Basic

Principles of Criminal and Common Law

Determining Legal Principles from the Common Law
• “Henry principle” suggests that the ratio applies only to the very narrow fact pattern
of the specific case
• “Sellars principle” suggests that “majority judgment of a court is binding no matter
how incidental to the main point of the case, or how far it was removed from the
dispositive facts and principles of law” (p8)
• Re-examined in 1985 in Valente v. The Queen “All obiter do not have, and are not
intended to have, the same weight. The weight decreases as one moves from the
dispositive ratio decidendi to a wider circle of analysis which is obviously intended
for guidance…” (p9)
Validity of Criminal and Regulatory Offence Statutes
Constitution Act 91(27) p32
• Federal head of power over criminal law, including procedure – Criminal Offences
o Acts or omissions
o Prevent harm, protect public safety
• Provincial heads of power can also give rise to criminal laws – Regulatory Offences
o Property and civil rights
o Can impose punishments including fines or imprisonment
Criminal offences and the Charter of Rights and Freedoms
• Laws must be consistent with the charter (both new and existing laws)
• The Charter therefore limits substantive law, consider:
o s.1 of the charter guarantees the rights and freedoms set out in it subject
only to such reasonable limits prescribed by law as can be demonstrably
justified in a free and democratic society
o s.7 of the charter states: Everyone has the right to life, liberty and security of
the person and the right not to be deprived thereof except in accordance
with the principles of fundamental justice (Deprivation) (violation)
• Principles of Fundamental Justice are that a criminal law may not be:
o Vague (e.g. Sedley with the bottles of urine, the crime was “against the king’s
peace”) so how would you even know if you’re breaking the law?
o Overly broad (goes beyond what can acceptably be defined as criminal)
o Arbitrary (unfixed, dependent on a whim)
o Gross disproportionality (way too harsh for circumstances)
• To prove a violation of s.7 there has to be potential for deprivation of one of the
Charter elements (life, liberty or security of the person) and only needs for a
single person’s rights to be violated
Head of Power: to be valid, legislation must fall within the Reference Re Firearms
head of power of the government that created it Act (Canada) (2000)
• Federal govt created legislation to protect public safety and p33
control the use of firearms
• The question is whether the “Pith and Substance” of the law
is aimed to deter violent crime (Criminal offences, under
purview of Fed and valid) or to regulate property
(Regulatory offence, under purview of Prov and therefore
invalid)
• Court decides it has criminal purpose: to address misuse of
firearms and deter violent crime, and therefore valid
Purposive Approach to Charter: give a generous Hunter v Southam
 interpretation to the charter for the purpose of giving citizens (1984) p44
the full measure of the fundamental rights and freedoms
enshrined in the Charter (within reason)
• Interpret the intent of s.8 to have the purpose of protecting
privacy
• Establishes that generally speaking warrants are required
for a search to protect privacy
Charter Violation, s.7, vagueness: vague language will render Canadian Foundation
a law unconstitutional – application to s.43? (the spanking for Children, Youth and
case) the Law v Canada
• Criminal Code s.43 “every schoolteacher, parent or person (2004) p47
standing in the place of a parent is justified in using force by
way of correction toward a pupil or child, as the case may
be, who is under his care, if the force does not exceed what is
reasonable under the circumstances”
• McLachlin (majority) sets a standard for vagueness: Legal
test – a law is unconstitutionally vague if it does not provide
an adequate basis for legal debate, it is unintelligible, or
other reasons
Charter Violation, s.7 and s.1: rule applies: R. v Bedford (2013) p56,
• Arbitrariness – effects of law violates s7 rights in a way that 73
bears no connection with the objective of the law
• “overbroad” is a species of arbitrary – some but not all of
the limits that it places on rights bear no connection to
objectives of law (arbitrary in part)
• gross disproportionality – Impacts on s.7 rights are totally
out of sync with objectives (draconian impacts – like life
sentence for spitting on sidewalk)
Purposive Approach to Charter, s.11(d) and s.1: saving R. v Oakes (1986) p68
legislation under s.1:
• Presumption of innocence lies at the heart of the purpose of
the Charter – to protect fundamental liberty and human
dignity
• Law is invalid if it is radically and fundamentally
inconsistent with the societal values of human dignity and
liberty
• To determine whether a law is a reasonable limit under s.1
apply the Oakes test:
1. Pressing and substantial objective that overrides rights and
freedoms
2. Proportionality test – the means chosen are reasonable and
demonstrably justified (the means the govt has chosen to
achieve said objective)
a. Rational connection
b. Minimal impairment (impose on rights as little as
possible, usually the sticking point for the govt)
c. Balancing proportionality of effects (balance deleterious
effects on charter rights with objective of legislation)
• Since this case, the court has determined that any persuasive
burden placed on the accused, whether an element of
 offense or defense, violates s.11(d) and the only issue is
whether it is saved under s.1
Revision of the Criminal Code in 1955 largely abolished common law offences, but
preserved common law defences (p4)
• Charge must always allege a breach of a statutory provision
• Mental elements of crimes and defenses are defined by the common law
• Common law also guides judicial decisions in criminal matters
• Procedural rules (e.g. presumption of innocence) are based on common law rules
Purposes of criminal law statutes
• Codify and summarize legal principles
o Some of these originated in the common law (e.g. crime of murder)
• Change common law rules
Purposes of criminal common law
• Decide principles not in statutes (e.g. defense of “necessity”)
o Dudley and Stevens is still case law in Canada
o Necessity is not a defense for murder (broad interpretation of holding)
• Interpret statutes
o Words have to be considered in their entire context
o Have to be interpreted in the ordinary sense
o Have to be interpreted harmoniously with the intention of the act and of
parliament
o General principles of statutory interpretation:
Statutory Interpretation
Words of the legislation must be read “in their entire context and in their grammatical and
ordinary sense harmoniously with the scheme of the Act, the object of the Act and the
intention of Parliament “ p11
• Presumed that legislation is enacted to comply with constitutional norms, and
according to the Charter
General: What is the definition of a “public place”? R v Clark (2005) p11
Bilingual: where two versions of the code have a different Common meaning:
word or meaning, the common meaning or more restrictive Schreiber v Canada (AG)
sense of the word will be used Restrictive sense: R. v
Collins
Strict Construction: court must use statutory interpretation to R. v Goulis (1981) p18
decipher a provision, only when ambiguity still exists strict
construction rule applies:
• if provision is reasonably capable of two interpretations,
court will adopt the one more favorable to the accused
Example: analysis of “while committing” R v Pare (1987) p19
• Sexual assault of boy, who says he will tell his mother, Pare
then kills the boy
• Defence argues a strict construction interpretation of
“while committing” in s.231(5) for first degree murder – so
Pare sexually assaulted the boy, THEN killed him
• Strict construction is not applicable if the suggested
interpretation is unreasonable
• Court examines facts using single transaction analysis, and
because Pare retained control of the boy between the sexual
assault and the murder, it was part of the same transaction
 and thus was “while committing”
• Guilty of 1st degree murder because the murder occurred
while committing the underlying offence of sexual assault
Example: analysis of “adapted for” R v Mac (2001) p22
Credit card forgery

Procedure
Classification of offences (omitted)
Evidence (omitted)
Presumption of Innocence – s. 11(d)
Charter of Rights and Freedoms
s.11. Any person charged with an offence has the right
(d) to be presumed innocent until proven guilty according to law in a
fair and public hearing by an independent and impartial tribunal
Reverse onus provisions always violate the presumption of innocence (p98-99 – Oakes)
section 8 of narcotics control act,
A guilty verdict is normally about ‘reasonable doubt’, but reverse onus is on balance of
probability, this violates section 8 of charter, and could not be saved under section 1 – so
the reverse onus provision in this act was struck down
There is a reverse onus for insanity defense
Burden of Proof: Crown must prove both act and intent for Woolmington v DPP
murder: (1935) p81
• The accused is presumed innocent until the prosecution
proves guilt on all elements of the offence beyond a
reasonable doubt
Beyond a reasonable doubt: definition of beyond a R. v Lifchus (1997) p88
reasonable doubt:
• “Beyond a reasonable doubt” has special meaning and
significance in criminal law
• Includes:
o Intertwined with presumption of innocence
o Burden of proof is on the crown rather than Accused
o Logically connected to evidence
o Based on reason and common sense, not sympathy or
prejudice
o Doesn’t require proof beyond and doubt
o More proof is required beyond “probably guilty”
Beyond a reasonable doubt: Instruction to Jury: R. v Starr (2000) p91
• “falls much closer to absolute certainty than to proof on
balance of probability”
Beyond a reasonable doubt: conflicting witnesses: R. v S (JH) (2008) p92
• Instructions to jury should be:
1. If you believe the evidence of the accused, you must
acquit
2. If you do not believe the testimony of the accused but you
are left in reasonable doubt by it, you must acquit
3. Even if you are not left in doubt by the evidence of the
accused (even if you think the accused is lying about
everything) you must ask yourself whether, on the basis
 of the evidence which you do accept, you are convinced
beyond a reasonable doubt by the evidence of the guilt of
the accused
Acquittal: presumption of innocence: R. v Mullins-Johnson
• No such thing as factual innocence, court is only able to (2007) p 96
determine guilty beyond a reasonable doubt, OR not guilty
beyond a reasonable doubt, which carries a presumption of
innocence, not factual innocence
Reverse onus and s.11(d): the reverse onus clause in the R. v Oakes (1986) p99
Narcotic Control Act violates s.11(d):
• NCA at the time provided that if the accused is found to be in
possession of a narcotic he is presumed to be in possession
for the purpose of trafficking and the accused must prove
that he was in possession for a purpose other than
trafficking
• This violates the presumption of innocence under s.11(d) of
the Charter
• Not saved under s.1 (see section on validity of laws)
Reverse Onus and s.11(d): reverse onus clause of s.195(2) R. v Downey (1992)
(now s.212, but struck down in Bedford) violates s.11(d): p104
• Evidence that a person lives with or is habitually in the
company of prostitutes… is, in the absence of evidence to the
contrary, proof that the person lives on the avails of
prostitution

Victims’ Rights (omitted)
Harm Principle (omitted)
The Adversary System (omitted)
Ethical Obligations of Crown and Defence Counsel (omitted)

Elements of an Offence
Items the Crown has to prove to convict:
External Element Fault Element
Act (every offence) mens rea (mental element)
Sometimes also: OR
• Circumstance (e.g. trespassing at night) Negligence
• Consequence (death)
Mental elements: what was in the mind of the accused when they performed the act,
knowledge of what they’re doing, intention to bring about a particular consequence
Negligence: what would a reasonable person have understood in the situation
Fault requirement varies from offence to offence


