncer did not punch him
 The bouncer would never have punched him if the Maybin brothers
never beat him up
o Bouncer is guilty of assault, and the only reason he was
acquitted was because this was a causation case
 Applies but for test
o But for the maybin brothers, he would not have died
 Legal causation
o Significant contributory cause?
o Is it morally ok to hold them guilty for this act
 Was the bouncer actions an intervening act? Two approaches
o Was the intervening act reasonably foreseeable? If it was
reasonably foreseeable, it would not break the chain of
causation
o Whether the bouncers act was independent act that broke the
chain of causation
o Court says they are analytical aids can be helpful but main test
still applies
 What exactly is foreseeable? That the general nature of
the intervening act and the risk of harm were
foreseeable
 Physical intervention by bar staff was
foreseeable (usual tool to suggest chain of
causation not broken)
 Independent acts?
 Independent acts should not be laid at feet of
Maybin brothers, we should focus on
independence of act
 The bouncers act was not independent (even if
two separate interactions) because close in
time and place and aligned with brothers acts
 Test for causation remains: whether the original cause was a significant
contributing cause
o Says it was
- Cases about drag racing
o If two people are drag racing, one vehicle hits and kills and pedestrian (and he is guilty
of driving kills person) but would the other person who didn’t hit the person still be
convicted of murder?
 Can use the but for test, second person can be factually responsible because but
for if the other person was not racing him, he would not have been going that
far

50
  Canadian cases say: that when racers drag race, they create a singular
dangerous situation and they all create the risk and they are all held responsible
regardless of whose car kills someone
 Legal causation? Courts are clear that other people in drag races are morally
responsible and it is appropriate to extend the chain of causation
 Extending legal causation is just a question of policy and the courts think
this is good policy
- Problem 1 pg 347
o Should the original assaulters be held responsible for the death? Or did the person hitting him with the car
break the chain of causation
 But for test: if they had not beat him and leave him there, he would not have been struck by the
car
 Significant contributing cause: reasonably foreseeable? Yes. But can say it was an independent act
also because the driver was negligent in itself
 **similar to criminal law exam question*** (pg. 569 has other questions)
 Can go either way but have to make sure you acknowledge both sides and then state
which one is stronger

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FAULT REQUIRMENT

Introduction

- An act that looks the same might be a more serious offence given the fault level
o There’s fault in negligence and fault in someone’s bad intention
- Criminal acts require the fault element
- Different fault element for different crimes (ex. For possession, knowledge of drug is mens rea, in
homicide, required to foreseen consequences of your dangerous acts)
- Fault elements mirror the act elements (ex. Touching someone for assault, you need to know you
are touching someone)
- Subjective/objective
o Subjective mens rea might be required: the offender must actually hold the blameworthy
mind during the act
 Mens rea applied to subjective
o Objective: ex. Negligence, and the question then becomes if they lived up to a certain
standard
 Can use fault, which is a broader term to encompass element
o Depends on offence and can use both
o No fault element offence: absolute liability
o R. v. Hundle
 Subjective test asks what was in the mind of accused, test of negligence is an
objective one
 In this case, was a dangerous driving case and required objective fault element
o How do you prove subjective mens rea?
 Pg 352: the law sees peoples mental state as an objective fact (“the state of man’s
mind is as much a fact as the state of digestion”)
o R. v. Theroux
 Looking for guilty mind and purpose of the mens rea is to protect morally innocent
 Mens rea has nothing to do with accused system of values
 Even if they didn’t think it was wrong, if they wanted to do it
 Proof: subjective state of mind can be inferred through circumstantial evidence
o R. v. Mulligan
 He stabbed her multiple times and she died, did he intend to cause bodily harm or
to murder her
 The evidence includes his acts and what he said (he told the police he did not mean
to kill her) but court said based on his acts, can infer he did mean to murder her
because he stabbed her multiple times
o R. v. Ortt
 “Presumption” said by judge to jury, and that was wrong because it implies the
person knows exactly what the act would produce
o R. v. Walle
 Talks about ways of telling juries how to understand intention

52
Regulatory Offences (Fault for these offences)

- Not true criminal offences, called quasi-criminal offences

- All valid provincially enacted offences are regulatory offences, some federal regulatory offences as
well
- Require a lower level of fault
- Beaver v. R. (1957, SCC) (VERY IMPORTANT CASE!!)
o Judges thought they had two options when looking at fault:
 Some offences require subjective mens rea (what was in accused’s mind)
 Absolute liability (no fault element required to be proven, only act)
o In this case, court was deciding which category this offence falls into
o Facts: accused and brother possessed heroine, sold to undercover officer, accused said he
thought it contained sugar not heroine (have to assume jury believed him)
o Trial judge told jury does not matter if they believe his story or not, so for our analysis,
assume they believed him
o Charged with possessing and selling heroine
o Trial judge told jury, if he actually possessed and sold it, he was guilty and it did not matter if
he thought it was sugar (ie. Treated it as an absolute liability offence)
o Legislation (pg. 358) says anyone who possess drug is guilty (seems like eliminates mens rea)
o Issue at SCC: is possession a mens rea offence?
 Majority
 Possession of heroin is a mens rea offence, subjective mens rea is required
 2 kinds of knowledge is required for possession
o Knowledge of possession
o Knowledge of what it is (ie. Drug)
 Court says this is a criminal law, therefore requires subjective mens rea
 Court talks about how it is unjust not to have knowledge requirement for
possession
o Need to have fault (negative moral worth on action), wrong to hold
people responsible where they were morally innocent (person buys
thinking baking soda, but it is heroin, but if absolute liability, then
guilty)
 RATIO: no possession without knowledge of character of substance
 Also says that default fault level for criminal offenses is subjective mens
rea
 Therefore conviction for possession quashed
 But did uphold the selling conviction (because in statute, applies to people
selling things as heroine (even if it was not heroine))
 Dissent
 Possession is be absolute liability
 Because public welfare offence (regulatory offence, not true criminal
offence)
o Majority says to this: more akin to criminal offence because
criminally offences apply to actions that are fundamentally wrong

53
  Because no mens rea requirement in statute, did so to be firm for drug
trade
o **Majority says to this: no mens rea in most criminal offences,
therefore no merit in this argument
- R v. City of Sault Ste Marie ***LEADING CASE FOR FAULT IN REGULATORY OFFENCES
o First time courts said more choice in fault for regulatory offences other than subjective and
absolute
o Facts: landfill leaching pollutants in creek, charged with depositing materials in creek that
would impair quality (pollution offence)
o City had outsourced landfill to another company (and they were convicted)
o Issue: was city also responsible for pollution, what was their level of fault?
o Defence: city hired someone else to do it, we are not guilty
o Dickson J:
 Says they are strict liability offences (in between absolute and subjective) AND THEY
ARE DEFAULT FOR REGULATORY OFFENCES
 In criminal offences, true crimes require subjective mens rea
 Regulatory offences don’t have same level as true crimes
 They are there to uphold public welfare
 Arguments in favour for absolute liability in regulatory offences
 Should be a high standard of care, will inspire people to take greater care
 This allows efficient enforcement, too much admin difficulty for crown to
prove mens rea in each of these cases
 Less social stigma and less penalty, therefore not worried about unjustly
convicting people
 Arguments against absolute liability in regulatory offences
 Counter argument to inspire greater care: not allowed to bring how much
care they did take in argument since does not matter
 Stigma and penalty could be high (imprisonment)
 Questions efficiency argument, do so in criminal proceedings so can do it
here
 *punishes morally innocent*
 Does not mean all regulatory are subjective mens rea then, comes up with middle
position: strict liability
 Offence is proved when crown proves act beyond reasonable doubt
 Then a due diligence defence if open to accused (to show that he was not
negligent and did diligence) on balance of probabilities
 Only difference is that accused can present defence of due diligence, but
crown still only needs to prove act
 Due diligence is that accused must prove that he was not negligent and took
reasonable care
 Does not mean all regulatory offences are not strict, if doesn’t say anything, then its
strict liability but legislation can make a statute absolute or subjective mens rea by
writing it that way
- R v. Wholesale Travel Group

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 o Is the offence a criminal or regulatory offence?
o Issue: travel issue was charged with misleading ads
o Offence allowed for large fines and imprisonment (high penalties), therefore defence said
should be criminal offence
o Cory J.
 No one test, but there are different indicators
 Distinction between acts that are bad in themselves (criminal) and regulatory
offences are not inherently wrong but if not regulated, then will have negative
offenses on society (regulatory offences)
 Regulatory offences have shift in emphasis from punishing moral fault to protecting
public interest
 Regulatory offenses more future oriented, protect future, criminal acts are back
looking, look at thought process
 Regulatory offenses induce compliance
 Criminal offences reflect moral culpability
 Imprisonment is a factor that can suggest we are dealing with criminal offense (can
still be regulatory though)
 Misleading advertising is a regulatory offense because…
 Not wrong in itself, part of overall regulatory scheme that clamps on anti-
competitive forces
 Stigma of misleading advertising not very high
 Why regulatory offences treated different?
 For regulatory offences, you have to do something that makes you opt into
a scheme (criminal laws apply to people in general)
 Regulatory regimes are there to protect vulnerable members of society (ex.
Protecting employees from employers)
- Charter standards WRT to regulatory offences
o Constitutionally required faults (minimum level of fault needs to be proved for certain
offences)
o Are there offenses that require (under s.7) that a certain level of fault be proven?
 Courts have looked at stigma and penalties
o Common law default fault element but legislation can change it up or down, but the
constitution lays out a floor that it cannot go below
o RE: BC Motor Vehicle Act Reference (1985)
 Government seeks advice on charter standards for regulatory offences, specifically
s. 94(2) (pg. 388)
 Offence that is absolute liability but also carries mandatory penalty in jail for 7 days
 Is it constitutional?
 SCC
 No, contrary to s.7 of charter
 Holding: principles of fundamental justice is not just procedural but also
substantive
 One of the principles is innocent is not punished (cites Beaver, baking soda
person)

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  Absolute liability runs counter to principle of fundamental justice, but only
violates s. 7 when it deprives right to life, liberty and security
o Imprisonment deprives right to liberty
 RATIO: Therefore combining absolute liability and imprisonment, that law is
contrary to section 7
o Even the possibility of imprisonment is offending to s. 7
 So strict liability is the constitutionally minimum fault for any offence that
carries possibility of imprisonment
 And in this case, cannot be saved under s.1
- Fault offences don’t have to be strict liability
- R. v. Beauchamp
o Not strict liability but express fault requirement, the accused has to prove negligence
beyond
o Charged with careless driving in Ontario
o Mackay J.
 Fault requires the accused breach a standard of care
 In light of circumstances, did the driver and would a reasonable driver drive the
same?
 The driving not only has to fall below the reasonable standard, it has to also breach
a duty to the public and needs punishment
 “Due diligence” in his care?
 Is he deserving of punishment is another element the court will look at

56
Murder

- Statutory provisions:
o Section 222
 Homicide = directly or indirectly causing death: divided into two categories

Culpable Homicide Non-culpable homicide

(ex. Without any fault,
accident that could not
have been avoided)
Murder Manslaughter

Not an offence

Homicide = causing human death

57
- Dif between murder and manslaughter is fault element
- Manslaughter is always there and murder can be downgraded to manslaughter
o Unlawful act murder
o Death by criminal negligence
- Murder has a higher level of fault than manslaughter
- What makes a killing murder as oppose to manslaughter?
o Section 229 and 230 talk about this
o Section 229a*** (always cite for fault element for murder) THE DEFINITION OF MURDER
FOR CANADIAN LAW (MAIN ONE)
 2 intents for murder
 1) Meaning to cause death
 2) Meaning to cause bodily harm knowing that is likely to cause death and is
reckless about whether the person dies or not (“whether death ensues or
not” is superfluous and does not add or heighten the requirement in any
way)
o Knowing adds the subjective mens rea
 Requires subjective mens rea – question of what the person means to do
 Question is not what he should have known
 In order to intend something – you act and are certain about it likely causing death
 Acting in a way that is likely to kill someone even if you did not want them
to die is still intent
 Simpson v. R. (NOT MAIN AUTHORITY ON FAULT – SOURCE OF THAT LEGAL PRINICPLE IS
SECTION229A)
 Attempted murder case (victim survived so not murder case)
 Jury charge problem: described fault element as objective (ought to know it would
cause death)
 Trier of fact needs to determine what the person’s intent
 What a reasonable person ought to have known can be used to determine the
intent of the accused but you have to see if the accused reasoning differed from any
way from a reasonable person
 R. v. Edelenbos (primary authority on what likely means for section 229a)
 Sexually assaulted and strangled victim while drunk and lacks intent for murder
because he was drunk and wanted to make her be quiet
 Convicted of first degree murder by jury
 Admitted to killing her that way but did not have the intent (therefore the lowest
conviction he could have gotten was manslaughter since he did not deny that he
caused her death)
 Judge gave unprecedented explanation of “likely” that caused the defence to appeal
= said “could well have caused death” and does not mean probable, ie 51% (might
be too high)
 Appeal judge said that discussion did not prejudice the defence and therefore no
new trial but should not have been given
o Said people understand what likely generally means

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 o Thinks it’s confusing to give it a definition and the normal common sense
definition suffices
o Definition of likely is the common sense definition (but did not define the
common sense definition)
 Constructive Murder
 Other types of homicide that are deemed to be murder even though the section
229a intention is absent
 Used to be known as “felony murder”
o Ex. armed robbery where someone gets killed and all participants in the
robbery are guilty of murder regardless of state of mind
o Questions: fairness of labelling a murder that the person did not know
would cause death
 Also party liability issues, why is everyone guilty when only one
person meant to kill someone
 NOW ABOLISHED IN CANADIAN LAW – UNCONSTITUTIONAL (EVEN IF IN CODE –
(BECAUSE PARLIAMENT IS IN CHARGE OF COURT), STILL UNCONSTITUIONAL)
o Parliament should take it out of the code, just have not done it yet
 Vaillancourt v. R.
o Person who killed the person during the robbery fled, the accused did not
know the gun was loaded and tried to ensure it was not loaded
o Charged with second degree murder (under Section 230d – NOW TAKEN
OUT)
 Explicitly disclaims no intent needed
 Homicide if murder is 1) when someone was doing one of the
crimes listed AND 2) death ensues because the person had a
weapon
o HOLDING: Section 230d was struck down
o Lamer J.
 Concern of unfairness of labelling killings as murder when there is
not that intent, murder carries such a stigma and highest penalty
that subjective mens rea has to be proven (**pg 429)
 But says that this is his view, it is obiter so not binding (he
says this is farther than he needs to go for this case)
 Says s230d does not require death to even be foreseeable and at
the very least, death must be foreseeable for it be murder = RATIO
of this case
 Section 7 violation because death not foreseeable
 Section 1 does not save it, even though it does have a good
justification but it goes too far and too impairing of rights therefore
cannot be saved
 This case tells us: fault has to be at a minimum level to be
convicted (fault = OBJECTIVE mens rea)
 In order to determine level of fault, look at stigma and punishment
of crime

