Actus Reus

Actus Reus
Includes external elements of the offence
1. Act (speech/action)
2. Circumstances
a. eg. if offence specifies something like “at night”
3. Consequences
a. If offence specifies that act must cause a certain result
4. Act element is always in the Code, fault element usually isn’t
5. Must have AR for offence, MR alone isn’t criminal

Voluntariness
Part of AR [King, Rabey, Parks, Lucki], different from consciousness [Stone]
1. No act unless result of a willing mind at liberty to have a definitive choice or decision [King]
2. PFJ that only morally voluntary conduct can attract criminal liability [Ruzic]
3. Reflex actions can be involuntary [Wolfe]
4. Need reasonable opportunity to extricate oneself from situation after knowledge of prohibited act
[Swaby]
 No opportunity to take diff course [Kilbridge]

Omissions
No general duty to act, except if there’s legal duty (imposed by statute or CL) [Moore]
1. Can’t commit act (eg. assault) by omission [Fagan]
a. Act and fault have to be simultaneous
i. MR doesn’t have to be present at inception of act
ii. MR can be imposed on act in progress
iii. But inception of MR cannot convert a completed act into an offence
2. Once set in motion a chain of events that cause danger, duty to counteract [Miller]
i. If done unwittingly, duty arises when person becomes aware
3. Once you undertake act, duty to perform [s 217, Browne]
a. Undertakings must have binding intent, more than just words
b. Reliance upon commitment = undertaking, but not necessary
4. Nuisance offence creates CL (tort) duty to refrain from conduct that’s reasonably foreseeable could
cause serious harm to another [s 180(2), Thornton]
5. Duty imposed when another under your charge [s 215, Peterson]
a. Can’t withdraw from charge
b. Can’t provide necessities of life
c. Explicit declarations assuming responsibility may be consideration
d. s 215 MR: marked departure from conduct of reasonable person, where it’s objectively
foreseeable that failure to provide nec endanger charge
e. Contributory negligence of charge not a defence, unless it’s sole cause of harm

1
 Actus Reus Consent
Consent
For some offences, consent part of AR (eg. assault)
1. Can’t consent to serious/non-trivial harm [Jobidon]
a. Implied that BH has to be intended and caused in order to vitiate consent (Jobidon Limit)
b. Can consent to bodily harm if social utility eg. sports, surgery
c. Degrees of harm [Moquin]
d. Length of injury doesn’t factor [Moquin]
e. Balance personal autonomy vs public interest [Jobidon]
2. Two non-exhaustive lists in the Code of situations were consent is vitiated: s. 265(3) and s. 273.1(2)
3. The Code lays out a definition of consent in sexual assault in s. 273.1(1):
“the voluntary agreement of the complainant to engage in the sexual activity in question”
4. In SA consent doesn’t depend on how the sexual act occurs [Hutchinson]
5. Fraud vitiates consent
a. Fraud requires: [Cuerrier, Mabior]
i. Deceit/dishonest act
1. eg. failure to disclose HIV status, condom sabotage
2. assessed based on an objective standard [Theroux, Cuerrier]
ii. A deprivation
1. Denying knowledge of significant risk of serious bodily harm
2. The greater the risk of deprivation, the higher the duty to disclose [Cuerrier]
3. If no realistic risk/possibility of harm, failure to disclose doesn’t vitiate consent
[Mabior]
4. Deprivation/harm doesn’t have to be bodily harm (eg. pregnancy) [Hutchinson]
1. Deprivation of choice to become pregnant
2. Increasing risk of pregnancy
iii. Dishonest act must result in deprivation [Hutchinson]
6. Fear or threat of bodily harm vitiates consent [Sansregret, Ewanchuk]
a. Fear doesn’t need to be reasonable or communicated [Ewanchuk]
i. Subject from POV of victim
7. Silence doesn’t equal consent [Ewanchuk]
8. Can’t consent to death [s 14]
Code Provisions on Consent and Mistaken Belief
Applies to all assaults Applies only to sexual assaults
Definition of consent none 273.1(1)
Where consent vitiated 265(3) 273.1(2)
Mistaken belief in consent 265(4) 273.2
 Actus Reus Causation
Causation
If offence is “causing” something else.
