Contents

Introduction.......................................................................................................................................................................... 2
Sources of Law.................................................................................................................................................................. 2
Common Law.................................................................................................................................................................2
Statute...........................................................................................................................................................................3
Division of Powers.........................................................................................................................................................3
Charter of Rights and Freedoms....................................................................................................................................4
Procedural Overview.........................................................................................................................................................4
Classification of Offences..............................................................................................................................................4
Presumption of Innocence/Reasonable Doubt..............................................................................................................4
Woolmington v D.P.P., 1935, UK (p.81).........................................................................................................................4
Role of the Criminal Justice System in Canadian Society...................................................................................................5
Victim’s Rights (p.109)...................................................................................................................................................5
Policy.............................................................................................................................................................................5
Roles of Judges & Lawyers................................................................................................................................................6
Adversary System..........................................................................................................................................................6
The Act Requirement............................................................................................................................................................6
Commission of an Unlawful Act........................................................................................................................................6
Possession Offences (s.4(3)(a))......................................................................................................................................6
Consent Making Act Lawful...........................................................................................................................................7
Omissions – Legal Duties to Act.........................................................................................................................................7
Moral and Legal Duties..................................................................................................................................................7
What is an Omission?....................................................................................................................................................8
How do Legal Duties Arise?...........................................................................................................................................8
Voluntariness.................................................................................................................................................................... 9
Defining What is not Voluntary.....................................................................................................................................9
Why Have a Voluntary Requirement for the Actus Reus?.............................................................................................9
Examples not Associated with Mental Disorder............................................................................................................9
Causation........................................................................................................................................................................ 10
Criminal Code..............................................................................................................................................................10
Common Law...............................................................................................................................................................10
Cases of Intervening Cause..........................................................................................................................................10
The Fault Requirement........................................................................................................................................................11
Policy Takes................................................................................................................................................................. 11
Subjective/Objective Distinction.....................................................................................................................................11
1
 R v Hundal, 1993, SCC (p.352).....................................................................................................................................11
R v Theroux, 1993, SCC (p.353)....................................................................................................................................11
R v Mulligan, 1974.......................................................................................................................................................11
R v Ortt, 1968 (p.355)..................................................................................................................................................12
R v Walle, 2011, SCC (p.356)........................................................................................................................................12
Fault for Public Welfare (Regulatory) Offences...............................................................................................................12
Common Law...............................................................................................................................................................12
Charter........................................................................................................................................................................ 12
Summary..................................................................................................................................................................... 12
Fault for Crimes...............................................................................................................................................................13
Murder (s.229(a)(i) and (ii)).........................................................................................................................................13
Murder (s.229(c) and s.230)........................................................................................................................................13
First Degree Murder (s.231)........................................................................................................................................13
Crimes Requiring Subjective Awareness..........................................................................................................................14
Common Law Presumption.........................................................................................................................................14
Motive......................................................................................................................................................................... 14
Desire/Purpose............................................................................................................................................................14
Intention or Knowledge...............................................................................................................................................14
Recklessness or Willful Blindness................................................................................................................................15

Introduction
Sources of Law
Constitution Act, 1867 – s.91 states criminal is exclusively federal jurisdiction; s.92 gives provinces the power to
make laws for matters coming within the classes of subjects under provincial control
Criminal Code of Canada, 1955 – Defines all offences/elements
- S.8 continues all common law defences, excuses and justifications
- s.9 abolishes common law offences
Common Law
- Cannot be judicially created crimes. Some aspects governed by case law:

R v Sedley, 1663
- The charge wasn't a law in criminal code - this therefore shows us historically how judges were
able to invent offences when they thought that offences were bad. Judges created a new common law
defence.
- Only the federal parliament can enact criminal offences. There are some criminal offences in
other provisions, other than the Criminal Code - i.e. control of narcotics/drugs in narcotics act, other federal
legislation.
Frey v Fedoruk, 1950, SCC
- Peeping tom – not an offence at the time
- Court committed false imprisonment since def's conduct was not a Criminal Code offence
- Judges cannot decide common law offences – offences must be in CCC

2
Statute
1. No general rule on interpreting criminal code statutes. Sometimes a narrow reading of the words is used,
sometimes look for Parliament's intent or fit to modern day. However, strict construction applies in either method.
- On exam, make sure you look to Criminal Code first, and then move to cases. Identify governing statute.

R v Clark, 2005, SCC

- Convicted masturbating near the uncovered window of his illuminated living room (s.173).
o Was it a public place? No.
o Complainants watching secretly.
o Was it willfully done if he didn’t know he was being watched? No
- Use ordinary meaning of word ‘access’
- Judges look to use ordinary meaning of words in interpretation
Bilingual Interpretation
- Where meaning is unclear in one language, look to the clearer to ensure proper interpretation

Strict Construction
Principle: If a statute is subject to various interpretations, then it is fair to construe it in favour of accused.
Under the Canada & Ontario interpretation acts, interpretation should be 'liberal + broad"
R v Goulis - policy
- There is a rule of law question here that is fundamental: the idea is that people are acting according to criminal law
standards. A person should have notice in advanced whether their act is criminal or not.

- Interpretation Act: interpret statues liberally to ensure the attainment of the object of the act. But this may go
against the concept of strict construction because the whole idea of the criminal code is to punish people. That is
why the idea of strict construction takes priority on matters of criminal law.
R v Pare, 1987, SCC
- Pare was 17-year-old male who lured a 7-year-old under a bridge & indecently assaulted him. Then strangled/killed
– First or 2nd degree murder? Strict interpretation could lead to 2 nd degree. S.231(5)
- Court says it happened in one stream of events. Transaction analysis.
- If strict construction leads to an irrational result, a different analysis of the wording should be attempted – in this
case, causal link instead of temporal is okay

R v Mac
- Examine words in their context

Criminology
- Doob: sentencing severity has no effect on crime
- Deterrence doesn’t work

Division of Powers
- BNA Act (1867), Constitution Act, 1982
- Federal vs provincial powers (s.91 vs s.92)

Reference re Firearms Act

- Government of Alberta challenges whether feds have power to make laws re firearms
- Court says must determine 2 things: (1) pith and substance of law AND (2) which head of power pith and substance
falls under
o Parliament’s purpose was to protect public safety (this is a valid criminal law purpose), efficacy of the
law (Alberta’s argument) is irrelevant
- Falls under criminal law because has: (1) valid criminal law purpose, (2) prohibition, (3) penalty

3
Charter of Rights and Freedoms
- Law can be unconstitutional if it is ultra vires, or contrary to charter
- Hunter v Southam (p.44) -> judiciary guards constitution, “living tree”, purposive approach to application of charter
- Criminal law cannot be: Vague (unclear – contrary to s.7); overly broad (covers too much non-criminal behavior);
arbitrary (dependant on discretion); grossly disproportionate (punishment too harsh)

S.7 and Principles of Fundamental Justice

- Must have an idea what you are doing is against the law

(Spanking Case) Foundation for Children v Canada, 2004, SCC (p.47)

- Canadian Foundation for Children, Youth & the Law v AG Canada
- McLachlin - S.43 -> is it too vague under s.7? No because it delineates a risk zone for sanctions clearly. If it is not for
corrective purposes, it is assault

Bedford v Canada, 2013, SCC (p.56)