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  (but does not decide the fault requirement for murder that’s
constitutionally required – that’s the Martineau case)
 R. v. Martineau (LEADING CASE ON SUBJECTIVE MENS REA FOR MURDER)
o Companion shot two people who they robbed but accused did not seem to
know his companion would kill him
o Convicted of murder under section 230a (not weapon but causing bodily
harm in facilitating the crime is enough for murder in this section)
o Court says unconstitutional
o Lamer J
 RATIO: Murder requires subjective mens rea
 Cant murder someone is you do not foresee their death
 Have to balance moral blameworthy vs. stigma and punishment of
being a murderer
 Only those who kill intentionally should be called murders
 Section 230a is unconstitutional under section 7 and cannot be
saved under section 1 (because parliament can have other ways to
deter bodily harm through robbery)
o Heureux-Dube J (Dissent)
 Agrees with Vaillancourt that death be objectively foreseeable
 But she thinks section 230a does require objective foreseeability
because
 Death has to flow from bodily harm while accused from
dangerous crime
 Accused has to intend to cause bodily harm
 Therefore any reasonable person would know death is
foreseeable
 Therefore section should be upheld because it meets
constitutional requirement of death be foreseeable
 Wrong to see mens rea as the sole determinant of offence because
consequences matter
 Fundamental requirement requires objective foreseeability and that
is all
 Good policy arguments for upholding this section (constructive
murder provision):
 Crimes that are listed we as a society want to deter because
they are serious, these crimes are where lots of people get
killed in these crimes
 Stigma is overemphasized – do we need to worry about
stigmatised people who engage in these serious dangerous
crimes and intending to cause bodily harm, ie. They are
worthy of stigma
 Thinks court is going too far and does not rise to charter
violation

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  ** arguing semantics, all they are arguing is if we are
labelling something as a murder or manslaughter
o Murder is a legal concept and parliament gets to
decide what it is and they have specified it such.
There is no other meaning of murder other than the
legal meaning
 = section 230a should be upheld (but this is a dissenting
argument)
 Martineaux also made all section 230 unconstituional because they all conflict with ratio in
this case (that murder requires subjective foreseeability of death)
o Section 229b
 Meaning to cause death or bodily harm knowing it is likely to cause death and is reckless
about it but By accident or mistake to another human being where he does not mean to
cause that persons death
 = transferred intent
o Section 229c (known as unlawful object murder)read down
 “ought to know” = this language is unconstitutional because allows for conviction without
subjective foreseeability of death
 This section could be read without those words and it works (=called reading down)
- Culpable homicide is murder where a person, for an unlawful object, does anything that he
knows or ought to know (reading down after R. v. Martineau ruling) 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
- OCA says this section can still be upheld by reading down the “ought to know”, SCC has not
made a ruling about it
- R. v. Shand (leading case on this section)
o Accused went to a house to rob MJ, followed a women to the basement who ran
there and he brandished a gun and it went off and killed someone
o Conflicting evidence about whether shot fired was on purpose or by accident
o Trial judge
o OCA: how does s 229 (c) apply?
o When reading it reading down, does require subjective foresight of death
o Court says 6 requirements for this section to apply:
1. Accused must pursue unlawful object (has to different from causing death or bodily
harm of victim) – in this case, it was robbery
2. Unlawful object has to be an indictable offence that requires mens rea – robbery
meets these criteria
3. Accused must intentionally commit a dangerous act in furtherance of unlawful
object – in this case, it was brandishing the gun
4. Dangerous act has to be distinct from unlawful object – can be related but cannot
be the same, in this case it was
5. Dangerous act must be a specific act or series of act that causes death, in this case
brandishing the gun is what caused the death (doesn’t matter if it went off on
accident)

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 6. When committing the dangerous act, accused must have subjective knowledge that
it might harm or kill someone, prosecution has to prove that Shand knew that
brandishing a gun might cause bodily harm
o Court dissuades courts and lawyers from using this section, most fall under s 229 (a)
 Critiques of this case: hard for jury to understand these six requirements
o Said in this case, court said it did meet the six requirements and therefore said it
was murder under section 229 (c)
o “likely” was interpreted by justice Watt in another case saying likely meant more
than 50%

First degree vs. second degree

- First degree more serious, automatic life sentence with this conviction with parole in 25 years
- Big difference is sentencing – in second degree, parole is decided by judge and can be between 10-
25 years
- The conviction is murder, if it is first or second degree is sentencing procedural thing (first degree
murder is not actually a thing)
- If you have a murder, it is by default a second degree murder unless it fits into any of the
aggravating facts laid out in section 231

First degree murder includes (aggravating facts – section 231):

1) Planned and deliberate murder (s. 231 (2))

- R. v. Smith
o Three friends went to an abandoned farm house, intoxicated with drugs and alcohol, started
shooting randomly, one of the friends left and then came back and saw them in a standoff,
accused shot victims arm
o Accused waited while victim asked to be taken to the hospital, accused reloaded his gun and
called him over and then shot him multiple times
o Smith was convicted under first degree
o Was evidence sufficient to say it was planned and deliberate
o Defense said not enough evidence to say it was planned and deliberate, appealed jury’s
o Court agreed, said no evidence of planning
 Cullinton J.: defines and says both planned and deliberated
 Planned = arranged beforehand or result of scheme or design previously
formulated by accused
 Deliberate = considered and not impulsive
 Says it means something more than intentional (intention is required for all
murder)
 Sudden impulse murder is not planned
 In this case, the killing was of a sudden impulse and not planned
o Class: how much time does it need to say it was planned?
 Can say between initial shot and when he killed him, he thought it through
 Prof: questionable, no specific amount of time that has to be applicable
o Shows test is difficult to apply

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 o Leading case on meaning of planned and deliberate (even though from Saskatchewan court
of appeal)
 SCC approved model jury instruction that is pulled from this case
- R. v. Nygaard and Schimmens
o Both of them went to the victims house with a bat and beat him to death
o Murder under 229(a2) and first degree 231(2)
 Defense: if first degree is planned and deliberate then how can you plan to murder
if under s229(a2) they meant to cause bodily harm knowing it can lead to death
 Cory J.
 Said no moral blameworthy difference in causing so much bodily harm that
you know it might kill them and planning to kill them therefore the defense
does not stand
2) Murder of specified victims (s. 231 (4)) (ex. Police officer, prison guards and people working in prisons
all during their job)
- Does accused have to know that victim is one of these specified victims?
o Seems arbitrary about making it first degree based on occupation that the person does not
know
o If doesn’t know, then does not work as a deterrent because person has no way of knowing
o On the other hand: murder is the same, the difference between 1 st and 2nd is just about
sentencing but that comes later
- R. v. Collins (LEADING CASE)
o Goodman J.: Accused must know that the victim is in the specified victim list
3) Murder while committing specified offences of unlawful domination (s. 231 (5))
- R.v. Arkell
o Defense said this section was arbitrary and violates charter because these don’t make it
more serious
o Lamer J.;
 Said it was not arbitrary and therefore section was upheld, they are grouped as
unlawful domination

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Subjective mens rea

Fault Ladder:

Motive Highest level of fault

Desire (not normally required to be proved at all)
Knowledge/Intention Subjective mens rea (knowledge and intention)
Recklessness *default for criminal offences
Wilful Blindness (any one of these can be used to satisfy the subjective
mens rea requirement)
(onus is on the crown to prove these)
Negligence Objective fault (measuring their fault against an standard)
Strict Liability (default for regulatory
offences) (crown needs to prove act,
defense can show due diligence)
Absolute Liability No fault at all

- An offence may require subjective mens rea by virtue of:

a. The charter – constitutionally required fault (ex. In murder, attempted murder, war crimes, crimes
against humanity and arguably theft (because in obiter in Vaillcourt) although its required in the
statute)
o Important but very few crimes
o Also some crimes by charter that does not need subjective mens rea: Dangerous driving,
manslaughter, failure to provide necessities of life
b. Statute
o “intentially”, “willfully”, “knowingly”
o Many in the statutes
c. Common law
o all criminal offences, level of fault default is subjective mens rea (get this from Beaver)
o for regulatory offence, level of fault default is strict liability
o most under this
- R. v. H (A.D)
o Mother did not know she was pregnant, gave birth in Walmart bathroom but child was blue
and she thought it was dead so she left child there, bystanders rescued it and it is safe now
o Mother charged with child abandonment
o Trial judge acquitted, she did not know it was alive so no subjective mens rea
o SCC, Cromwell J.
 There is a presumption of subjective fault element
 Act element is to expose and abandonment denote subjective mens rea
o Moldaver J.
 Requires an objective mens rea because needs to protect children, subjective fault
will give too many defenses
 Says similar to failure to provide necessities of life which has objective mens rea
 But trial judge was right to acquit because her believing baby was dead was
reasonable so she would have met objective mens rea

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 o Therefore whole court upheld acquittal but differed on if this required subjective or mens
rea (majority said subjective mens rea offence)

What specific states of mind that might constitute as subjective mens rea (intention, knowledge,
recklessness and willful blindness)

- Motive
o Not the same as intention (intention is part of mens rea)
o Motive = is why someone did it (but this does not have to be proven)
o But showing there was a motive can help show intention and also act (mens and actus rea)
o But parliament can frame offences to require motive (ex. In some terrorism legislation)
- Desire/Purpose
o Court says these words depend on context of where it is in the code
o R. v. Hibbert
 S 21(1)(b) “for the purpose of aiding” – what does purpose mean in this case?
 SCC: Lamer J.:
 Two types of interpretations in this case
o 1) The reason behind the persons actions, ie. Desire the
consequences of the actions or indifferent
o 2) purpose of intention, you know the consequences of your actions
but you might not desire them
 In this case, purpose is intention
o Main meaning of purpose is intention in the code
- Intention/Knowledge (highest subjective mens rea needed for criminal law)
o Intention in terms of result, knowledge in terms of knowing what you are doing
o Leading case for definition of intent:
o R. v. Buzzanga and Durocher
 Some offences where knowledge and intention (the highest form of subjective mens
rea) are required (recklessness not suffice)
 Thought there was prejuidice against the French in anglo community
 Printed offensive flyer against French people, trying to expose bigots of community
and generate sympathy to build school
 Charged under 319 (2) – willful promotion of hatred
 Convicted at trial, then appealed to OCA
 Martin J.
 Said no it was not willful promotion
 Willful promotion means intentional promotion of hatred
o Willful means different things in different places of code, for this
offence, it means intentional and recklessness would not have
sufficed
o Ratio: 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

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  “with intent to” “means to” “in order to” – shows intention required as subjective
means rea
- R. v. Boulanger SCC! 2006
o The accused daughter got into an accident, he asked his subordinate to write a
report that it was not her fault (it was not her fault but the original report didn’t
elaborate that) and gave it to insurance to save money ($250)
o Charged with breach of trust (corruption offence, abuse of public office, usually to
do with personal benefit) (serious offence)
o McLachlin J.
 Mens rea can be inferred from the circumstances, especially if accused tried
to conceal their actions or if accused received significant benefit
 Can get some benefit but line is significant benefit
 Getting a benefit is important but not determinate of this mens rea
for this crime
 In this case, he knew he would get a benefit but does not mean it’s an
improper purpose
 But it was not a false report, there was no intention to mislead, no improper
purpose – it was partial but was not skewing facts
 Said it was an error of judgement but crown did not prove mens rea beyond
reasonable doubt

- Recklessness
o Recklessness is not the same as negligence
 Negligence is an objective standard
 Recklessness is an subjective standard
 Conduct of someone who sees the risk and takes it anyway despite the risk
 Not the same as intention, intention requires substantial certainty but recklessness
is not about certainty but just an idea that the risk will flow
 (from Sansregret v. R.)
o R. v. Theroux
 Took deposits from buyers said it would be insured for condos, but it was not
insured and he knew that, but project went under and buyers lost their money
 He knew it was not insured but honestly thought the project would not go under
 SCC Mclaughlin:
 Actus reas for fraud requires deceit and deprivation (dishonest act is lying to
buyers about insurance) (deprivation is placing their money at risk)
 Mens rea is subjective awareness about the prohibited act which could
cause the possible consequences
 So level of subjective mens rea is recklessness (don’t need to have intention
or desire) for this fault
o Recklessness is knowledge of the consequences (and consequence
is fraud)

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  Another way to look at this: certain that their property at risk and therefore he had
knowledge but court says he was reckless as his mens rea
- Willful Blindness
- Wilful blindness is a common law concept
- Sansregret v. R. (leading case on rape) SCR 1985
o Recklessness is not the same as negligence
 Negligence is an objective standard
 Recklessness is an subjective standard
 Conduct of someone who sees the risk and takes it anyway despite
the risk
 Not the same as intention, intention requires substantial certainty but
recklessness is not about certainty but just an idea that the risk will flow
o Wilful blindness
 The law presumes knowledge can be known and the person knows it can be
obtained
 Not that fault lies in the failure to make inquires but it’s having a suspicion
but going ahead in spite of that (a deliberate suppression of suspicious)
 Tantamount to knowledge
 Arises where person becomes aware of a need of an inquiry but decline to
inquire because does not want to know the truth
 Ex. In possession cases or accessory to murder
 Why would someone want stay ignorant? Because the person knows that if
they know, they can plead ignorance and act like they did not know and
won’t be held responsible
- R. v. Briscoe (SCC 2010)
o Court adopts notion that wilful blindness is deliberate ignorance
- R. v. Lagace
o Can make inquires but that does not let them off the hook if they still have those
suspicions after the inquire
- R. v. Blondin
o Imported hashish in scuba tank
o But when found, said knew something sketchy was in the tank but he did not know
it was hashish and does not know what hashish is
o Trial judge said to jury – he was guilty if he knew it was hashish he was importing
(because he was charged with importing hashish – importing narcotics in schedule B
for example)
o Crown said it would be enough to convict if he knew it was something sketchy
o Court of appeal said trial judge’s mens rea was too much narrow and crown too
broad
 Said it would have been enough is he knew substance was a narcotic, mens
rea in a more broad sense
 Jury should have been told if he was reckless to the risk it was narcotic or 2)
wilfully shut his eye to what it was