Must prove both factual and legal causation:
- FC: physical or mechanical cause
 In most cases can be answered with “but for” inquiry [Talbot]
- LC: whether act is connected closely enough w/ consequences
 Did the accused action’s significantly contribute to consequences [Nette, Talbot]
1. Not a factor in every offence
a. eg. assault
2. Must be significant contributing cause [Nette, Talbot]
a. Covers both factual and legal causation [Talbot]
3. Substainal cause required for 1st degree murder only (Harbottle requirement) [Harbottle]
4. Act has to be cause, but doesn’t have to be only cause [Smith, Blaue]
5. Novus actus interveniens can break chain of causation [Jordan]
a. But it must be overwhelming to render 1st cause part of history [Smith]
i. Is original injury still operating?
a. If not NAI prob the actual cause [Jordan]
b. Test is Nette significant contributing cause, reasonable foreseeability of intervening act
[Maybin]
i. Possible analytical tools
a. Was the intervening act reasonably/objectively foreseeable?
i. An accused who undertakes dangerous act bears the risk that other foreseeable
acts may intervene and contribute to death
ii. Don’t need to foresee the precise details
b. Is the intervening act independent factor that severs impact of original act?
c. CC prohibiting NAI for acts causing death:
i. Possible prevention doesn’t break link if act causes death [s 224]
a. Refusing medical treatment doesn’t break link [Blaue]
b. In tort can expect victim to mitigate damage, but NOT in criminal offences [Blaue]
ii. Proper/improper medical treatment applied in good faith doesn’t [s 225, Smith]
iii. Injury only accelerates death (thin skull) [s 226]
a. Even if injury wouldn’t cause death in ordinary person [Smithers]
Some consequence offences:
 all homicides (s.222)
 wilful damage to property (s.430)
 arson (s. 433)
 and causing bodily harm (s.221) or death by criminal negligence (s. 220) only offences by which
criminal negligence standard applies from s. 219
Some offences w/ specified causes:
 s. 224: death that might have been prevented by resorting to proper means
 s. 225: death from treatment of injury
 s. 226: acceleration of death
 Mens Rea Objective Fault
Mens Rea
1. General offences simply require intention to commit AR [Campbell & Mlynarchuk, Bernard]
a. eg. sexual assault causing bodily harm requires intent to apply harm [Bernard]
2. Specific intent offences require more, eg. fraudulent intent for theft [Dorosh, Bernard]
3. Generally AR and MR must match [Kundeus, Creighton]
b. But don’t always have to match exactly, enough to be similar
c. Symmetry not constitutionally required [Creighton]
d. When combined w/ thin skull rule, act doesn’t have to match intention for UAM [Creighton]
e. Having MR for lesser offence shouldn’t be enough to meet MR for higher offence [Laskin
dissent]
4. Where intent is ingredient to crime no onus on the accused to prove that the act was accidental
[Davies, Woolmington]
f. Up to C to prove MR

Objective Fault
3 Degrees
1. Due Diligence w/ reverse onus
a. For regulatory offences
i. Higher standard than tort [Beauchamp]
b. Careless driving requires obj fault [Beauchamp]
c. Defences
i. Mistake must be both honest and reasonable, w/ an onus on the accused
2. Modified Obj [Hundal]: Marked departure from what a reasonable person would do
a. Test considers the surrounding circumstances
b. For obj fault offences
c. Dangerous driving [Hundal, Beatty]
d. Failure to provide necessaries under s 215 [Peterson]
i. Where it is reasonably foreseeable that failure to provide necessaries would risk
endangerment of charge
3. Marked and substantial departure from standard of care of reasonable person [Tutton, F(J), Creighton]
a. Reasonable person in the circumstances [Tutton, Creighton]
i. Subjective capacities not taken into account, except where person lacks capacity to
appreciate nature and quality of consequences [Creighton]
b. For criminal negligence under s 219 [Tutton, F(J)]
c. Manslaughter by criminal negligence [F(J)]
d. Defences
i. Mistake must be both honest and reasonable
Objective foreseeability (combined subj/obj) for offences based on predicate offences
1. Unlawful act manslaughter [s 222(5)(a); Creighton]
a. Predicate offence
b. Objective foreseeability of the risk of bodily harm which is neither trivial nor transitory
2. Aggravated Assault [s 268(1); Godin]
a. an assault that wounds, maims, disfigures or endangers life