- Constitutional challenge against sections of CCC that prevented prostitution -> all struck down
- Prostitution was not illegal, these sections made a legal activity more dangerous -> against s.7
- McLachlin: law failed to be connected to its objectives (ss. 210,212(1)(j), 213(1)(c))
- Common bawdy house: disproportionate: led to danger for prostitutes while objective was only to prevent nuisance
in neighbourhoods
- Living on avails: over broad: stopped hiring of security, etc. meant for pimps
- Communicating: disproportionate: pushed prostitutes to more dangerous areas, security of person, only meant to
prevent nuisance

Procedural Overview
Classification of Offences
- Indictable
o Serious, usually have penalty (if not, max 5 yrs), generally defendant choose how they are tried – judge
or judge/jury
- Summary
o No jury, max $5k or 6 months jail unless otherwise stated
- Hybrid
o Crown may elect whether summary/indictment – strategically selected
- Murder/any jury trial confined to superior court

Presumption of Innocence/Reasonable Doubt

- Protected under s.11 charter – normally burden of proof on crown
- Sometimes there are reverse onus – violate presumption of innocence but can sometimes be saved under s.1
because are necessary
- Presumption violated if it allows for conviction despite existence of reasonable doubt

Woolmington v D.P.P., 1935, UK (p.81)

- Man shoots estranged wife with shotgun, claims it was accident, but was heard saying on purpose
- Does accused have to prove it was an accident? No – crown must prove it was intentional
- POLICY: greater miscarriage of justice to imprison innocent than acquit guilty

R v Lifchus, 1997, SCC (p.88)

- Judge explains reasonable doubt is an ordinary term everyone should understand
- Majority (Cory): Judges must instruct juries on what BaRD means (list of things should be said p.89)

4
R v Starr, 2000, SCC (p.91)
- Can use the civil standard (balance of prob) to explain BaRD: somewhere between BoP and 100%, much closer to
100%

R v W. (D.), 1991, SCC (p.92)

- Laid down what could be said by judges
- Jury cannot weight two stories and decide who is more credible

R v S. (J.H.), 2008, SCC (p.92)

- Do not compare two versions of events – compare all evidence and be convinced BaRD

R v Mullins-Johnson, 2007, On CA (p.96)

- We do not have findings of factually innocent as this would create two classes of people

R v Oakes, 1986, SCC (p.99)

- Narcotics act s.8 uses a reverse onus – found in possession, assumed to be trafficking unless can prove otherwise –
claim this violated s.11
- Limitations on rights and freedoms can be set, but subject to reasonable limits as can be justified
- To determine if a law that infringes rights is upheld under s.1, use Oakes Test
o Party trying to limit has onus to prove limit is reasonable on BoP
- Oakes Test
1. Must be a pressing and substantial objective in limiting the right
2. Proportionality test
a) Rational connection (between legislation and objective)
b) Minimal impairment* – means chosen should have least impact possible
c) Balancing test – balance negative effects of limiting with positive
- Nothing that violates s.7 has ever been upheld under s.1, but could be in extreme circumstances
o S.1 deals with society as a whole while s.7 deals with effects on individuals

Role of the Criminal Justice System in Canadian Society

Victim’s Rights (p.109)
- Must balance accused’s rights with rights of victim
- Rape shield laws – prevent use of victim’s sexual history
- Bill of victim’s rights – allow their view to be considered, etc.

Policy
- Criminal system is last resort – costly, imposes on rights
- Harm Principle from JS Mill
o Limits intrusion of state to when the state is trying to prevent harm to others
o No paternalism -> except vulnerable groups
o Influential idea but not entirely adopted

R v Malmo-Levine, 2003, SCC (p.112)

- Accused of MJ possession, said no harm to others, so should not be criminal
- Principles of fundamental justice are
o Legal principle
o Significant societal consensus that it is fundamental
o Sufficiently precise to yield a standard to measure deprivations to rights
- SCC says we have laws that don’t accord with harm principle (paternalistic)
- The harm principle is not a principle of fundamental justice and is not necessary for criminal laws

5
Roles of Judges & Lawyers
Adversary System
- Defended as capable of approximating the closest to truth
- Party control (prosecutor decides), passive judge (keeps parties to rules), highly formalized rules
- Trial is a contest, presupposes some equality between parties (not always the case)
- For: competition leads to motivation, judge remains unbiased/impartial, satisfaction for litigant
- Against: winner and loser (not resolution), presumes equality, not impartial, more interested in contest than in truth
- Feminist (Menkel-Meadow): based on male psyche of competition
o Bertha Wilson: some areas of law won’t change with women
- Aboriginal: overrepresented in criminal, justice system based on collectivity

R v R.D.S., 1997, SCC (p.148)

- Black 15 year old accused of offences relating to arrest of another black youth
- Judge was black, disbelieved officer -> was there bias? -> look at context of other remarks
- Judge assumed racism had played a role -> SCC says shouldn’t assume
- 6 out of 9 acquitted, but 5 thought there was at least worrisome reasoning by judge
- Test: would a reasonable person aware of circumstances conclude there was a reasonable apprehension of bias?

The Act Requirement

- If only a guilty mind was required, everyone would be guilty (p.170)
- Immediate act, surrounding circumstances, causation, consequences

Commission of an Unlawful Act

Possession Offences (s.4(3)(a))
- Personal possession: Something on you or with you
- Constructive possession: having someone else hold something for you, or keeping something somewhere for later
- Joint possession: multiple people in possession if there is knowledge and consent of possession
- Require knowledge and consent

Marshall v R, 1968, Alta CA (p.184)*

- Accused was passenger in car, stopped by police – search found narcotics – charged s.4(3)(b). Accused admitted
knowledge of drugs but no consent (Calgary to Vancouver)
- Had knowledge. Did not consent because he had no control over the substance.
- Having possession requires having both knowledge and control control over the item

R v Terrence, 1983, SCC (p.188)*

- **LEADING CASE**
- Accused pax in stolen vehicle – may have known it was stolen. Had to be more than knowledge. S.4(3)(b)
- In order for consent to exist in joint possession, there must be some measure of control

R v Morelli
- Child porn. Viewing images online not possession. Unless you store the underlying data in some way, no control.
- Possession of digital objects requires some control over underlying data file

R v Pham, 2005, Ont CA

- Seen dealing drugs form apt. police go in to search while she is away. Boyfriend is there, cocaine seized. Did she
have knowledge/control? Possession made out by circumstantial evidence -> demonstrated some control
- Court considered where the drugs were, her role suggested she had authority

6
R v Chalk, 2007, p.202
- Child porn found on HDD – denied intentionally downloading. Asked gf to delete them after arrest. From R v Daniels
(p.203): need not have viewed to be in possession. Control may come from power/authority whether exercised or
not
- Innocent possession not accepted, but is possible

Consent Making Act Lawful

- Consent can be vitiated (declared of no legal effect) due to policy limits, when consent induced by fraud, or when
consent given by someone who cannot (ie. Under the age of consent)
- Often part of act element -> act is unlawful only if done without consent

R v Jobidon, 1991, SCC (p.205)

- Consensual fight at bar – accused hit guy in face, he fell onto hood of car. Kept hitting him not knowing he was
unconscious and died
- Question about whether consent was valid -> if so, no assault so no manslaughter
- Not in the public interest for people to cause bodily harm – consent vitiated by policy
- Consent was limited in common law assault before CCC – can look to it still
- Two adults cannot consent to apply force to each other that causes serious harm (defined in s.2, p.12)

R v Moquin, 2010 (p.218)

- What constitutes bodily harm? Victim had injuries which took 10 days to heal, all better in a month
- Bodily harm is defined through s.2 and cannot be limited based on time