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  But no mens rea if all he knew it was something illegal because he could
have thought he was importing something that had to have duty on them
(ex. Scarfs for resale) since that is much less serious
 RATIO: an accused can’t be convicted of smuggling drugs unless he knew it
was drugs
 Class: there are levels of seriousness in drugs importing, if he was importing
heroine but thought it was MJ, he would be convicted of a much more
serious charge without that mens rea

Crimes of Objective Fault

- Crimes that do not require subjective mens rea

- Called crimes of objective fault or negligence crimes
- Ex. Careless use of firearm, treason
- Where objective fault is explicitly required, uses words like “reasonable”, “ought to know”, “good
reason”, “careless”
- ***(crimes of negligence = negligence crimes = objective fault crimes AND THEY ARE NOT THE SAME
AS criminal negligence (this is a type of objective fault crime – only two criminal negligence crimes
(in s 219), the others have multiple offences under them)
- Other offences have been judicially interpreted to require objective fault even if not explicitly stated
- Criminal Negligence (an offense under s219 and is a subset of crimes of objective fault/negligence
crimes)
o Criminal negligence is not a crime in itself, it has to cause something – ex. Criminal
negligence causing death (s 220) (max penalty – life imprisonment) (form of manslaughter, s
236) or bodily harm (s 221)
 Manslaughter sounds more serious so it was tougher to get convictions so now
prosecuted under crim. Neg causing death
o What level of fault does it require?
 OGrady v. Sparling
 SCC
 Says subjective fault but courts ignored this going forward
 R. v. tutton and tutton
 Couple lost young son to diabetes, they were learned about how to control
diabetes
 Belonged to faith healing religion
 Believed he was cured and stopped giving him insulin, took to hospital, he
was saved and doctors said don’t do this again or he will die
 They did it again and he died
 Charged with criminal negligence causing death, liability based on omission
but also legal duty as parents to child (under s215)
 What level of fault is required for criminal negligence?
o Court: no decision on other grounds
o Split on fault element: 3 judges who say objective and 3 who say
subjective fault
o McIntyre J.

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  Objective fault is required
 (everyone agrees: fault element is same regardless of
omission or commission)
 Focuses on the word negligent in the statute and that
means the opposite of thought directed action
 Test for crim. Neg.: (pg. 503) a marked and significant
departure of what can be expected of a reasonably prudent
person
 Departure has to be MARKED and SIGNIFIGANT, not
just a deviation like needed in torts
 An unreasonable mistake or belief cannot be a defence, it is
negligent and then negligently acted on that belief
 Reasonableness of belief if of jury to decide
 Beliefs that are reasonable: Welder who believes
nothing flammable nearby, not crim neg if that
belief was reasonable
o Lamer J.
 Agrees with McIntyre but thinks they need to consider
special factors of accused (ex. Education, mental
development) – possibly need to give a “general allowance”
o Wilson J.
 Subjective requirement needed
 Crim neg section is ambiguous and therefore look at strict
construction and the norm of criminal offences
 Can be subjective but a minimal awareness is enough and
departing from reasonableness shows this mental element
 Talks about mistaken belief, but does not have to be
reasonable in order to exonerate them (ex. Young, mentally
disabled people)
 But can still have an awareness of the risk
- Waite v. R.
o Drinking and went to where he saw a hay ride, and turned off the car lights and
thought it would be fun to whiz by them to scare them, killed 4 of 5 people walking
near the hay ride
o Charged with criminal neg causing death AND dangerous driving causing death
o Jury told to look at his manner subjective of driving for crim neg
o Convicted of dang driving but not crim neg by jury
o New trial for crim neg
o Full court agrees that new trial required
 Wilson J.
 Too much to require crown to say it needs to prove deliberate
intent (because he did not mean to kill them but was still very
negligent)

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 - In these cases, it is a question of policy where you want to deter these acts of
unreasonableness (ex. In Tutton case)
- Tutton legacy: unclear of crim neg requirement of fault
- But at the same time, they are not morally blameworthy
o R. v. Anderson
 Driver was impaired, ran a red light and killed someone and charged with
crim neg causing death
 If the conduct represents a marked and sig departure of a reasonable
standard, it can meet both sub and obj standards because even for sub we
look at how the person acted in relation to other reasonable people to see
the thought process of the accused
 The more the risk, the easier it is to determine what a reasonable person
would do and what the person did
 Here the conduct drinking and driving and running a red light, was seen as
not marked departure so accused was acquitted
- Marked Departure Test
- Scope of this test – applies generally to objective fault crimes
- What is the importance of subjective elements in these cases?

Marked Departure Test

- Scope of the test? Which offences does it apply to?

- Relevance of subjective aspects?
- Hundle Case (pg. 518) SCC
o Cory J.
 Test for fault for dangerous driving – modified objective test
 Concerned with whether driving was marked departure from reasonable person
but consider surrounding circumstances (including accused perception of facts)
o McLaughlin J (dissent)
 Does not like that it is modified objective test
 She says all objective tests taken into account circumstances
 Therefore she does not think it changes the test
o This case shows that marked departure test not just for criminal negligence tests,
applies more broadly to other crimes of objective fault
o Criminal negligence causing death more serious, max penalty, but dangerous driving
causing death max penalty 14 years – can be charged with both OR one offence, and up
to jury if marked and significant departure (then criminal negligence and dangerous
driving would both be convicted under, judge would stay lesser offence) – similar
conduct can result in either, or or both offences
- R v. Creighton**** IMPORTANT CASE
o Facts:
 Creighton was an experienced drug user (knowledgeable about them, and their
risks)
 Over 18 hour time period, three people shared alcohol and cocaine, one
overdosed

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  Companion wanted to call ambulance, accused cleaned place of fingerprints and
left
 Companion later returned and called ambulance
 Creighton charged with unlawful act manslaughter (based on unlawful act of
injecting cocaine (unlawful act: drug trafficking))
o Issue
 Level of fault for unlawful act manslaughter? How much subjective aspects
taken into account?
o Lamer J. (dissent)
 Crown must prove that reasonable person would have foreseen risk of death
during unlawful act
 And have to give this reasonable person the foresight that the accused would
have, ie. It would ratcheted up to reflect special training of accused or lowered
to incorporate incapacities of accused
 What human factors can be taken into context?
o Do not include self-induced intoxication
o Can include: illiteracy, inexperience – ie. Traits that accused
cannot controlled or managed (ie. Cannot say medical illness
that you can manage as a levelling down reasonable person
standard)
 In this case, accused was a drug user specialist
 Then ask why accused was not attuned to this risk? What incapacities did they
have (then cannot hold responsible)? Or did they not turn their mind to it (then
just uncaring and held responsible)?
o McLaughlin – MAJORITY OPINION, LAW** IMPORTANT!
 Says lamer’s view is more of a subjective test since you take into account
personal factors
 Reasonable person is minimum standard
 Ordinary negligence is not enough, the negligence must constitute marked
departure
 Therefore ratio: all objective fault crimes (unless otherwise stated) – the
negligence has to be a marked departure from the reasonable person standard
 How can persons personal factors factor in?
 Should not bring too many personal characteristics, or else they become
subjective and different people have different standards
 People who engage in risky behavior should be held to a minimum
standard
 But limit (to make sure morally innocent not convicted) is if that person
was incapable of appreciating risks created by their acts (pg 525)
 Lamer has a wider definition of incapacities whereas McLaughlin has a
narrower definition (teen driver and 40 year driving have same test and
level of reasonable person)
- R v. Beatty

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 o Accused was driving well, then for a moment drove in other lane, hit oncoming car,
killed 3 people
o Charged with dangerous driving causing death
o Trial judge said few seconds of negligent driving, which is civilly negligible but not
criminal negligent, BC court of appeal said no
o SCC reinstated acquitted, not criminal liable
o How does objective test apply?
 Marked departure? Yes, but very momentarily
 Even good drivers can suffer momentarily lapses, if every time we hold someone
responsible, it would be too much – have to have room for exculpatory defenses
– saying it was a departure but very momentarily
 Ex. Sudden and unexpected (if not, then should be able to manage it)
issues can be an exculpatory defenses
 Mere fact that driving was dangerous is not enough to say it was the
offence
 Elements of dangerous driving – separate actus rea and objective fault
 Actus rea: defined by language of code, viewed objectively, was the
accused driving dangerously to the public?
o Don’t have to look at consequences to determine negligence
(can be negligent but not dangerous, but if dangerous then have
to be negligent)
o In this case: actus rea was there, failed to control car
 Fault: whether on circumstances, the conduct amounted to marked
departure from standard of reasonable person and any exculpatory
defenses
o Subjective mens rea not required, but if doing it purposely, then
should be taken into account
o In this case: no intention to create a danger, had momentary
lapse of attention
 Notes from Prof:
 Applies to objective fault crimes (marked departure test always
required)
 Momentarily lapse of attention can be seen as a defense for all
dangerous driving going forward
 How long is a “momentary” lapse of judgement?


***SUMMARY Tests/standards for different offences

Strict liability offences (most regulatory offences)

- Simple negligence standard

Criminal offences

- Require marked departure

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Criminal Negligence (UNDER SECTION 219)

- Require marked and significant departure

Crimes based on predicate offences

- Underlying offences, a main offence that requires another act

- The predicate offence needs to be proven for the main offence to be proven
- Only covering unlawful act manslaughter and aggravated assault in this section!!
- Unlawful act manslaughter (s 225)
o R. v. Creighton
 Predicate offence: drug trafficking
 Lamer J. (minority)
 Fault element of unlawful act manslaughter
 Does have a high stigma but not as high as murder, therefore can be
objective fault requirement – death has to objectively foreseeable
(majority disagrees)
 McLaughlin (majority)***
 Manslaughter has two requirements
o Conduct must cause death
o Has to have some level short of intention to kill
 Fault can lie in unlawful act or in the form of criminal negligence
 Fault has two parts
o 1. Fault element of predicate offence, have to be guilty of that
(act and fault element)
 Predicate offence has 3 elements
 Dangerous act
 Cannot be an absolute liability offence
 Has to constitutionally valid
o 2. An additional fault requirement just for manslaughter
 Objective foreseeable of the risk of bodily harm which
is neither trivial nor transitory in the context of the
dangerous act (does not require consequence be
foreseeable, just non- trivial body harm be foreseeable)
 Therefore low requirement (objective and only
non-trivial body harm foreseen)
 Does death need to be objectively foreseeable? Lamer said
constitutional requirement
o Seriousness and stigma of manslaughter?
 Not a grave enough offence that objective foreseeability
of death is required because
 Whole point is that manslaughter is contrasting
murder because no intention, so less stigma
because not a murderer

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  Punishment for manslaughter is low, no
minimum
o Symmetry between actus reas and mens rea (have to want the
consequence of your actions to have symmetry)?
 There doesn’t have to be perfect symmetry between
the two elements, not constitutionally required,
because
 Not a lot of different between objective
foresight of death and foresight of non-trivial
bodily harm (especially taking thin skull rule,
anything that cause non trivial bodily harm can
kill someone too)
 Not unjust to ask someone to take
responsibility for all the consequences of their
actions, even if consequences is death
 Degree of fault is proportionate to degree of
offence is all that is required by constitution
- Manslaughter raises the question that someone died and in hindsight, would it have been
objectively foreseeable? Once someone is dead, it seems obvious they would have

Aggravated Assault

- Only required fault with assault, and then actual consequences of aggravating feature
- Should there be a fault with the aggravating feature?
- SCC in Godin
o The foresight of the consequences (what make it aggravated) not required but objective
foreseeability of bodily harm is needed (similar to manslaughter)

RAPE AND SEXUAL ASSAULT

- Rape Laws in Context

- Rape was an offence under common law, then statute under CC
- History: 1982: overhaul of sexual assault laws, offence of rape now under offence of sexual assault,
even though it is a more broader category (covers any sexual touching without consent)  not just
renaming rape to sexual assault, but rape is now a type (most serious) of sexual assault
o Important because
 Understanding statistics (rape statistics are not the same as sexual assault statistics)
o Both require non consent as an element

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  Consent is often the most common issue, that sexual touching took place is not
contested (accused claims it was consensual, complainant says it was non-
consensual)
- Social context:
o Gender issues, equality issues
 Most accused are adult men, most victims are adult or children women and men
 Women with disabilities and aboriginal women have a higher incidence of sexual
assault
- Views that SCC say are “rape myths”
o Since the 1970’s, our law has been trying to rid these stereotypes from our law
o How have we moved beyond this? How does our law still reflect this? How does our social
reality still reflect this?
 That sexual assault and sexual abuse are an uncommon phenomena
 In fact they are very prevalent, ½ of women and 1/3 of men have
experienced this, 80% started when they were children
 Rape occurs more often by strangers
 Statistically most rapes are done by men with whom they know
 Only 1/5th are by strangers
 Rape is only harmful when done by a stranger
 The law has not taken rape seriously when taken by an acquaintance, and
even less seriously when by a husband
 May be based on the notion that once a women has given consent to a man,
she cannot revoke that consent (and consent holds for the whole time)
 Victim blaming, tendency to suggest the complainant must have done something to
bring it on (partly her fault)
 Went along with the idea that only certain kinds of women that get raped
(what they wear, how they act…)
 Historically (and still now), a lot of emphasis on prior sexual history of
complainant
o Reason why sexual assault so underreported, fear of being re-
victimized and public humiliation
o Feeds back to first myth of it being not prevalent
 Rape as theft of sexual property
 Historically at common law, women were property of husband and
therefore the offence was not against her but her husband/father and rape
made her less valuable as pure wife/marriageable girl
o As a society, do we still struggle with these myths?
 Class:
 Victim blaming is still prevalent (ex. backlash about slut walks)
o Even today, defence lawyer still asks complainant what she was
wearing and even asks what underwear she was wearing
o Sometimes media reports an accusation as a weapon to tarnish
someone’s reputation