Elements of an Offence – The Act Requirement

Possession
Both knowledge and control are required for possession,
Possessions are things that are capable of being transferred to another person, must be
permanent
Need power or authority over the item, whether that power is exercised or not
Possession: consent and joint possession: R. v Marshall (1969)
• Marshall didn’t buy, smoke, or want the marijuana in the car, p184
but didn’t leave the car even after he knew the marijuana
was there
• Possession requires both knowledge and control
• Marshall didn’t have adequate control to constitute
possession (and didn’t leave because it would have left him
stranded)
Possession: Control and joint possession: R. v Terrence (1983)
• Control is required for joint possession p188
• Control is required for any type of possession
Constructive Possession: Knowledge and Control: R. v Pham (2005) p195
• Drugs in apartment, defendant out of town
• Constructive possession does not require physical
possession, knowledge and control are sufficient
Possession: internet cache is not a possession: R. v Morelli (2010) p191
• Viewing child pornography is not possession
• Images in computer cache cannot be transferred to another
person and therefore not possessions
• Items that cannot be transferred to another cannot be
controlled and therefore cannot be possessed
Possession: power or authority over an item: R. v Chalk (2007) p202
• Child pornography downloaded to computer, asked
girlfriend to delete videos
• For child pornography possession means having it and
knowing you have it, even if you don’t view it
• Innocent possession (control with the intention to destroy)
is a defence
• Possession doesn’t require that you intentionally procured
the item, simple knowledge is sufficent

Consent making an act lawful
Sometimes an act is only unlawful when it is done without consent
Crown must prove the lack of consent (crown has the burden of proof)
Defense of consent “but the alleged victim said it was ok”
Some would say a true defense would be something that justifies a criminal act (so assault
in self defense is a true defense, but “defense of consent” makes the act non-criminal to
begin with)
Limitations to Consent: cannot consent to serious non-trivial R. v Jobidon (1991)
bodily harm: p205
• Leading case on Consent
• Two men took fight outside bar, Jobidon hit the man, he fell
unconscious, Jobidon continued to hit him and he died.
Jobidon charged with unlawful act manslaughter and assault
• Both men consented to the fight – defence argued that the
death was not the result of an unlawful act
 • Consent is vitiated “between adults intentionally to apply
force causing serious hurt or non-trivial bodily harm to each
other in the course of a fist fight or brawl”
• In event of social value (sport) can consent to higher degree
of harm
Bodily Harm: Definitions: R. v Moquin (2010)
• Bodily harm is defined in s.2 of the code p218
• Whether an injury is trifling is not a question of how long it
lasts
• “Serious bodily harm” is any hurt or injury that interferes in
a grave or substantial way with the physical integrity or well
being of the complainant
• Within each offence there is a range of harm and one of the
issues on sentencing is the degree or seriousness of the
harm within that range
Fraud Vitiating Consent: When significant risk of serious R. v Cuerrier (1998)
bodily harm: p221
• Cuerrier was HIV positive and was told by public health
professionals that he must disclose his HIV status to all
potential sexual partners, he had unprotected sex without
disclosing that information
• Fraud vitiates consent when it exposes person to significant
risk of serious bodily harm
o Higher the risk, higher the duty to disclose
o Contracting HIV would constitute serious bodily harm
o Cuerrier test can be applied broadly to all sexually
transmitted infections
• General test is:
1. Dishonesty or deceit and
2. Deprivation (putting the victim or their property at risk)
Fraud Vitiating Consent: When significant risk of serious R. v Mabior (2012) p227
bodily harm:
• Mabior was HIV positive and had sex with multiple people
when his viral load was low, sometimes used condoms,
charged with aggravated sexual assault
• Mabior test: sexual consent is vitiated when there is a
realistic possibility of the transmission of HIV
• No realistic possibility with low viral load combined with
condom use (court called risk “speculative”)
Fraud Vitiating Consent: When significant risk of serious R. v Hutchinson (2014)
bodily harm: p238
• Woman got pregnant because partner poked holes in
condoms
• All judges agree there was no consent, but for different
reasons:
• Minority view: Complainant never consented at all
• Majority view: she consented, but vitiated by fraud: She did
consent to sexual intercourse, but there was fraud as to the
nature of the act itself (sex with an effective condom)
• In future cases deprivation would have to be of serious risk
 in nature similar to pregnancy or HIV

Omissions
General rule: Failures to act do not give rise to criminal liability
Exception: An omission can ground criminal liability where there is a legal duty to act (as
legal guardians, you must feed your children) Legal duty to act can exist as a result from a
statute or in the common law
In some cases the criminal code creates a legal duty to act, and then creates an offence for
failing in that duty
In other cases an offence can be so broadly worded as to create a duty to act, and the offence
is found elsewhere in the code or other statutes
See Statutes 215-217
Legal Duty to Act: Act and fault must overlap in time: Fagan v Comissioner of
• Fagan drives over the officer’s foot, officer tells him to get Metropolitan Police
his car off his foot, Fagan leaves his car on the foot, tells the (1968) p252
officer he can wait, turns off the ignition, and exits the
vehicle
• Assault cannot be done by omission, the act and the fault
(knowledge and intention) must occur at the same time
• The act was initially accidental, and at that point was not
assault, but continued application of force-by-car was
simultaneous with intention/fault
Legal Duty to Act: Arson initiating chain of events: R. v Miller (1983) p255
• Squatter falls asleep with cigarette, woke up to find mattress
on fire, got up and went to the next room and went back to
sleep. Charged with arson
• Two different analyses, both leading to arson
1. It was a single continuing act that led to the fire (he realizes
there is a fire and doesn’t do anything)
2. Legal duty – by having started the fire, he came under a
legal duty imposed by common law to put the fire out –
court went with this analysis because easier to explain to
jury:
• “Where a person unwittingly sets in motion a chain of
events… legal duty to counteract that chain of events. All he
would have to do is call the fire dept.
• Case before House of Lords, not valid in Canada
Legal Duty to Act: Legal duties sometimes create reciprocal Moore v R. (1979) p258
duties on others:
• Officer witnessed Moore running a red light on his bicycle,
Moore refused to stop and give name to officer, charged with
obstructing police
• Majority: there is a duty on police officers to investigate
crimes and enforce laws, this legal duty creates a reciprocal
duty on offenders to cooperate with officers
• Dissent: reciprocal duty opens offender to much greater
liability: committing a petty traffic offence can lead to
imprisonment and criminal record.
• Leads to absurd consequence that we can bring in duties
 under the common law to extend the realm of criminal
offences
Legal Duty Exercise Reasonable Care: Legal duty to refrain R. v Thornton (1991)
from conduct which endangers others: and Thornton v R.
• Accused tested positive for HIV and donated blood to Red (1993)
Cross anyways, charged with common nuisance
• Donating contaminated blood is not classified as crime
under nuisance provision
• Supreme Court classified blood donation as a medical
treatment, putting Thornton under a duty to exercise
reasonable care
• Found a failure to discharge his duty to exercise reasonable
care – offence by omission
Omission: s.217 – undertaking an act can create a legal R. v Browne (1997)
obligation when failure to complete the undertaking would be p270
dangerous to life:
• Deceased swallowed bag of cocaine to avoid detection,
overdosed, and the accused said he would take her to
hospital, called a cab, but she was pronounced dead at
arrival, accused charged with criminal negligence causing
death
• An undertaking requires commitment and often reliance on
completion of that undertaking by the other person
• Saying you are willing to do something is not enough to
create a legally binding undertaking
Duty to Act: s.215(1)c failure to provide the necessities of life: R. v Peterson (2005)
• Arnold (Alzheimers/dementia) in the charge of Dennis p273
(middle aged man) but Dennis did not do anything to assist
his father or allow him access to bathroom?
• Person under charge must be dependent and person
responsible for charge must be exercising some control,
charge must be dependent and unable to withdraw from
being under charge
• Dennis is in control, and Arnold is unable to withdraw
making Arnold dependant

Voluntariness
Act is involuntary if they had no choice to act otherwise eg a start (startle), seizure, slip and
fall, or actions in the control of another (someone grabs your arm and forces you to hit
someone)
• “There can be no actus reus unless it is the result of a willing R. v King (1962) p287
mind at liberty to make a definite choice or decision”
Rabey v R. (1980) p287
R. v Parks (1992) p288
R. v Stone (1999) p288
Voluntariness: uncontrollable actions: R. v Lucki (1955) p293
• Accused was driving at a low speed, skidded onto left side of
the road due to black ice, hit another car
• Skidding was found to be an involuntary act cause by road
 conditions, held not to be blameworthy
Voluntariness: Reflexive actions: R. v Wolfe (1975) p294
• Wolfe was calling the police to have a man removed from his
hotel, man punched Wolfe, Wolfe reflexively hit him with the
phone, causing a serious cut
• This action was a reflex, and not voluntary, therefore not guilty
of the act
Voluntariness: Sometimes knowledge = voluntariness: R. v Swaby (2001)
• Swaby in car with unlicensed firearm, but claims he did not p295
know of it until after his arrest
• Act and fault elements must occur concurrently
• If the accused learned about the gun while the vehicle was
moving he is owed a grace period to safely leave the vehicle
Voluntariness: Foreseeable but accidental consequences are R. v Ryan (1967) p297
voluntary: NZ case, not good law in
• Comic-book robbery gone bad Canada
• “reflexive action” was result of a series of actions all
intentionally performed by the defendant
• pulling the trigger is a foreseeable consequence of earlier
actions, thus voluntary
Voluntariness: acts or omissions: Kilbride v Lake (1962)
• Absolute liability for an omission, can’t make someone p299
criminally responsible for any act or omission unless “there
was some other course open to him”

