Criminal Law Final Exam Summary

Doctrine of Precedent....................................................................................................2
Statutes...........................................................................................................................2
Bilingual Interpretation............................................................................................................... 2
Strict Construction...................................................................................................................... 2
Truths of Criminology................................................................................................................. 3
Division of Powers (32-33)......................................................................................................... 3
Charter of Rights and Freedoms (43-74)....................................................................................3
Section 1 of the Charter............................................................................................................. 4
The Criminal Process....................................................................................................5
Procedural Overview.................................................................................................................. 5
Evidence................................................................................................................................ 6
Victim’s Rights...............................................................................................................6
Presumption of Innocence............................................................................................7
Elements of an Offence (Actus Reus & Mens Rea)....................................................8
Elements of an Offence – The ACT Requirement.......................................................8
Act Element – Consent Making an Act Lawful............................................................................8
Act Element – Consent Vitiated by Fraud...................................................................................9
Act Element – Omissions............................................................................................10
Act Element – Voluntariness......................................................................................11
Act Element – Causation.............................................................................................12
The Fault Requirement – Mens Rea/Negligence.......................................................13
Fault Element – Regulatory Offences........................................................................14
Fault Element – Murder...............................................................................................14
Fault Element – States of Mind...................................................................................16
Fault Element – Objective Fault/Negligence.............................................................18
Predicate Offences – Unlawful Act Manslaughter Creighton..................................19
Rape and Sexual Assault............................................................................................19
Mistake of Consent......................................................................................................19
Mistake of Fact.............................................................................................................21
Mistake of Law..............................................................................................................21
INCAPACITY.................................................................................................................22
Mental Disorder as a Defence.....................................................................................22
Automatism I & II – negates the ACTUS REUS.........................................................24
Intoxication – General and Specific Intent Offences................................................26
Justifications and Excuses.........................................................................................29
Self Defense – justification, not an excuse...............................................................................29
Necessity – excuse, not a justification......................................................................................30
Duress – justification, not an excuse........................................................................................31
Provocation – excuse, not a justification..................................................................................31

Doctrine of Precedent
 As there are no common law offences in Canada, legislation is the preeminent source of criminal
law in Canada
 A charge must always allege a breach of statutory provision
 Many mental elements of crimes and defences are defined by the common law rather than being
specified in the Criminal Code or other statute
 The common law helps guide judicial reasoning through a practice of relying on earlier decisions
as “precedents”
 The tradition is for decisions of higher courts to be binding on lower courts, with courts of co-
ordinate jurisdiction merely persuasive
 Every province has two levels of criminal court:
o Court of Appeal
o Supreme Court of Canada
 Ratio decidendi – the point(s) it actually decides
 Obiter dicta – other statements made in the course of the decision which are not strictly essential

Statutes
 They are a source of criminal law
 Criminal offences have to be written in statutes, they do two things:
o 1) Codify and summarize legal principles (usually the principles derive from common law)
o 2) Change common law rules
 Judges are given the task of interpreting the legislation and applying it to the activities in their
particular case
 The modern principle of statutory interpretation requires that the words of the legislation 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”
 There is the presumption that legislation is enacted to comply with constitutional norms, including
the rights and freedoms enshrined in the Charter
 When there are two readings of the provision, the interpretation that resonates most with the
Charter values is the one to be adopted
 R v Clark

Bilingual Interpretation
 Must look at the common meaning

Strict Construction
 A criminal statute can be interpreted to mean two different things, the one you should pick is the
one more in favour of the accused
 A criminal punishment can be really severe, so if we are going to punish someone, we want to
make really sure that they’ve done the crime so that we give less severe punishment
o This would be a narrower analysis of the criminal statute
 When dealing with someone’s liberty, we want to be as favourable as possible

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  R v Pare; R v Mac

TRUTHS OF CRIMINOLOGY
 We must distinguish risk from dangerousness
o Risk refers to the chances that someone will re-offend
o Dangerousness refers to the likely harm caused by an offense
 Deterrence works best when you are sure of being caught or the more likely you are for getting
caught
 Criminology talks about how deterrence works well for some offences but not others
o Traffic laws v. easier
 What effect do we get from making punishments tougher and harsher?
 Sensing the severity has no effect on the prevalence of crime
 Some people don’t even know about the punishments and whether or not they’ve become more
severe
o No one says “I wish I had robbed this house last week instead of this week because then
I would’ve gotten five years instead of seven”
 Other forms of prevention:
o Denunciation and denouncing something to say this is wrong and send a message
o Incapacitation = putting a molester in jail to prevent them from molesting again
o Rehabilitation
o Repairment of reships

DIVISION OF POWERS (32-33)

 Consti as a Source of Crim L:
o Basic and most fundamental foundation of law in Canada
o All laws based on the Consti in some way
o Two important Acts: 1867 +1982 and BNA
o Federalism = who between federal and provincial government can enact laws
o In a federal state, powers are distributed between government and provincial, both laws
are independent of each other but everyone is subject to both
o S.91(27) federal criminal law power = federal government has power over the substantive
criminal law and procedural
 Substantive = concerns questions about what kinds of acts/actors are blameworthy and
punishable in the law
 Procedural = how we administer those substantial rules
o Bail, trial procedure, jail, etc.
 There are powers that give rise to offences dealt with by provinces
 Section 92(15), provision for provincial offences (these are not criminal offences; only
government can deal with criminal offences)
 Courts and judges have power over maintaining the courts and selecting the cases
 When it comes to substantial and procedural, the federal government has jurisdiction

CHARTER OF RIGHTS AND FREEDOMS (43-74)

Canadian Charter of Rights:
 Bill of rights for human rights and freedoms
 Laws that violate the consti are invalid (p.43)
 Parliament can pass any legislation it wants but if it violates the charter, it can be “struck down”
 The courts/judges decide if the law violates charter
 Judiciary is guardian of the consti
 Page 44  charter should be given a broad and purposive interpretation
o Must be given an interpretation purpose with the right being looked at
 Charter has its biggest influence on area of procedural criminal law