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  Another myth that is overlooked that there is a profile of a rapist – but there
is no statistical profile of a rapist, and that is problematic because it lessens
the victim’s willingness to report the crime because most of the time, the
perpetrator does not fit this profile (and therefore they feel like they lose
credibility)
o Ex. prison rapes are very prevalent but because the men are not
typical victims and also made light of in the media, also problematic
because criminal justice system is involved in creating this risk
 In media representations, the man is starting to kiss the woman and she is resisting
but then gives in – problematic in consent issues
 Wigmore’s (famous evidence theorist) views
 Sexual assault complainants were not to be trusted, their stories were
fabricated and their mental state should be analyzed
- Evidence that is typical in sexual assault cases
o Prior sexual history of complainant
 Trial generally becomes about the sexual history of the women
 Historically at common law, sexual history of the woman were routinely admitted in
the trial, and seen to be relevant in two ways:
 1) whether she consented (if she consented before, she was more likely to
consent on the crime’s occasion)
 2) whether she was a credible witness (sexually active women were seen as
unworthy of belief – chastity was a marker of credibility)
 Therefore the right of the defence lawyer to question the victim about her
sexual history was very common
 There are laws now that limit the use of prior sexual history as evidence= rape shield
laws --- FIRST AREA OF LAW THAT HAS MOVED PROGRESSIVELY
 Limit right to delve into sexual history of the complainant
o Doctrine of recent complaint
 Says that the victim should make the complaint at the first available opportunity and
spontaneously, and the absence of this allowed the judge and jury to question the
credibility of the complainant
 Built on the notion that women’s testimony on rape was unreliable
 Many reasons why people might not report it right away (implications of reporting
it, fear of backlash)
 This is no longer a doctrine, and no longer the law  SHOWS THAT THE COURT AND
PARLIAMENT KNOWS THAT THERE NO BASIS FOR SAYING TIMING OF REPORT
MEANS ANYTHING
 Still brought up in a way that it is still allowed to be brought up but no automatic
inference that if she did not report right away, she is lying
o Corroboration (evidence that supports some other evidence)
 In a sexual assault, generally just two pieces of evidence (testimony of accused,
testimony of victim)
 Used to be a rule that a women’s testimony had to be corroborated (reinforces
notion that she was lying) – therefore made it difficult to prosecute

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  Now, you can prosecute someone only on the basis of testimony of victim
- Alan Young: When Titans Clash
o This article was about the trend where defence lawyers in sexual assault cases would look
for access to psychiatric and therapeutic reports (ex. rape counselling records)
 Ex. if victim might have said to counsellor that maybe she brought it on herself, the
defence would use it to undermine victims credibility
o Young says you can see this as an extension of not believing women’s stories about their
rape
o He says you can also see it differently because in specifically in sexual assault cases, there is
really no other evidence and makes it very challenging and sometimes only way to run a
defence is to say victim is not credible
o When you have two opposite stories, does raise issues about false allegations and there
needs to be a way to figure out these false allegations
o Very neutral about this issue of having access to these records
- PROF: the justice centre cannot operate with any bias, even the bias that all rape allegations are true
therefore makes sense to entertain notion that accused is telling the truth
o Inherent to this issue is the fact that the only evidence is the testimony of the accused and
the testimony of the complainant and there are very few other ways to find out what
happened or few other processes by which we can find out what actually happened
- Definition of the crime of rape
- Rape in CC prior to 1982 (pg. 583) (old section 143)
o If it was his wife, then not rape
o Only done by man to a female
o If there was consent, still rape if it was obtained by fear or bodily harm
o Limited to sexual intercourse, penetration was required
 New sexual assault provisions do not require this
 When it was required, required the dissecting of the act and does not acknowledge
the harm that was done victim
o No express mens rea requirement
 Does a mistaken belief in consent exonerate the accused?
- 2 cases about this mens rea requirement for rape
- Pappajohn v. R (1980,SCC)
o Accused selling his home, complainant was real estate agent, went for drinks then he drove
her to the house then have totally different
o She said she was repeatedly raped and struggled
o He said it was consensual
o After many hours, she ran out the house naked, bow tie around neck and hands tied by a
bathrobe sash
o No physical injuries, the house had no signs of struggle, her blouse was hung in the closet
o He is charged with rape, jury convicted him
o Went to SCC, judge should have said even if she did not consent, if jury believes that
accused believed she consented, they should have acquitted
o Two part decision

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 Full court beliefs there is a mistaken belief in consent defence that negates mens
rea and therefore accused is not responsible – STILL GOOD LAW
 Second issue was split: Majority believes judge was right not to present the defence
because no evidence of this defence and therefore does not need to instruct jury
about this
 Before the defence is put the jury, there has to be an evidentiary foundation for this
--- STILL GOOD LAW
 McIntyre J. (majority)
 Only real issue is the issue of consent or no consent, if putting mistaken
belief in consent put here, would have to put it for every case
 Gives examples of cases where there was evidentiary basis
o Ex. Plummer v. R: victim raped by plummer by threatening her, then
other person comes in (Brown) and she submitted to sex with him
and it can be seen that Brown could have mistaken belief in her
consent because she was scared by what plummer did even though
she did not actually consent to brown having sex with her
o Ex. Morgan: husband invited friends to have sex with his wife, said
her protests are a sham, they had sex with her and she did not
actually want to– SCC in this case they would have a claim
 No evidentiary foundation for mistaken belief because the two stories are
so different and no evidence of ambiguity of consent
 Dickson J. (dissenting)
 All of the court agrees with his rules, but where they diverge is how they
apply it to these facts/case
 Mistaken belief in consent does negate mens rea (this is part of larger
mistakes of fact idea that negate mens rea)
o Says difficult to separate consensual and non-consensual sex
 Class agrees, ambiguity in sexual situations and lots of non-
verbal cues that are interpreted differently
 Prof: can it be ambiguous if she ran out screaming?
 Does the mistaken belief have to be reasonable?
o No, only has to be honest
o That is because rape is subjective mens rea crime and applying a
reasonableness standard makes it an objective mens rea
 But this seems overly protective of accused, what is accused
held unreasonably chauvinistic views?
 LAW HAS MOVED FROM HERE
o Mistaken belief is not going to be an issue in most cases, evidentiary
basis still needed
o What he disagrees in is whether there was an evidentiary basis to
put the defence to the jury
 Says no damage to clothing, she did not leave while he was
undressing, her necklace and keys were on the table, her

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 blouse was hung up, no physical harm so these facts can be
seen as accused having seen that victim consented
 Class: This evidentiary basis seems to be on the fact
that consent cannot be withdrawn, because what if
she consented at first then withdrawn consent
when he starting tying her up
 Class: Also, just because everything is prim and
proper and she was not injured does not mean that
she consented – many reasons why people did not
fight
- Sansregret v. R (1985, SCC)
o Complainant and accused were live in partners, he was violent, she asked him to leave and
he did
o But he came back and he was threatening her, she tried to calm him down, had sex to calm
him down
o She reported this as a rape but his probation officer told her not to, no charges pursued
 Trial judge found that he did not know she reported it this time
o Again he broke in, threatened with a butcher knife, struck her in the mouth and again she
held out hope of reconciliation and had sex with him
o Charged with unlawful confinement, robbery, breaking and entering and rape
 Was not convicted of rape by trial judge because judge said he thought that she was
consenting, even though on a reasonable person standard says he should have
known she was consenting out of fear
 He reluctantly agreed to this defence of unreasonable belief that he held,
unreasonable mistake but according to law, mistake does not need to be reasonable
 Court of appeal gave a conviction
 SCC upheld conviction
 Charge of rape from (b), was consent but extorted by threats or fear
 Not enough that there is a mistaken belief, but there needs to be a mistaken
belief of consent that was freely given
 But they uphold that an unreasonable mistake is still a defence in context
(an honest mistake, even if unreasonable, would have negated the
accused’s mens rea)
 By applying these principles, they changed the facts from the trial judges
and said he did know she first reported the rape and therefore would have
had an idea that the second time she would not be freely consenting
 Trial judge was wrong to find that he was wilfully blind and then not say
that’s subjective mens rea – trial judge was not consistent in his analysis,
cannot say he is wilfully blind and then say he actually thought she was
consenting – they took the willfully blind analysis to base their judgement
o Alan Manson’s review
 Though SCC analysis was incorrect
 Trial judge did in fact find that the accused thought the complainant was honestly
consenting, in which case he could not have been wilfully blind

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Crimes of Sexual Assault

- 1983: old offence of rape taken out of code (and indecent assault)
o Too much emphasis on penetration and sexual aspect of crime, had notions of women as
sexual properties
o Idea was to change notion of rape to a crime of violence, and therefore rapes would be a
form of assault
- New sexual assault (s. 271, 272, 273)
o S. 271 (sexual assault) – first level
 Hybrid offence
 Max: 5 years in prison
o S. 272 (sexual assault with a weapon) – second level of seriousness
 A) Sexual assault with a weapon OR
 B) sexual assault with threats to a third party OR
 C) sexual assault causing bodily harm
 Indictable offence
 Max: 14 years in prison
o s. 273 aggravated sexual assault – third tier of seriousness
 indictable offence
 max: life in prison
o increase in seriousness and penalties (and are more serious than their just “assault”
counterparts)
- New offences are gender neutral (anyone can commit, anyone can be a victim, man or woman)
- No spousal immunity
- Introduction of rape shield laws during this time as well
- Doctrine of recent complaint was abrogated at this time
- Corroboration requirements also abrogated at this time
- What is a sexual assault? (no definition of SA in code)
o Leading case***: (1987)
o R. v. Chase
o Complainant was neighbour, 15 years old, chase went to her house when she was alone
watching her younger brother, he grabbed her breasts, she resisted, he said “I know you
want it”
o NB Court of Appeal said there is assault but not sexual because did not touch her genitals
o SCC: is this right? Is touching of breasts without consent sexual assault or not?
 Assault and sexual assault: SA is an assault, three forms or assault (a) without
consent applies force directly or indirectly to another person, b) attempts or
threatens to apply force and other person has reasonable fear that he would, c)
accosts or impedes wearing a weapon) and a SA can be an assault in any of these
three manners
 What does sexual modifier mean? It is an assault and an added sexual component,
look at various interpretations of sexual:
 Sexual assault must involve touching of genitals (breasts are a secondary
sexual characteristic according to NB court of appeal)

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  Should at least include an assault with intent to have sexual intercourse or
sexual gratification
 In circumstances that are sexual (draws upon indecent assault)
 Should include anything that affronts the sexual dignity of the victim
 Court chooses third and a little bit of fourth view (pg. 611)
 TEST: is the assault of sexual nature such that sexual integrity of victim is
violated
 Objective test, but accused does not have to have sexual intents
 Factors to consider:
o Part of the body touched
o Nature of content
o Any words or gesture that accompany situation
o Any other circumstances
o Intent of actor – motive of sexual gratification?
o (but these are not in any ways determinant)
- PROBLEM pg 612
o Sexual assault?
 Genital area, sexual part of body was touched
 Objective test: to a reasonable person, touching a child’s genitals does have sexual overtones
 Sexual integrity of victim was violated – this is what court decide**, because this was the test of sexual
assault
 But should a motive of sexual gratification be taken into account? POLICY!!! – is the test set
by the SCC the right test or should motive be taken into consideration? But then how hard is
motive to prove?
o Just assault?
 No sexual overtone
 No intent of sexual gratification
 Circumstances was disciplinary

Mistaken Belief in Context

- Defense
- Upheld as a defence in Pappahjohn case
- Codified in the new rules (s 265, sub 4), recognizes that such a defence exists
- Part of assault provision, applies in sexual and non-sexual assault cases
- What does it mean?
- R. v. Bulmer
o Women has sex with three men, agreed with first sex act then second came, she said she did
not want to but they said she agreed after she felt threatened
o When should defence of mistaken belief be put to jury?
o SCC, McIntyre J.:
 Mere fact that accused alleges this defence doesn’t require the defence to be put
forward
 There has to be evidence to support this defence

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  Question is whether there is an air of reality in this defence (defence can claim it,
that is a factor but not a determinant) – TEST: air of reality in defence
 Means if defence doesn’t claim it, can still be put to jury
 Reasonableness of belief does not matter, can be an unreasonable mistaken belief if
honestly held, but jury still needs to be told to consider the reasonableness of it in
determining whether he actually held the belief ****
 Minority, Lamer J.:
 Defence can come from accused if it is in their testimony because that is
evidence and that should be taken into account
- R. v. Davis ** LEADING CASE ON ESTABLISHING AIR OF REALITY ON THIS DEFENCE
o Mistaken belief negates mens rea
o Has to have an air of reality (evidentiary basis) to two elements:
 Complainant did not consent
 Accused honestly though she did consent
o Trial judge has to consider totality of this argument, and not the merits of defence (ie. Does
the accused deserve this defence)
o Air of reality can arise even when accused does not claim this defence
o But conversely, accused’s mere assertion that they thought she consented does not
automatically raise an air of reality to this defence
 Because sometimes the only two reasonable interpretations are this was consensual
and there was no consensual (he said, she said)
o Pg. 619: McLaughlin
 You need a situation of ambiguity (not the same of a situation where there is two
diametrically opposed stories)
- Susan Estrich article, rape law
o Rape cases now are all about credibility, defence relies on destroying victims credibility,
raises questions whether defence should use things like psychiatric records of complainant
o But then accused might not get full defence
 Should we look at prior sexual assaults of accused?
o But then make some women “unrapeable”
o Conclusion = difficult area of law
- This defence in the code:
o s. 265 (4)
o s. 273.2 (LIMITATIONS ON THIS DEFENCE)
 no defence arises is it arises from intoxication, willful blindness or recklessness
 and b) where the accused did not take reasonable steps to ascertain that
complainant is consenting
 applies only to sexual assaults
- LEADING CASE FOR THIS DEFENCE**** VERY IMPORTANT******
o R. v. Ewanchuk
 Accused charged with SA: initiated sexual touching with complainant, complainant
said no each time, then each time accused would stop and try to console her, but
then would continue