Causation
Causation between tort and criminal – in torts, negligence caused damage
Differ causation is ALWAYS required to be proved in torts
Not true for criminal, only true when causation is an element of the crime (murder is a
consequence crime, counterfeiting is not a consequence crime)
Standard for legal causation in negligence may have something to do with reasonable
foreseeability, but not in criminal - has special tests:
Generally speaking the factual causation test is the “but for… [the act]” (this test can now be
drawn out of the SCC ruling in the Maybin case)
The “but for” test does not apply to murder by a large number of people
BC Electric Railway v
Loach (1916) p306
• Hockey fight, Smithers kicks Cobby in the stomach, Cobby Smithers v R. (1978)
falls to the ground and dies from spontaneous aspiration of p306
his own vomit. Smithers charged with manslaughter – the Smithers Fault Element
kick (assault) had caused death is OUT OF DATE DO
• “A contributing cause outside the de minimis range” NOT USE
• Straightforward application of the “thin skull” rule
Causation: Substantial Cause test: R. v Harbottle (1993)
• Accused and another man sexually assaulted a woman, p313
accused held her down so companion could strangle her
• Charged under 231(5) causing death while committing an Test only applies to
act of unlawful domination first degree murder
• “substantial cause” test for causation in first degree murder under 231(5)
 under s. 231(5) – the acts of the accused must be a
substantial and integral cause of death
Causation: Significant Contributing Cause Test: R. v Nette (2001) p316
• 95 year old widow was bound with clothes during robbery,
left on her bed, died 2 days later from asphyxiation, Test applies to all
• Test: the accused actions must be a significant homicide
contributing cause of death
Causation: Significant Contributing Cause R. v Talbot (2007)
• The “but for” test works in most cases of factual causation, p324
but in some cases doesn’t implicate all those involved
• If the acts of the accused are such that they should make
them responsible for the outcomes that occur, then
causation should be found
• Supports Nette as the sole test, not Smithers
Causation: Intervening Cause: R. v Smith (1959) p329
• Soldier stabbed in the arm as well as the back, but no one
knew of the back injury so was untreated, also was dropped
several times, then died
• If the second cause was so overwhelming as to make the
original stabbing only part of the history, then the original
wound was not the cause of death
• Only if the original wound is merely the setting that the
killing action took place will the chain be broken
Causation: Thin Skull Rule applies to religious beliefs: R. v Blaue (1975) p332
• Defendant stabbed deceased 4 times, puncturing her lung,
she refused blood transfusion which would have saved her
life because she was a Jehovah’s witness, she died
• Even though intervention would have saved her life, she
could not accept it because of her religion, therefore Blaue
was responsible for her death
• Thin skull rule applies to the whole of the person, not just
the physical person, but personal beliefs also
Causation: Negligent acts of the victim do not break chain of The Queen v Bingapore
causation: (1974-5) p335
• Man assaulted and sustained head injuries, superficial
wounds treated, advised not to leave hospital because of
potential internal injuries, but left anyways, returned to
hospital and died from bleeding in the brain
• By leaving the hospital early he may have contributed to his
own death
• Court finds that the death still occurred from the original
assault
• Negligent acts by the victim will not break the chain of
causation
Causation: Significant contributing cause, independent act, R. v Maybin (2012)
reasonable foreseeability: p337
• Maybin brothers beat up victim in a bar, left face down
unconscious on a pool table, bouncer believes victim started Leading case on
fight and punches him again in the head, victim dies of head Causation
 injury
• Trial judge not convinced either of the brothers or the
bouncer specifically caused the death
• SCC used significant contributing cause test, but proposed
use of other relevant tests as well:
• Independent Act test: if someone else does something that is
independent, using their own volition, and unrelated to the
original act, this breaks the chain of causation
• Widens forseeability of risk test—(objective) reasonable
forseeability rather than particular intervention at the time
of the initial assault. Just need the general nature of the
intervening act and the risk of harm. The harm that
transpired from the intervening act must flow reasonably
from the accused’s action.
• Independent Act Test: if the two events /acts were close in
proximity, and question is whether they were consequential
or coincidental. If it was consequential, it “triggered the act”
• Third test: whether initial cause is “spent”, or whether the
subsequent event overwhelmed the first act, the accused is
guilty.

The Fault Requirement
What is mens rea? It is not moral guilt – a person can do an act that is a crime but not
believe it to be wrong or know of the legal sanction and yet would still have committed a
crime.
Mens rea can be
• The intention of doing the criminal act
• Recklessness of the consequences of some act
“Some crimes require intention and nothing else will do, but most can be committed either
intentionally or recklessly” (p351)
• Some crimes require no mens rea but merely negligence
• Other crimes are strict or vicarious liability and do not even require negligence

Subjective/Objective Distinction
Subjective Fault – awareness of the risk or natural consequences of the act, intention
Objective Fault – failing to meet the objective standard of the reasonable person (the
objective standard apparently is tougher since the ruling of Creighton which we have not
covered yet)
Types of Fault: Subjective vs Objective fault: R. v Hundal (1993) p354
• Subjective test seeks to determine what was actually in the
mind of the particular accused at the moment the offence is
alleged to have been committed
• Objective tests concern what the accused “should” have
known – negligence – requires a marked departure from the
standard of care of a reasonable person, there is no need to
establish the intention of the particular accused
Subjective Fault: Fraud; state of mind can be inferred from the R. v Théroux (1993)
circumstances: p353
• actus reus has its own mental element (must be a voluntary
 act)
• mens rea refers to the guilty mind, functions is to prevent
conviction of the morally innocent (those who cannot
understand or intend the consequences of their acts)
• mens rea is concerned with consequences of the prohibited
actus reus
• Test for mens rea is subjective (outside of crimes of
negligence) – whether the accused subjectively appreciated
the consequences of the act as a possibility
• Crown does not have to establish the mind of the accused at
the time of the act in every case – sometimes subjective
awareness of the consequences can be inferred from the act
itself
Subjective Fault: Jury is not bound to accept the accused’s R. v Mulligan (1974)
statement of lack of intent: p354
• Man stabbed his wife many times but “did not mean to kill
her or cause her death”
• Jury is entitled to make use of the statements of the accused
regarding their state of mind at the time of the act if they
choose to, or may reject such statements
• If an accused gives testimony the jury must weigh the
testimony along with inferences as to what the intentions
might have been based on conduct or other relevant facts –
what a man does is often the best evidence of the purpose he
has in his mind
Subjective Fault: Inference of intent based on facts: R. v Ortt (1968) p355
• Where a person does acts calculated to kill a person and
does kill that person, that is evidence of intent
• Trial Judge: “in our law a person is presumed to have
intended the natural consequences of his act”
• Discussion in this appeal that the word “presumed” is to be
avoided and replaced with “inferred” (it is the difference
between must and may)
• Reaffirms the presumption vs inference discussion in Ortt R. v Walle (2012) p356
• Jury should be instructed to consider the the whole of the
evidence that could realistically bear on the accused’s
mental state at the time of the alleged offence - “a person
usually knows what the predictable consequences of his or
her actions are, and means to bring them about”

Regulatory Offences
Some offences have subjective mens rea, and others have absolute liability – no fault
element
The following cases start to build the “fault ladder”
Mens Rea (Beaver – default for criminal laibility) ! objective fault ! strict liability
(SSM) ! Absolute liability (traffic infractions – for regulatory offences)
Motive, Desire Not elements of the crime, but speak to mens rea
Knowledge/intention Subjective Fault/subjective mens rea
Recklessness
Willful blindness
Negligence Objective Fault
Strict liability
Absolute liability

Regulatory Offence: Possession not absolute liability: Beaver v R. (1957) p357
• Beaver thought he had a bag of “sugar of milk” but it was
heroin, jury believed he didn’t realize what he had was
heroin
• Judge instructed jury that it was immaterial if he knew what
the thing was, only that he possessed it making possession
an absolute liability offence
• SCC finds that two forms of knowledge are required to be
guilty of possession:
1. Knowledge that you possess something
2. Knowledge of what that something is
• Possession is a subjective mens rea offence, not an absolute
liability offence
Regulatory Offence: Strict Liability, Due Diligence: R. v City of Sault St.
• City contracted waste disposal, the site the company used Marie (1978) p364
for landfill was leaching pollutants into a creek, contrary to
Ontario Water Resources Act
• Strict liability offence – Crown proves unlawful act beyond
reasonable doubt, negligence assumed
• Due diligence defence – accused proves on BOP that the
were not negligent in the circumstances by demonstrating
they exercised due diligence
Regulatory Offence: mens rea not required for criminal R. v Wholesale Travel
liability, strict liability is constitutional: Group (1991) p373,
• p395
Regulatory Offence: Strict liability default unless otherwise R. v Chapin (1979) p381
explicitly stated:
• Something
Regulatory Offence: Absolute liability cannot apply to offences Reference re Section
where imprisonment is available: 94(2) of the Motor
• Vehicle Act (BC) (1985)
p388
Regulatory Offences: Careless Driving: R. v Beauchamp (1953)
• Careless Driving Fault provisions: p412
• accused breached a standard of care
• in light of the circumstances that the driver was aware of (or
as a reasonable person would have understood them) did
the driver fail to drive with the care of an ordinary driver?
• Must fall to a level that breaches a duty to the public and is
deserving of punishment
• Requires objective fault

Fault for Crimes – Murder
• section 222 Homicide = causing human death
 o non-culpable homicide (not an offence)
o culpable homicide can be either murder or manslaughter
• anyone charged with murder has manslaughter as an option

*** Apply basic fault requirements for murder
Then determine first or second degree murder
section 229a is important and should be cited
Subjective Fault: Murder requires subjective mens rea: Simpson v R. (1981)
• Accused charged with attempted murder, jury charged with p414
phrase “ought to have known”
• “Ought to have known” changes murder from subjective
intent to objective fault which is clearly wrong – murder
requires mens rea
Subjective Fault: Definition of “likely”: R. v Edelenbos (2004)
• Understood in the ordinary plain language sense p416
• Struck down constructive murder Vaillancourt v R. (1987)
p421
• Struck down constructive murder R. v Martineau (1990)
p431
Subjective foresight of death: s.229(c): R. v Shand (2011) p443
• Read out “ought to know” from s.229(c)
• Subjective foresight of death is still required
• Still considered valid once read down
1. unlawful object (must be different than to cause death or
bodily harm to the victim) – here the unlawful object was
robbery
2. the object has to be an indictable offence requiring mens
rea
3. must intentionally commit a dangerous act – here the
dangerous act is brandishing the gun
4. dangerous act must be distinct from unlawful object, but
must also be in furtherance of the unlawful object
5. must be a specific act or series of acts that cause death –
the act of brandishing the gun
6. when committing dangerous act, the accused must know
that death is a likely result – must know that brandishing
a gun is likely to result in someone dying
• Leading case for definition of “likely” is Roks, see p448
First Degree Murder: Planned and Deliberate: R. v Smith (1979) p450
• Farm house shoot up and murder Leading case on
• Planned means arranged beforehand according to a scheme “Planned and
• Deliberate means considered, weighed Deliberate”
• Apparently the SC decided that you CAN combine R. v Nygaard and
s.229(a)(ii) and s.231(2) Schimmens (1989) p455
• Accused must know that the victim was a police officer for R. v Collins (1989) p458
automatic inclusion under s.231(4) – otherwise it would
violate the charter
First Degree Murder: s.231(5): R. v Arkell (1990) p459
• One argument is that murder while committing these
 offences violates s.7 of charter, but the alternate argument
(and the dominant one) says this isn’t arbitrary, and should
be upheld