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  The Charter is a purposive document, its purpose is to guarantee and to protect, within the limits
of reason, the enjoyment of the rights and freedoms it enshrines
 It is intended to constrain governmental action inconsistent with those rights and freedoms; it is
not in itself an authorization for governmental action**

Section 7
 There are two requirements
 1) Everyone has the right to life, liberty and security of the person
o Basic rights, have to have one of these rights in play to show a violation of section 7
o Has to be a deprivation or a risk of life, liberty or security
 2) And a right
o The state can take it away if they do it in accordance with the principles of fundamental
justice
 You have to show a deprivation of 1) and a violation of 2)
 A lot of the principles of fundamental justice are procedural (example: the right to remain silent,
right to a lawyer)
 Four principles (substantive  actually put limits on what Parliament can put in an offence)
o 1) A criminal law may not be too vague
o 2) A criminal law may not be overly broad (too wide or expansive)
o 3) A criminal law may not be arbitrary (unfixed or unprincipled)
o 4) A criminal law may not be grossly disproportionate (can have a law that says can’t
spit but can’t send them to jail for life for it)
Summary: Section 7  everyone has the right to life, liberty, and security of the person and the right not
to be deprived thereof except in accordance with the principles of fundamental justice
 To have a violation of section 7 you need to have a deprivation of 1/3 and a violation of
fundamental justice

The Spanking Case (Vagueness) & Bedford v Canada (Arbitrariness, over breadth, grossly
disproportionate

SECTION 1 OF THE CHARTER

 Serves two functions
o 1) Constitutionally guarantees the rights and freedoms set out in the provisions which
follow
o 2) States explicitly the exclusive justificatory criteria against which limitations on those
rights and freedoms must be measured
 Any section 1 inquiry must be premised on an understanding that the impugned limit violates
constitutional rights and freedoms which are party of the supreme law of Canada
 It may become necessary to limit rights and freedoms in circumstances where their exercise
would be inimical to the realization of collective goals of fundamental importance
o It might be necessary to limit the rights and freedoms in the public interest because it
does more good than harm
 The standard of proof is a civil standard under s.1, it is proof by a preponderance of probability
 Establishing a limit through 2 criterion:
o 1) Objective  the measures responsible for a limit on a Charter right or freedom are
designed to serve must be of sufficient important to warrant overriding a constitutionally
protected right or freedom
 the standard must be high in order to ensure that objectives do not gain s.1
protection
o 2) The party invoking the s.1 must show that the means chosen are reasonable and
demonstrably justified
 This involves a “form of proportionality test”

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  1) The measures adopted must be carefully designed to achieve the
objective in question  must not be arbitrary, over breadth, gross
 2) The means should impair “as little as possible: the right or freedom in
question
 3) There must be a proportionality between the effects of the measures
which are responsible for limiting the right

The Criminal Process

PROCEDURAL OVERVIEW

Classification
 In the Canadian criminal code there are three types of offences
o 1) Summary conviction
o 2) Indictable
 Offences triable only on indictment, summary conviction offences, crown election
offences (dual)
o 3) Dual (hybrid)
 Indictable offences are triable only judge and jury
o Offences are triable only summarily by justices of the peace sitting without a jury
 Dual (hybrid) offences is not actually a category, it means that the Crown has an election as to
whether to proceed by indictment or by summary conviction
Offences triable only on indictment
 Serious offences
 The accused must be present at all stages of the proceedings
 These offences are given into the exclusive jurisdiction of the superior court of criminal jurisdiction
in Ontario, the superior court of justice
 The least serious indictable offences are absolutely within the jurisdiction of a provincial court
judge
 By s.536 (2), the accused will be put to an election and will be asked to choose to be tried by:
o A provincial court judge without a jury
o A judge without a jury
o By a court composed a judge and jury
 The superior court has exclusive jurisdiction: the provincial court judge is absolutely entitled to try
these offences in the sense that she is not dependent on the accused’s electing to be so tried
 A provincial court judge may decide that the matter should be proceeded by a judge or jury
 Summary conviction offences
o Trial before a provincial judge without a jury and preliminary inquiry
o The max penalty is $5000 or six months or both
o They are always tried in provincial court
o The accused does not need to appear in court unless the judge asks them to
 Crown election offences (dual, hybrid)
o The prosecution may choose by way of summary or indictment
o If indictment, forum for trial will depend upon the type of indictable offence involved
o Reasons that may be considered:
 The higher available penalty for indictable offences
 A prior criminal record by the accused
 Desire to require accused’s presence throughout
 Sometimes a matter of judge shopping and wanting to get this issue over and
done with as quickly as possible
 The criminal jurisdiction of superior courts is shrinking and too many criminal trials are taking
place in provincial courts now

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  Murder and jury trials are confined to superior courts
 Questions of law are decided by the judge
 Questions of fact are decided by the jury
 The judge instructs the jury on the law which governs the case
 The jury then applies those instructions to the facts to reach a verdict
 Two conflicting requirements:
o The need to state accurately the relevant law
o The need to state the law so that the jury understands it