R v Cuerrier, 1998, SCC (p.221)*

- Knows he has HIV has sex – charged with s.268 aggravated assault – is consent vitiated by fraud?
- Fraud: dishonesty/deceit, deprivation/risk of deprivation
o Can vitiate consent when it includes dishonesty that expose someone to risk of serious harm
- Level of duty to disclose STI status is related to level of risk/damage. Failure to disclose HIV+ is fraud

R v Mabior, 2012 (p.227)

- Had sex with 9 people while HIV+ -> none got HIV, was using antivirals and not very infectious
- If the risk of HIV transmission is low enough, you are not required to disclose to obtain consent

R v Hutchinson, 2014 (p.238)

- Accused had sex with gf, she insisted on condom use. He poked holes to get her pregnant -> aggravated sexual
assault charge
- All agreed on charges. Majority said she consented to sex, but consent vitiated by fraud under s.265(3).
- Putting woman at risk of pregnancy without consent is deprivation -> must be very serious to vitiate consent

Omissions – Legal Duties to Act

- Some offences require only inaction – can be a legal duty to act
- Ss. 215, 216, 217 – not offences, but define the duty -> allow an omission to be the act element
- Generally limited to case where the is a LEGAL and not a MORAL duty to act

Moral and Legal Duties

Buch v Amory Mortgage Co, 1898 (p.249)
- Moral obligation is not enough to make an act criminal – no duty to rescue

Criminal Responsibility for Omissions, 1967

- Bentham – should have duty to rescue if no risk to self
- MacAuley – could be imposing a duty with infinite people to help
- Quebec charter requires you to help, as does French penal code
7
What is an Omission?
O.W. Holmes, “The Common Law”, 1963 (p.251)
- You have the right to not intervene, but once you begin to help, you cannot withdraw

Fagan v Commissioner of Metropolitan Police, 1968, UK (p.252)

- Guy drives car onto officer’s foot – didn’t remove it after being asked to. Continuous act
- Defence argues mens rea and actus reus were not simultaneous – driving on, THEN intention to stay on
- Mens rea and actus reus must occur simultaneously for fault, but there can be an ongoing act and they coincide

How do Legal Duties Arise?

- Statute or common law
- In cases where CCC explicitly creates a duty (ie. S.215(1)) and makes it an offence not to act (s.215(2))
- Some offences are worded broadly so an omission can be act (ie. Nuisance s.180)

R v Miller, 1983, UK (p.255)

- Fell asleep while smoking, lit mattress on fire, failed to call 911 -> charged arson
- Duty theory: person knows of risk of harm and came under legal duty from common law to put fire out
- Continuous act theory: it was on act from when he started fire to when he failed to put it out
- An omission can be act if a person creates a situation where harm will occur and fails to try to prevent it

Moore v R, 1979, SCC (p.258)*

- Ran a red on bicycle – when asked name, refused. Charged with obstructing police officer (s.129)
- For policy reasons, better for public interest that police be able to request names
- A person is obstructing justice if they fail to give their name when they were seen committing a crime by a police
officer – common law duty to act if you are preventing someone else from doing their duty, reciprocal duty
- STRONG DISSENT (Dickson): people should not have positive duty to give their info, disproportionate charge – traffic
offence leads to criminal charge
o Court is creating a legal duty here – inventing crimes
o @Agrees – criminal liability could change between provinces, also this is a common-law offence

R v Thornton, 1991, On CA (p.266)*

- Gave blood knowing HIV+, omission was failure to inform that he had it – charged with nuisance (s.180)
- Appeal court said there was a common law duty – SCC doesn’t address this
- SCC found duty through s.216 (medical procedure)
- NOTE: the court appears to read that a duty of care can be imposed for LAWFUL ACTS

R v Browne, 1997 (p.270)*

- Meaning of undertaking in s.217
- Accused and deceased were dealers, she swallows crack to stop cops from finding. Accused finds her later sick, says
will take to hospital and calls cab. She is DoA. Charged with criminal negligence causing death (s.219)
- Trial court: Accused undertook to care for her by saying he would, calling a taxi was “wanton reckless…” s.219(1)
- SCC: The mere expression of words indicating a willingness to do an act cannot be an undertaking, and cannot
trigger a duty of care. There must be a higher commitment which gives rise to reliance

R v Peterson, 2005, SCC (p.273)*

- Adult child neglects father, charged with failing to provide necessaries (s.215(1)(c))
- List of things to look for to find under the charge: family, dependent, etc.

Voluntariness
- Part of the act requirement – must be a willing mind at liberty to make a choice
o Not unconscious action or when you have no control
8
Defining What is not Voluntary
R v King, 1962 (p.287)
- There can be no actus reus unless it is the result of a willing mind at liberty to make a choice/action

Rabey v R, 1980 (p.287)

- Automatism – if an act is involuntary you get complete acquittal. Automatism between responsibility and insanity
- Crown must always prove that act was voluntary, so automatism is not a true defence

R v Parks, 1992 (p.288)

- Sleepwalking case - automatism is conceptually part of voluntariness

R v Stone, 1999, SCC (p.288)

- Accused had to prove on BoP that there was automatism after murdering wife

Why Have a Voluntary Requirement for the Actus Reus?

- Choice is important – cannot punish for pointless or unjust
- Cobb – human beings are in varying states of conscious
- HLA Hart (p.289) – some people have no concept not acting voluntarily – involuntary acts are not subordinated to
agent’s consciousness
- UH Patient (p.291) – act completely without intention, there is not even an actus reus
- OW Holmes (p.292) – reason for requiring act is that act implies choice and it is unjust to impose punishment when
there is no choice
- HL Packer – there is simply the fact that some conduct exists that is not voluntary

Examples not Associated with Mental Disorder

R v Lucki, 1955, Sask (p.293)
- Drove car on wrong side of road, charged with inconveniencing others – skidded across median due to ice
- This is not an absolute liability offence – this act requires a mens rea (charged with inconveniencing others)
- Judge in this case makes a mistake – does not need to consider fault, because there is no voluntary act even

R v Wolfe, 1975, On CA (p.294)

- Appealing charge of assault causing bodily harm. Appellant owns hotel, complainant was told to leave, punches him,
then appellant hits him with phone
- Trial judge found it was a reflex action, so there was no conscious action

R v Swaby, 2001, On CA (p.295)

- Driving car and followed by cops. Passenger got out and ran off
- Both arrested, gun found where passenger ran. Pax committed of knowing was weapon (s.91(3)). Driver said didn’t
know was gun
- What if Swaby learned weapon was there while driving? Must have some opportunity to deal with situation
- Had to prove coincidence in s.91 of occupancy of vehicle and knowledge of weapon
- Voluntary conduct is a necessary element for criminal liability

R v Ryan, 1967, Aus HC (p.297)

- Read a book about robbing someone and paying back parents, wanted to imitate
- Robbed a store, had shotgun to owner, shot and killed him. Said it was reflex when owner jumped.
- Stretches the meaning of involuntary – putting himself in situation where reflex kills someone

Kilbride v Lake, 1962, NZSC (p.299)

- Returns to parked car, and registration is gone. Involuntary omission of displaying registration
- Accused did not have a choice because the registration blew away

9
Causation
- Factual causation: physical/mechanical cause of death – but for test - Maybin
- Legal causation: whether the act was close enough to the consequence that it is just to recognize the act caused the
consequence – from Nette
- Offences that require causation are generally more serious
- Only a concern when there are multiple potential causes

Criminal Code
BC Electric RY v Loach, 1916 (p.306)
- We should speak of ‘cause’ simply as the cause of the injury instead of qualifying the word cause