Types of Fault Since Creighton (Subjective Fault)
What is actually required for mens rea? What is the state of mind?
Motive and intention are not the same thing
• Intention to cause death is part of mens rea and does not require motive or deeper
reasons for the action
• Motive is not an element of the fault, but can be part of mens rea (although depending
on the context, motive can be part of the crime, as in the case of terrorism, but usually it
is not)
Some parts of the code require purpose (and this also depends on the context, intention
may mean one thing in one section of the code, and something else in another section)
Subjective mens rea can be established by any one of the following:
• Intention
• Knowledge
• Recklessness
• Willful blindness
But can also be specified in the relevant statute by use of language (“in order to”)
Presumptions of Objective Fault: R. v H (AD) (2013) p464
• Walmart Bathroom Birth – thought the child was stillborn,
had no idea she was abandoning a viable child (no mens rea)
Cromwell (majority)
• Is child abandonment/endangerment subjective or objective
fault? Can we presume objective fault?
• No, section does not set out specific fault requirement, so
default subjective fault applies
• Also, the language in the statute “abandon” or “expose”
suggest an element of knowledge
Moldaver (dissent)
• Subjective fault would result in too many excuses or
exemptions and would show indifference to the life or
welfare of the child
Desire and Intention: R. v Hibbert (1995)
• Two possible meanings of purpose: p470
• The ultimate ends an actor seeks to achieve, importing the
idea of desire
• Actors reason for doing what he did, importing the idea of
intention
• In s 21 (1) (b), purpose means intention, not desire
Intention: R. v Buzzanga and
• Activists distributed mean information about French Durocher (1979) p474
Canadians to whip up controversy, intending to create
sympathy, but created outrage, charged with willfully
promoting hatred
• Willful promotion of hatred requires intention, does not
include recklessness
• Intention can mean 1 of 2 things
 1. Actor’s conscious person wants to bring about a
prohibited consequence
2. Actor acted despite knowing that the prohibited
consequences are substantially certain to follow
Recklessness: R. v Théroux (1993)
• Housing fraud p484
• Actus reus of fraud – deprivation and deceit
• Mens rea of fraud – subjective awareness that one was
undertaking a prohibited act (deceit) which could cause
prohibited consequences (depriving another of property or
putting that property at risk)
• 2 Steps of Recklessness
1. Accused has knowledge of likelihood of the prohibited
consequences
2. With such knowledge, accused commits acts which may
bring about these prohibited consequences, while being
reckless as to whether or not they ensue
Breach of Trust: R. v Boulanger (2006)
• Public officer gets official to write accurate but special p486
report regarding daughter’s accident for insurance
purposes, charged with breach of trust
• Breach of trust requires subjective mens rea, must have
acted with intention to use office for purpose other than the
public good, rather than error of judgement
• Personal benefit does not necessarily indicate breach of
trust, must be something more dishonest
Recklessness and Willful Blindness: Sansregret v R. (1985)
• Recklessness and willful blindness are not the same as p490
negligence
• Recklessness: aware that there is danger that his conduct
could bring about the result prohibited by the criminal law,
nevertheless persists, despite the risk. It is, in other words,
the conduct of one who sees the risk and who takes the
chance.
• Willful Blindness: aware of the need for some inquiry but
declines to make the inquiry because he does not wish to
know the truth. He would prefer to remain ignorant. Willful
blindness imputes knowledge on the accused (basically
constructive knowledge)
• Willful blindness does not define the mens rea required for R. v Briscoe (2010)
particular offences, rather it can be substituted for actual p493
knowledge whenever knowledge is a requirement of the
mens rea
• Imputes knowledge to an accused who suspicion is aroused
to the point where he or she sees the need for further
inquiries, but deliberately chooses not to make those
inquiries
Making inquiries does not necessarily negate willful blindness: R. v Lagace (2003) p495
• If some inquiry was made, crown must prove beyond a
 reasonable doubt that the accused remained suspicious and
refrained from making any further inquiry because they
preferred not to know.
• Test becomes:
• What was the nature of the inquiry?
• Did the accused remain suspicious?
• If yes, did the accuse refrain from further inquiry
because they preferred not to know
• Accused can’t be convicted of smuggling drugs unless he had R. v Blondin (1971)
knowledge or suspected that he was importing drugs p496
• Which drug doesn’t matter, as long as you suspect it’s a
narcotic – if you think you’re importing heroin but it’s
actually hashish, you’re still guilty of importing a narcotic

Types of Fault Since Creighton (Objective Fault)
s. 219 Criminal Negligence causing… criminal negligence must be causing death or bodily
harm, criminal negligence is not a stand alone offence
TEST: criminal negligence has its own special objective standard- conduct that reveals a
marked and significant departure from the standard which could be expected of a
reasonably prudent person in the circumstances
Crimes of Objective Fault = negligence crimes = crimes of negligence ≠
criminal negligence (but CN refers to a subset of objective fault crimes)
Reasonable, ought to know, careless = all suggest objective fault
Objective Fault: Negligence vs Recklessness: O’Grady v Sparling
• Difference between advertence and inadvertence, but in (1960) p500
courts ignore this distinction
Criminal Negligence: Objective vs Subjective standard: R. v Tutton and Tutton
• Diabetic Kid not cured by God (1989) p501
• Could have been charged with failing to provide necessities
of life, but criminal negligence causing death is more serious Court is split on this
offence Gives initial Marked and
• Court is deeply split on analysis Significant Departure
McIntyre (+1) test, but no clear
• Objective must be used for criminal negligence, as conduct is answer.
being measured, not mental state or intention
• Test: conduct that reveals a marked and significant Resolved in F(J)
departure from the standard which could be expected of a
reasonably prudent person in the circumstances
Lamer
• Agree with objective standard requirement, but take into
account the qualities of the accused (age, mental capacity,
etc.
• Standard is somewhere between objective and subjective
• Test: as above, but with specific qualities taken into account
Wilson (+2)
• Subjective fault is appropriate standard for criminal
offences, should apply here; does not specify objective fault
so courts should err on the side of caution (i.e. the accused)
when statute is ambiguous
 • Test: wanton or reckless disregard signifies more than gross
negliglence in the objective sense, it requires some
knowledge of the danger or threat to lives of others, OR
willful blindness
Criminal Negligence: Standard of Fault: Waite v R. (1989) p512
• The “night-time hay ride” case where he hit 5 people, killing
4 of them
• At issue is what the standard of fault is for negligence
• Still undetermined
• McIntyre says it’s objective
• Wilson says subjective mens rea is wrong, should have been
“minimal intent of awareness of prohibited risk or willful
blindness to the risk”
Criminal Negligence: Marked Departure: R. v Anderson (1990)
• Impaired driver ran red light and killed someone p514
• Doesn’t decide whether fault is subjective or objective, but
creates the “marked departure” test:
• Does the conduct in question constitute a marked departure
from that of a reasonable person?
• The easier it is to conclude that the reasonable person would
have perceived the risk, the easier it is to prove fault under
either standard
• Marked departure from the norm indicates subjective
awareness of the risk
Objective Fault: Modified objective test: R. v Hundal (1993) p518
• Marked Departure as test for objective fault
• Established here for dangerous driving, later applied to
other negligent acts (below)
Objective Fault: the meaning of negligence in the criminal law: R. v Creighton (1993)
(manslaughter by cocaine) p520
• Injecting cocaine is considered trafficking, and therefore an
unlawful act
McLachlin (Majority)
• Holding people to a minimum standard Objective foreseeability
• Marked departure test applies generally to criminal offences of risk of non-trivial
requiring objective fault bodily harm
• Whole point of an objective test is that it is to apply equally
to everyone, turning it into a subjective
• Engaging in risky activity has a minimum standard of care
• Morally innocent should not be punished
• Should only be concerned whether the accused was truly
incapable of understanding the nature of the risk, not
concerned with “frailties of character” or other personal
characteristics (age, experience, etc.)
Sets out test:
1. Establish actus reus – the activity must constitute a
marked departure of the care of a reasonable person in the
circumstances.
2. Establish mens rea – the activity must have been done
while there was objective foresight of bodily harm (not
 death) which is neither trivial nor transitory that can be
inferred from the facts. The standard is of the reasonable
person in the circumstances of the accused.
3. Establish capacity – given the personal characteristics of
the accused, were they capable of appreciating the risk of
harm flowing from their conduct? → If the person could
not have possibly appreciated the risks they can be
acquitted.
Lamer CJ (dissenting)
• Legal test for unlawful act manslaughter:
1. Would a reasonable person in the same circumstances
have been aware that the likely consequences of his or
her unlawful conduct would create the risk of death?
If no, then acquittal. If yes then:
2. Was the accused unaware
a. because he or she did not turn his or her mind to the
consequences of the conduct and thus to the risk of
death likely to result; or
b. because he or she lacked the capacity to turn his or her
mind to the consequences of the conduct and thus to
the risk of death likely to result, due to human frailties?
If (a) then convict, if (b) then:
3. In the context of the particular offence, would the
reasonable person with the capacities of the accused have
made him or herself aware of the likely consequences of
the unlawful conduct and the resulting risk of death?
If yes then convict, if no then acquit.
• This test incorporates capacity into determination of fault,
analogous to the defense of mistake of fact (where an honest
and reasonably held belief in an incorrect set of facts
excuses the act) but instead reflects an incapacity to
perceive the correct set of facts or the risk in question
Objective Fault: Negligence: R. v Beatty (2008) p528
• Charged under 294(4) dangerous operation of a motor
vehicle causing death Modified objective test
• Charon J. for dangerous driving
• Negligence is aimed at punishing blameworthy conduct, and
is concerned with the manner of driving, not the Marked departure test
consequence for objective fault
• Objective test for this is whether there was a “marked crimes generally
departure” from the reasonable standard of driving
• Momentary lapse in concentration is not a marked
departure from a reasonable standard
• A mere departure from the standard expected of a
reasonably prudent person will meet the standard for civil
negligence, but will not suffice to ground liability for penal
negligence.
• Penal negligence requires a marked departure from the
standard expected of a reasonably prudent person.
Marked departure test:
- Actus reus – go to the code: was the accused actually
driving in manner that is dangerous to the public?
- Fault (she calls mens rea, but really is objective fault) – on
all the circumstances was there a marked departure from
the standard, modified to allow exculpatory defences
• Must allow for exculpatory defences (detached retina,
sudden and unexpected side effects of prescription
medication) that would exclude liability
• If there was real mens rea (intentional dangerous driving) is
obviously a fault (presumably gross negligence)
• This test now applies to all objective fault crimes
Objective Fault: Degrees of Negligence: R. v F (J) (2008) p540
• Resolution of split verdict in Tutton, sets out 3 degrees of
objective fault requirements: Resolution of Tutton,
1. Due diligence with the onus reversed for regulatory current standard
offences – matter of common law presumption under Sault
St. Marie or as Charter standard where there is risk of Objective fault for
imprisonment – simple negligence standard to tort of criminal negligence
negligence
2. A marked departure from the objective norm as a Charter Marked & substantial
standard for crimes with objective fault requirements departure for 219
(Beatty - Gross Negligence) – failing to provide the criminal negligence
necessaries of life, dangerous driving ONLY
3. A marked and substantial departure from the objective
norm for offences based on criminal negligence under s
219 (R v F. (J.) exceeds gross negligence)
Predicate Offences: Unlawful Act Manslaughter: R. v Creighton (1993)
(manslaughter by cocaine) p551
• Injecting cocaine is considered trafficking, and therefore an
unlawful act Predicate Offence must
• Rules for unlawful act manslaughter: be dangerous unlawful
ACTUS REUS act
• Accused committed an unlawful act
• The unlawful act was a substantial cause of the death of the Objective fault for
victim unlawful act
MENS REA manslaughter
• Fault requirement of the predicate offence must be more
than absolute liability and must be constitutionally valid
• Additional fault requirement specifically for manslaughter:
objective foreseeability of risk of bodily harm which is not
trivial or transitory resulting from the dangerous act
Aggravated Assault: maiming or disfiguring need not be Godin (1992) p565
foreseeable
• Fault element is objective foresight of bodily harm is all that
is required (not maiming etc)
Normative Theories of Fault (p566-9)