EVIDENCE
 Evidence takes the form of oral testimony or real evidence
 There is a fact-finding process
o Considered rational
 There must be a rational connection between the evidence brought forth and the proposition
sought to be established
o This connection = relevance
 Evidence about a material proposition = proponent seeks to persuade the trier to draw the
interference from the fact led to the proposition
 If there is a rational connection and supports the inference then the fact will be adjudged relevant
and received
 Two types of evidence:
o Testimonial (witness word/direct)
 If witness seen to be sincere and possessed of an ability to observe and
accurately recall, and clearly had the opportunity to see the matter in issue, there
will be reason to draw an inference and the testimony will be credited
o Circumstantial (facts/material facts)
 Relevancy
 Certain facts connected with material is proved and the trier is asked to infer from
these facts that the material fact exists
 If reason and experience support the connection the evidence is relevant
 If a witness…
o Testifies that she saw the accused shoot the deceased – direct evidence of that fact
 Trial judge then ensures witness’ competence to speak, then evidence is
evaluated according to trier of fact’s assessment of the witness’ credibility
o Testifies that she heard the deceased scream and moments later saw the accused
standing over the body holding a smoking gun = circumstantial evidence
 Trial judge will assess the relevance of the evidence led, if received, the trier of
fact will assess its sufficiency
 Evidence must be relevant and require materiality
o Materiality = rational connection between the tendered evidence and a fact in issue
 The trial of an action is designed to examine a particular slice of life
o The slice is dictated by substantive law and the pleadings of parties
 Pleadings are confined to the information and particulars ordered by the court
 For evidence to be received, it must be relevant to a material issue
 The laws of evidence are concerned with canons of exclusion which render inadmissible
evidence which is both relevant and material
 Evidence is information that clears up
o 1) The ability of the trier of fact to adequately assess the evidence
o 2) Concern for values inherent in the adversary system
o 3) Protection of certain relationships in society as we recognize the competition with
values other than truth

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Victim’s Rights
Federal Government Bill C-32, The Victim Bill of Rights Act
 Victims have the following rights
o The right to info about the crim justice sys
o Status of investigation
o Security and privacy considered
o Protection from intimidation and retaliation
o Request for testimonial aids
o Conveyance of views about decisions to be made
o Present a victim statement
o Consideration of a restitution order made against the offender
o Right to have the order entered as a civil court judgment

 A criminal trial is about determining guilt and just punishment of an accused, not about personal
redress for victims
 Constitutional rights for those alleging crimes were recognized in R v O’Connor
 Special balancing procedure respecting discovery of medical records in the possession of third parties
 The majority saw the need to balance the accused’s right to a fair trial and full answer and defence
with the complainant’s rights to privacy and to equality without discrimination
 To designate certain conduct as criminal in an attempt to control anti-social behaviour should be a last
step
 Criminal law involves the imposition of a sanction
 The infliction of punishment or state interference with human freedom is only justified if evil would
manifest if left unattended
 Criminal law is a blunt and costly thing
o Blunt because it does not have human sensitivity
o Costly for imposing suffering, loss of liberty and great expense
 It is to be used as the last resort
 The key word is restraint – to the scope of criminal law, meaning of criminal guilt, use of criminal trial,
and criminal sentence
 Scope of criminal law
o Criminal law must stick to really wrongful acts
o Before counting as a crime, an act should fulfill three conditions
 1) Must cause harm to other people, soy, or those needing protection form themselves
 2) Must cause harm that is serious both in nature and degree
 3) Must cause harm that is best dealt with through the mechanism of criminal law
o Quasi-crimes and violations are offences that are not really wrong but are penally prohibited
because that is the most convenient way of handling them

Presumption of Innocence
Section 11(d) of the Charter: any person charged with an offence has the right 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 (Oakes). A guilty verdict is
normally about ‘reasonable doubt,’ but reverse onus is on a balance of probabilities.

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RULE: The accused is presumed innocent until the prosecution proves guilty on all elements of the
offence beyond a reasonable doubt (Woolmington1).

BEYOND A REASONABLE DOUBT (Lifchus2, later affirmed by Starr3, and finalized by S. (J.H.)4)
1. GENERAL RULE: based on reason and common sense, not sympathy or prejudice. The
instruction to the jury is that the proof must fall much closer to absolute certainty than proof on a
balance of probability (Starr)
2. If you believe the evidence of the accused, you must acquit
3. If you do not believe the testimony of the accused but you are left in reasonable doubt by it, you
must acquit
4. 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 (S.(J.H.))

Mullins-Johnson 2007: No such thing as factual innocence, court is only able to determine guilty
beyond a reasonable doubt, OR not guilty beyond a reasonable doubt, which carries a presumption of
innocence, no factual innocence.

Elements of an Offence (Actus Reus & Mens Rea)

ACT ELEMENT FAULT ELEMENT
Actus reus (every offence)/guilty act Level of blameworthiness of the actor
The element is the actual touching Mens rea (mental element)
Sometimes also: OR
- Circumstance element (e.g. Negligence
trespassing at night) has to be proven
by Crown
- Consequence element (murder must
result in death)
Mental elements: what was in the mind of the accused when they performed the act, knowledge of what
they were 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

Every criminal offence has an act element; you cannot have a crime committed without the act. The
Crown must prove all elements to the standard of proof beyond reasonable doubt. The act element is
ALWAYS IN THE CODE.

There are five legal aspects of the act requirement:

1. Commission of an unlawful act

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Woolmington 1935 – Accused got married young, had fights with his wife, she moved out, he went and got a handgun then it
fired accidentally during a fight but no one saw what happened. This case says the Crown must prove both act and intent for
murder.
2
Lifchus 1997 – Accused was charged with fraud and then convicted. This case defined reasonable doubt
3
Starr 2000 – Accused was convicted on two counts of first degree murder and this case defined reasonable doubt with certainty
4
S.(J.H.) 2008 – Stepfather charged with sexual assault of step daughter since she was 4 y/o. credibility contest, lays out 3
requirements for reasonable doubt

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 2. Omission where there was a legal duty to act
3. Voluntariness
4. Acting through an innocent agent
5. If the consequences are part of the offence charged, that the act or omission caused the
consequence

Act Element – Consent Making an Act Lawful

Section 265: Assault and Consent to Assault

GENERAL RULE: Where consent makes the act lawful, the Crown has to prove the absence of consent.
It is NOT a true defence because non-consent is an ELEMENT that has to be proven by the Crown. The
absence of consent is an essential ingredient of the actus reus
LIMITATION: Cannot consent to serious non-trivial bodily harm (Jobidon5). It becomes VITIATED.
VITIATED CONSENT: consent becomes invalid in the eyes of the law. The limitation demanded by s
265 as it applies to Jobidon, consent is vitiated between adults intentionally applying force causing
serious hurt or non-trivial bodily harm to each other in the course of a fistfight or brawl.