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 Complainant goes to what she thinks is a job interview, shes 17 years old,
interviewer is large, he asks for a massage, she gives it because she is worried, then
he asked if he can give her a massage, and touching her
 Accused does not testify, defence says her story is not sexual assault
 Then gave her $100, let her out of trailer
 Trial judge believes the story and agreed with defence that it was not sexual assault
 He said she did not agree subjectively, complainant was trying not to be
afraid, and by concealing her fear, and consent would be implied by law by
how she was acting
 Court of appeal of Alberta upheld
 But strong dissent by justice fraser
 SCC
 Imposed a conviction for sexual assault
 Major J.:
o Actus reas has 3 parts: touching, of sexual nature (objectively, by
Chase case) and absence of consent
o Issue: what is consent? Consent is subjective, if court finds
complainant did not consent subjectively then there can be no
implied consent
o Only two options: she did not consent subjectively, she consented
o No need to resort to consent vitiating by fear because there is no
subjective consent
 But fear has to be actual reason for submission, fear does
not need to be reasonably held and fear does not need to
be communicated to accused
o Defence of mistaken belief
 Mens rea: 1) intention to touch, 2) subjective mens rea with
respect to non-consent (knowledge, wilful blindness,
recklessness)
 But this defence is limited by (COMMON LAW LIMITATIONS
TO THIS DEFENCE)
 Accused must believe consent was communicated
(cannot just think it was consensual, has to believe
it was communicated) (ex. accused has to believe
she said yes by words or conduct)
o Ex. belief that slience, ambigious conduct,
no means yes, is not a defence
 Once a complainant has said no, the accused has to
be very sure of the expression of consent to engage
on
o Applying this to facts:
 Complainant said no
 Consent was not implied

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  Accused did not raise defence of mistaken belief, and no air
of reality
 Therefore there was a sexual assault
 MINORITY: L’heureux dube J. (agrees but wants to write some extra things
to court of appeal)
o Court of appeal relies on the myth that women want to be
persuaded
o Court made it seem like complainant was of loose character
because of the fact that she lived with her boyfriend, what she was
wearing, which L’heureux dube denouced heavily

Four limitations on law post Ewanchuk

1. Belief that silence or ambiguous body language is not a mistaken belief

2. Belief that consent was communicated as oppose to complainant consented in her mind
3. Once complainant has said no, the accused has higher onus to make sure consent for further sexual
touching
4. No mistaken belief if reasonable steps not taken

= makes is much more difficult to prove and not as much used as a defence anymore

Reasonable steps requirement

- Malcolm suggests would a reasonable person take further steps to ascertain consent, if yes,
then proper steps not taken and mistaken belief in consent defence not available

Consent in Sexual Assault *** (START WITH THIS in exam if question is about this!!)

- Code defines 2 things:

o What consent means
 s. 273.1(1)
 Consent for SA =_ the voluntary agreement of the complainant to engage in
the sexual activity in question
 only applies to section 271, 272, 273, not in other contexts!
o ***List of situations where consent is vitiated
 s. 265 (3) lists 4 situations:
 application of force,
 threats/fear,
 fraud or
 exercise of authority
 applies to all assaults
 s. 273.1 (2), lists 5 situations
 Agreement made by someone other than complainant (Morgan case,
husband allows friends to have sex with wife)

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  Complainant is incapable of consenting (ex. unconscious, very intoxicated)
 Abusing position of trust, authority
 Complainant expresses lack of agreement (no means no)
 Complainant having consented, expresses lack of agreement by words (ie.
Consent can be withdrawn)
 S. 273.1(3)
 Consent can be vitiated in other circumstances as well (ie. Allows for
common law reasons for vitiating consent)
 Only applied to sexual assaults
 If someone wants to give the mistaken belief of consent defence, it will not work in
these cases because consent is vitiated so does not matter
- R v. A. (J.) (SCR, 2011)
o Long-time sexual partners, she consented to erotic asphyxiation but when she regained
consciousness, he was inserting dildo in her anus and complained that she did not consent
to the sexual activity that happened while she was unconscious
o Assume that she did consent to sexual touching while she was unconscious
o Issue: is it possible to consent in advance to sexual touching that then takes place when the
person is unconscious?
o Not about a mistaken belief in consent, but rather if her consent was legally valid
o McLachlin J.(majority)
 “Ongoing conscious consent” is required for two basic reasons
o 1) in order to protect from sexual exploitations
o 2) in order to allow partners to ask to stop at any time
 Consent in statute for sexual assault = voluntary agreement for sexual activity in
question
 This shows consent has to be specifically directed at each and every act
 Where consent is vitiated in the statute
 Where complainant is incapable of consenting (s. 273.1(ii)(b))
 Consent from a previous time is not adequate
 Policy arguments in favour of this position:
 Allowing it in advance is too complicated, what is the exact conversation
that needs to have
 We have to be more worried about vulnerable people, and people who are
unconscious in sexual situations are extremely vulnerable
o Who do we make the law for? Limiting autonomy needs to be
balanced by preventing exploitation
 What if person changes their mind?
 Evidentiary problem: how can you prove what was consented to and how
can you prove what actually happened?
 On balance of what happens – is it more important to protect autonomy for
sexual acts or protecting sexual integrity?
o If people want to do this unconventional sexual acts and there is
consent before the activity, then what is the likelihood of someone
bringing that forward unless there was a problem?

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  = Consent means conscious agreement to engage in every sexual act in a particular
encounter
o Dissent: Fish J.
 Finds the issue is can a conscious person consent in advance?
 He believes yes
 Use code as well but interpret in different way
 Consent in code = says nothing about the timing of the voluntary
agreement, and therefore does not exclude advanced consent
 No consent where (s. 273.1(ii)(b) incapable of consenting = does not suggest
cannot be given in advance
 PROF: shows how ambiguous the statute is
 (but both agree that consent is vitiated when bodily harm is done, but this was not
raised in this case)
 Policy arguments in favour of this
 Federal government should not regulate in people’s private lives
 People’s autonomy is undermined in the other argument, people should be
able to make their own decisions
 Absurd results arise in the majority argument – kissing when someone is
sleeping would be sexual assault

MISTAKE

Mistake of fact

- When accused makes mistake of factual issue

- Valid type of defence (mistaken belief of consent is a type of mistake of fact defence)
- When can they be a defence to a criminal charge?
- Mistake of fact vs. mistake of law
o Mistake of law are not relevant to criminal liability
- General principles (from Pappjohn case)
o Fault element is missing, mens rea is negated (where subjective knowledge is needed)
o Legal effect of mistake of fact depends on level of fault required of that charge
o For subjective fault, any honest mistake will negate subjective mens rea
o For objective fault, only a reasonable mistake will negate the mens rea
o For strict liability, only a reasonable mistake will negate but onus on accused to show
mistake was made
o For absolute liability, mistake is not a defence
- R v. Hess, R v. Nguyen
o Constitutionality of s. 146(1), makes statutory rape and removes defence of mistake of fact
(makes it an absolute liability offence since does not matter if thought she was over age) –
does it violate section 7?

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 o Wilson J.
 Mens rea is there to not punish people for things they do not know they are doing –
don’t want to punish the “mentally innocent”
 It does violate section 7
 Can section 1 save it?
 Why should it be upheld?
o It’s an important deterrent for people to not have sex with younger
children
o Otherwise people think they can get away with it
o Puts men on notice that they cannot have underage sex, no
loophole
o Wilson. J. puts little weight on the deterrent argument (because
unlikely people will have awareness of this law)
o Mistake of fact can be taken into account in sentencing (Wilson
believes this should not be left to that stage)
 Believes it cannot be saved, to be constitutional they would have to provide
a defence of due diligence
 But by the time this judgment was made, the new rape laws were already in place
(and age of consent became 16)
 In new offence, accused must take reasonable steps in asking for age (provide due
diligence)
o McLaughlin (dissent)
 Agrees that it offends section 7
 Also thinks it violates section 15 (this provision only applies to men and only
protects girls)
 Section 1 analysis
 This is a reasonable limit on rights of the accused
 Purpose is to protect young girls from harms of early sex (pregnancy, STDs,
exploitation)
 Believes imposing absolute liability is justifiable
 Even if due diligence were required (ex. fake ids could be used)
 Believes there is a deterrent offence
 No other way to obtain these policy goals without the absolute liability fault
requirement
- 2 views on when does mistake of fact exonerate the accused?
o View 1: Only if the mistaken view makes the accused innocence of the offence
o View 2: But accused can still be guilty if on the accused’s view of facts, he can be guilty of
another offence of similar seriousness
o Ex. assault police officer (don’t know it is a police officer)
o Law is not clear on which view to take
 If facts were as accused believed them, then no offence because of this defence
 If facts were as accused believed them and accused thoughT his crime was MORE
SERIOUS than it actually was
 R. v. Ladue (LEADING CASE ON THIS POINT)

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 o Person tried to copulate with a dead body
o Accused of indecently interfering with human body
o At trial, accused said he did not know women was dead because so
intoxicated
o Therefore lacked mens rea and should be acquitted
o But then, he is arguing he was committing rape which is a more
serious offence
o Conviction upheld
o Therefore, if their belief was more serious, you cannot use mistake
of fact as a defence
 If facts were as accused believed them and accused thought his crime was LESS
SERIOUS than his actual crime
 R. v. Kundeus (LEADING CASE ON NOT KNOWING WHICH DRUG SUBSTANCE)
 LEADING CASE ON POSSESSION IS BEAVER,
o ACCUSED SOLD DRUGS TO UNCOVER POLICE OFFICER, thought he
was selling mescaline, but at lab, it was determined it was LSD
o LSD was a much more serious offence than mescaline at that time
o Did the accused have required mens rea for trafficking LSD?
o Grandre J, (Majority)
 Yes – even though there was a mistake of fact
 Based on idea from Blondin, mens rea requirement for
importing narcotic will be fulfilled as long as he knew it was
a narcotic (or was reckless or willfully blind to it being a
narcotic)
 Reasoning given was not very well articulated by judge
o Laskin, J. (dissent)
 Cannot be convicted if you don’t have mens rea, believes
should not be guilty of the serious offence
 Perhaps same mens rea if similar seriousness of drugs
 Believes mens rea and actus rea should match up
 Also comments on Ladue case, believes mens rea should
count and he should have been convicted of attempted
rape (but then act wouldn’t have matched up, pprof says
problematic)

Mistake of Law

- Section 19 of CC: ignorance of the law is not an excuse

o Mistake of law is not a defence
o Why is that?
 Difficult to prove
 Everyone would use this defence
 People would try not to know the law in order to be ignorant, this incentivises
people to know the law

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  Problematic: people who come from different countries have a tough case, and in
those situations, might not have moral blameworthiness
 Practically, there are a lot of people that don’t know the law
- R. v. Esop (1836)
o Accused was from Baghdad, alleged he committed buggery while on an English ship
o Lawyer said was not an offence in his country
o Court said not a defence, his defence was a cultural defence

- R v. Campbell and Mlynarchuk

o Exotic dancer charged with immoral performance for dancing nude
o Timeline:
 1) nude dancing is was not immoral at trial court in Johnson case
 2) Campbell dances nude in reliance to Johnson court case decision
 3) Court of appeal said in Johnson case, nude dancing was immoral
 4) Campbell is charged with immoral performance
o She made a mistake of law not of fact, mistake of law to conclude that a decision of a
particular judge is law
o Law of immoral performance is a statute, which does not change this entire time, it was the
interpretation of the law that was wrong at the trial level and a trial judgment is not binding
so therefore it is sad that she is convicted but still fair in law
o This was a mens rea offence (intent to dance in the nude) and therefore she was at fault
o Even though mistake of law is not a defence, she was charged but was handed out an
absolute discharge sentence (ie. No punishment)
o PROF: mistake of law is not a defence even in circumstances that are very unfair, and that is
dealt with in sentencing

- Mistake of Law and Mistake of fact

o R v Macdonald
 Had a gun, had proper authorization for it in Alberta but had it in Manitoba and
thought it was fine because he had
 Can say mistake of law because should have known it was illegal in Manitoba,
accused said crown should prove he knew his authorization was not allowed in
Manitoba
 SCC:
 It is a mens rea offence, but mens rea requires knowledge that he possess
firearm and intention to possess it in that place
 His further lack of knowledge about authorisation is mistake of law and that
is not a defence, therefore his conviction is upheld

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INCAPACITY

- When people are not fully responsible for their actions, they do not have same moral
blameworthiness
- Arises from 4 sources
o Age
o Mental disorder
o Automatism
o Intoxication
- Age
o Child under 7 is absolutely exempt, in 1982 the age has moved up to age 12
o Age is measured at time of offence
o Long history of youth criminal justice which covers individuals aged 12-17 years
o Most recent (2003) Youth Criminal Act
 These rules, procedures and sentencing is very different from adult offenders
 But substantive rules of criminal code still apply to children (ex. possession, mistake
of fact, all these issues are still treated the same)
 In exam, no need to remark on differences
- Mental Disorder
o S. 16 Accused if NCR if:
 1) act committed while accused suffering from mental disorder
 2) that rendered the accused incapable of
 A) appreciating nature and quality of act OR
 B) knowing it was wrong
o Used to call defence of insanity, now referred to defence of mental disorder
o Criminal law reflects that criminal acts are bad behaviour, but it is possible to see serious
criminal actions as a mental incapacitation (but not a reason to abandon criminal law)
o How do we integrate psychiatric and criminal law understandings of mental illness?
 Psychiatric: there is a spectrum of mental capacity (DSM V is the newest edition of
the diagnostic manual for mental disorders)
 Even if you have a mental disorder in DSM V, does not mean law will see it as a
mental disorder
 Law is informed by psychiatry but also seeks to maintain its independence – mere
existence of a mental disorder does not mean they can use the defence of mental
disorder
o Psychopathy (anti-social personality disorder) ((pg. 760)
 Cannot let psychopaths be acquitted when it appears equally plausible that they are
just prone to bad behaviour
o **2 times mental disorders can be used
 When mental disorder was during the act (focus of this course)
 When person is being brought to trial, someone who is not fit to be tried cannot be
tried (separate from question of whether they are criminal responsible during the
time of the act)
o In the past, person is acquitted on grounds of insanity