Rape and Sexual Assault
There is nothing in the code that defines sexual assault, it’s defined by Chase
Nothing in here about rape shield laws (Seaboyer, Gayme)
Mistaken Consent: defence must have an air of reality: (Real Pappajohn v R. (1980)
Estate Rapist) p583
• Accused appeals conviction because judge failed to put
defence of mistake of fact to the jury
• Mistaken belief in consent is a full defence, if proven would
negate mens rea
• Mistaken belief requires an “Air of Reality” that has an
evidentiary basis before it can be put to the jury
• No evidence for this in this case, so appeal dismissed
Mistaken Consent: can be unreasonable but not reckless: (2X Sansregret v R. (1985)
mistaken reconciliation) p596
• He thought she consented, she feared for her life
Rules:
• Mistaken belief in consent is valid, even if it’s unreasonable –
honest belief, even if unreasonable, that consent was free
and voluntary, and not as a result of threats, would negate
the mens rea and entitle accused to an acquittal
• Reckless or willful blindness to non-consent (even if
honestly believed) will not suffice to make out the defence
if the accused sees only what they hope
Sexual Assault: Definition of Sexual Assault: (basement R. v Chase (1987) p607
groping)
• Original charge and conviction was sexual assault
• NBCA dismissed appeal and substituted conviction of
common assault under s. 245(1) – because there was not
contact with the complainant’s genitals
• Interpretation of new Criminal Code definition:
• R. v Alderton (1985) – implied intent: SCC says without
giving “a comprehensive definition of a “sexual assault” we
are all satisfied that it includes an assault with the intention
of having sexual intercourse with the victim without her
consent, or an assault made upon a victim for the purpose of
sexual gratification”
• R. v Taylor (1985) – teenage girl disciplined with wooden
paddle: SCC says “an assault is indecent if it’s indecent” and
“nothing in the new sections of the Code in my view restricts
the carnal or sexual aspect only to acts of force involving the
sexual organs, and I respectfully disagree with the
restrictive meaning in R. v Chase (referring to the NBCA
ruling)
• R. v Cook (1985) BCCA ruling is that it is not a simple matter
of anatomy that differentiates simple assault from sexual
assault, but that a real affront to sexual integrity or sexual
dignity would be sufficient
• Defines broad definition of Sexual Assault:
• Does not depend solely on contact with specific areas of the
human anatomy
• Need not involve attack by a member of one sex upon a
member of the other (can be perpetrated upon one of the
 same sex)
• Does not merely duplicate the offences it replaces, and not
limited to the scope of its predecessors
• Defined as: “sexual assault is an assault within any one of the
definitions of that concept in s. 244(1) of the Criminal Code
which is committed in circumstances of a sexual nature,
such that the sexual integrity of the victim is violated”
• Objective Test: “viewed in the light of all the circumstances,
is the sexual or carnal context of the assault visible to a
reasonable observer” these circumstances can include:
• The part of the body touched
• The nature of the contact
• The situation in which it occurred
• The words and gestures accompanying the act
• All other circumstances surrounding the conduct,
including threats which may or may not be
accompanied by force
• The intent of the person committing the act, to the
extent that this may appear from the evidence
• If the motive of the accused is sexual gratification, to the
extent that this may appear from the evidence, it may
be a factor in determining whether the conduct is
sexual
• Offence is one requiring general intent only
• If it were open to specific intent, there would be the
possibility of the defence of drunkenness (which has always
been related to the capacity to form specific intent) and this
would seriously undermine enforcement
Mistaken Consent: Post Criminal Code modification “air of R. v Bulmer (1987)
reality” test (s. 265(4)): p613
• Prostitute agreed to sex with 1 man, 2 others joined
• Confirms the “air of reality” test from Pappajohn is still
valid post-modification
• What the accused says under oath is evidence, but shouldn’t
be enough (Lamer is dissenting here?)
• Statement by the accused can be a factor in whether the
defence is put to the jury, but not determinative
• Belief doesn’t have to be reasonable, jury has to consider
reasonableness of the belief
Mistaken Consent: Post Criminal Code modification (s. R. v Osolin (1993) p617
265(4)):
• “What is required [for defence put to jury] is that the
defence of mistaken belief be supported by evidence beyond
the mere assertion of a mistaken belief”
Mistaken Consent: Summary of Rules: R v Davis (1999) p618
• Mistaken consent defined: complainant did not consent, but
the accused honestly believed s/he did consent
• True mistaken belief negates mens rea This is where the “air
• Must be “air of reality” before the defence is considered of reality” law is right
(from Pappajohn) and this should consider the totality of now for mistaken
 evidence (any source) consent
• Not a question for judge to determine merits of defence,
simply must decide if there is a reason to instruct the jury to
consider it
• For trier of law (jury)
• Can be brought to jury even without being brought by
defence, and conversely, mere assertion by defence is
insufficient to raise air of reality
• McLachlin: “In order for there to be an air of reality, there
has to be a situation of ambiguity”
• No mistake where willful blindness or recklessness
Code Provisions Vitiating Consent; 265(3) and
Code Provisions on Mistaken Belief in Consent 273.1(2)and (3);
265(4) and 273.2
Mistaken Consent: implied consent and limitations on R. v Ewanchuk (1999)
mistaken belief: “but I stopped, see, I’m a nice guy” p651
• Trial judge: victim was trying not to appear scared so
consent could be implied from her actions – defence of Leading case on
“implied consent” ** there is no defence of implied consent “Mistaken Belief in
in Canada ** Consent”
Rules:
• Consent Requires Outward Communication
“In the context of mens rea, consent means the complainant
had affirmatively communicated in words or conduct her
agreement to engage in sexual conduct with the accused”
• There are 4 (common law) limitations on the defence of
mistaken belief in consent:
1. Belief that silence = consent is not a defence
2. Must be belief that consent was expressed by
affirmative communication
3. Once complainant has said no, accused is on notice of
non-consent if he proceeds (i.e. needs to obtain consent
BEFORE proceeding further, no “testing the waters”)
4. No defence where accused did not take reasonable
steps to ascertain consent
• Together these make defence of mistaken consent difficult to
argue successfully
• Fear Vitiates Consent – all that matters is that the fear
caused the victim to consent (does not have to be reasonable
fear)
ACTUS REUS of sexual assault:
• Touching
• Of sexual nature (objective standard from Chase)
• Absence of consent (subjectively in victim’s mind)
MENS REA of sexual assault:
• Intention to touch
• Subjective understanding of non-consent or reckless/willful
blindness to non-consent - IF VALID, defence of mistaken
belief in consent negates this particular aspect mens rea
Consent: must be conscious and constant: (autoerotic R. v A (J) (2011) p674
asphyxiation case)
• Complainant may or may not have consented to the acts
prior to losing consciousness, but awoke to anal penetration,
and then consented to vaginal intercourse afterwards
• Assuming that she did, in fact, consent to the acts in advance,
question is whether someone can pre-consent to sex while
unconscious, or whether the fact of being unconscious
vitiates consent?
• Interpret sexual assault statutes to mean that ongoing
consent requires ongoing consciousness, the implication is
that unconsciousness vitiates consent
Rules:
• Consent must be given throughout the activity for
consent to be valid
• Must be the consent of an operating mind (cannot be
unconscious, sleeping, or drunk)
• Reasons for this are: to protect from sexual exploitation, and
to allow revocation of consent at any time (which an
unconscious person cannot do)
• Rules out possibility of advanced consent

Mistakes
Mistake of fact may negate the mens rea requirement, mistake of law will not:
Mistake of fact: Carrying what you think is oregano but is actually marijuana
Mistake of Law: Thinking that carrying marijuana is not illegal

The extent to which mistake is a defence depends on the kind of offence at issue
Fault Element of Possibility of Requirement
Offence Defence?
Subjective Mens Rea Yes Any honest mistake will negate mens rea
Offences
Objective Fault Yes Mistake must be honest and reasonable
(negligence) Offences
Regulatory Offences Yes Mistake must be honest and reasonable, onus
with Due Diligence is on accused to show that mistake was
Defences reasonable
Absolute Liability No Mistake of fact is never a defence
Offences
Assuming the facts were as D believed, D would be guilty of...
No offence A more serious offence A less serious offence
Mistake is definitely a Mistake is probably not a Mistake may not be a
defence (Beaver) defence (Ladue) defence (Kundeus)
• The Criminal Code expressly prohibits mistake of fact as a defence for some offences
• When this happens, it essentialy turns the offence into an absolute liability offence
• Absolute liability, where it can be combined with imprisonment, can give rise to
constitutional challenges
Mistake of Fact: Constitutional Requirements: R. v Hess; R. v Nguyen
• Men had sex with girls under the age of 14 (1990) p700
• At the time, mistake of fact defence was not available
 (absolute liability crime) and the maximum penalty was life
in prison
• This was a s.7 violation, not saved under s.1 – the deterrence
effect was not sufficient to justify the removal of the mistake
of fact
• Defence of due diligence must be available
• Rule: Must take all reasonable steps to determine the age of
the partner
• The criminal code has been re-written to reflect this
Mistake of Fact: more serious offence: (rape or sex with a dead R. v Ladue (1965) p713
woman?)
• Charged with interfering with a dead body, requires
knowledge that the person is dead
• Accused claims he was drunk and thought the woman was
unconscious, which would make it rape
• Rule: Court will accept defence if it would negate mens rea
and make him innocent, but…
Court will not accept defence of mistaken belief if the belief
would make him guilty of a more serious crime
Mistake of Fact: more serious offence: (mistaken drug) R. v Kundeus (1976)
• Accused sold LSD to cop believing it was mescaline p714
• Mescaline is not a controlled substance, while LSD is a
restricted drug with much higher penalties Normative Theory of
• Rule: the accused believing something similar to the offence Blameworthiness
is enough to establish mens rea – all that is required is mens
rea in the widest sense
• Because accused thought he was selling an illegal substance,
that satisfies mens rea
Mistake of Law: ignorance of law: (unnatural offence aboard R. v Esop (1836) p724
ship)
• Party must know that what he does is a crime, but if it is not
a crime there that does not amount to a defence here
Mistake of Law: ignorance of law not a defence: (go-go R. v Campbell and
stripper) Mlynarchuk (1972)
• Mistake of Law is not a defence, but can be considered p724
during sentencing
• The only mens rea required is the intention to do the act, not
required to know the illegality of offence
Mistake of Fact or Law?: s.95(1) restricted firearms: R. v MacDonald (2014)
• Accused possessed loaded restricted firearm, registered in p734
AB, not NS, but had it in NS
• Knowledge that one possesses a restricted firearm in the
place in question (absent license to possess in the place in
question) is sufficient mens rea for the charge – mistake of
law to believe that the registration transferred from AB to
NS
• Mistake of fact would be if he thought he was in AB, but had
unknowingly crossed over into BC?