BODILY HARM

Section 2: 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. To constitute ordinary bodily harm, an injury does
not have to meet the standard of “interferes in a grave or substantial way with the physical integrity or
well-being of the complainant”. It is typically an injury that will last a week or two weeks, such as
bruising, pain, or discomfort. The interference with comfort is more than enough to interfere with health.
From the time of the assault and at least until medical treatment was completed, it must be clear that the
victim was deprived of any sense of comfort which they might have had before being assaulted
(Moquin6).

Act Element – Consent Vitiated by Fraud

Section 265(3): for the purpose 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
FRAUD with SERIOUS BODILY HARM
GENERAL RULE: Fraud vitiates consent where the deceit deprived the complainant of the ability to
exercise his or her will in relation to his or her physical integrity with respect to the activity in question.
AND when it exposes person to significant risk of serious bodily harm

There are three elements to FRAUD VITIATING CONSENT TEST for Sexually Transmitted Infections
(Cuerrier7):
1. Dishonesty/deceit; AND
2. Deprivation
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Jobidon 1991 – Leading case on consent. Tow men took fight outside bar, Jobidon hit the man and he fell unconscious, Jobidon
continued to hit him and he died. Both men consented to the fight – consent was vitiated, intention to cause bodily harm is itself
illegal and consenting to fighting is not a valid defence
6
Moquin 2010 – gave the definitions of bodily harm pursuant to section 2 of the Code
7
Cuerrier 1998 – Accused was HIV positive and was told by public health that he must disclose his status to all potential sexual
partners. He had unprotected sex without disclosing that information. Fraud vitiates consent when it exposes a person to
significant risk of serious bodily harm.

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 3. The harm in question must be serious and the risk substantial
a. Factors to consider:
i. Higher the risk, higher the duty to disclose (
ii. Contracting HIV would constitute bodily harm
iii. Cuerrier test can be applied broadly to all sexually transmitted infection
iv. Realistic possibility (Mabior8)

Significant Risk (Mabior) = more than any risk but less than a high risk. It requires a realistic possibility
of transmission to show that there is a significant risk for bodily harm
Realistic Possibility = high viral load and no use of condom.

SUMMARY: You still use the CUERRIER test, but add in the requirement of a realistic possibility of
transmission from MABIOR.

R v Hutchinson 2014: Boyfriend poked holes in condoms to keep girlfriend with him. Charged with
aggravated assault. Did the complainant consent? In so, is the consent vitiated by fraud? Serious policy
implications because of the autonomy of a woman’s body. The complainant must agree to the specific
physical act, the Crown must prove a lack of subjective voluntary agreement to the specific physical act.
Depriving the woman of choice to undergo those changes in her body is equally serious as a “significant
risk of serious bodily harm” within the meaning of Cuerrier. Fraud vitiates consent in sexual assault.
Cuerrier is not limited to STIs, risk of bodily harm only applies to STIs.

Act Element – Omissions

GENERAL RULE: Failures to act do not give rise to criminal liability.
EXCEPTION: In cases where an omission is explicitly criminalized it is done so on the basis that an
accused had a duty to act. These can exist as a result of a statute or in the common law.

Fagan v Commissioner of Metropolitan Police 1968: Fagan drives over the officer’s foot, officer tells
him to get his car off his foot. Fagan leaves the car on the foot and tells him to wait, turns off ignition and
exits the vehicle. The question asked was whether this was an assault, but this was an omission not an
act. 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 it was not assault. But, continued
application of force-by-car was simultaneous with intention/fault.

LEGAL DUTY TO ACT (Sections 215, 216, 217):

GENERAL RULE: Legal duties arise in the statute or common law.
1. Section 215 – to provide the necessaries of life for a child under 16, your spouse, any person
under your charge who cannot withdraw from under your charge 9
a. Person under charge must be dependent and person responsible for charge must be
exercising some control
2. Section 216 – surgical or medical treatment
3. Section 217 – everyone 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.10

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Mabior 2012 – Accused was HIV positive and had sex with multiple people when his viral load was low, sometimes used
condoms, charged with aggravated sexual assault. No realistic possibility with low viral load combined with condom use (Court
called the risk “speculative”). Aggravated sexual assault = s 273 of the Code
9
Peterson 2005 – Arnold was under charge of Dennis. Arnold was unable to withdraw from Dennis’ charge
10
Browne 1997 – Deceased swallowed bag of cocaine to avoid detection, overdosed, and the accused said he would take her to
the hospital. He called a cab, but she was pronounced dead upon arrival. Accused was charged with criminal negligence causing
death. Not guilty. Saying you are willing to do something is not enough to create a legally binding undertaking

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 a. An undertaking requires commitment and often reliance on completion of that
undertaking by the other person

R v Miller 1983 HL (Legal duty to act: Arson initiating chain of events): After consuming a few drinks, the
accused went back to a friend’s house, lit a cigarette and fell asleep. He was a squatter and didn’t call
ambulance when fire broke out, just went to a different room. Is the actus reus of the offence of arson
present when a defendant accidentally starts a fire and then fails to take any steps to extinguish the fire?
He was guilty. An omission can be treated as actus reus if a person creates a situation in which harm to
another person property will occur, and he or she intentionally or recklessly fails to take steps to prevent
the harm. If the accused does not live up to the created duty, then it is a crime by omission.

R v Moore 1979 (Legal duty to act: they are sometimes reciprocal): Officer witnessed Moore running a
red light on his bicycle; Moore refused to stop and give name to officer, charged with obstructing justice
under s 129(b) – omission to help a public officer in the execution of his duty. The majority said there is a
duty on police officers to investigate crimes and enforce laws; this legal duty creates a reciprocal duty on
offenders to cooperate. The dissent was strong here because of disproportionality. He was stopped for
red light and now being charged with heftier offence.

R v Thornton 1991 (Legal duty to refrain from conduct that endangers others): Accused tested positive
for HIV and donated blood to Red Cross anyways. He was tried under s 180. Is there a legal duty for an
individual to disclose that they are HIV-positive when donating blood? Guilty. An individual cannot be
found guilty of a crime for violating a common law duty as laid out in s 9 of the Code, they must violate a
duty imposed by statute. SCC classified blood donation as a medical treatment, putting him under a duty
to exercise reasonable care. Offence by omission.