b. Creighton reasonable foreseeability of harm
 Mens Rea Subjective Fault
Subjective Fault
1. When CC doesn’t expressly state fault requirement, SMR is presumption [Beaver, H(AD)]
a. Sometimes Charter requires subjective MR, even when offence states otherwise [Martineau]
2. Intention
a. “Willful” requires intention [Buzzanga]
i. conscious purpose to bring about prohibited consequence, OR
1. not intention to bring about diff consequence
ii. acted despite foreseeing prohibited consequences are substantially certain to result
iii. doesn’t include recklessness
b. “Planned and deliberate” intention for 1st degree murder [Smith]
i. Planning: evidence that killing part of some scheme or design previously formulated
ii. Deliberate: considered, not impulsive
1. Can’t mean intentional, b/c that’s already required for murder
st
iii. 1 degree murder doesn’t need to be planned and deliberate vs police [s 231(4)
1. But C must prove accused knew occupation of victim [Collins]
c. Can use evidence to infer intention [Mulligan, Boulanger]
i. Juries open to make “common sense inference” [Ortt, Walle]
ii. NOT a presumption, b/c that would reverse BoP [Ortt]
d. Intention to commit a crime, even if not the one committed can provide necessary MR [Ladue]
3. Recklessness [Theroux]
a. knowledge of likelihood of the prohibited consequence
b. with such knowledge, accused commits acts which may bring about these prohibited
consequences, while being reckless as to whether or not they ensue [Sansregret]
c. Whether accused believe it was wrong doesn’t matter [Theroux]
d. Can be combined with “planned and deliberate” intention for 1st degree murder [Nygaard]
i. Planned and deliberate intention to cause bodily harm, knowing it may cause death,
recklessly persists in conduct despite knowledge of risk
4. Willful blindness
a. Substitute for actual knowledge whenever knowledge is component of MR [Briscoe]
i. the requirement “knowledge of the likelihood of death” be satisfied by wilful blindness
b. Accused sees need for inquiry about existence of prohibited consequences, but deliberately
fails to make such inquiries because he or she does not want to know the truth [Sansregret]
c. If some inquiry was made, C has to prove BARD that accused remained suspicious but
refrained from further inquiry b/c didn’t want to know [Lagace]
d. “Did the accused shut his eyes because he knew or strongly suspected that looking would fix
him with knowledge?” [Jorgensen]
e. For drug possession: willfully shut eyes as to what substance was [Blondin]
5. Murder [Simpson]
a. Charter requires subjective foresight of death as consequence of action [Martineau]
6. Defences
a. Mistake
i. honestly held w/ reasonableness only relevant to assessment of credibility [Pappajohn]
Mens Rea Regulatory Offences
Regulatory Offences
1. Absolute liability offences
a. Just have to prove AR [Beaver]
b. Can’t have imprisonment as punishment (even optional), unconstitutional [Motor Vehicle Re]
c. Defences
ii. Mistake no defence
2. Strict liability offences [Sault Ste. Marie]
a. All regulatory offences are strict liability unless statute specifies otherwise
iii. Constitutionally required min for offences with possibility of imprisonment [Wholesale,
Motor Vehicle Re]
b. Just have to prove AR, then accused can prove due diligence
iv. Passively waiting for notification not due diligence [Levis c Tetreault]
c. Defences
v. Mistake must be both honest and reasonable, onus on accused
3. Objective fault
a. What a reasonable person ought to have known
b. Similar standard to tort, but maybe higher [Beauchamp]
c. Careless driving requires obj fault [Beauchamp]
a. w/out due care/attention or w/out reasonable consideration for other persons [s 130 OHA]
4. Subjective MR
a. All drug offences require subj MR, stated explicitly in CC
b. Possession requires two types of knowledge [Beaver]
vi. Knowing you possess something
vii. Knowing what it is
 Enough to know substance is a narcotic, don’t need to know specific one [Blondin, Kundeus]
5. Possession of loaded fire arm SMR offence [MacDonald]
a. Authorization or lack of is part of AR
i. mistake at law and no defence
b. MR:
i. Knowledge of possession
ii. Intention to possess weapon in that area
Offences Murder
Murder
Start w/ requirements for murder, then requirements for 1st or 2nd degree [s 231]. If don’t have the fault
requirement for murder, may be manslaughter which has lower fault requirement but same AR [Simpson].