Incapacity
Age
• Age of criminal responsibility was raised to 12 by the Criminal Code in 1982
• Youth Criminal Justice act covers ages 12-18 as of 2002
Young people who engage in criminal conduct are presumed to have less moral
blameworthiness and culpability than adults, therefore less severe sentencing
Mental disorder
• The question of mental disorder is a question of law for the judge
Insanity, Mental Disorder: Mental Disorder Defence: Cooper v R. (1979) p769
• History of psychiatric problems but medical evidence says
no “disease of the mind” Old s.16, but still
• Strangled lady friend to death, but may not have understood leading case for
that strangling would kill her mental disorder
• Issue: was there an evidentiary foundation to put insanity defence
defence to the jury? How should this be done?
Rules:
• Disease of the Mind is question of law for the judge:
- Disease of the mind is any illness, disorder, or abnormal
condition which impairs the human mind and its
functioning (excludes self-induced states caused by
transitory mental states such as hysteria or concussion)
• Whether the accused was suffering from the condition at the
time is question of fact for the jury:
- On the facts, was the disease of such intensity as to
render the accused incapable of appreciating the nature
and quality of the violent act or knowing that it was
wrong? Appreciate in this case means more than
knowing, it also means understanding the outcomes or
consequences of the act
• In this case judge was correct to bring up defence of insanity,
but the explanation was incorrect, question should not be
whether the accused was suffering from disease of mind,
rather should be whether this disease rendered him
incapable of appreciating the nature and quality of the act
Insanity, Mental Disorder: Mental disorder not always NCR: Kjeldsen v R. (1981)
(remorseless serial rapist and murderer) p778
• Presence of mental illness not automatic NCR
• For a disease of the mind to render NCR verdict, must be
incapable of appreciating nature and quality
• Psychopathy is a disease of the mind, but can still appreciate
the outcomes and consequences of act
Insanity, Mental Disorder: understanding penal sanction: “I R. v Abbey (1982) p779
have a bag full of cocaine”
• Not understanding penal consequences of action is not the
same as not understanding the nature of the act – if you
know you possess a bag of cocaine, you know you possess a
bag of cocaine
Insanity, Mental Disorder: Morally Wrong: R. v Chaulk (1990) 782
• Wrong in the context of s. 16(2) means more than legally
 wrong, it means “morally wrong in the circumstances
according to the moral standards of society”
Automatism: MDA vs NMDA (sane automatism): R. v Rabey
• Accused suffered sudden disappointed love, followed by (ONCA)(1977) p785
sudden “dissociative state” from emotional shock wherein Rabey v R. (SCC) (1980)
he assaulted and killed acquaintance by beating her with a p791
rock
• Is a dissociative state a disease of the mind (MDA) or not
(non-MDA or sane automatism)?
• Disease of the mind = intrinsic lack of control
• Sane automatism = external source ! loss of control
• Rule: the everyday stresses and disappointments of life do
not qualify as an external source which causes dissociative
states in sane individuals
• Therefore, if internal source (+everyday stresses) it is
mental disorder, if external source (extraordinary event) it
is sane automatism
Automatism: Internal Cause and Continuing Danger: R. v Parks (1992) p801
• Sleep-driving to a double homicide
• Confirms that disease of the mind is a question of law, not
simply expert opinion, and based on policy issues, public
protection, danger of reoccurance
• Outlines Two Analytical Tools:
• Internal Cause Theory (see Rabey, above)
• Continuing Danger Theory – any condition likely to
present a continuing danger to the public
• Treats sleep-walking as separate type sane automatism, not
mental disorder
• Established that sleep-walking is not a disease of the mind,
but is automatism with the inability to perform voluntary
acts, so no mens rea
Automatism: Steps for establishing defence of automatism: R. v Stone (1999) p817
• Accused stabbed his wife 47 times and ran away to Mexico,
returning later to confess to police saying he was Leading case for
unconscious during the commission of the crime automatism defence,
• Rule: legal presumption that people act voluntarily, also defence is in the
evidentiary burden is on the accused to rebut this with the code s. 16
following 2 step process:
1. To satisfy evidentiary burden, accused must assert
involuntariness with expert evidence, judge must find an
“air of reality” before putting involuntariness to the jury
• Based on various factors: severity of triggering stimulus,
corroborating evidence from bystanders, corroborating
medical history, evidence of motive, whether the victim was
also the trigger
• From this, judge must conclude there is “evidence upon
which a properly instructed jury could find that the accused
acted involuntarily on a balance of probabilities”
2. If Step 1 satisfied, judge must also decide MDA or NMDA.
Must start with assumption that the accused suffers from a
 disease of the mind, defendant works to disprove using an
“holistic approach”
• The upshot of this is that now even sleepwalking cases
become MDA, not NMDA
Automatism: Parasomnia and mental disorder (drunken R. v Luedecke (2008)
sexsomnia): p827
• Parasomnia used to automatically be sane automatism
• BUT now have to consider
1. What events triggered the parasomnia episode?
2. Likely to reoccur? If so, will be mental disorder because it
points to internal factors
3. Continuing danger to public? Also MDA
• Medical evidence is not determinative of MDA, is question of
law (including policy considerations)
• In this case, accused had history of sexsomnia and was
reckless as to sleep hygiene and alcohol consumption (which
would lower risk)
• Court in this case failed to really consider the fact that
Luedecke was probably shit-ass drunk as well
Automatism: Self-induced toxic psychosis is never R. v Bouchard-Lebrun
automatism: (2011) p838
• Ecstasy-induced religious psychosis, attacked someone, and
then stomped on someone else’s head
• Cooper excludes “self induced states caused by alcohol and
drugs” as a mental disorder
• Narrow question: is the toxic psychosis caused exclusively
by single episode of intoxication a mental disorder for the
purpose of MDA defence?
• Start from the presumption that it is not MD because of
Cooper
• Not the case here, but if there was underlying MD as well,
probably would find MDA as valid defence
• Can use same test as used for automatism for intoxication –
look at internal cause and continuing danger factors
• In this case, can’t be considered a mental disorder, so s. 33.1
(discussed below) applied
Intoxication: Voluntary Intoxication: Chaulk II (2007) p850
• “courts have consistently held that ‘voluntary intoxication’
means that the consuming of a substance where the person
knew or had reasonable grounds for believing such might
cause him to be impaired”
Intoxication: General and Specific Intent Offences: R. v Bernard (1988)
• Accused forced female acquaintance to have sex, punched p851
her in the face, and threatened to kill her while drunk
• Court Deeply Divided Here
McIntyre (+1) Intoxication can be defence for specific intent
offences, but never for general intent offences
• Mens rea can be inferred by the act
• Where intoxication is to the state of involuntariness, we
can substitute intent to become intoxicated for the mens
 rea for the general intent (“substitute mens rea”)
Wilson (+1) Intoxication can be defence for specific intent,
generally not a defence for general intent, but have to allow
for defence in extreme intoxication (akin to automatism)
because of Charter, normally you would infer mens rea from
the act, and want to avoid punishing the morally blameless
Dickson (+2) Intoxication goes to mens rea for any offence,
along with any other evidence
• In most cases, intoxication will not negate mens rea (no
reason to consider the “floodgate” argument)
• Parliament should be deciding policy, not courts
Intoxication: Extreme Intoxication Can be a Defence: R. v Daviault (1994)
• Accused was alcoholic, drank at least most of a 40 oz bottle p873
of brandy – an amount that would cause death or coma in a
normal person – and sexually assaulted acquaintance but
does not remember anything except waking up naked in her
bed
• Majority (4+1+1) Rule: the Charter requires intoxication as a
defence to general intent offences, otherwise violates s.7 and
11(d) of Charter, but only applies in cases of extreme
intoxication, otherwise can infer mens rea from act
• Burden of proof is on accused to prove extreme intoxication
• Sopinka (+2) dissenting: can’t allow someone who has
voluntarily become incapable of mens rea to escape moral
responsibility or criminal liability for their actions
s.33.1 removes extreme intoxication from general intent Bill C-72 (1995) p886
offences that involve violence, but does not affect common law s. 33.1
defence available to specific intent offences such as murder
• Intention of legislation is to prevent violence against
women and children
• Has not been put to Charter challenge yet
Intoxication: application of s. 33.1: R. v Bouchard-Lebrun
• Court noted the lack of a Charter challenge in this case, but (2011) p891
didn’t say anything beyond that, (I guess because the
defence didn’t bring a challenge?) despite the fact that they
were so concerned with the Charter violation potential
Intoxication: Degrees of Intoxication: R. v Daley (2007) p889
• Mild Intoxication (no effect)
• Advanced Intoxication (lacks specific intent, can be partial
defence)
• Extreme Intoxication (negates voluntariness, can be
complete defence)
Mild Advanced Intoxication Extreme Intoxication
Intoxication
Specific Intent Never a defence May raise reasonable doubt May negate physical
Offence re: mens rea voluntariness
General Intent Never a defence Never a defence May negate general intent
Offence or physical voluntariness
except per s.33.1(3)
(limited to non-violent)

Justifications and Excuses s. 8(3)
In general, apply codified defences before trying common law defences

2 steps in proving a defence (applies to all defences):

Step 1: Evidentiary Burden:
• Is there an air of reality to the defence (question of law for judge, see Cinous)?
• Accused must meet evidentiary burden to put the defence into play

Step 2: Persuasive Burden
• Should the defence apply (question of fact for the jury)?
• Burden of proving or disproving the defence, will fall on accused or Crown
depending on the defence
• Reverse onus defence: burden of the accused to prove= on a balance of probabilities
• Ordinary defence: burden on the Crown to disprove= beyond a reasonable doubt

According to Self-Defence Duress Necessity
Ryan, we must
distinguish...
When does it Defending against Accused breaks the law When it is realistically
apply? aggression by under threat by another, unavoidable to break
aggressing against made for the purpose of the law
the person aggressing compelling the accused to
against you commit the offence (Ryan).
Threat must be death or
bodily harm (Ruzic).
Main question Was the act Was there a legal way out Was there a legal way
reasonable in the of the situation? If yes, out of the situation? If
circumstances? If no, defence fails yes, defence fails
defence fails
Who is the The person An innocent 3rd party An innocent 3rd party
victim? threatening the
accused
What is the Doesn’t matter what Purpose must be to compel No requirement of
purpose behind the purpose is, so accused to commit the threat
the threat? long as there is a offence
threat
Is defence Yes, requirements S.17 codifies defence for Not codified,
codified? are explicitly set out physical perpetrator; established in
(s.34) common law establishes common law
defence for parties
Underlying Offence is justified Moral involuntariness Moral involuntariness
rationale given the situation excuses the offence excuses the offence
Broadness Justification defences Very limited Very limited
should be broader - Makes no sense to invoke - Makes no sense to
and easier to invoke excuse defence if invoke excuse defence
justification has failed if justification has
failed