R v Browne 1997 (Legal duty to act - undertaking, in footnotes)..

R v Peterson 2005 (Legal duty to act, section 215, in footnotes).

Act Element – Voluntariness

Voluntariness is internal to the act requirement. The act is involuntary if the person had no choice to act
otherwise, was unconscious behaviour, or had no control over their actions.
GENERAL RULE: There can be no actus reus unless it is the result of a willing mind at liberty to make a
definite choice or decision (King).11

PRINCIPLE: We should only punish people for acts that they choose to commit
1. Seems morally unjust to punish someone who did not choose their actions – absence of moral
blameworthiness
2. There is no argument for deterrence

Cases where a defence for involuntariness exists: Rabey, Parks, Stone. Refer to Automatism.

ABSOLUTE LIABILITY OFFENCES (ALO): In an absolute liability offence there is no fault element. If
there is an ALO and the act was involuntary, a defence of involuntariness can be successful.

R v Lucki 1955 (Voluntariness – Uncontrollable Actions): Accused was driving at a low speed,
skidded onto left side of the road due to black ice and hit another car. Skidding was found to be
involuntary act caused by road

11
King 1962 – there must be willpower to do an act whether the accused knew or did not that it was prohibited at law.

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R v Wolfe 1972 (Voluntariness – Reflexive Actions): Wolfe was calling the police to have a man
removed from his hotel, the man punched Wolfe and Wolfe reflexively hit him with the heavy phone
causing a serious cut. He was not guilty because it was a reflex action and not a voluntary action.

R v Swaby 2001 (Voluntariness – Sometimes Knowledge): Swaby was in a car with an unlicensed
firearm, but he claims he did not know of it until after his arrest. If one acquires knowledge of an illegal
weapon while travelling in a moving vehicle, it cannot be the law that criminal liability instantly attaches.
All the offence required was that he be an occupant of the car and know that there is a handgun.
Dufraimont agrees with dissent that if on the evidence there was a concern about whether he learned
about the presence of the gun in the middle of the drive, we’d have to give him reasonable time to get
himself out of the situation/car. Act and fault elements must occur concurrently.

R v Ryan 1967 Australia (Voluntariness – Foreseeable but accidental consequences are

voluntary): Comic-book robbery gone bad. Pulling the trigger was a foreseeable consequence of earlier
actions, thus voluntary. Guilty of murder.

Killbride v Lake 1962 New Zealand (Voluntariness – Acts or Omissions): Killbride drove his wife’s
car onto a street and left it parked. When he returned, there was a ticket for a traffic offence stating that
car registration was not displayed but he said it was displayed.

Act Element – Causation

In some, but not all offences, the actus reus requires the causing of certain consequences. These
offences include:
a) Death by criminal negligence (s 220)
a. Here you would look at the different types of causes of death
b. S 225 is for medical treatment
b) Assault causing bodily harm (s 221)
c) All homicides (s 222)
d) Wilful damage to property (s 430)
e) Arson (s 433)

TEST FOR CAUSATION IN HOMICIDE – THE NETTE12 TEST:

GENERAL RULE: The test is SIGNIFICANT CONTRIBUTING CAUSE.
1. The accused actions must be a significant contributing cause of death outside of the de
minimis range (Smithers13)
2. Thin skull rule applies (Smithers)
3. RULE: Use the Nette test for causation in homicide unless s 231(5), then use Harbottle

HARBOTTLE TEST FOR HOMICIDE SECTION 231(5) – SUBSTANTIAL CAUSE:

GENERAL RULE: Use this test where murder is planned and deliberate while committing or attempting
to commit an offence under one of the following under this section in the Code.
1. The acts of the accused must be a substantial and integral cause of death
a. Charged under 231(5) causing death while committing an act of unlawful domination

INTERVENING CAUSE
12
Nette 2001 – test applies to homicide. 95 y/o widow was bound with clothes during robbery, left her on bed, died 2 days later
from asphyxiation. Test: the accused actions must be a significant contributing cause.
13
Smithers 1978 – do not use this as the test anymore because it is now NETTE. Hockey fight, Smithers kicks Cobby in the
stomach, Cobby falls to the ground and dies from spontaneous aspiration of his own vomit. Smithers charged with manslaughter.
Thin skull rule – whether or not he had a problem with his esophagus, must take victim as you find them

12
You must establish the FACTUAL (Maybin) cause and the LEGAL (Nette) cause.

Generally, the factual causation test is the “but for…[the act]” (Maybin14)
1. But for not the criminal act would the consequence have occurred?
a. If no and the criminal act is the but for consequence, it is the factual cause
2. In situations where there are multiple causes and the but for test does not lead to a conclusion,
we must determine the legal cause (Nette test).

The causation requirement does not mean that the criminal act has to be the only cause of death. If at
the time of death the original wound is still an operating cause and a substantial cause, then the death
can properly be said to be the result of the original wound (Smith).15

R v Blaue 1975 Not Canada: The thin skull rule applies to religious beliefs. Defendant was stabbed 4
times and then refused blood transfusion that would have saved her life because she is a Jehovah’s
witness. Even though intervention would have saved her life, she could not accept because of religion
and death still occurred from original assault. Negligent acts by the victim will not break the chain of
causation.

MAYBIN TEST:
1. GENERAL RULE: If you don’t find factual causation, you do not need to move on to legal
causation. Causation has to raise a reasonable doubt
2. You start with the “but for” test and then use:
3. Analytical aids of foreseeability and independent act to help determine whether original act is still
significant contributing cause
4. Foreseeability – was the intervening act reasonably foreseeable?
a. Must look at the general nature of the intervening act and the risk of harm
b. If not foreseeable then it breaks the chain of causation
5. Independent – Were the two acts close in proximity?
a. Are there intentional acts of a third party acting independently
b. Was the intervening act a response to the original act
c. Was the act consequential or coincidental? If it was consequential, it “triggered” the act

*In Maybin, the factual causation was about the bouncer’s intervening act. The legal causation was
about the Maybin brothers and not the bouncer.