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  And if this was basis of acquittal, sent to psychiatric facility who decide when they
can be released (seen as unconstitutional, changed)
o Now, it is not criminal responsible on account of mental disorder (NCR)
 New provisions are very similar to old provisions
 But no automatic commitment to psychiatric facility
 If this was the determined to be NCR, have three choices by judge:
 Discharged absolutely
 Discharged provisionally
 Sent to a psychiatric facility (still the norm though)
 (more sensitive to accused)
 Absolute discharge should be order unless person poses significant threat to public
safety, but generally sent to psychiatric facility
 Defence of NCR generally not sought, defence lawyers try to have them plead guilty
so they have a lesser sentence
- Cooper v. R LEADING CASE ON THIS DEFENCE!!! (1979)
o Accused had serious psychiatric illness (hallucinations, mood swings, sudden mood swings)
o Choked female friend to death
o But might not appreciated risk that he would kill her due to mental illness
o Defence did not raise mental disorder defence
o But judge did raise this to jury
o Accused was convicted by jury, and appeal went to SCC
 Test: air of reality to mental disorder test?
 Dickson J.:
 What is disease of the mind?
o Not well defined in medicine or law, working concept
o Legal concept that is informed by psychiatry
o Therefore what which disease is disease of mind is up to judge
o “anything that impairs state of mind” “but self-induced ones are
excluded” (pg. 770)** lays of definition
o Key to this is notion of responsibility
 Whether they were suffering from this condition is a question of fact (for
jury)
 Question is normally whether they appreciated what they were doing
o Appreciate means more than just to know, deeper understanding
that denotes an emotional understanding and of the consequences
(and not just understanding of physical act)
o “To appreciate means to have capacity to apprehend nature of the
act and its consequences”
 In this case, trial judge was right to leave this defence to jury (judge has to
raise every possible defence even if defence counsel does not want to)
 But trial judge erred in treating psychiatric history as only medical question,
but should also be raised as a legal question as well

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  Clear evidence to suggest that accused had evidence of mental disorder
during criminal act and real issue is whether that disease rendered him
incapable of not appreciating act or knowing it was wrong
- Kjeldsen v. R.
o Evidence shows that he is a psychopath, he has this disease of mind
o But does that mean he can plead insanity?
 No, disease of mind has to render him incapable of s. 16(2) which his disease did not
do
o Defence wants to say no because he did not have sympathy or repulsion on doing the acts
he did
o Courts said mental defence is not the same as lacking appropriate feelings of guilt or
remorse
- R. v. Abbey
o Imported cocaine knowingly and admittedly
o Had a delusional belief that no harm would come to him regardless of what he said, clearly
had mental impairment
o Trial judge acquitted on basis of failing to grasp penal consequences of act
o SCC: said understanding consequences does not include penal consequences, consequences
in this case is consequences of act itself
 Accused must have appreciation of consequence that come from actus reus (ex. if
you kill someone, have to appreciate the fact that the person will die), punishment
is not part of actus reus
- What does “knowing it was wrong” mean? (illegal vs. morally wrong)
- R. v. Chaulk 1990)
o Lamer J. (Majority)
 Wrong means more than just legally wrong
 “wrong means morally wrong in the circumstances accordingly to the moral
standards of society” --- LEADING UNDERSTANDING OF WHAT WRONG MEANS
 (ex. Vincent Lee’s beheading of greyhound passenger because he thought he was a
demon, but in general he can appreciate killing someone is wrong but in that
circumstance he did not think it was and therefore got the NCR defence)
o McLaughlin J. (Dissent)
 If the person can appreciate it is either legally or morally wrong, should not get NCR
defence
 Narrower interpretation
 Does not think should give extra allowance for moral appreciation for people with
mental illness, when would not do that for non-mentally ill people
- R. v. Oommen (1994)
o Thought his friend was going to kill him because had delusions, and so he killed her
o Trial judge found him guilty because said in general, knew wrong vs. right
o SCC
 Ordered a new trial
 It is not the general ability to know right vs. wrong, it is in the circumstances that we
have to see if the person knew it was wrong

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- PROF
o It is still a high threshold test, people with mental disorders still get convicted because hard
to prove in those circumstances
o Sometimes mental disorders can go to mens rea, their ability to intend or foresee certain
aspects can diminish their mens rea
o Defence can bring up mental disorder, trial judge can bring it up based on facts, AND crown
can also raise it but SCC said it can only raise it when they have been found guilty (in order
to make sure that guilt is proven, if not, crown can force an NCR as oppose to an acquittal)

Automatism

- When can it be used?

- Still part of incapacity, accused is not fully responsible for acts
- Situation where accused is acting unconsciously, involuntarily (is not conscious of physical acts)
- Involuntary act is not considered an act
- A psychological state that the accused is in that makes their acts involuntary, even though they are
doing complex things that are normally done voluntariness (ex. sleepwalking, sometimes from
concussions, unusual reaction from medication)
- Issue is whether automatisms comes from mental illness or not
o If it comes from mental disorder, then it is called Mental disorder Automatism (MDA)
o If it does not, then it is called Non-Mental disorder automatism (NMDA, or sane
automatism)
o This is important to know because if it MDA, then get an NCR but is you have NMDA, you get
an acquittal
 So in this case, it is favorable for the crown to bring up mental disorder
o Don’t use same set of mental disorder criteria (section 16, ex. appreciating actions and
knowing it was wrong) to determine if MDA vs. NMDA because when in automatism, you
know those are met so when you are analysing, first determine if it was automatism then
see where it stemmed from
- Breakdown of type of amnesia
 Issue of amnesia: automatism always involves amnesia
 You can also have amnesia but not have automatism, can repress memories
but still in control while doing actions
 There are also people who claim to have amnesia but it might be a false
claims
- R. v. Rabey (1980) (MAIN CASE FOR INTERNAL VS. EXTERNAL BLOW)
o 20 year old uni student, infatuated with friend, who liked another student and one day he
took a rock from geological lab, and they hung out and he asked what she thought of him,
she said just a friend, he hit her with a rock twice and then she fell and he strangled her and
then dragged her under the stairs
o After that, he ran into other students and professors, and was acting weird and incoherent
and bewildered
o Later he claimed he could remember very little of what happened
o Friend was not killed, she recovered – he was charged with wounding charge

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 o He was admitted to psychiatric hospital, he was not found to have mental disorder but they
said he might have been in dissociative state (do acts without being conscious of doing
them, cause of this was the powerful emotional shock of finding out that he was just a
friend – this was a psychological blow)
 From now on, this type of automatism was “psychological blow automatism”
o Defence said he was normal, dissociative state was unlikely to reoccur, not a mental
disorder
o Competing evidence from crown said accused was in an extreme state of rage and not a
dissociative state (which is not automatism) and memory problems occurred afterwards
(repressed memories)
o Trial judge acquitted him on basis of NMDA
o Court of appeal said MDA and ordered a new trial
o SCC, Ritchie J.:
 Automatism is a term used to describe unconscious involuntary behaviour, state of
a person though capable of action is not aware of what he is doing
 Central question is whether there is a mental disorder involved, whether the state
he was in was a mental disorder is up to judge to decide and whether or not his
automatism was there is up to jury to decide
 In this case, the trial judge agreed that he was in a dissociative state (he was
abnormally infatuated with the girl, and it was an internal factor (*means it was a
mental disorder) vs. external factor (transient, ex. getting a concussion))
 Psychological blow was not an external blow in this case, but can be (it can be an
external factor when extraordinary external events happen in front of you, ex
witness a murder)
 But what accused suffered is an ordinary stress, his psychological blow was
not extraordinary enough to call it an EXTERNAL psychological blow (ie.
There was something internal to him that made him react
disproportionately, and therefore can say he had an underlying mental
disorder)
 Normal person would not have reacted this way, therefore is it MDA in this
case
o Controversial because psychiatric evaluations was he was normal

- R v. Parks (1992) SLEEPWALKING CASE

o Courts were always in the view that sleepwalking was the textbook NMDA before this case
o Parks killed his mother in law, injured father in law, while sleepwalking
o Slept on couch, woke up, drove across 401 and strangled and stabbed FIL and stabbed and
beat MIL
o Cut his own hands to the bone, went to police office and said killed two people
o Evidence did not indicate he was having a mental disorder
o Defence brought in five experts who all said he was sleepwalking and that his acts were not
voluntary and sleepwalking is not a disease of the mind and violence during sleepwalking is
very rare (therefore likely it would reoccur is very close to zero) and no treatment for
sleepwalking, crown brought no expert evidence

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 o Jury acquitted him on basis of NMDA
o Crown appealed (trial judge should have only left MDA with jury, not NMDA)
o OCA, SCC both upheld his acquittal
o SCC, Lamer J.:
 Right to leave the defence of NMDA with jury based on defence’s expert testimony
(even though question of mental disorder is a legal question)
o Laforest (minority)
 Agrees, but adds more guidance between MDA and NMDA
 Have to look at it from POV of legal questions
 Wider policy implications, two basic approaches in distinguishing the two
 1) Internal cause theory (if internal caused, that’s MDA, if external then
NMDA)
o Been most popular until now, but not the test in distinguishing the
two, just an analytical tool
 2) Continuing danger theory: any condition that is a reoccurring threat to
public should be treated as mental disorder
o Also not the test, just an analytical tool
 Does not think either theory really helps determine is sleepwalking is MD or
NMD – need to consider policy concerns:
o 1) this defence is easy to feign
o 2) floodgates concern, open defence too widely, many people will
use this defence
o (but sleepwalking is difficult to feign, you have to have history of it
and such, so these two are not real issues)
o Prof:
 Accused clearly in state of sleepwalking, but these cases raises concerns about
defence being used widely

- R. v. Stone LEADING CASE ON AUTOMATISM IN CANADA!!!!!*** (1999)

o Stone was in dysfunctional marriage, in car with wife, she said means things to him and she
would stay in his house when he was arrested, she made him sick etc.
o He said he felt a sensation over him, he lost consciousness, and when he came back he had
a knife and stabbed his wife 43 times, he hid her body
o He fled to Mexico, came back and was arrested
o Trial judge found that there was a basis for a claim of automatism based on facts
o Trial judge held that only defence available to him was MDA
o SCC, Binnie J. (DISSENT)
 All experts agreed he did not suffer from mental disorder, he was sane, and facts
showed he could have had automatism
 Thinks should have put credence to experts, and therefore should have also
presented NMDA to jury as well
 Crown has onus of proving voluntariness and that being the case, crown should
have proved beyond reasonable doubt that he did not have automatism
 Mental disorder has to be shown to exist, not just an internal psychological blow

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o Bastarache J.: (MAJORITY)
 Confirms that automatism is a defence, negates actus reus
 Normally crown bears burden of voluntary act, but in automatism, burden of proves
goes to accused to prove he was acting involuntary on a balance of probability
 There is a reverse onus in this case – contrary to presumption of innocence but
justified under section 1, because:
 Have worries about baseless claims of automatism, therefore put the brakes
on this defence
 Real cases of automatism are very rare
 Burden is too much on crown because have to disprove it every time it is
raised
 All knowledge of this automatism is with accused, it is about what they went
through psychologically so they have to prove that they were actually in
that state (unfair to say to crown I was unconscious, now you crown prove I
was not)
 Burden of proving mental disorder defence is on accused, and this
harmonizes defence of automatism with defence of mental disorder
 Steps that have to be taken in order to see if there is a valid claim of automatism
 1) Should automatism be put to the jury? Is there enough evidence for
AUTOMATISM (trial judge has to decide if there is evidentiary foundation
that accused acted involuntarily
o Need at least need accused to ascertain involuntariness AND expert
evidence from psychiatric/therapist that backs that up
o **LATER CASE SAID THIS IS ALL YOU NEED (R. v. FONTAINE, not in
readings)
o Factors to consider (p. 823) for claim of automatism is based on
facts
 Severity of stimulus
 More severe, more likely to be automatism
 Corroborating evidence of witnesses
 If overall demeanour after crime is weird and
suggests altered psychological state, then more
likely
 Corroborating evidence of experts
 Medical history or automatism like states
 Motive of crime?
 If evidence of motive present, then more likely to
be feigning automatism
 Is trigger of automatism also the victim?
 Similar to motive, can indicate if feigning
automatism
 **but Fontaine case said these can be applied but not
determinant

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  PROF: jury has to determine if there is automatism or not,
so this helps give guidance to determine this first question
 2) Should it be left as MDA or should NMDA be added?
o 1) What mental conditions are diseases of the mind? (question of
law for judge)
o 2) Was what the accused going through a mental condition of the
mind (question of law, judge has to decide)
o 3) Whether the accused actually suffered from this condition
(question for jury)
o (but psychiatric association released report saying all automatism is
a mental disorder)  but court did not take this into account
o Trial judge should start from assumption that automatism is a
disease of the mind (MDA) and should see the reasons as to
determine why it is not (brought forward from defence generally),
factors to consider (holistic approach)
 Internal vs. external cause factor
 Continuing harm theory
 Other policy concerns (feigning concern?)
 Automatism that does not result from a mental disorder will be quite rare**
 “The fundamental question ... is whether society requires protection from the
accused and whether the accused requires subject to mental disorder regime”***
 In this case, alleged cause of automatism was words and trial judge found claim was
mental disorder, and all three of factors under holistic decision was right (internal
psychological blow (Rabey))
 MDA was the appropriate categorization for this case

- R v. Luedecke (2008)
o Accused had sex with complainant while both sleeping at a party
o Defence argued automatism, parasomnia sexsomania (he had a history of sleep problems
and sexomania)
o Expert that testified said this behaviour would increase if bad sleep hygiene, but said not a
disease of the mind (controlled through sleep hygiene, limitation of alcohol)
o Trial judge acquitted on basis of NMDA
o Court of appeal
 Legitimate concern of public safety in these cases
 Acknowledges that involuntary behaviour does not fit well under section 16 of
mental incapacity
 Leads to result that most automatism defences end as MDA, as established through
Stone (because approach said you start with MDA and see if there is any reason for
it to not be related to a mental disorder)
 But in Parks, took opposite approach
 In Stone, it reverses Parks because Parks would only have had MDA as his defence
because that is the presumptive starting point

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  From that case, the most important question is the continuing danger theory (in
Parks, the question was how likely is it to happen again, in Stone, it looks at the
reoccurrence of the factor that led to the episode (ex. not sleeping enough, alcohol)
because they indirectly create a continuing danger)
 And taking that into account, his reoccurrence would be likely because
those patterns would reoccur
 Therefore MDA is the only defence available to him
o Other evidence: has done it before with previous girlfriends, has a
genetic predisposition to it
 Prof: automatism will almost always be MDA (unless can be proved otherwise)
 And sleepwalking incidences will now see be seen as MDA, unless special
circumstances (ex. severe and transitory blow to the head)!! Because overall
policy concern is protection of public)
o Found NCR because of MDA, then psychiatrists at hospital let him go from the hospital
because deemed him as not a risk to society (so in the end, had same effect as original
acquittal)

- R. v. Bouchard-Lebrun (2011 SCC)

o Accused took ecstasy, and ended up in a state of drug-induced toxic psychosis 9ie. Out of
touch with reality) and got into a religious fervour, beat someone up for wearing cross
upside
o This other individual tries to get involved, but he gets thrown down the stairs and stomped
on his head and now this intervening man is permanently disabled
o Is this a defence of mental disorder or intoxication?
o In this case, the accused wants mental disorder (gets you a NCR) and crown wants
intoxication (which is not a defence)
o Lebel, J.
 Narrow issue is toxic psychosis one time and evidence seemed to show this
psychosis rose exclusively from the drug, ie. Self-induced intoxication (not an
underlying mental disorder)
 In toxic psychosis cases, we have to start from the exclusion from Cooper therefore
start with the fact that it is not a mental disorder (pg. 771 – define disease of the
mind, but specific exclusion for self-induced states of intoxication)
 Accused can then rebut this presumption if they can show that they have a mental
disorder
 Use same test that distinguishes MDA vs. NMDA, but apply it in reverse
 Continuing danger theory?
o Clear that they mean the accused is a danger because of who he
inherently is, NOT risk of him taking that dangerous drug again
o Risk of reoccurrence has to be independent from will of induced
(could he go into this state again, yes IF he takes it again – therefore
in this case, is it not independent)
o Therefore he is not a continuing threat
 Internal vs. external cause?