Air Of Reality Test: For defences: R. v Cinous (2002) p897
• Judge must put forth all reasonable defences, whether put
forth by the defence or not, and cannot put forth defences
that do not have an air of reality
• Three-part test for air of reality:
• Is there evidence on the record upon which a properly
instructed jury acting reasonably could use the defence to
acquit?
• Does the evidence disclose a real issue to be decided by the
jury? Not a question of whether the judge thinks the defence
will succeed.
• Judge must consider the totality of the evidence and assume
evidence relied upon by the accused to be true
• In this case, they guy would have had to show that his belief
that the gang was going to kill him was reasonable, and that
there was no alternative to shooting them first
Reasonableness for defence of person: Imminence R. v Lavallee (1990)
requirement lowered for battered women: p905
• Battered woman syndrome is not defence in itself, but can
speak to reasonableness of apprehension of grievous harm
or death
• Imminence requirement is lowered for battered women, do
not have to wait for another beating before acting in self-
defence
• The question put to jury is: whether, given the history,
circumstances and perceptions of the woman, was it
reasonable for her to believe that she could only preserve
herself from being killed by killing first
Reasonableness for defence of person: Battered woman R. v Malott (1998) p915
syndrome:
• Abused woman kills husband, then goes to his girlfriend’s
house and tries to kill her, charged with murder and
attempted murder
• Instructions for jury to understand:
• Why abused woman would stay in relationship
• Nature and effect of violence that may exist in such a
relationship
• Ability of accused to perceive danger from abuser
• Whether the belief was reasonable that she could not
otherwise preserve herself from grievous bodily harm or
death
Necessity: Not a defence for murder: R. v Dudley and Stevens
• Relating to current law, death was not imminent (1884) p925
• Guilty of murder, but Queen pardoned them after 6 months
in prison
Necessity: Definition: (shipwrecked marijuana) Perka v R. (1984) p929
• Necessity does exist as a defence; the major question is
whether the person had a choice
• Can be one of two things:
 • Act was justified – lesser of two evils (prevent a greater
harm that would result from obeying the law – requires
cost/benefit analysis) akin to police shooting hostage taker
• Act was excusable – instinct to break the law so strong as to
compel act, such as a mountaineer breaking into cabin
rather than freezing to death
Necessity: Air of reality: R. v Latimer (2001)
• Murder of severely disabled 12 year old daughter p940
• Rules for establishing necessity:
1. Imminent Peril – must be on the verge of transpiring and
virtually certain to occur (not just foreseeable) (modified
objective test: honest belief and reasonable grounds for
belief)
2. No Reasonable Alternative – more than theoretical
(modified objective test as above)
3. Proportionality – no requirement that harm avoided must
be greater than harm inflicted, but must be at least of
comparable gravity (objective test, based on community
standards, not individual)
• Obiter suggestion that necessity wouldn’t succeed for
homicide (upholding Dudley)
Duress: Primary actor vs Party to offence: R. v Paquette (1997)
• Compelled to drive to robbery at gunpoint, innocent p954
bystanders shot to death by robbers, accused was party to
offence but not primary actor Authoritative common
• Murder and robbery are excluded from defence of duress law for Duress
under s. 17, but as a party to the offence (not the primary Also look at s.17 of
actor) s. 17 did not apply to accused code
• In this case, the common law defence of duress can apply
(which does not exclude murder or robbery)
Duress: s. 17 and the common law: R. v Hibbert (1995)
• Defence of duress can only be invoked if there is “no legal p959
way out”
• Modified objective test: was it reasonable based on the
particular circumstances and characteristics and “human
frailties” of the accused
Duress: Under Compulsion of Threat: R. v Ryan (2013) p974
• Accused was abused, husband threatened to take lives of her
and her daughter, sought police protection in the past but Leading case for
they did not help, so she hired a hit man to have him killed to Duress
protect herself and her daughter (self-defence would not
have applied under old Code)
• Rules:
• Person threatening must be threatening for the purpose of
compulsion, “not any old threat will do”
• Threats must compel the person to commit the specific
offence for which they are charged – “if you don’t do XX I will
kill you” – cannot be used to fill vacuum created by statutory
limitations on defence of person
Duress under s. 17 and Common Law s. 17 Duress and the
All of these apply under statute, only 6 is excluded from Common Law
common law defence when not principal actor
s. 17
1. Threat of death or bodily harm
2. Immediacy (excluded by Ruzic)
3. Presence (excluded by Ruzic)
4. Belief (Reasonableness required, added by Ryan)
5. No Conspiracy
6. Exclusion of various acts
Common Law additions (all based on modified objective test):
7. No Safe Avenue of Escape (Hibbert)
8. Close temporal connection (added by Ryan)
9. Proportionality (added by Ryan)
Provocation: s. 232: (Big Brother sexual advance) R. v Hill (1986) p987
• Only a defence to murder, and only partial defence
• Provocation can reduce murder charge to manslaughter (in New s. 232, not in
the heat of passion) pocket code
• Issue is whether the objective test below is modified
objective test (are personal characteristics of the accused Hill is leading case for
relevant for the defence?) personal
• Rules: Should be approached by 3 questions characteristics of
1. Would an ordinary person be deprived of self-control by accused
the wrongful act or insult (objective)
2. Did the accused in fact act in response to those
“provocative acts”? (subjective)
3. Was the accused’s response sudden and before there was
time for ‘passion’ to cool (subjective)
• Age can be a relevant factor, but do not always need to
instruct juries to consider this, the jury will likely use their
own common sense to determine what is relevant
• Provocation is now covered by new s. 232, which limits the
eligible wrongful acts to indictable offences

Relevant Criminal Code Excerpts

2. Definitions
“bodily harm” means any hurt or injury to a person that interferes with the health or comfort of the person
and that is more than merely transient or trifling in nature

Test for bodily harm is distinct from serious bodily harm (higher threshold) and even higher for aggravated
assault (to maim or disfigure)