Common Law
Smithers v R, 1978, SCC (p.306)
- Two hockey players fight after game, one punches the other twice, then kicks the other in the stomach who falls
over and stops breathing. Dies en route to hospital choking on vomit
- Charged unlawful act manslaughter. Was he the cause? Chain of causation was broken, but the original act doesn’t
have to be the only cause.
- Application of the thin skull rule
- Smithers test for causation: a contributing cause outside the de minimis range
- For manslaughter, causation is proven if the act was a contributing cause outside the de minimis range

R v Harbottle, 1993, SCC (p.313)*

- H and companion forcibly confine and sexually assault woman, discuss how to kill. H holds legs while companion
strangles. Is he guilty of first degree? (s.231(5)) – act had to be a substantial and integral cause
- Substantial cause test used for causation in first degree murder under s.231(5)

R v Nette, 2001, SCC (p.316)*

- 95 year old widow, tied up and clothes wrapped around head for robbery – dies of asphyxiation later
- Distinguish factual and legal causation – jury deals with them together, but they are separate
- Smithers test applies to all homicide offences, but it is “a significant contributing cause”
o Used in any crime requiring causation – KEY TEST

R v Talbot, 2007 (p.324)

- Factual causation test is the but for test – but for the act, would the consequences occur?
o But for does not work for multiple causes
- Legal causation test is whether act was close enough to consequence
- Ultimately the test of significant contributing cause covers both factual and legal causation

Cases of Intervening Cause

- Intervening cause does not break causation in ss. 225(c), 224, 225, 226

R v Smith, 1959 (UK) (p.329) (s.225)

- Fight in a barracks, deceased stabbed twice. Someone tried to carry him to hospital, tripped and dropped him twice
- When arrived at med bay, no one realized how serious injury was, was treated incorrectly. Was stabbing CoD?
- Cause does not need to be ONLY cause – if at time of death the wound is still operating and substantial cause
- A wound is the cause of death even if some intervening factor occurs if at the time of death that wound is still an
operating and substantial cause

10
R v Blaue, 1975 (UK) (p.332) (s.224)
- Entered woman’s house, asked for sex, she said no, stabbed her. She got to hospital and refused blood because
Jehovah’s Witness. Would not have died if she had gotten blood.
- Thin skull rule applies
- Don’t have to be the main cause, just A cause
- A charge is not lessened by the fact that the victim refused some mitigating help

R v Maybin, 2012, SCC (p.337)*

- Two brothers attack someone in bar, knock him out. Bouncer comes is told victim is perp. Punches him and throws
him out. He dies. Injury which killed could have been caused by any. Bros -> bouncer -> death (bouncer acquitted)
- But for the attack of the brothers, he would not have died. Either was direct cause, or made him vulnerable to
bouncer. Bouncer is NOT a but for cause.
- Novus actus interveniens is part of legal causation, not factual
- TEST:
o But for test to prove factual causation
o Other factors: was the event reasonably foreseeable (general nature of the intervening act)? Was the novus
actus an independent event?
o These are just tools
o TEST FOR LEGAL CAUSATION REMAINS: was the original act a significant contributing cause?

The Fault Requirement

Policy Takes
- JF Stephen – mens rea not required or present in all cases
- Fault normally mirrors act
- Ultimately about moral blameworthiness
- G Mueller – all crimes have a mens rea even if it looks different in different instances

Subjective/Objective Distinction
- Subjective: Offender must hold the actual knowledge/intent in their mind
- Objective: did the actor live up to the standard of care of a reasonable person? (negligence)
- Strict Liability: absolute liability but due diligence defence possible
- Absolute liability offences: offences with no fault element at all

R v Hundal, 1993, SCC (p.352)

- Test for negligence requires a marked departure from standard of care of a reasonable person
- Actions can be circumstantial evidence of state of mind

R v Theroux, 1993, SCC (p.353)

- Mens rea does not encompass all mental element – there is voluntariness.
- State of mind can be inferred from circumstances, sometimes from the act itself. Nothing to do with accused’s
values (McLachlin)

R v Mulligan, 1974
- Man stabbed wife repeatedly, she died. Did he intend death, or bodily harm knowing it is likely to cause death?
- Both require SMR
- Looking at the circumstances of the multiple stabbings, we can infer he intended death

R v Ortt, 1968 (p.355)

- It is typically assumed that a person intends the natural consequences of their act

11
R v Walle, 2011, SCC (p.356)
- Juries could be told a sane and sober person usually intends the probable consequences of their act

Fault for Public Welfare (Regulatory) Offences

- Not truly criminal – all provincial offences are regulatory
- Can default to strict liability

Common Law
*Beaver v R, 1957, SCC (p.357)
- Appealing convictions of possession, but he did not know they were actually drugs
- Trial judge thought absolute liability. SCC says no, knowledge of possession and nature of possession required.
- Possession requires knowledge of the character of the substance possessed, and knowledge of actual possession
- All crimes have subjective fault unless Parliament clearly has contrary intention
- Still guilty of trafficking because he has mens rea for that

*R v City of Sault Ste Marie, 1978, SCC (p.364)

- Establishes strict liability default for regulatory offences
- Regulatory offences being absolute liability offences -> punishes morally innocent
- 3 types of offences:
o True crimes: require SMR (in CCC)
o Offences of strict liability: do not need SMR, defendant can get off by proving acted reasonably (reverse
onus)
o Offences of absolute liability: no need to prove mens rea, no defence of reasonability
- Any regulatory offence will be an offence of strict liability unless the legislature defines it with some other level of
fault

As per court in Sault Ste. Marie

Arguments for Absolute Liability Arguments Against Absolute Liability

- Protection of social interests requires a high standard - Violates fundamental principles of penal liability
of care – people are more likely to maintain high - Rests upon assumptions which have not been, and
standards if they know ignorance is not a defence cannot be, empirically established
- Administrative efficiency - No evidence that higher standards of care result
- Conviction for breach of public welfare offences does - Results in punishment of morally innocent
not carry social stigma as criminal conviction sometimes: good people make mistakes
- Arguments for are stronger, but that does not mean we have to choose it.
R v Wholesale Travel Group, 1991, SCC (p.373)
- How to tell when offence is regulatory or criminal?
- Factors included to determine whether regulatory or criminal: moral prohibition, criminal offences punish past acts,
imprisonment may point to criminal, etc.

Charter
- In some cases, s.7 requires certain level of fault – a minimum floor

Ref re Section 94(2) of Motor Vehicle Act(BC), 1985, SCC (p.388)

- In s.94(2) an absolute liability offence was created with minimum 7 day jail – against charter
- Innocent cannot be punished. Jail is contrary to s.7 rights and can only be taken away for good reason
- When absolute liability and the possibility of imprisonment are combined, that law is contrary to s.7 and thus
unconstitutional unless it can be saved under s.1. Due diligence is the minimum standard for any offence
threatening liberty.
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Summary
- Note: passivity is not due diligence (for defence in strict liability) (p.394 – Levis v Tetreault)

R v Beauchamp, 1953, Ont CA (p.412)

- Express objective fault requirement
- Careless driving – bus driver backed into a car. Test requires he breached the standard of care of a reasonable driver
in those circumstances.
- Test for due diligence in careless driving: whether the accused failed to use the care and attention that a driver of
ordinary care would have given the circumstances

Fault for Crimes

- Culpable homicide is actus reus for both manslaughter/murder. Mens rea determines which. Not murder =
manslaughter.
- Manslaughter: objective fault element of reasonable foresight of non-trivial bodily harm does not violate s.7
(Creighton)
- Murder: Is there homicide (s.222)? Is it culpable? Is it murder (s.229,230)? No = manslaughter. Is it 1 st degree
(s.231)? No = 2nd