The Fault Requirement – Mens Rea/Negligence

There is no guilty act without a guilty mind. We require the fault element because we need to determine
the moral blameworthiness: was it intention or did they not know the reasonable standard?

ACT element = touching the person without their consent

FAULT element = knowing that you are touching someone & knowing that there was no consent.

What is mens rea? It is not moral guilt. It can be:

1. The intention of doing a criminal act
2. Recklessness of the consequences of some act
14
Maybin 2012 – Leading case on causation. Maybin brothers beat up victim in a bar, left face down unconscious on a pool table,
bouncer believes victim started the fight and punches him again in the head, victim dies. Significant contributing cause,
independent act, reasonable foreseeability
15
Smith 1959 – not Canadian law. Soldier stabbed in the arm as well as the back, but no one knew of the back injury so was
untreated, also dropped several times then got bad medical treatment and died. Only if the new wound is so substantial that it
makes the original wound part of the death’s history can we say it broke the chain of causation

13
SUBJECTIVE/OBJECTIVE

1. Subjective Fault = awareness of the risk or natural consequences of the act, intention
a. Mens rea
b. TEST seeks to determine: What was in the mind of the accused at the moment the
offence is alleged to have been committed? Whether the accused subjectively
appreciated the consequences of the act as a possibility.
c. Moral blameworthiness
d. Sometimes subjective awareness can be inferred from the act itself (GI offences)
2. Objective Fault = failing to meet the objective standard of the reasonable person (this standard
is tougher post-Creighton)
a. Negligence
b. Circumstances matter a lot here (ex: what speed, where were you driving)
c. TEST is concerned with what the accused “should have” or “ought to have” known. It
requires a marked departure from the standard of care of a reasonable person. No
need to establish intention.

Fault Element – Regulatory Offences

Regulatory offences are not true criminal offences. They are less serious than criminal offences and
exist in the interest of the public welfare. Regulatory offences are found at the federal level and require a
lower level of fault.

ALO – no fault element. Until Sault Ste. Marie, ALO rested merely upon proof of an act with no
requirement of any form of fault. Today, they are strict liability offences.

Motive, Desire Not elements of the crime, but speak to mens

rea
Knowledge/intention/recklessness Subjective fault/subjective mens rea
Wilful blindness
Negligence/strict liability Objective fault
Absolute liability

Beaver v R 1957 (Regulatory Offence – possession is not AL): Beaver thought he had a bag of
sugar of milk but it was heroin, jury believed he didn’t realize what he had was heroine. Judge instructed
jury that it was immaterial if he knew what the thing was, only that he possessed it making possession
an ALO. SCC find that two forms of knowledge are required to be guilty of possession: knowledge that
you possess something and knowledge of what that something is. Possession is now a subjective mens
rea offence, not an ALO.

R v City of Sault Ste. Marie (Regulatory offence – strict liability, due diligence): City contracted
waste disposal, the site the company used for landfill was leaching pollutants into a creek, contrary to
the Ontario Water Resources Act. Changed regulatory offences to SLO  Crown must prove unlawful
act beyond reasonable doubt, negligence is assumed. The accused can use a due diligence defence to
prove that on a balance of probabilities, they were not negligent in the circumstances by demonstrating
that they exercised due diligence.

R v Wholesale Travel (Regulatory Offence – mens rea not required for criminal liability, strict
liability is constitutional): Travel agency was charged with misleading advertisement under federal
competition act. They were charged with a SLO. The presence of moral blameworthiness is a crucial
consideration in deciding whether an offence is a crime as opposed to a regulatory offence.

14
R v Beauchamp 1953 (Regulatory Offence – careless driving): this is a regulatory offence that has
an express fault requirement in it. It is an objective standard, the driving has to fall below the conduct
and breach a duty of care owed to the public in general.

Fault Element – Murder

Section 222– homicide/causing death of a human being/non-culpable
Sections 229-230 – culpable homicide. 229 (a) is the FAULT ELEMENT for murder
Section 231 – first-degree vs. second-degree murder. Murder is first-degree murder when it is planned
and deliberate.

You must go through the requirements of murder first. Once they have been met, you discuss first vs.
second. You cannot be guilty of first-degree murder unless you have all the requirements of murder first.

Types of Homicide
1. Non-culpable Homicide = not an offence. Some sort of freak accident happens that causes
death
2. Culpable Homicide – murder vs. manslaughter. The actus reus is the murder/manslaughter.
The difference between the two relies on the fault element (unlawful murder vs. negligent
murder).
a. S 229(a) culpable homicide is murder where the person who causes the death
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. This is a subjective mens rea offence

Types of Murder
1. First-degree
a. Planned and deliberate
b. Had the intention to kill
c. Murder of specific victims
d. Murder while committing specified offences of illegal domination (Pare; Harbottle)
i. Section 231(5) Harbottle test
2. Second-degree
a. Intent to cause serious bodily harm knowing it may result in death
b. A killing done impulsively without premeditation, but with malice aforethought
c. A killing that results from an act that demonstrates the perpetrators depraved
indifference to human life
i. Goes into crowd and shoots gun in air to scare someone and ends up killing
someone by accident
3. Manslaughter
a. Usually heat of the moment
b. Person is strongly provoked
c. No intent for murder shown

TRANSFERRED INTENT (Simpson):

- Section 229(b). Went to kill someone and ended up killing a different person by accident
- This case underlines for us that faults for murder are a subjective state of mind

SUBJECTIVE FORESIGHT OF DEATH s 229(c) (Shand)

15
 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
7. Leading case for definition of “likely”

FIRST–DEGREE MURDER:
GENERAL RULE: Must be planned and deliberate (Smith)16
a) Planned – arranged beforehand according to a scheme
b) Deliberate = means considered, weighed
c) Anti-thesis of planned and deliberate = impulsive murder which would be second degree
d) EXCEPTION: It is possible to have a charge of first-degree murder grounded on section 229(a)
(2) (Nyguard)
a. A person can plan and deliberate to cause terrible bodily harm that he knows will cause
death even if the person did not specifically intend to cause death. There is little
difference in moral blameworthiness in one who intends to kill and one who intends to
cause bodily harm knowing it will probably cause death.