1. AR: causes death [s 222.1]
2. MR: constitutional minimal requirement for murder conviction is subjective foreseeability of death
[Vailancourt obiter, upheld in Martineau]
3. AR: Culpable homicide [s 222.5]
a. Not an offence in and of itself
b. If it’s not culpable homicide, no offence
c. Either murder or manslaughter
i. By means of an unlawful act
ii. Criminal negligence
iii. Causing that human being, by threats or fear of violence or by deception, to do anything
that causes his death
4. Culpable homicide is murder [229]
a. MR: means to cause death, or
b. Means to cause BH that he knows will likely cause death, and reckless whether death ensues
i. Common sense meaning of likely [Edelenbos]
5. Causation
a. Was act “significant contributing cause” of death? [Nette, Talbot]
6. 1st degree murder
a. Planned and deliberate
i. Contract killings always “planned and deliberate” [s 231(3)]
ii. Must be evidence that act part of some scheme or designed previously formed [Smith]
iii. Planned and deliberate intention to commit BH and being reckless whether death ensues in
persisting [Nygaard]
b. Murder of specified victims (eg. police officer or prison guard)
i. Accused must’ve known or perceived risk of profession of victim [Collins]
c. Murder while committing specified offence (eg. while during sexual assault)
i. eg. done while committing sexual assault [s 231(5)]
ii. One continuous transaction [Pare]
7. All murder that isn’t 1st degree, is 2nd degree [s 231(7)]
8. Unlawful act manslaughter [s 222(5)]
a. Manslaughter an inherently unintentional act [Creighton]
b. MR: fault of predicate offence, which must involve [Creighton]:
i. Dangerous act
ii. Not be an absolute liability offence
iii. Be itself constitutionally valid
c. Additional fault requirement of manslaughter
i. obj foreseeability of the risk of bodily harm which is neither trivial nor transitory, in the
context of a dangerous act
ii. NOT marked departure test, has it’s own test as above
d. Intent must fall short of intent to commit murder, b/c that would be murder not m/s
Offences Rape and Sexual Assault
Rape and Sexual Assault
1. SA is assault in circumstances sexual in nature [Chase]
a. Sexual integrity of the victim is violated
b. Whether assault is sexual in nature is objective “Is it sexual to reasonable observer?”
2. AR of SA:
a. Touching of a sexual nature (obj)
b. No consent (subj from POV of victim) [Ewanchuk]
i. Complainant’s background has nothing to do w/ whether or not s/he consented
3. Consent [A(J)]
a. Must be capable/conscious throughout the activity to provide consent [273.1(2)(b)]
b. Consent must be directed to each and every sexual act, at the time it occurs [273.1]
c. Present, on-going consent – can’t be in advance [273.1(2)(d)]
d. Must be capable of revoking consent at any time during sexual activity [273.1(2)(e)]
i. Failure to tell accused to stop doesn’t equal consent
4. MR for SA:
a. intending the touching, and
b. subjective knowledge that victim isn’t consenting or reckless/willfully as to whether there’s
consent [Sansregret, Davis, Ewanchuk]
5. There are two Code provisions on mistaken belief in consent: s. 265(4) and s. 273.2
a. Defence of mistaken belief in consent would negate MR of SA [Pappajohn, Davis]
b. Must be honest but doesn’t need to be reasonable
c. Must meet “air of reality” evidentiary threshold b/f defence can be put to jury
i. the complainant did not consent to the sexual touching, and [Davis]
ii. the accused nevertheless honestly but mistakenly believed that the complainant
consented
iii. Based on evidence or circumstances of case, simple statement isn’t enough [Bulmer]
a. evidence capable of explaining how the accused could honestly have mistaken lack of consent as
consent [Davis]
d. Doesn’t apply when accused reckless or willfully blind [s 273.2(a), Sansregret]
e. Doesn’t apply with self-induced intoxication [s 273.2(a)]
f. No such thing as “implied consent” [Ewanchuk]
i. Consent is subjective to victim, part of AR, therefore can’t be part of MBinC
g. Def not available unless accused to reasonable steps to obtain consent [s 273.2(b), A(J)]
h. When victim expresses non-consent, greater obligation to obtain consent in order to proceed
[Ewanchuk]
i. Test: Would a reasonable person in the circumstances have taken further steps b/f
proceeding w/ sexual activity [Malcolm]
a. If answer is yes, and accused didn’t MBinC defence isn’t available [Malcolm, Cornejo]
b. Have to look at totality of circumstances, not just one indication [Cornejo]
i. Within a marriage, need proof BARD that the denial of consent was subjectively outside the
norms of tolerable sexual behavior w/in the relationship [V(R)]
Offences Fraud
Fraud
AR [Cuerrier, Mabior]:
1. Deceit
a. Dishonest act assessed on objective standard [Theroux, Cuerrier]
2. Deprivation
MR [Theroux]:
1. Subj knowledge of prohibited act
2. Subj knowledge that act could have consequences of deprivation or risk of deprivation
a. Intended consequences
b. Reckless as to whether or not consequences ensue
Incapacity Mental Disorder
Incapacity
Age
No person shall be convicted of an offence…while that person was under the age of twelve years [s 13]