Murder (s.229(a)(i) and (ii))

Simpson v R, 1981, Ont CA (p.414)
- Judge made fundamental mistake in describing fault in s.229 -> requires SMR not objective fault
- Cite CCC for s.229

R v Edelenbos, 2004, Ont CA (p.416)

- Raped/strangled woman and she died. Claimed he just strangled to stop her screaming.
- Judge defines the word ‘likely’ in s.229 to jury – not needed because it is a common word
- Explanation did not prejudice justice for a bunch of reasons – jury still understood
- When a jury instruction is questionable, one must consider the entire context in which it was given

Murder (s.229(c) and s.230)

Vaillancourt v R, 1987, SCC (p.421)
- Two people rob pool hall – asks partner not to use gun and removes the bullets. Wants to use only knife
- Someone gets shot, charged with 2nd degree murder under s.230(d) which made guilty of murder when committing
other offence regardless of intent. Found unconstitutional under s.7
- Absent proof BaRD of AT LEAST objective foreseeability (probably more), there cannot be a murder conviction

R v Martineau, 1990, SCC (p.431)

- Accused and friend broke into trailer, robbed people. Companion shot them, M convicted of 2 nd degree (s.230(a))
- Found unconstitutional under s.7 – due to stigma of murder, SMR required (subjective foresight of death)
- A conviction of murder requires proof BaRD of subjective foresight of death

R v Shand, 2012, SCC (p.443)

- Accused goes to dealers house to rob, brandishes gun, shoots someone by mistake – convicted of 2 nd degree
because combined with robbery (229(c))
- Requirements listed to satisfy 229(c) on p. 445
- In evaluating s.229(c), the dangerous act must be intentional, the act cause the death, and there must be
subjective foresight of the likelihood of death

First Degree Murder (s.231)

R v Smith, 1979, Sask CA (p.449)
- 3 friends went to abandoned farmhouse. 1 shot the other after an argument, then reloaded, shot him again
13
- Not enough evidence of planned (= Widdifield test, carefully thought out and consequences weighed)
- And deliberate (considered, not impulsive)
- A first degree murder must be both ‘planned’ and ‘deliberate’

R v Nygaard and Schimmens, 1989, SCC (p.450)

- Killed someone beating them on the head with bat
- Crown argued 1st through combination of 229(a)(ii) (harm you know is likely to cause death) and s.231(2)
- A person can plan and deliberate to cause bodily harm that he knows is likely to cause death. Can combine.

R v Collins, 1989, On CA (p.458)

- Murders a police without knowing – seems arbitrary to base a charge on this
- To be convicted of 1st degree murder under s.231(4), the accused must know the victim was a peace officer

R v Arkell, 1990, SCC (p.458)

- Constructive – murder while committing specific offences (s.231(5)) – does it contravene s.7? Seems arbitrary.
- SCC says there is no arbitrariness – they all include domination, and parliament is free to define what should be 1 st
degree murder

Crimes Requiring Subjective Awareness

Common Law Presumption
- When no words such as motive/desire/intent/knowledge are included, and there is no language for objective intent,
a crime should be assumed to require SMR

R v H. (A.D.), 2013, SCC (p.464)

- Accused did not know she was pregnant, gave birth in public toilet, thought it was dead. Charged with abandonment
(s.218) – SMR not proven
- S.218 requires subjective mens rea. Subjective mens rea is assumed when the statute does not say otherwise

Motive
- Not the same as intention – this is the reason a person chooses to act. No inquiry into motive needed for most
offences (save things like terrorism), but evidence of motive always admissible

Desire/Purpose
- Main meaning of purpose is as intention, but meaning may change throughout CCC

R v Hibbert, 1995, SCC (p.470)

- 21(1)(b) – a person who aids in committing an offence is a party to the offence
- What is definition of purpose?
- The main meaning of “purpose” is intention. Interpreting it as ‘desire’ would lead to absurdity

Intention or Knowledge
R v Buzzanga and Durocher, 1979, On CA (p.474)
- Activists trying to build French-language highschool in Ontario, post satirical flyer insulting French. Charged s.319(2)
- Hatred was not willful, charge requires WILL -> SMR
- You intend a consequence (even if your purpose is to do something else) when you are certain or substantially
certain that the result will follow
- Look at R v Walle – generally can assume a sane and sober person intends consequences of act

R v Theroux, 1993, SCC (p.484)

- Ran a construction company, took deposits and promised insurance but in reality was none
- Lost money, but honestly believed it would not be lost – charged w fraud

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- Mens rea of fraud was not negated by his belief that he wouldn’t lose money. Fulfilled actus reus (Deceit and
deprivation) and mens rea was fulfilled by undertaking prohibited act which could cause consequences
- Minimum level of fault is recklessness – mens rea for fraud does not require desire/knowledge that it is wrong, just
that it is reckless
- Fraud requires knowledge of prohibited act, and knowledge that the act could have deprivation as consequence

R v Boulanger, 2006, SCC (p.486)

- Municipal official asked employee to write report for daughter’s accident saying she was not at fault (she wasn’t)
- Charged breach of trust
- Must have intended to use their office for dishonest, corrupt, partial, etc. actions
- Mens rea can be inferred – if accused tried to conceal, or if received a benefit.
- He knew he would benefit, but not a false report

Recklessness or Willful Blindness

Sansregret v R, 1985, SCC (p.490)*
- Recklessness is not negligence. Negligence is objective standard, recklessness is subjective -> attitude of one who is
aware that conduct could bring damage, but still performs the act
- Recklessness – unlike intention, do not need to be ‘substantially certain’ result will follow
- Willful blindness – law presumes knowledge on part of accused – if someone becomes aware of a need for an
inquiry and they decline because they prefer ignorance. Ignorance does not make you innocent.
o A problem is: the fault lies in the failure to make inquiries -> what if you don’t believe what you are told?
 An approach has been: it is the suspicion, not the failure to inquire

R v Briscoe, 2010, SCC (p.493)

- Willful blindness is better described as deliberate ignorance (Active process of suppressing suspicion)

R v Lagace, 2003, On Ca (p.495)

- If after making the inquiry the accused remains suspicious and doesn’t make more inquiries, they are still wilfully
blind.

R v Blondin, 1971, BC CA (p.496)

- Imported hash against NCA – said he knew something illegal, but not WHAT
- Would be enough if the accused knew there was some sort of narcotic
- Jury should have been told he could be convicted: 1) if he was reckless about the risk there was a narcotic; 2) if he
wilfully shut his as to what it was and suspected it might be a narcotic
- An accused can’t be convicted of smuggling drugs unless they knew they were drugs

Crimes of Objective Fault

Criminal Negligence s.219 (p.499)
- Requires an objective standard – refers only to ss.219,220, 221, 222(5)(b)

O’Grady v Sparling, 1960, SCC (p.500)

- Said that criminal negligence was a form of recklessness and required subjective awareness – ignored by later courts

R v Tutton and Tutton, 1989, SCC (p.501)

- Negligence through omission – failing to provide necessaries of life causing death of 5 year-old son (stopped insulin
because believed God would save)
- No decision on level of fault required for criminal negligence (3-3 split)
- McIntyre (+2): The test is that of reasonability – conduct which indicates a marked and significant departure from
that of a reasonable person in the circumstances will lead to negligence charge
o Reasonable mistake could be a defence
15
- Lamer (+2): subjective fault should be the test, but with a minimal threshold, word ‘wanton’ implies subjective