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 o Internal cause- look at whether normal person would have reacted
this way, in this case, a normal person could go into toxic psychosis
when take the drug = suggests it’s not a mental disorder, it is a self-
induced intoxication
 Policy concerns?
 In this case, not a mental disorder, his condition was a result of taking the drugs
(because single episode of toxic psychosis)

Intoxication

- Refers to alcohol and drugs (no difference made in substance, but most cases about alcohol)
- S.M Beck and G. E Parker
o Compares intoxication with mental disorder, why and should they exonerate intoxication
because incapacities are similar
- Voluntary vs. involuntary intoxication
o **these rules apply to voluntary intoxication
o Voluntary intoxication = person consumes a substance knowing or has reasonable grounds
that it will cause impairment
o This distinction is made because there is a moral difference
 Some blameworthiness in getting yourself so drunk, but once you are in an
intoxicated state, cannot form mens rea and then is it fair to punish
 But also a social reality that many offenders are intoxicated – protecting intoxicated
people (ie. A wide defence of intoxication) provides a wrong incentive
 But what is someone is to drunk that they are not voluntary?
o Pg. 892: distinction between involuntary and voluntary
 Voluntary / self-induced – accused intentionally consumed a substance that a
reasonable person would know that is intoxicating
 Why is there an objective standard, why should they be morally
blameworthy when they did not subjectively know it was intoxicating?
 What about when they wanted to be a little bit intoxicated but their drug
was laced with something? Why does degree of how much you think you
will become intoxicated not become a factor? What if you were having wine
and someone slipped something in it? This section would still hold you
liable.
o If there as an involuntary intoxication, can be taken into diminishing mens rea and
automatism defence

- R. v. Bernard (1988 SCC)

o Accused forced female to have sex with him, punched her in the face and threaten to kill her
o He was drunk at the time, but was still able to walk and talk
o Accused claimed that his drunkness caused him to attack complainant, trial judge said not a
defence
o SCC – appeal upheld
o Issue: when can intoxication be a defence?
o McIntyre J. (for one other judge)

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  Specific vs. general intent?
 General intent offence: only mens rea that has to be proved related solely
to the act in question (ex. assault, only minimal intent to apply force – don’t
have to intend injury and such) (ex. manslaughter, breaking and entering,
sexual assault, sexual assault causing bodily harm)
 Specific intent offence: performing actus reus coupled with intent that goes
beyond mere performance (ex. murder, requires intent to kill) (ex. breaking
and entering with intent to commit indictable offence, robbery (=applying
force with intent to take property)  these have an extra motive beyond
committing act itself
 Relies on this distinction for the purposes of this intoxication defence
o For specific intent offence, intoxication acts a defence because they
might lack that specific intent (practically means that not acquittal,
but downgrading of conviction (ie. Can use this defence to
downgrade murder (no intent to kill) to manslaughter)
o For general intent offences, intoxication is never a defence
 Criticisms of this rule (by others)
 Hard to differentiate between specific and general distinction, very artificial
distinction
o McIntyre says there is a distinction, specific offences require more
complicated mental reasoning and greater penalties
 This distinction is merely based on policy, not drawing conclusion from legal
principles
o McIntyre says that’s ok, it is good policy
 Crown still has to prove mens rea, all the intoxication defence says accused cannot
rely on drunkenness to say they had no mens rea
 Can prove mens rea by asking trier of fact to infer it from the facts (mere
intention to apply force is enough mens rea)  only in extreme cases can
you not
 But in those extreme cases, can substitute his intention to drink so much to
his intention to commit the crime ** THIS IS THE CONTROVERSIAL
PRINICIPLE IN THIS CASE
o Fault level of getting drunk is not the same fault level as committing
a serious crime
 McIntyre says it is a good policy, because worse to make
drunkenness a defence to crime if drunkenness was
voluntary
 Accused is morally blameworthy
o Wilson J. (for one other judge)
 No evidence that he did not have minimal intent to satisfy mens rea for this charge
 Given this, don’t have to go into extreme drunkenness on these facts
 But agrees, for specific intent offences, intoxication can be a defence

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  BUT for general intent offences, intoxication is usually not a defence (because
performance of act infers mens rea BUT can be a defence for cases of extreme
intoxication, akin to involuntariness/automatism)
 This is required because of the charter, you would be convicting people who
have no moral blameworthy
o Dickson J. (for two other judge)
 No distinction between specific and general intent offences
 Intoxication goes to mens rea
 Crown has to prove mens rea on actual facts, and those facts might include
intoxication
 Good policy to have limited intoxication defences?
 Legislature should enforce policy and judges should only look at legal
principles
 Maybe have a new offence of drunkenness
 Don’t have to worry about drunkenness defence floodgates because drunken intent
is still intent (you still intended to do it)
 judges and juries would be hesitant to accept this defence anyways
o = three different views, no clear majority about laws of intoxication during this case
 If no clear decision, justice Wilson will be considered since it is the middle point
between the two extremes

- R. v. Daviault (1994)
o Sexually assaulted an acquaintance, he was an alcohol, had a lot to drink
o He went to her house, both drank, she fell asleep, and he had sex with her, he said he did
not remember until he woke up naked in her bed
o Expert said very high level of blood alcohol level, normally that level can cause death or
comma
o In this case, had alcohol blackout (intoxicated automatism – causing him to act involuntary
and had suffered amnesia) -- but amnesia can be separate from involuntariness
o This expert evidence was uncontested by crown
 But some say no such thing as alcoholic automatism, but can have it from drug
o Trial judge acquitted, reasonable doubt of he was in automatisms according to Wilson J. it
can be a defence
o Court of appeal imposed conviction, said what justice McIntyre said was the law
o SCC. Cory. J.: (MAJORITY)
 Adopts reasons from Justice Wilson
 Intoxication can be a defence to a general intent offence where it is so strong that it
negates even minimal mens rea
 Can say it negates actus reas because it was involuntary, but here he deals
with it from a mens rea negation POV
 McIntyre rule violated presumption of innocence because substituting mens rea can
punish people who are not morally blameworthy
 Near the end, said no link between intoxication and crimes (even though statistics
say otherwise)

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  Charter requires the defence of extreme intoxication for general intent offences,
akin to automatism
 But parliament can side step this and create an offence where drunkenness
is part of offence (ie. Assault while intoxicated)
 No floodgates because it would only apply to very rare cases (where they are
intoxicated to the point of automatism)
 Reverse burden of proof, defence has to show defence of extreme intoxication on
balance of probabilities (like automatism and mental disorder defences)
o Sopinka J.;
 Mens rea requirement is there to only punish moral blameworthy put to use mens
rea to create a defence undermines the moral responsibility
 Does not think charter requires minimum mens rea for sexual assault
 Can consider intoxication during sentencing
o PROF
 Lots of crimes occur when people are drunk, and therefore seems a little perverse to
have this as a defence
 Parliament responded to this by removing this defence (and is it constitutional?)
- Daviault case recognized for the first time in Canada that extreme intoxication can be a defense for
general intent offences, and they cited the charter as having a required minimum

- Parliament reacted by introducing a bill, Bill C-72 (1995) (pg. 886-the preamble) and the actual
statute is on pg 888 (Section 33.1 (1) in code) – removes Daviault defense for violent crimes for
reasons in preamble:
o Sees an association between intoxication and violence
o Questions whether intoxication can lead to involuntary actions
o Believe that people who do violence to others when intoxicated are blameworthy in relation
to their conduct
o Affirms common law principle that intoxication that is less extreme is never a defense to
general intent offences
o s.33.1(3)
 tells us it only applies to violence or threaten violence
o s. 33.1 (1)
 talking about general intent offences and very extreme intoxication
o s. 33.1 (2)
 remove defense of extreme intoxication for general intent offence where there is
violence
o Effect on this section for...
 Murder? Would not affect murder because murder is a specific intent offence so
defense of intoxication can be used
 Manslaughter? After this bill, a person cannot use defense of intoxication because
offence of violence
- Is this statute valid under charter?
o Contrary to charter because

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  Takes away actus reus (and mens rea) because even if they involuntary act, will still
be charged, against section 11(d) and section 7
o But can it be saved under section 1?
 Minimal impairment: subsection 3 narrows it enough to not be overbroad and only
applies to violence against another person
 Another option of a drunken disorderly charge that could be made, because
that matches mens rea and actus reus
 There is a self-induced element so there is an element of choice
 Pressing and substantial objective: protecting vulnerable group, women and
children
o What about addiction?
 Can you say it is involuntary if there is an addiction? The law does not recognize this,
should (addictions are diseases of the mind from psychiatry perspective, but in the
law, they are intoxication cases and not mental disorder cases)
- R. v.Daley
o Clarifies specific intent offences (which impairs intent, mens rea) – the ultimate question is
whether there was intent or not, and did the intoxication actually prevent forming of that
intent?
 Therefore the defense will only be successful if they can show the intoxication
impairs their formation of intent
o 3 levels of intoxication
 Mild (buzzed, lower inhibitions) – never a defense at law (specific or general)
 Advanced – accused lacks intent, can be used for specific intent offence
 But depends on facts of case, does trier of fact believe the advanced
intoxication prevented the intent forming
 Extreme (akin to automatism) – negates voluntary, complete defense to criminal
responsibility but section 33.1 limits it to non-violent offences
- R. v. Bouchard-Lebrun
o Clarifies section 33.1, conditions have to be met
 Accused intoxicated
 Self-induced
 Depart from reasonable care when acting towards someone bodily integrity
 Lacking general intent for voluntariness is not a defense
o Even toxic psychosis would not be a defense anymore

JUSTIFICATIONS AND EXCUSES

Introduction
- “true defenses” = defenses that operate even when actus reus and mens rea are proven
- Sources of defenses
o Statute
o Common law (section 8(3) of CC uphold common law defenses)
 Not practical in codifying all possible defenses
 Allows for morally innocent to be vindicated
 Consistent with common law method to develop defenses

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- Cases of emergency
o (Defense of person, necessity and duress) all apply in emergency type situations where
people can be excused for breaking the law
 Duress (under pressure from a threat from another person, threat has to be of
bodily harm and has to be duress to that offence)
 Defense of person – self defense
 Necessity is a broader defense (realistically unavoidable to break the law in order to
preserve their or someone else’s life)  catch all defense (but if it falls under the
narrower defenses, use those! Don’t discuss this defense unless other two don’t
apply!)
- Air of Reality for Defenses
o 2 steps for proving a defense
 1) Evidentiary burden has to be met
 There is an evidentiary foundation to put the defense in play
 Accused carries this burden
 Test: air of reality
 2) Persuasive burden has to be met
 Burden to disprove or prove the defense to the trier or fact
 May be on the accused or crown, ordinary rule is that the crown has to
disprove on beyond a reasonable doubt
 Reverse onus of proving defense lies on accused (ex. Mental disorder,
automatism, extreme intoxication) on balance of probabilities
o R. v. Cinous
 Air of reality is test for evidentiary burden
 Air of reality = Whether there is an evidence on the record upon which the
properly instructed jury acting reasonably could conclude that the defense
succeeds
 Applies to all defense
 Burden on accused
 Judge must put to jury all defenses that arise on facts (even if defense does
not raise it)
 Trial judge has a positive duty to keep from jury defense that lack air of
reality (even if defense raises it and it is only hope for acquittal)
 Trial judge has to consider totality of evidence and assume accused
evidence as true (even if there is conflicting evidence – if it is raised by the
defense evidence) and can the defense can be raised on any evidence
 Trial judge does not decide if defense is successful (that is for trier of fact)
 Whether or not a defense has an air or reality is a question of law, therefore
can lead to an appeal if a defense was or was not raised by the trial judge

Defense of Persons

- Defense of person (self-defense) but also applies to if you are defending another person
o Conduct that is seen as a justified conduct that is right
o Statutory defense

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 o Pg. 901, section 34 of CC (came into effect 2013)
 On “reasonable” standard – was it reasonable for accused to act this way?
 (2) the court considers circumstances to determine reasonableness, consider victim
and accused and relationship between the two, lists other factors (a-h) that can be
taken into account (pg. 902)
 Force/nature of threats
 Imminence (was a required factor, but after Lavallee, battered women, case,
became a less stringent requirement)
 Can other means have been used
 Role of the accused in the (if there was a) incident
 Size, age, gender, physical capabilities of parties
 Proportionality of response (but not directly proportional, depends on
circumstances)
 This question of reasonableness is a question of fact, therefore jury decide is it
applies
 Over test is reasonableness, which is objective
 But it is very infused with subjective factors, personal factors and factors of
circumstances can be taken into account
 Subjective element is strong enough that mistaken self-defense claims can
be successful
 Why is this standard an objective one then?
 For other cases (especially police shootings) you need to have some limits;
your sense of threat and ability to use force has to be bounded by
reasonableness in order to protect the public
 PROF: this is the best way to balance protecting the public but also the
person accused
 Are people allowed to stand their ground or required to retreat? There is no
absolute duty to retreat, very much circumstantial
 Can be seen as making defense of necessity in statute (which is still a common law
defense)

o R. v. Lavallee, (1990 SCC)

 Battered women who killed her common law partner, had people over and he said he would
get her later so as he was leaving the room, shot him in the back of the head
 Issue: did she have a viable case of self-defense?
 This was preemptive
 Acquitted at trial, appealed
 Wilson J.: (MAJORITY)
 Was her fear about being attacked and her response of this fear reasonable under
the circumstances?
 Imminent requirement, had to have an imminent threat in order to use this defense
 But that means she has to wait till she was being abused, and she might not have
been able to save herself in that case

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  Expert evidence given about battered women, helps show her mental state and
perception of situation
o Degree of predictably that battered spouse has was higher than someone
who was not in that situation
o Battered women syndrome is not a defense itself, it just shows their
perception of the situation and why they thought their actions were
reasonable
 Upheld acquittal
o Shows how much subjective factors are important in this defense
o Not looking to “reasonable man” standard, taken circumstances into
account
 Criticisms:
o Stereotyped what a battered women look like, and this defense might not
apply to women who are not as “helpless” looking as the one in this case
 Court’s response: Each women’s experience is unique but they also
have shared factors, therefore it is important to look at the
syndrome but also the women itself

Necessity
 Common-law defence.
 “Constitutes emergency situations where normal human instincts, whether self-preservation or
altruism, overwhelmingly impels disobedience”.
 Removes criminal liability when a person decides to do something they know is prohibited by
law.
 Also includes Dudley v Stephens.
 Accused put in a position where it’s reasonably necessary to avoid a threat.
 “Catch-all” defence.
o Don’t talk about necessity as an additional defence, if the facts clearly fall into duress or
self-defence.