Mental Disorder
No person is criminally responsible…while suffering from a mental disorder that rendered the person
incapable of appreciating the nature and quality of the act or omission or of knowing that it was wrong [s 16]
1. NCRDM isn’t a conviction or acquittal [Luedecke]
a. Triggers assessment of accused’s dangerousness or need for treatment
2. “Disease of the mind” matter of law, not medical [Cooper]
a. Medical evidence may be used in examining fact, but not determinative
3. Capacity requires both emotional as well as intellectual awareness of the significance of the conduct
[Cooper]
a. Simply a restatement of principle of MR
b. Can know what you’re doing w/out appreciating consequences = incapacity
c. Knowing that act is wrong can mean knowing act is prohibited by law (even if delusion leads
to thinking there’ll be no consequences) [Abbey]
i. But also need to show lack of appreciation that action is morally wrong [Chaulk]
1. insanity def should be available if accused believes act was “right” according to
ordinary morals of society
2. lack of parallelism in law; generally absence of moral appreciation is no excuse
for criminal conduct [McLachlin dissent]
d. About knowing whether act was wrong in the circumstances [Oommen]
e. Could accused make a rational choice about whether to do it or not? [Oommen]
4. Psychopathy may be a disease of the mind, but doesn’t get s 16 exemption [Kjeldsen]
a. Can appreciate consequences, just lack remorse/guilt for victim
5. C can’t adduce evidence during trial of insanity against accused’s wishes (contrary to s 7) [Swain]
a. Can if accused brings up mental issue
b. C can independently raise issue of insanity after accused found guilty, b/f sentencing
c. If accused pleads automatism, C can bring evidence to prove insanity [Parks]
6. Evidence of mental impairment short of insanity can negative requisite mental element such as
planning and deliberate in the case of 1st degree murder [Swain; Jacquard]
7. Temporary psychosis induced by intoxication is excluded from NCRDM [Cooper, Bouchard-Lebrun]
a. Can rebut by showing that at the time the accused was suffering from a DoM unrelated to
intoxicated-related symptoms [Bouchard-Lebrun]
Incapacity Automatism
Automatism
I. Begin from premise that automatism is DoM [Stone, Luedecke]
II. Then look to evidence that shows it wasn’t a DoM
1. Stone test for DoM automatism vs non-insane automatism [Parks, Stone]
a. Internal cause
i. eg. hereditariness [Luedecke]
ii. Test for internal/external cause, obj: whether a normal person in the same
circumstances might have reacted to it by entering an automatistic state as the accused
claims to have done [Bouchard-Lebrun]
-May be based on psychiatric evidence
iii. The more it suggests that a normal person is susceptible to such a state, the more likely
the trigger is external, excluding s 16
b. Continuing Danger
i. Not just recurrence of danger in automatistic state, but recurrence of triggers
[Luedecke]
c. Policy considerations (not closed category) – Trial consideration
i. Risk of negating AR for those who pose danger if condition can recur
ii. Easy to feign automatism
2. DoM automatism
“Any malfunctioning of the mind having its source primarily in some subj condition/weakness
internal to the accused may be a DoM if it prevents the accused from knowing what he is doing”
[Rabey]
a. Transient lack of consciousness due to certain external factors don’t constitute a DoM
i. ordinary stresses and disappointments which are the common lot of mankind do not
constitute an external cause that would explain malfunctioning mind in the realm of
DoM
ii. internal cause –a condition stemming from psychological or emotional makeup of the
accused [Parks]
iii. Drugs and other psychotics usually external triggers [Bouchard-Lebrun]
1. Can be internal cause if drug triggers internal condition
a. Use Stone test
i. What state a normal person might have entered after consuming the same substances in
the same quantities as the accused
3. Non-insane automatism
a. Sub-set of voluntariness aspect of AR [Parks, Stone]
i. Must be evidence showing that the accused acted involuntarily [Stone]
b. Can be triggered by ‘extraordinary external event’ that would amount to an extreme shock or
psychological blow that would cause a normal person, in the circumstances to suffer a
dissociation in the absence of disease of the mind [Stone]
c. BoP on accused [Parks, Stone]
i. violates s 11(d), but justified under s 1 b/c otherwise would put too much burden on C
(automatism is easily feigned, all knowledge is w/ the accused) [Chaulk, Stone]
d. C can bring evidence of insanity [Parks]
4. Sleep-walking non-insane automatism [Parks]
a. Can be disease of the mind [Parks obiter, Luedecke]
Incapacity Intoxication
Intoxication
1. Drunken intent is still intent [Edelenbos]
2. “Cooper exclusion” of self-induced intoxication from DoM [Bouchard-LeBrun]
3. Generally drunkenness is not a true defence [Bernard]
a. However in specific intent offences, where the accused is so affected by intoxication that he
lacks the capacity to form the specific intent required it may apply