4. (3) For the purposes of this Act,

(a) a person has anything in possession when he has it in his personal possession or knowingly
(i) has it in the actual possession or custody of another person, or
(ii) has it in any place, whether or not that place belongs to or is occupied by him, for the use or benefit
of himself or of another person; and
(b) where one of two or more persons, with the knowledge and consent of the rest, has anything in his
custody or possession, it shall be deemed to be in the custody and possession of each and all of them.
Justifications And Excuses
8. (3) Every rule and principle of the common law that renders any circumstance a justification or excuse
for an act or a defence to a charge continues in force and applies in respect of proceedings for an offence
under this Act or any other Act of Parliament except in so far as they are altered by or are inconsistent with
this Act or any other Act of Parliament.
Mental Disorder Defence
16. (1) No person is criminally responsible for an act committed or an omission made 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.
(2) Every person is presumed not to suffer from a mental disorder so as to be exempt from criminal
responsibility by virtue of subsection (1), until the contrary is proved on the balance of probabilities.
(3) The burden of proof that an accused was suffering from a mental disorder so as to be exempt from
criminal responsibility is on the party that raises the issue.
Defence of Threats of Complusion
17. A person who commits an offence under compulsion by threats of immediate death or bodily harm
from a person who is present when the offence is committed is excused for committing the offence if the
person believes that the threats will be carried out and if the person is not a party to a conspiracy or
association whereby the person is subject to compulsion, but this section does not apply where the of- fence
that is committed is high treason or treason, murder, piracy, attempted murder, sexual assault, sexual
assault with a weapon, threats to a third party or causing bodily harm, aggravated sexual assault, forcible
abduction, hostage taking, robbery, assault with a weapon or causing bodily harm, aggravated assault,
unlawfully causing bodily harm, arson or an offence under sections 280 to 283 (abduction and detention of
young persons).
18. No presumption arises that a married person who commits an offence does so under compulsion by
reason only that the offence is committed in the presence of the spouse of that married person.
19. Ignorance of the law by a person who commits an offence is not an excuse for com- mitting that
offence.
Self-induced Intoxication
33.1 (1) It is not a defence to an offence referred to in subsection (3) that the accused, by reason of self-
induced intoxication, lacked the general intent or the voluntariness required to commit the offence, where
the accused depart- ed markedly from the standard of care as de- scribed in subsection (2).
(2) For the purposes of this section, a person departs markedly from the standard of reason- able care
generally recognized in Canadian society and is thereby criminally at fault where the person, while in a
state of self-induced intoxication that renders the person unaware of, or incapable of consciously
controlling, their behaviour, voluntarily or involuntarily interferes or threatens to interfere with the bodily
integrity of another person.
(3) This section applies in respect of an of- fence under this Act or any other Act of Parliament that
includes as an element an assault or any other interference or threat of interference by a person with the
bodily integrity of another person.
Defences
34. (1) A person is not guilty of an offence if
(a) they believe on reasonable grounds that force is being used against them or another person or that a
threat of force is being made against them or another person;
(b) the act that constitutes the offence is committed for the purpose of defending or protecting themselves
or the other person from that use or threat of force; and
(c) the act committed is reasonable in the circumstances.
(2) In determining whether the act committed is reasonable in the circumstances, the court shall consider
the relevant circumstances of the person, the other parties and the act, including, but not limited to, the
following factors:
(a) the nature of the force or threat;
(b) the extent to which the use of force was imminent and whether there were other means available to
respond to the potential use of force;
(c) the person’s role in the incident; (d) whether any party to the incident used or
threatened to use a weapon;
(e) the size, age, gender and physical capabilities of the parties to the incident;
(f) the nature, duration and history of any relationship between the parties to the incident, including any
prior use or threat of force and the nature of that force or threat;
(f.1) any history of interaction or communication between the parties to the incident;
(g) the nature and proportionality of the person’s response to the use or threat of force; and
(h) whether the act committed was in response to a use or threat of force that the person knew was lawful.
(3) Subsection (1) does not apply if the force is used or threatened by another person for the
purpose of doing something that they are required or authorized by law to do in the administration or
enforcement of the law, unless the person who commits the act that constitutes the offence believes on
reasonable grounds that the other person is acting unlawfully.
Spanking
43. Every schoolteacher, parent or person standing in the place of a parent is justified in using force by way
of correction toward a pupil or child, as the case may be, who is under his care, if the force does not exceed
what is reasonable under the circumstances.
Firearm Possession
87. (1) Every person commits an offence who, without lawful excuse, points a firearm at another person,
whether the firearm is loaded or unloaded.
95. (1) Subject to subsection (3), every person commits an offence who, in any place, possesses a loaded
prohibited firearm or restricted firearm, or an unloaded prohibited firearm or restricted firearm together
with readily accessible ammunition that is capable of being discharged in the firearm, without being the
holder of
(a) an authorization or a licence under which the person may possess the firearm in that place; and
(b) the registration certificate for the firearm.
Duties to Act - Guardians
215. (1) Every one is under a legal duty
(a) as a parent, foster parent, guardian or head of a family, to provide necessaries of life for a child under
the age of sixteen years;
(b) to provide necessaries of life to their spouse or common-law partner; and
(c) to provide necessaries of life to a person under his charge if that person
(i) is unable, by reason of detention, age, illness, mental disorder or other cause, to withdraw himself
from that charge, and
(ii) is unable to provide himself with necessaries of life.
(2) Every one commits an offence who, being under a legal duty within the meaning of subsection (1), fails
without lawful excuse, the proof of which lies on him, to perform that duty, if
(a) with respect to a duty imposed by paragraph (1)(a) or (b),
(i) the person to whom the duty is owed is in destitute or necessitous circumstances, or
(ii) the failure to perform the duty endangers the life of the person to whom the du- ty is owed, or causes
or is likely to cause the health of that person to be endangered permanently; or
(b) with respect to a duty imposed by paragraph (1)(c), the failure to perform the duty endangers the life of
the person to whom the duty is owed or causes or is likely to cause the health of that person to be injured
permanently.
(3) Every one who commits an offence under subsection (2)
(a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years; or
(b) is guilty of an offence punishable on summary conviction and liable to imprisonment for a term not
exceeding eighteen months.
(4) For the purpose of proceedings under this section,
(a) [Repealed, 2000, c. 12, s. 93]
(b) evidence that a person has in any way recognized a child as being his child is, in the absence of any
evidence to the contrary, proof that the child is his child;
(c) evidence that a person has failed for a period of one month to make provision for the maintenance of
any child of theirs under the age of sixteen years is, in the absence of any evidence to the contrary, proof
that the person has failed without lawful excuse to provide necessaries of life for the child; and
(d) the fact that a spouse or common-law partner or child is receiving or has received necessaries of life
from another person who is not under a legal duty to provide them is not a defence.
Duties to Act - Undertakings
216. Every one who undertakes to administer surgical or medical treatment to another person or to do any
other lawful act that may endanger the life of another person is, except in cases of necessity, under a legal
duty to have and to use reasonable knowledge, skill and care in so doing.
217. Every one who undertakes to do an act is under a legal duty to do it if an omission to do the act is or
may be dangerous to life.
217.1 Every one who undertakes, or has the authority, to direct how another person does work or performs
a task is under a legal duty to take reasonable steps to prevent bodily harm to that person, or any other
person, arising from that work or task.
Criminal Negligence
219. (1) Every one is criminally negligent who
(a) in doing anything, or
(b) in omitting to do anything that it is his duty to do,
shows wanton or reckless disregard for the lives or safety of other persons.
(2) For the purposes of this section, “duty” means a duty imposed by law.
220. Every person who by criminal negligence causes death to another person is guilty of an indictable
offence and liable
(a) where a firearm is used in the commission of the offence, to imprisonment for life and to a minimum
punishment of imprisonment for a term of four years; and
(b) in any other case, to imprisonment for
life.
221. Every one who by criminal negligence causes bodily harm to another person is guilty of an indictable
offence and liable to imprisonment for a term not exceeding ten years.
Murder
229. Culpable homicide is murder
(a) where the person who causes the death of a human being
(i) means to cause his death, or
(ii) means to cause him bodily harm that he knows is likely to cause his death, and is reckless whether
death ensues or not;
(b) where a person, meaning to cause death to a human being or meaning to cause him bodily harm that he
knows is likely to cause his death, and being reckless whether death ensues or not, by accident or mistake
causes death to another human being, notwithstanding that he does not mean to cause death or bodily harm
to that human being; or
(c) where a person, for an unlawful object, does anything that he knows or ought to know is likely to cause
death, and thereby causes death to a human being, notwithstanding that he desires to effect his object with-
out causing death or bodily harm to any human being.
First Degree Murder
231. (1) Murder is first degree murder or second degree murder.
(2) Murder is first degree murder when it is planned and deliberate.
(3) Without limiting the generality of subsection (2), murder is planned and deliberate when it is committed
pursuant to an arrangement under which money or anything of value passes or is intended to pass from one
person to another, or is promised by one person to another, as consideration for that other’s causing or
assisting in causing the death of anyone or counselling another person to do any act causing or assisting in
causing that death.
(4) Irrespective of whether a murder is planned and deliberate on the part of any person, murder is first
degree murder when the victim is
(a) a police officer, police constable, constable, sheriff, deputy sheriff, sheriff’s officer or other person
employed for the preservation and maintenance of the public peace, acting in the course of his duties;
(b) a warden, deputy warden, instructor, keeper, jailer, guard or other officer or a permanent employee
of a prison, acting in the course of his duties; or
(c) a person working in a prison with the permission of the prison authorities and acting in the course of
his work therein.
(5) Irrespective of whether a murder is planned and deliberate on the part of any person, murder is first
degree murder in respect of a person when the death is caused by that person while committing or
attempting to commit an offence under one of the following sections:
(a) section 76 (hijacking an aircraft);
(b) section 271 (sexual assault);
(c) section 272 (sexual assault with a weapon, threats to a third party or causing bodily harm);
(d) section 273 (aggravated sexual assault);
(e) section 279 (kidnapping and forcible confinement); or
(f) section 279.1 (hostage taking).
(6) Irrespective of whether a murder is planned and deliberate on the part of any person, murder is first
degree murder when the death is caused by that person while committing or attempting to commit an
offence under section 264 and the person committing that offence intended to cause the person murdered to
fear for the safety of the person murdered or the safety of anyone known to the person murdered.
Provovation
232. (1) Culpable homicide that otherwise would be murder may be reduced to manslaughter if
the person who committed it did so in the heat of passion caused by sudden provocation.
(2) Conduct of the victim that would constitute an indictable offence under this Act that is punishable by
five or more years of imprisonment and that is of such a nature as to be sufficient to deprive an ordinary
person of the power of self-control is provocation for the purposes of this section, if the accused acted on it
on the sudden and before there was time for their passion to cool.
(3) For the purposes of this section, the questions
(a) whether the conduct of the victim amounted to provocation under subsection (2), and
(b) whether the accused was deprived of the power of self-control by the provocation that he alleges he
received,
are questions of fact, but no one shall be deemed to have given provocation to another by doing anything
that he had a legal right to do, or by doing anything that the accused incited him to do in order to provide
the accused with an excuse for causing death or bodily harm to any human being.
(4) Culpable homicide that otherwise would be murder is not necessarily manslaughter by reason only that
it was committed by a person who was being arrested illegally, but the fact that the illegality of the arrest
was known to the accused may be evidence of provocation for the purpose of this section.
Assault (see s. 2 for definition of bodily harm)
265. (1) A person commits an assault when
(a) without the consent of another person, he applies force intentionally to that other person, directly or
indirectly;
(b) he attempts or threatens, by an act or a gesture, to apply force to another person, if he has, or causes that
other person to believe on reasonable grounds that he has, present ability to effect his purpose; or
(c) while openly wearing or carrying a weapon or an imitation thereof, he accosts or impedes another
person or begs.
(2) This section applies to all forms of assault, including sexual assault, sexual assault with a weapon,
threats to a third party or causing bodily harm and aggravated sexual assault.
(3) For the purposes of this section, no consent is obtained where the complainant submits or does not resist
by reason of
(a) the application of force to the complainant or to a person other than the complainant;
(b) threats or fear of the application of force to the complainant or to a person other than the complainant;
(c) fraud; or
(d) the exercise of authority.
(4) Where an accused alleges that he believed that the complainant consented to the conduct that is the
subject-matter of the charge, a judge, if satisfied that there is sufficient evidence and that, if believed by the
jury, the evidence would constitute a defence, shall instruct the jury, when reviewing all the evidence
relating to the determination of the honesty of the accused’s belief, to consider the presence or absence of
reasonable grounds for that belief.
Sexual Assault
271. Everyone who commits a sexual assault is guilty of
(a) an indictable offence and is liable to imprisonment for a term of not more than 10 years or, if the
complainant is under the age of 16 years, to imprisonment for a term of not more than 14 years and to a
minimum punishment of imprisonment for a term of one year; or
(b) an offence punishable on summary conviction and is liable to imprisonment for a term of not more than
18 months or, if the complainant is under the age of 16 years, to imprisonment for a term of not more than
two years less a day and to a minimum punishment of imprisonment for a term of six months.
272. (1) Every person commits an offence who, in committing a sexual assault,
(a) carries, uses or threatens to use a weapon or an imitation of a weapon;
(b) threatens to cause bodily harm to a per- son other than the complainant;
(c) causes bodily harm to the complainant; or
(d) is a party to the offence with any other person.
(2) Every person who commits an offence under subsection (1) is guilty of an indictable offence and liable
(3) In determining, for the purpose of paragraph (2)(a), whether a convicted person has committed a second
or subsequent offence, if the person was earlier convicted of any of the following offences, that offence is
to be considered as an earlier offence:
(a) an offence under this section;
(b) an offence under subsection 85(1) or (2) or section 244 or 244.2; or
(c) an offence under section 220, 236, 239 or 273, subsection 279(1) or section 279.1, 344 or 346 if a
firearm was used in the commission of the offence.
However, an earlier offence shall not be taken into account if 10 years have elapsed between the day on
which the person was convicted of the earlier offence and the day on which the person was convicted of the
offence for which sentence is being imposed, not taking into ac- count any time in custody.
(4) For the purposes of subsection (3), the only question to be considered is the sequence of convictions and
no consideration shall be given to the sequence of commission of offences or whether any offence occurred
before or after any conviction.
273. (1) Every one commits an aggravated sexual assault who, in committing a sexual assault, wounds,
maims, disfigures or endangers the life of the complainant.
273.1 (1) Subject to subsection (2) and sub- section 265(3), “consent” means, for the pur- poses of sections
271, 272 and 273, the volun- tary agreement of the complainant to engage in the sexual activity in question.
(2) No consent is obtained, for the purposes of sections 271, 272 and 273, where
(a) the agreement is expressed by the words or conduct of a person other than the com- plainant;
(b) the complainant is incapable of consent- ing to the activity;
(c) the accused induces the complainant to engage in the activity by abusing a position of trust, power or
authority;
(d) the complainant expresses, by words or conduct, a lack of agreement to engage in the activity; or
(e) the complainant, having consented to en- gage in sexual activity, expresses, by words or conduct, a lack
of agreement to continue to engage in the activity.
(3) Nothing in subsection (2) shall be con- strued as limiting the circumstances in which no consent is
obtained.
273.2 It is not a defence to a charge under section 271, 272 or 273 that the accused believed that the
complainant consented to the activity that forms the subject-matter of the charge, where
(a) the accused’s belief arose from the accused’s
(i) self-induced intoxication, or
(ii) recklessness or wilful blindness; or
(b) the accused did not take reasonable steps, in the circumstances known to the accused at the time, to
ascertain that the complainant was consenting.