Waite v R, 1989, SCC (p.512)

- Accused was drinking, saw kids having fun on hay ride, tried to scare them by driving close, killed 4.
- There is a minimal subjective fault requirement – no need to prove ‘deliberately and wilfully’

R v Anderson, 1990, SCC (p.514)

- Distracted driver ran red light and killed someone – charged with criminal negligence causing death
- Finding conduct was a ‘marked departure’ from that of a reasonable person is evidence of subjective fault
- Test for criminal negligence (s.219) is marked and substantial departure from the standard of care of a reasonable
person

Marked Departure Test

- SCC adopts a new approach to objective fault crimes. (Note: NOT marked and substantial departure)

R v Hundal, 1993, SCC (p.551) | s.249

- For dangerous driving, test is a modified objective test: is the negligent driving a marked departure from the norm?
o Take into account circumstances of situation and accused
- Requirement of licenses indicates that those who drive are aware of the standard of care to be maintained – no need to establish
subjective mens rea.
- In cases of both dangerous driving and criminal negligence, judge will stay the lesser charge (driving)

R v Creighton, 1993, SCC (p.520, 551)

- Accused consensually administered drugs to friend, she died, accused left, returned later to call ambulance
- Charge of criminal negligence manslaughter
- McLachlin: negligence must be a marked departure from standard of a reasonable person – take into account
overall circumstances of what a reasonable person would do
- Where the accused had committed an unlawful act, objective foreseeability of the risk of bodily harm which is
neither trivial nor transitory on a modified objective test was sufficient; and foreseeability of the risk of death
was not required.
R v Beatty, 2008, SCC (p.528) | s.249(4)
- Killed 3 people, truck crossed median, doesn’t know what happened, was driving fine before
- No marked departure from reasonable standard – even good drivers suffer lapses of attention because it is so
natural
- Must consider any excuses (ie. Heart attack). Must also look at accused’s mind – were they intentionally driving
dangerously? But cannot take individual factors into account (except incapacity), and DO consider context for MR

R v F. (J.), 2008, SCC (p.540)

- There are 3 degrees of objective fault now:
o Strict liability: due diligence defence (reverse onus on accused to prove), for regulatory offences from R v
Sault Ste Marie
o Criminal offence (objective fault): marked departure from Beatty (s.249)
o Criminal negligence: marked and substantial departure from the norm (s.219) from R v Anderson

Crimes Based on Predicate Offences

- Crimes based on underlying offences -> unlawful act manslaughter (predicate is the other offence, ie. Assault)

R v Creighton, 1993, SCC (p.551)

- Unlawful act manslaughter. Manslaughter is less blameworthy than murder.
- S.222(5): fault for manslaughter can lie either in some unlawful act or in the form of criminal negligence (s.219)
- Fault for unlawful act manslaughter:

16
 i. Fault element of predicate offence required
1. Must involve dangerous act
2. Can’t be an absolute liability offence
3. Predicate offence must be constitutionally valid
ii. Additional fault requirement: objective foreseeability of the risk of bodily harm which is neither trivial nor
transitory in the context of a dangerous act
 It is an objective test.
 Also does not require that DEATH be foreseeable. Just objective foreseeability of non-trivial bodily harm.

Rape
Pappajohn v R, 1980, SCC (p.583)
- Drinks with real estate agent, rape accusation later that night
- Must be an evidentiary basis for defence of mistaken belief in consent. In this case, stories were completely
opposite – she said she fought, he said cooperation – in this case no possibility of mistaken belief

Sansregret v R, 1985, SCC (p.596)

- Guy broke back into old house after breaking up with girlfriend twice. She had sex IOT calm him down (he had
knife). Accused deceived himself to the point of wilful blindness
- Must be a mistaken belief that consent was FREELY given. An unreasonable but honest mistake is still a
defence.

Sexual Assault
*R v Chase, 1987, SCC (p.607)
- Leading on definition of sexual assault. Accused went to neighbour’s, grabbed her breasts -> is that sexual?
- Rules that apply to assault also apply to sexual assault (3 forms of assault in s.265 – intentional application of
force without consent; or to attempt/threaten to assault someone; or while carrying weapon/imitation accosts
someone)
- SA is an assault in circumstances of a sexual nature, such that the sexual integrity is violated
o This is an objective test – must be apparent to a reasonable observer
o Factors to be considered are:
 Part of body touched
 Nature of contact
 Situation
 Words and gestures
 All other circumstances
 Also the intent/purpose of the actor – motive of sexual gratification
 However this is not determinative

Mistaken Belief in Consent | s.265(4), s.273.2 (sexual assault)

R v Bulmer
- Sex worker agreed to sex with one man, more came, she said she didn’t consent to others, but they thought she
did
- McIntyre says mere assertion of mistaken belief in consent does not necessarily raise an air of reality of the
defence
o Defence must be supported by other circumstances
o Otherwise the defence could be put to the jury in any case
o Statement by the accused that they held a mistaken belief is a factor, but not decisive
17
R v Osolin, 1993, SCC (p.617)
- Mistaken belief defence can come from accused

R v Davis, 1999, SCC (p.618)

- There must be an air of reality for the defence: complainant did not consent, but accused honestly thought did
- Can arise even when accused doesn’t raise it. Sometimes there is no possibility of MBC
- Need an evidentiary foundation based on: (1) complainant did not consent, (2) accused honestly thought they
did
- McLachlin (p.619): “in order to be an air of reality, you need a situation of ambiguity.”

R v Ewanchuk, 1999, SCC (p.651)

- Assault in back of van after job interview – she said no each time and he stopped.
- Actus reus has 3 parts: touching, of a sexual nature (objectively determined), absence of consent
o What is consent in this case?
- Consent is subjective – a result of the complainant’s state of mind. Either inward consent or not.
- Can be consent vitiated by fear, but not in this case. When fear is honest reason for submission (no need to be
reasonable or communicated to accused).
- Mens rea of SA has 2 parts: 1) intention to touch, 2) subjective mens rea regarding non consent (accused
knew/was reckless/wilfully blind that there was no consent)
o For mistaken belief, accused must believe consent was communicated by words or conduct
o Must take reasonable steps to ensure consent exists (R v Malcolm) – what would reasonable person

R v J (A), SCC, 2011 (p.674)

- Accused choked woman unconscious and anally penetrated her, she said it wasn’t consensual, then said it was
- Can you consent in advance to sexual touching? Do you have to be conscious throughout whole activity?
- Definition of consent requires voluntary agreement of complainant to engage in the sexual activity in question
- Consent requires a conscious mind capable of withdrawing consent

Mistake of Fact
- Is a claim that the fault element of the offence is missing – ie. Carrying a bag you think is oregano, is actually MJ

Fault: Defence:
Subjective MR Any honest mistake
Objective Fault Reasonable mistake
Strict liability Reasonable mistake, with onus on accused
Absolute liability Mistake is not a defence

R v Hess; R v Nguyen, 1990, SCC (p.700)

- Charged with absolute liability offence of statutory rape – mistake is not a defence
- Does this offend s.7 of the charter? Creation of absolute liability with possibility of prison
- There must be at least a defence of due diligence – read out phrase which got rid of defence

Mistake to Nature of Criminal Act

- (1)One idea is mistake of fact only exonerates accused if accused’s beliefs, if true, would make the accused
innocent of any offence (Tolson)
- (2)Second view is that the accused can only be guilty despite mistake of fact if on accused’s view of facts he
would be guilty of an offence of equal seriousness