4. Test for voluntary intoxication under s 33.1 [Chaulk]
a. Accused knew or ought to have known it was an intoxicant
b. Risk of becoming intoxicated was or should have been w/in accused’s contemplation
5. 3 degrees of intoxication [Daley]
a. Mild intoxication
i. Never been accepted as factor/excuse in determining MR
b. Advanced intoxication
i. Impairment of foresight of consequences sufficient to raise RD about requisite MR
ii. Applies only to specific intent offences
iii. Partial defence to murder, can drop offence down to manslaughter
c. Extreme intoxication
i. Akin to automatism
ii. Negates voluntariness
iii. Complete defence
iv. Limited to non-violent offences [s 33.1]
6. In general intent offences, where accused intoxicated can infer MR from actions [Bernard, Daviault]
a. Self-induced intoxication can’t substitute for MR [Daviault (overruling Bernard)]
i. Would violate principle set out in Vaillancourt
b. Evidence of intoxication can to go to the trier of fact in general intent offences only if it is
evidence of extreme intoxication involving an absence of awareness akin to a state of
insanity/automatism [Bernard (Wilson), Daviault]
i. BoP on accused to prove BARD
ii. ONLY applies to offences that are NOT general intent offences involving assault/threat
interfering w/ bodily integrity [s 33.1]
7. Self-induced intoxication NOT a defence for general intent offences involving assault/threat
interfering w/ bodily integrity [s 33.1]
a. Where a person departs markedly from the standard of reasonable care generally recognized in
Canadian society [s 33.1(2)]
b. No threshold of intoxication beyond which s 33.1 doesn’t apply [Bouchard-Lebrun]
i. Applies to toxic psychosis resulting from voluntary drug consumption
c. Recognized as a defence in Daviault, but removed in s 33(1)
d. Does it violate charter?
i. Lower courts in Ontario now accept s. 33(1) is unconstitutional [Flemming]
ii. SCC continues to apply s 33.1, unclear what they’d do if charter challenge
iii. Violates s 7, but unclear whether it can be saved under s 1
1. Trial courts have found it justified under s 1
2. Protects vulnerable targets like women and children?
Defences Self-Defence/Necessity
Defences
1. Statutory defences (apply CC defences first)
2. CL defences, entitled by s 7(3)
3. All defences must have air of reality [Cinous]
a. Defence can only be put to the jury if there’s an air of reality [Cinous]
b. Test: whether there is evidence on the record upon which a properly instructed jury acting
reasonably could acquit

Defence of Self
Self-Defence
Defending or protecting oneself from the use or threat of force [s 34]
1. Requirements for defence set out in s 34
a. List of factors determining whether the act committed is reasonable in the circumstances
2. Not what an outsider would have reasonably perceived but what the accused reasonably perceived
given her situation and her experience [Lavallee]
a. Law doesn’t require fear to be correct, only reasonable
b. Woman’s subjective circumstances and perspectives inform the obj standard [Malott]
i. Obj standard is reasonable woman, or man (diff experiences)
ii. But battered woman syndrome is not a def in and of itself [Lavallee]
3. Defence may still be available even if there’s time btwn the original unlawful assault and the
accused’s response [Lavallee]

Necessity
When it is realistically unavoidable to break the law
1. Common law defence, no provision in CC
2. Not a justification [Perka]
a. “Choice btwn two evils” is too subjective
3. An excuse, based on “realistic assessment of human weakness” [Perka]
4. Necessity can arise from 2 different kinds of compulsions
a. Instinct of self-preservation (hiker about to freeze to death)
b. Altruistic desire to save other in life-threatening emergency.
5. To successfully use the common law excuse of necessity there must be three elements [Perka]:
a. 1) An urgent situation of imminent peril
i. a modified objective test
1. not enough to foresee peril, it must be on the verge of transpiring and virtually
certain to occur [Latimer]
b. 2) No reasonable legal alternative
i. a modified objective test Was there a legal way out? [Morgentaler requirement]
1. not theoretically, but an actually feasible alternative option [Latimer]
c. 3) The illegal act must be proportional to the harm avoided
i. an objective standard test (society expects some resistance)
1. btwn harm avoided and harm inflicted, harm avoided must at least be of
comparable gravity or greater [Latimer]
d. All three elements must have air of reality [Perka, Latimer]
e. Onus on C to disprove necessity
6. Possible that it could be a defence for murder, if the harm avoided is comparable in gravity to death
[Latimer may leave that open, Re A]
a. Can’t use necessity as defence for murder for the sake of self-preservation [Dudley]
Defences Self-Defence/Necessity
Defences Duress/Provocation
Duress
When the accused breaks the law under pressure from a threat of another, threat is made for the purpose of
compelling the accused to commit the offence [Ryan]. Threat must be of death of bodily harm [s 17, Ruzic].