Perka v R (1984) SCC REQUIREMENTS OF NECESSITY DEFENCE

 Facts: Accused had 33 tons of marijuana on his boat worth 6-7 mill.
o Sailed from Washington to Alaska. Needed to come ashore after a strong storm and
failing engine.
o Landed on Vancouver Island and was charged with importing and possession.
o Argued that the only reason he broke the law was necessity to save his and his crew’s
life.
 Issue: Is necessity a defence? Did the trial judge err in directing attention to factors of necessity?
 Holding: Yes and yes. New trial.
 Analysis:
o Dickson:

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 o Necessity can work during emergencies, where there’s a life-threatening risk to the
person’s liberty.
o When compliance with the law is impossible and there’s an emergency, then necessity
can apply.
 Morgentaler
o Necessity can be understood in two ways:
 Justified actions, are praised since they’re motivated by a noble object- praised.
 Situation where the act isn’t wrong, but rightful.
 Excuses, carry no approval and are concessions to human frailty- pardoned.
 Situation when following the law would be impossible.
 The act was wrong, but the circumstances dictate that the actor
shouldn’t be punished.
o Necessity is an excuse, since it’s about overcoming one’s will.
o The defence is too subjective, because it involves making value judgments.
 Who gets to pick whose life is important?
o Yet, sometimes disobeying the law is the only course of action available to a person.
 Can’t punish people for failing to uphold the law when the situation
overwhelmingly persuades someone to break it.
o The instinct to break the law needs to be so strong that an ordinary person couldn’t
withstand it.
o Normative Involuntariness: Exists where a person has no choice but to do the criminal
act, because he/she is in an emergency situation where instinct compels disobedience.
 Act is realistically unavoidable.
o We don’t punish normal involuntary acts, because there’s no moral blameworthiness.
 Pointless because they are unavoidable due to human instinct.
o Defence has limitations:
 Only covers acts that are morally involuntary.
 Underlying Q- did the actor have no real choice?
 Limitation: Can’t be involved in an illegal situation.
o 3 Requirements for the defence:
 Urgent situation of imminent peril.
 No reasonable legal alternative: Was there any way to avoid it?
 Proportionality- the harm avoided by breaking the law should be greater than
the harm that flows from breaking the law.
o Accused has burden of proof (air of reality); Crown has dissuasive burden of rejecting it.
o Dissent: It should be a justification sometimes.

R v Latimer (2001) SCC MODIFIES NECESSITY

 Facts: Tracy Latimer suffered from cerebral palsy and extreme pain from seizures.
o Facing another painful surgery, so her father thought he should end her life.
 Latimers perceived the surgery as a mutilation.
o Killed her in the cab at the back of his truck with exhaust.
o Charged with 2nd degree murder
 Thought it was unfair that he wouldn’t be eligible for parole for 10 years.

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 o Argued that he had no other choice.
 Issue: Was trial judge’s withholding of necessity an error?
 Holding: No, since it had no air of reality.
 Analysis:
o Trial judge didn’t put necessity to the jury.
o Uses Perka factors:
 Not enough to foresee the peril, but it must be on the verge of transpiring and
certain to occur.
 No reasonable legal alternative requirement.
 Proportionality of harms
 Can’t cause a significant harm to avoid a lesser harm.
o Should necessity be judged on a subjective standard?
 Court uses a modified objective test.
 Take into account situation and particulars of the accused into account.
o First 2 requirements of Perka require modified objective test.
o The test for proportionality is objective.
 The defence turns on society’s expectation to avoid breaking the law.
 Accused has to honestly believe that he faced a situation of imminent
peril and he has reasonable grounds for this belief.
o Air of reality test:
 Stage 1 and 2 consist of a subjective/objective modified test, where the accused
at the time of the act must honestly believe on reasonable grounds that he
faces a situation of imminent peril that leaves no reasonable alternative open.
 Stage 3 is proportionality, where the infliction of death to avoid pain is not
proportional.
 Air of reality needs to be established for all 3 stages.
 No air of reality for any.
o If necessity was a defence to murder, the harm avoided need to be proportional to
death.
 Exception: Conjoined kids case.

Duress
 Pressure from another human being using concession to threat.
o Must consist of pressure of one’s own life or those around to relieve of criminal liability.
 S 17 CC (Duress) Requirements:
o Lays out an excuse defence.
1. Threat of death or bodily harm
2. Immediacy
3. Presence
4. Reasonable belief that threat will be carried out
5. Not a party to a conspiracy
6. Exclusion for various offences (murder)- only applies to statutory defence.
7. No safe avenue of escape (added by the CL)- Hibbert
8. Close temporal connection (added by the CL)- replacement of immediacy.
9. Proportionality (added by the CL).

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  Use modified objective test for these.
 Constitutional question about the exclusion of these defences.
o Even if someone is using statutory defense of duress, has to show first four (part of
statute) and also the three common law additions made
 Reasons why duress shouldn’t be a defence to murder.
o Valuing one life over another.
o …Paquette.
 There’s also the common law defence of duress that has no exclusions.
 If implicated as a principal offender, s 17 offence applies.
 If implicated as a secondary offender, common-law defence applies.
 Some versions of necessity can fall under this defence.
 Exam: Consider whether the person is a principal or a party; determine which defense arises.

R v Paquette (1977) SCC

 Facts: There was a robbery at a popshop in Ottawa, where a bystander was killed by one of the
bullets shot by the principal.
o Accused resisted giving the principals a ride when he knew what they were going to do.
The gun was pointed at him, so he drove, waited while they robbed the store; and
resisted again.
o Arrested and charged as a party to murder.
 Holding: All secondary offenders can bypass s 17 and use common law defences.
 Ratio: Common-law defence still applicable to people who are parties to an offence.
 Analysis:
o Under s 17, only those who commit the offence are implied, not secondary offenders.
o High threshold to prove that one is a secondary and not principal offender.
o Accused is the principled offender, where the accused actually committed the offence.
o S 17 only applies where the accused committed the offence- trial judge found that this
provision didn’t apply (Ds happy, because common-law defence is morebroad).

R v Hibbert (1995) SCC

 Facts: Accused forced by gunmen to lure his friend to a street, where they killed him.
o Charged with aiding and abetting murder.
 Holding:
o Accused had the mens rea (it didn’t matter if he wanted/ desired the outcome, he knew
his friend might be killed) so only way to use this defense was as an excuse
o Had oblique intent. Dealt with common-law defence and it was conceptualized as an
excuse defence based on moral involuntariness.
o Introduced the "no legal way out" requirement in defence of duress - asks if there is a
"reasonable legal alternative" determined using a modified objective test. In the case at
bar, a reasonable person in Hibbert's shoes would not have thought that he had any
reasonable alternatives.
 The court adds another common-law requirement (no safe avenue of escape).

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  Ratio:
o Duress may be used as a defence either to negate mens rea or as an excuse-based
defence under s. 17 or the common law defence of duress; the defence can always
apply, but whether or not the coercion will mean that the mens rea is not present will
depend on the particular charge and facts of the case.
o The common law defence only requires you to determine if the accused had a
"reasonable legal alternative" using a modified objective test.

R v Ruzic
 Serbian woman imported heroin into Canada. Principal offender. She was under duress to take it
to a restaurant in Toronto. If she didn’t do it, her and her mother would be charged.
o Since she’s from Serbia, there was no functioning police force because of the political
climate at the time.
o By the time she was at the Toronto airport, the immediacy and presence requirements
weren’t met.
o Defence argues that her actions were morally involuntary and it’s a principle of
fundamental justice that the moral involuntary actions can’t be punished- Immediacy
and presence, therefore, were struck out.
o Contrary to s 7 to apply these provisions.

R v Ryan (2013) SCC LEADING CASE

 Facts: Nicole Ryan was a victim of abuse and violence by her husband.
o Believed he would cause her and her daughter serious bodily harm/death
o Went to the police, but they didn’t protect her.
o Decided to have him killed. Found hit-man, agreed on fee.
o Charged with counselling the commission of murder
o Claims duress and threats of murder forced her to commit the offence.
 Issue: Can a wife, whose life is threatened by her abusive husband, rely on duress when she tries
to have him murdered?
 Holding: No.
o Duress is available when one is compelled to commit a crime against an innocent third
party.
o Court adds that the belief must be reasonable.
o Duress covers a certain type of facts:
 “when a person commits an offense while under compulsion of a threat made
for the purpose of compelling him or her to commit it” (pg. 974 para 2) ==
therefore duress not available to her
o Uses a modified objective test for “no safe avenue of escape” = reasonable person in
similar circumstances
o 2 differences between statutory and common law defence of duress:
 Exclusion of various offences in statutory (but also use the three new common
law requirements to flesh out statutory requirements of defence)

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  In common law, applies to aiders and abetters; Statutory applies to principal
offenders.

Provocation

- Partial defenses to murder – PROVOCATION IS ONLY A DEFENSE TO MURDER!!

o Limits Liability
o Cannot apply provocation defense to assault, it is only available to murder charge!
o Partial defense, does not result in acquittal but if successful it reduces murder to
manslaughter
o Voluntary intoxication at an advanced level is also a partial defense to murder!
o Section 232 of CC: In the heat of passion caused by sudden provocation (NEW VERSION! ON
MODDLE)
o Even though they have mens rea and actus rea, reduces their liability
o The act has changed, what used to count as provocation is a wrongful ac or insult in nature
to deprive person of self-restraint
o Parliament has limited this, now provocation is: 1) conduct of the victim that would
constitute as an indictable offence in the code that carries five years of imprisonment or
more ** and 2) such a nature to be sufficient to deprive an ordinary person from the power
of self-control and 3) accused acted on it on the sudden, before passions can be cooled
 (includes hybrid offenses as well if indictable offense has 5 years or more)
o R v. Tran (not in reading)
 Two elements of defense of provocation
 Objective element
o There had to be some provoking conduct sufficient to deprive
ORDINARY person or self-control (ie. Ordinary standard)
 Subjective element
o Accused had to be provoked and act while out of control
(subjective, how did accused act)

o R v. Hill (LEADING CASE ON PROVOCATION!)

 16 Y.O boy, stabbed to death a man he knew through big brothers organization, at
victims apartment, hill says victim made sexual advance and he was provoked by
this unwelcome sexual advance
 (under current state of law, nature of sexual act is important because would need to
be a sexual assault amounting to 5 years or more) (but not much discussion because
before new section)
 Charged with first degree
 Jury charged him with second degree, therefore did not accept provocation defense
 Issue: whether trial judge should have told jury for ordinary person standard
includes be of same sex and age

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  If he was older, he could have taken things in stride but because he was
younger he was provoked
 What extent do we factor accused characteristics for ordinary standard?
 Why we should: What is a racial insult was said? Hard to have ordinary view
because racial part is important
 Why we shouldn’t: But suppose to have an objective standard, should apply
to everyone (would not want to take into account someone with short
temper)
 Dickson, J.: Pg. 993 – court defines how ordinary standard should be applied
 Ordinary person is of normal temperament, not excitable, not pugnacious
 Nevertheless, some characteristics will be considered that are relevant to
provocation (ex. Racial background)
 Therefore only take relevant characteristics, and in this case, age and
gender would be relevant
 And since judge’s instructions did not tell them to take it into account, but
jury would have taken them into account anyways (no reason to think they
thought ordinary person was an elderly female) and best to keep jury
charge simple therefore the trial judge was fine
 But in theory, relevant factors should be taken into account
 Pg. 988: defense acknowledges all human beings are subject to
uncontrollable outbursts of violence

- Provocation has 3 archetypical cases

 Gay panic cases (gay sexual advance leads male accused to become provoked)
 Would only be able to use this defense is the sexual advance was a sexual
assault (a verbal sexual advance would not be covered under this defense)
 Adultery cases (man comes home to find wife in bed with another man) (most
common type of case)
 These cases are no longer going to be covered by this defense because
adultery is not a criminal offense
 Excessive self defense (defending themselves and goes too far and kills the other
person in a defense that is disproportional, therefore no valid justification of self
defense but can use provocation)

- Provocation vs. self defense

o Very often, if self defense is the defense, provocation is a back-up defense if there seems
that the defense was disproportional

- Controversy around provocation defense

o Courts have tried to constrain defense to avoid giving it to people who act on a
discriminatory defense (ex. Gay panic cases or adultery cases)
o Gay panic cases, these cases are problematic, gives defense to highly homophobic people
o In adultery cases, there is a sense of owning your wife or feeling like you have the right to
kill her = discriminatory

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o Allows for flexibility in sentencing (murder requires mandatory life sentence, but
manslaughter does not)
o Even though killing still carries a lot of moral blameworthy
o Isn’t killing on an impulse what criminal law is trying to prevent, then why is there a defense
for it?

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