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R v Ladue, Yukon, 1965 (p.715)
- Attempted to have sex with dead woman, claims he thought she was alive. Then it would be rape
- If you have a mistaken view of facts that make you guilty of a more serious offence than you are being
charged with, then it is not a defence

R v Kundeus, 1976, SCC (p.714)

- Leading case on mistake of fact as to the nature of the substance in a drug possession case
- Beaver is leading on possession of drugs, Blondin is leading on willful blindness
- In this case, sold drugs to undercover but thought selling a different drug (LSD vs mescaline)
- Mens rea for selling mescaline is enough for LSD

Mistake of Law
- S.19, ignorance of law is not an excuse

R v Esop, 1836, UK (p.724)

- Accused of buggery onboard ship in England, was from Baghdad, said it was not illegal there
- Not a good defence

R v Campbell and Mlynarchuk, 1972, Alberta (p.724)

- Exotic dancer charged with dancing nude, she relied on a trial case to say that laws against it had been struck
down
- Was a mistake of law to misunderstand significance of trial decision. She was trying to understand the law
- Mistake of law does not negate mens rea but can be used in mitigation of sentence

R v MacDonald, 2014, SCC (p.734)

- Charged with having licensed firearm where he wasn’t allowed to, but thought he could (Alberta – Halifax)
- Crown does not need to prove that accused knew it was an offence
o MR requires knowledge of possession and intent to possess in that place. Further lack is mistake of law
o Otherwise would be contrary to s.19

Exceptions
- Colour of right for property offences: If I think I have a right to deal with property, but don’t (ie. Think you
bought a truck and take the truck) that is a defence.
- Officially induced error of law: Make an error, but beforehand you checked with the relevant government
official and got an answer which you relied on. Ie. Mistake on taxes and official gives you the wrong info.

Incapacity
- When people aren’t fully responsible for their actions, it would be unjust to punish them

Age
- Children under 12 are exempt from criminal responsibility
- Substantive laws are the same for youth and adult offenders

Mental Disorder (Insanity) s.16

- There are instances where people with mental disorders won’t be responsible
- Can be found not criminally responsible – gives 3 options to accused: discharged absolutely, with conditions, or
sent to psych facility
- Anyone can raise NCR, but Crown only after accused otherwise found not guilty – otherwise could force NCR

19
Cooper v R, 1979, SCC (p.769)
- Had serious psych issues since childhood, strangled female friend to death after a dance when adult
o May not have understood that he might kill her
- Defence did not bring up insanity, judge brought it up
- Question of whether accused was capable of appreciating the nature/quality of the act
o More than just knowledge – a deeper understanding
o Must know nature and consequences of act
- Deciding whether something is a disease of the mind is a question of law for the judge not for experts

Kjeldsen v R, 1981, SCC (p.778)

- Was a psychopath – disease of the mind. Normally with psychopathy, you CAN appreciate nature and conseq
- The absence of feelings about an act, in spite of that absence stemming from a “disease of the mind”, does
not exempt you from liability.

R V Abbey, 1982, SCC (p.779)

- Insanity defence raised because accused did not grasp the penal consequences of his actions
- In determining appreciation of nature and quality, not concerned with the penal consequences of the act

R v Chaulk, 1990, SCC (p.782)

- What exactly does wrong mean
o Means more than legally wrong, means morally wrong in the circumstances according to society

R v Oommen, 1994, SCC (p.784)

- Person shoots friend because thinks he has to (schizo)
- Question is not accused’s general ability to tell right from wrong -> rather it is in the particular circumstances
(ie. In relation to the person he shot, he couldn’t tell)

Automatism
- Acting without being conscious, related to voluntariness, but automatism is when state of consciousness makes
the action entirely involuntary
- Mental disorder automatism (MDA) -> can lead to NCR defence (possible consequences like psych ward)
- NMDA -> leads to acquittal

R v Rabey, 1977, ONCA (1980 SCC) (p.791)

- 20 year old university student at U of T, hits friend in the head when she turns him down, couldn’t remember
- Found to not have any mental disorder, there was a psychological blow which does not lead to NMDA
- Automatism is: unconscious involuntary behaviour… where the mind does not go with what is being done.
(p.791)
- Must have been caused by mental disorder because was abnormal reaction to normal situation
o Automatism flows from some internal factor, external blow was minor

R v Parks, 1992, SCC (p.801)

- Sleepwalker kills MIL and injured FIL
- Experts said he was sleepwalking – was a DotM, but mental disorder is a legal categorization
- Distinguish automatism:
o Internal cause theory – internal would lead to MDA, external to NMDA
o Continuing danger theory: if a condition is likely to pose a continuing danger, will be MDA

*R v Stone, 1999, SCC (p.817)

- Dysfunctional relationship, wife is verbally abusing. He loses awareness stabs her 47 times, flies to Mexico

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 - Automatism negates actus reus, this is psychological blow automatism case
- Accused must prove automatism on BoP -> law presumes voluntary action
o Due to concern of feigning automatism, and real cases are rare (like mental disorder has reverse onus)
1. Decide whether automatism should be put to the jury
 Need at least: accused to assert involuntariness
 Expert evidence confirming that assertion
 Trial judge must decide whether there is an evidentiary foundation on which a jury could find
involuntariness
 Relevant factors for automatism on p.823
 Severity of trigger
 Medical history
 Evidence of a motive
 Bystander’s evidence
2. Decide whether automatism should be left as MDA or NMDA
 First question is what mental conditions are diseases of the mind (DotM) - judge
 Was the accused’s condition a DotM? – for the judge
 Did the accused actually suffer from the condition? – for the jury
- Judge should start from presumption that the condition IS a disease of the mind
o Use a holistic approach to determine this
o Consider internal/external, continuing danger, and other policy concerns (feigning and floodgates)
- Fundamental question is whether society requires protection from the accused and whether accused should be
locked up
- From Fontaine, for air of reality, don’t need to discuss all factors -> those come later, just need accused to claim
automatism and expert evidence in support

R v Luedecke, 2008, ONCA (p.827)

- Man had sex with woman after they fall asleep together, claims sleepwalking – he had history
- Start from presumption of mental disorder, look to continuing danger as most important question
o Only MDA defence available here because he is continuing danger since trigger is internal

Intoxication
- Distinction between voluntary and involuntary intox, when involuntary, use normal rules of crim liability
- May not be able to form mens rea when intoxicated

R v Bouchard-Lebrun, 2011, SCC (p.839)

- Takes drugs, ends up in psychosis, beats up someone and permanently disables another. Crown arguing for intox
- For this, can use the same test for MDA vs NMDA, but reversed
- Internal/external cause: normal person could go into state of psychosis with this drug
- Continuing danger: risk of recurrence is dependent on will of accused – would have to take drugs again
- Thus cannot give NCR defence – instead he is intoxicated

R v Bernard, 1988, SCC (p.851)

- Forced woman to have sex with him, was drunk but able to function. 2v2v2 judges on ruling
- McIntyre: Draws distinction between specific and general intent
- Wilson: mens rea can be proven by fact that accused is ABLE to perform the act
o General: usually not a defence except in cases of extreme intox, specific: can be a defence
- Dickson: no distinction between specific and general

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*R v Daviault, 1994, SCC (p.873)
- Sexual assault on acquaintance while very drunk. He didn’t remember anything.
- Wilson’s compromise adopted. Reverse onus on accused to show extreme intoxication on BoP
- Charter minimum -> charter requires at least giving a defence of intoxication for general intent offences where
the accused is intoxicated to the point of automatism (extreme intoxication – Daviault defence)
- S.33.1 removes Daviault defence for violent offences