1. Defence can negate MR or as an excuse-based def under s 17 [Hibbert]
a. whether or not the coercion will mean that MR is not present will depend on the particular
charge and facts of the case
i. Only negates MR in extreme cases
2. s 17 outlines requirements for codified defence, applies to those committing a crime (principle):
a. Threat of death or BH
i. Implicit or explicit present/future threat of death or BH against accused or third person
b. Accused has to believe threat will be carried out
i. Modified objective standard [Ryan]
1. Accused must actually and reasonably believe the threat
c. Accused not party to a conspiracy
d. Exclusions of certain offences (eg. murder, sexual assault, robbery)
e. Plus CL requirements [Ryan]
i. Non-existence of safe avenue of escape
1. modified objective standard
ii. Close temporal connection between threat/harm threatened
iii. Proportionality between harm threatened and harm inflicted by accused. Harm caused
must be equal to or less than threatened
1. Modified objective standard.
3. Common law defence
a. has all the same requirements as statutory defence [Ryan]
i. Except exclusion of certain offences
b. applies where accused not principle offender [Paquette]
i. no common intent w/ principal
c. Did the accused have a “reasonable legal alternative” using a modified objective test [Hibbert]
d. Presence of duress would not prevent “common intention” from being formed [Hibbert]
4. If unclear whether accused was principal offender or just party, must instruct jury on both s 17 and CL
defences [Paquette]
a. Unclear whether CL defence has as many exclusions as statute

Provocation
1. Can be a partial defence to a murder charge in that it reduces it to a conviction of manslaughter [s 232(2)]
2. General requirements for defence [s 232(2), Hill]
a. Conduct of the victim that would constitute an indictable offence that is punishable by 5 or more
years imprisonment [new s 232(2)]
b. The provoking wrongful act/insult must be of such a nature that it would deprive an ordinary person
of the power of self control
i. Objective test
1. Ordinary person of normal temperament and self control, not exceptionally excitable,
pugnacious, or drunk
c. Accused must have actually been provoked
i. Subjective test
1. determined on the evidence
d. Accused must have acted on the provocation suddenly and before there was time for his or her
passion to cool
i. Subjective
Defences Duress/Provocation
Defences Mistake
Mistake
Mistake of Fact
Negates MR [Pappajohn]
1. Some CC offenses deny mistake as a defence, making it equivalent to absolute liability
a. If offence denies mistake as defence and imprisonment possible, violates charter
[Hess/Nguyen]
i. Wrong to imprison “mentally innocent” (someone who thought they were doing an
innocent act)
2. Can’t use defence if mistake makes accused guilty of worse offence [Ladue]
b. Defence negates MR=mentally innocent, therefore not available if it’s mistake as to what crime
c. Intention to commit a crime, even if not the one committed can provide necessary MR
3. Mistake of age (of consent) s 150.1(4) [Hess/Nguyen]
d. Accused must take all reasonable steps to ascertain age, when that’s done can use defence
e. New provisions require accused to have taken all reasonable steps to get defence
Mistake of Law
Ignorance of the law by a person who commits an offence is not an excuse for committing that offence. [s 19,
Esop]
1. MoL can’t be used as defence, but may be used to negative malicious intent required by offence
[Campbell & Mlynarchuk]
a. Only available when MR requires more than simple intention to do AR
2. For reg offences (eg. carrying firearms) ignorance of authorization is mistake at law, so no def
[MacDonald]
a. Proper licence part of AR, not an element of MR
3. Only exception is colour of right, which has basis in both mistake of fact and law [Dorosh]
a. Requires honest belief in proprietary/possessory right, or
b. Honest belief in state of facts if actually existed would at law excuse/justify the act
 Charter
Charter
“The Can Charter is a purposive document. Its purpose is to guarantee and to protect, within the limits of
reason, the enjoyment of the rights and freedoms it enshrines. It is intended to constrain gov action
inconsistent with those rights and freedoms; it is not in itself an authorization for gov action” [Hunter v
Southam]
1. Principle of fundamental justice [Malmo-Levine]
a. Must be a legal principle
b. There must be significant societal consensus that it is fundamental to the way in which the legal
system ought to operate
c. Must be identified with sufficient legal precision to yield a manageable standard