MURDER OF SPECIFED VICTIMS – Section 231(4) (Collins):

1. In order to be convicted of first-degree murder under this section, the accused must know or at
least perceive the risk that the victim is one of the specified victims

Charter and Common Law Arguments:

1. Charter is most often the source that requires subjective mens rea
2. An offence should be interpreted as requiring mens rea where the offence provision contains no
mens rea words
3. Beaver17 and A.D.H.18 show us that criminal offences require subjective mens rea unless the
legislation says otherwise

Fault Element – States of Mind

GENERAL RULE: Motive and intention are not the same thing.
1. Motive is not an element of the fault, but can be part of the mens rea
2. Intention to cause death IS PART of mens rea and does not require motive or deeper reasons for the
action

Some parts of the Code require purpose (also context-dependent, intention may mean one thing in one
section of the Code and something else in another section)
Subjective mens rea can be established by: intention, knowledge, recklessness, and wilful blindness
Higher-order mental states Motive
Deeper reasons for action Desire
(not normally required to prove)

16
Smith 1979 – leading case on planned and deliberate. Farm house shoot up and murder
17
Beaver – Narcotic case sugar of milk
18
A.D.H. 2013 – Walmart baby case. Section on childhood abandonment does not set out a specific fault requirement of
objectivity so you automatically turn it into a subjective requirement

16
Subjective mens rea Knowledge/intention
What was in the accused’s mind? Recklessness
(default for criminal offences; required under Willful blindness
Charter for murder and a few other crimes)

Objective fault Negligence

Did the accused’s conduct fall below an
objective standard?
(default for regulatory offences) Strict liability (due diligence defence)

No fault requirement Absolute liability

Conviction follows if Crown proves the act
(under Charter never combine with
imprisonment)

DESIRE

R v Hibbert 1995: In s 21(1)(b), purpose means intention, not desire

INTENTION

R v Buzzanga and Durocher 1979: Activists distributed mean information about French Canadians to
start controversy, intending to create sympathy. They created outrage instead and were charged with
willfully promoting hatred. Wilful promotion of hatred requires intention, does not include recklessness.
Intention can mean one of two things:
1. Actor’s conscience person wants to bring about a prohibited consequence
2. Actor acted despite knowing that the prohibited consequences are
substantially certain to follow

R v Boulanger 2006 (Breach of Trust): Leading case on intention. Public officer gets official to write
accurate but special 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. Personal benefit does not necessarily indicate breach of trust, must
be dishonest.

RECKLESSNESS

R v Theroux 1993: Housing fraud took their deposits and said it was secure but housing project fell
through and they lost their deposits.

1. Actus Reus of fraud = deprivation and deceit

2. Mens rea for fraud = subjective awareness that one was undertaking a prohibited act, which
could cause prohibited consequences
3. Two steps to recklessness
a. Accused has knowledge of likelihood of the prohibited consequences
b. With such knowledge, accused commits acts which may bring about these prohibited
consequences while being reckless as to whether or not they ensue

WILFUL BLINDNESS

R v Sansregret 1985 & R v Briscoe 2010: does not define the mens rea but it can be substituted for
actual knowledge whenever knowledge is a requirement of the mens rea.
TEST for wilful blindness (Briscoe):
GENERAL RULE: making inquiries does not necessarily negate wilful blindness. 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.

17
 1. What was the nature of the inquiry?
2. Did the accused remain suspicious?
3. If yes, did the accuse refrain from further inquiry because they preferred not to know?

R v Blondin 1971: Accused imported hashish into Canada via scuba tank. He reported it and said he’s
suspicious of the tank but does not know what it is. Accused can’t be convicted of smuggling drugs
unless he had knowledge or suspected that he was importing drugs. Court said it doesn’t matter which
drugs it was, 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.

Fault Element – Objective Fault/Negligence

Section 219 is a definition of criminal negligence.
Section 220 is an offence – causing death by criminal negligence.

Uses words like “reasonable,” “ought to know,” “careless”

Crimes of objective fault = negligence crimes. Crimes of negligence does not = criminal negligence

Criminal negligence and law related to it aapplies to only two offences:

1. Criminal negligence causing death – s 220
2. Criminal negligence causing bodily harm – s 221

The “marked and significant departure” test was first established in Tutton19, but later affirmed in F.
(J.20)

MARKED AND SUBSTANTIAL DEPARTURE TEST ONLY FOR CRIMINAL NEGLIGENCE S 219 (F.
(J.)):
1. This test is only applicable to offences under ss 220 and 221 because it requires a higher
threshold given the gravity of the penalty
2. Conduct that reveals a marked and substantial departure from the standard of care, which could
be expected of a reasonably prudent person in the circumstances.

R v Anderson 1990: impaired driver ran red light and killed someone. This case shows how it must be
both a marked departure and a significant departure. This was a marked departure but it was not a
significant one. What you do must be exceedingly criminally negligent to get a conviction. SOPKINA said
if it’s not bad for someone to have been drunk driving and run a red light, it can’t be bad that he just
happened to hit someone as he did it. The test should be applied in the context of the events
surrounding the incident.