R v Daley, 2007, SCC (p.889)

- Intoxication for specific intent -> question is whether the person ACTUALLY has intent. Not whether they have
the capacity to form intent.
- Intoxication exists on 3 levels:
o mild intoxication (not a defence),
o advanced intoxication (to the point of lacking specific intent),
o extreme intoxication (akin to automatism, negates voluntariness, limited by s.33.1 to non-violent
offences)

R v Bouchard-Lebrun, 2011, SCC (p.891)

- S.33.1 only applies to violent offences:
o Accused had to be intoxicated
o Had to be self-induced
o Had to depart from standard of reasonable care by interfering or threating to interfere with bodily
integrity
o Then it is not a defence that someone lacks general intent
- Intoxication is voluntary if: the accused intentionally consumed a substance that a reasonable person would
know was an intoxicating substance (note p.892)

Justifications and Excuses

- True defences, come after MR/AR have been proven. From statute or common law (as per s.8(3))
- 2 steps:
o Evidential burden – must be air of reality proven by accused
o Persuasive burden – whether the defence succeeds (burden usually on Crown, except reverse onus such
as automatism, mental disorder, extreme intox)

R v Cinous, 2002, SCC (p.897)

- Air of reality test for evidentiary foundation – where there is evidence upon which a properly instructed jury
acting reasonably could conclude that the defence succeeds
- Complimentary principles:
o Judge must put to the jury all defences that arise on the facts (doesn’t matter if other parties raise them)
 Where there is an air of reality to a defence, it should go to the jury
o Trial judge has a positive duty to keep from the jury defences that lack an air of reality
 Would invite verdicts not supported by the evidence
-

Defence of Person
- S.34 CCC gives lots of factors to consider. S.34(2)(b) – imminence is most important
o Person must believe on reasonable grounds that force will be used against them
o Force is used for protection of self/other
- Objective test of reasonableness of actions in circumstances. Mistaken claims are allowed.

22
R v Lavallee, 1990, SCC (p.905)
- Case was under old legislation (not s.34)
- Battered woman killed partner in preemptive strike after he threatened her
- Ultimate question is one of reasonableness. Problem with imminence of attack, but a spouse could have better
knowledge of when attack is likely. Self-defence claim allowed.
- Self-defence can apply even in cases where events are temporally disconnected when taking into account the
specific circumstances of the case

R v Malott, 1998, SCC (p.915)

- Woman shot and killed abusive partner
- Objective test used, but don’t think of ‘reasonable man’, instead, look at the person individually and their
capabilities and circumstances

Necessity
Perka v R, 1984, SCC (p.929)
- Drug smugglers from Colombia to Alaska – unload drugs to save boat/selves in BC
- Didn’t intend to import into Canada, was necessary
- Two ways of conceptualizing necessity
o Justification (in emergencies) in order to prevent greater harm – if it is better to break the law, then it is
justified/right
o Excuse – in an emergency, if complying with the law would impose an intolerable burden, we excuse
those who break the law
- Three requirements for defence of necessity
1. Urgent situation of imminent peril (modified objective test)
2. No reasonable legal alternative (most important) (modified objective test)
3. Proportionality – harm avoided should be greater than harm that flows from breaking law(objective
test)
- Air of reality needed, then Crown must disprove

R v Latimer, 2001, SCC (p.940)

- Kills disabled 12 year old daughter to save her from pain of surgery
- Is necessity to be judged on objective or subjective standard?
o Use a modified objective test: objectively evaluate necessity, but take into account situation and
characteristics of particular accused
- Of requirements from Perka, first 2 get modified objective test, last gets objective test
- Needs to be an air of reality to each of the 3 elements

Duress
- Both statute (s.17) and common law defences. S.17 excludes certain violent offences from duress.
- Common law defence has no exclusions

R v Paquette, 1977, SCC (p.954)

- Robbery, bystander shot and killed, accused was forced to drive to scene
- S.17 is limited to cases where accused actually committed the offence, rather than party offences
- Common law offence of duress is still available to those accused as parties and not principal committer of
crime

R v Hibbert, 1995, SCC (p.959)

- A defence based on moral involuntariness – there was no choice but to act

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 - Court adds common law requirement of no safe avenue of escape – judge on modified objective test

R v Ruzzik

- SCC strikes out immediacy and presence requirement for s.17 defence of duress

R v Ryan, 2013, SCC (p.974)

- Accused abused by husband who threatened life. Thought killing was only way to be safe, hired hitman.
- Duress covers a certain type of factual situation
o Available when a person commits an offence when a threat is made for the purpose of compelling them
to commit that offence
o Duress does not apply in this type of situation. Proceedings stayed anyways
- So duress includes:
o Threat of death or bodily harm
o Reasonable belief
o No conspiracy
o No safe avenue of escape (from common law – modified objective)
o Close temporal connection (from CL – modified objective)
o Proportionality (from CL – modified objective)
o Exclusion of various offences (murder, etc.) (statutory only)

Provocation
- Only a defence to murder and only partial. (lowers to manslaughter)
- Advanced intoxication can similarly lower to manslaughter because failure to form specific intent
- Provocation allows the accused committing a murder in the heat of passion caused by some provocation to be
charged with manslaughter instead of murder, s.232 (online, not in book)
1. must be conduct of the other party that would constitute an indictable offence under this act that would
be punishable by 5 years or more imprisonment,
2. that would be of such a nature as to deprive an ordinary person of the power of self-control.
3. Accused acted on it on the sudden, before passions could cool.
o Huge change -> can’t be an insult anymore, has to be an offence now
- 2 elements of a defence of provocation:
o Objective – had to be some provoking conduct sufficient to deprive ordinary person of self-control
o Subjective – accused had to actually be provoked

R v Hill, 1986, SCC

- Accused, 16 years old, stabbed a man who made sexual advances on him
- To what extent do we factor in accused’s personal characteristics in determining an ‘ordinary person’?
- On p.993, SCC decides an ordinary person is someone of ordinary temperament and self-control
o Some characteristics will be considered because there is no such thing as an abstract ordinary person
o Can rely on the good sense of the jury to take into account characteristics that are relevant to the
provocation
 In this case, age and sex WOULD be relevant
- In determining what an ordinary person is for the defence of provocation, the jury should consider
characteristics that are relevant to the provocation

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Murder (s.229):

Possession (s.4):

- Personal possession: Something on you or with you

- Constructive possession: having someone else hold something for you, or keeping something somewhere for later
- Joint possession: multiple people in possession if there is knowledge and consent of possession

Fraud: Definition from R v Cuerrier

Omissions:

Must be a legal duty to act, ss.215,216,217

Fault:

- Criminal Default (SMR) is assumed default – may be required through charter, statute, or common law:
o Knowledge/intention
o Recklessness
o Wilful blindness
- Objective fault
o Negligence – s.219
o Strict liability – due diligence defence city of Sault St Marie

Three ways that an offence can require SMR:

- Charter requires SMR in that offence – constitutionally required fault (VERY FEW)
o Martineau and Vaillancourt – some crimes have such stigma that they require SMR -> murder,
attempted murder, war crimes/crimes against humanity, theft (arguably – obiter Vaillancourt – doesn’t
matter because it’s required by statute)
- Statute requirement (MANY)
- The common law (MOST)
o All true criminal offences are presumed to include an element of SMR
o Comes from R v Beaver, R v Sault Ste Marie
- Normally we mean any of these states of mind will be sufficient:
o Intention
o Knowledge
o Recklessness
o Wilful blindness

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