d. “Harm principle” or Mill’s principle (law shouldn’t be paternalistic) not a PFJ [Malmo-Levine]
Section 7
1. a criminal law can’t be too vague [Sedley, Spanking case]
a. Doesn’t provide sufficient room for legal debate [Malmo-Levine, Spanking]
b. Not intelligible [Spanking]
c. Law doesn’t delineate a risk zone, most important [Spanking]
i. People have a right to know what’s prohibited behavior
ii. Discretion/interpretation shouldn’t be up to law enforcement
2. a criminal law may not be arbitrary [Bedford]
a. if it limits s 7 rights w/ no affect on objective of the law
3. a criminal law may not be overly broad [Bedford]
a. if it sometimes limits s. 7 rights with no effect on the objective of the law
b. no connection in some applications of the law
i. eg. living off avails meant to punish pimps, but also punishes security guards etc
4. a criminal law may not be grossly disproportionate [Bedford]
a. where its effects on s 7 rights are totally out of sync (way too harsh) with the objective of the
law
Section 1
Reasonable limits on rights and freedoms on the basis of public objectives
1. Burden of proof on the party seeking to limit [Hunter v Southam]
2. Oakes Test
a. pressing and substantial objective -of sufficient importance to justify overriding a
constitutionally protected right
b. proportionality test
i. there has to be a rational connection btwn the law and the pressing and substantive
objective
ii. the law should be minimally impairing
iii. proportionality of effects test
3. s 1 quantitative (public good), s 7 qualitative (if law unjustly limits rights of one) [Bedford]
 Issues
Issues
1. Removing consent from s 265 like rewriting offence [Jobidon, Sopinka dissent]
a. an accused should not have to search through the common law to determine if charged with criminal
offence
2. Problems w/ Cuerrier test [Mabior]
b. it is uncertain, fails to draw a clear line btwn criminal and non-criminal conduct
i. fundamental requirement of the rule of law that a person should be able to predict whether an act
constitutes a crime at the time s/he commits it -after-the-fact condemnation violates the concept of
liberty in s 7 of charter
c. either overextends the criminal law or confines it too closely (breadth)
i. “signigicant risk” and “serious bodily harm” too broad
3. Big difference btwn de minimis and and “significant” in contributing cause [L’Heureux-Dube, Nette]
d. Changes the law and raises the standard
4. Requiring SMR may be too high for some offences [Moldaver dissent, H(AD)]
e. eg. child endangerment [s 218] meant to guard vs behavior that reasonable person could foresee
i. gives too many defences eg. intoxicated parents
5. Denying that person can consent in advance goes too far to limit freedom/autonomy [Fish dissent A(J)]
f. Would criminalize husband kissing wife in her sleep
i. Majority’s counter: lex non curat de minimis
g. Legislature should stay out of the bedroom
h. Neither side deals w/ issue of when it causes bodily harm, Fish says it would be diff situation
6. Denying mistake as def for age of consent offences should be saved under s 1 [McLachlin dissent, Hess]
i. Effect is to put persons on extra guard when unsure about partner’s age
j. Easy for partner to lie about age, especially w/ child prostitutes
7. Shouldn’t transfer MR from one offence from another [Lasking dissent, Kundeus]
k. Don’t need to know exact drug, but should be of same class
l. Esp when penalties higher
8. Capacity requirement that accused appreciate act is legally wrong and morally wrong, introduces lack of
parallelism in law [McLachlin dissent Chaulk]
m. generally it doesn’t matter whether accused believed actions were wrong
9. Accused shouldn’t receive non-insane automatism def rather than DoM just b/c s/he doesn’t fit stereotype
of DoM [Luedecke]
n. DoM does come with stereotype
o. But finding an accused not DoM b/c not fitting stereotype would perpetuate stereotype
10. General/specific intent distinction is arbitrary and confusing [Dickson dissent, Bernard]
11. Immediacy and presence requirements read out of s 17 b/c contrary to PFJ, too narrow, removes defence
for some morally involuntary acts [Ruzic]
12. Intoxication affects one’s mental abilities, so should always be relevant to MR [Dickson dissent,Bernard]
p. Trust good sense of jury
13. Stealing a bike to escape knife wielding maniac [prof]
a. Usually necessity
b. But now under s 34 could be self defence
14. In Perka, C really wanted another requirement: can’t claim necessity if involved in illegal activity (broad)
a. In doing something illegal, there’s some foreseen necessity
b. Eg. go to steal from Mr. Burns, know you’ll have to shoot dogs