MARKED DEPARTURE TEST FOR CRIMES REQUIRING OBJECTIVE FAULT (Beatty):

GENERAL RULE: This applies to any other offence requiring objective fault such as failing to provide the
necessaries of life, dangerous driving, regulatory offences, strict liability, due diligence is a defence
1. Marked departure from the standard expected of a reasonably prudent person
a. This is a modified objective test
2. Part of the test is the accused’s perception of the facts
3. In driving, a momentary lapse of attention is fine
4. USE BEAUCHAMP FOR CARELESS DRIVING (REGULATORY OFFENCE)
19
Tutton 1989 – diabetic kid had parents who believed in God and believed that he did not need his insulin because God cured
him. Court was deeply split on the decision – could not decide on objective or subjective test.
20
F.(J). 2008 – Resolution of Tutton standard. Little boy was 4 y/o in a foster home with multiple blunt traumas to his head. The
foster mother used to beat him, she pleaded guilty to manslaughter. Foster father was charged with manslaughter by criminal
negligence by failing to provide the necessaries of life. Objective fault for criminal negligence ONLY

18
BEATTY DANGEROUS DRIVING:
1. Actus reus: go to the Code. Was the accused actually driving in a manner that is dangerous to
the public?
2. Fault: on all the circumstances, was there a marked departure from the standard, modified to
allow exculpatory defences?
a. Exculpatory defences = detached retina, sudden and unexpected side effects of
prescription medication
3. EXCEPTION: If there was real mens rea with the intention to dangerously drive then it is
presumably gross negligence

Predicate Offences – Unlawful Act Manslaughter Creighton

CREIGHTON21 TEST
GENERAL RULE: Only use when there is incapacity
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.
a. It must involve a dangerous act
b. It must not be an absolute liability offence; and
c. It must be itself constitutionally valid
d. The standard 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?
a. If the person could not have possibly appreciated the risks, they can be acquitted

Rape and Sexual Assault

Rape law was replaced with sexual assault in 198222
The lack of consent is an element of the offence that must be proven by the Crown
Usually it’s the claimant’s word against the accused’s word

Section 265(4): Defence of mistaken belief

Section 271: Sexual Assault
Section 272: Sexual Assault With a Weapon
Section 273: Aggravated Sexual Assault
Section 273.1: Where no consent obtained
 Words, incapable of consenting, induced by abusing position of trust
*If the person actually expresses that they are not consenting, then it is not open to analysis

Mistake of Consent
MISTAKE OF CONSENT (Ewanchuk23)  it’s a matter of fact

21
Creighton 1993 – regular user of cocaine hosts chill session with two friends, he injected cocaine into the girl and she
overdosed then died. The predicate offence was drug trafficking, it was not manslaughter because she consented to it
22
Chase – gender neutral definition of the offence, no more spousal immunity, emphasis on the violence as opposed to the sexual
aspects of the crime. 15 y/o girl, no parents home and grandpa asleep. Neighbor comes and touches her boobs

19
*CONSENT = means, for the purposes of sections 271, 272 and 273, the voluntary agreement of the
complainant to engage in the sexual activity in question.
*A mistaken belief in consent must be a belief that consent was expressed or communicated24
*Mistake of consent is a true defence, which means that if it is successful, it negates mens rea. The
defence should avail when there is an honest belief in consent or an absence of knowledge that consent
has been withheld. The defence is available only where there is SUFFICIENT EVIDENCE presented by
an accused, by his testimony or by the circumstances in which the act occurred, to found the plea 25

Summary: the defence of honest but mistaken belief in consent is simply a denial of the mens rea of
sexual assault (Ewanchuk;Pappajohn). The actus reus requires touching, of a sexual nature, without the
consent of the complainant. The mens rea requires the accused to intend the touching and to know of, or
be reckless or willfully blind26 as to the complainant’s lack of consent (Ewanchuk). In some circumstances,
it is possible for the complainant not to consent to the sexual touching but for the accused to honestly but
mistakenly believe that the complainant consented. In these circumstances, the actus reus of the offence
is established, but the mens rea is not.27

In order to use this as a defence there must be:

1. Air of reality (s. 265(4))  this requires a situation of ambiguity (Davis)28
a. This is decided by the judge. If it is successful, then the judge must instruct the jury to
consider the presence or absence of the defence of mistaken belief
b. McLachlin, “the test is whether there is evidence on the record upon which a properly
instructed jury acting reasonably could acquit”29

Actus Reus: touching, of a sexual nature, absence of consent

 Here, we are concerned about the victim’s subjective mind
 Consent does not have to be communicated at all because it’s about what is in the victim’s mind
(Ewanchuk)
Mens Rea: intention to touch, subjective awareness of non-consent
 Here, we are concerned with the accused’s subjective mind

Section 273.2 and 265(4)  where belief in consent is not a defence. 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:
> The accused’s belief arose from the accused’s:
> Self-induced intoxication, or
> Recklessness or wilful blindness; or
> The accused did not take reasonable steps, in the circumstances known to the accused at
the time, to ascertain that the complainant was consenting

23
Ewanchuk – takes 17 year old girl to trailer and doesn’t take no for an answer. She consented out of fear
24
*A belief that no means yes, or that silence, passivity or ambiguous conduct equals consent is NO DEFENCE
25
Pappajohn p.591 – real estate agent runs out of home show with bow tie around neck – air of reality. No air of reality by saying “I
thought she was consenting”
26
RECKLESSNESS = knowledge of a danger or risk and persistence in a course of conduct which creates a risk that the prohibited
result will occur
WILFUL BLINDNESS = arises where a person who has become aware of the need for some inquiry declines to make the inquiry
because he does not wish to know the truth
27
All of this came from R v Davis (1999) SCC, same year as Ewanchuk, but use Ewanchuk as authority for mistaken belief, and
use Davis as authority for sexual assault. SEXUAL ASSAULT IS A CRIME OF GENERAL INTENT
28
Davis – air of reality originally came from Pappajohn, but here it was affirmed. It considers the totality of evidence. McIntyre J “to
require the putting of the alternative defence of mistaken belief in consent, there must be, some evidence beyond the mere
assertion of belief in consent by counsel for the appellant. This evidence must appear from or be supported y sources other than the
appellant in order to give it an air of reality”
29
R v Cinous 2002 SCC

20
FRAMEWORK FOR SEXUAL ASSAULT (R v A. (J.)30):

A conviction for sexual assault under s 271(1) requires proof beyond reasonable doubt of the actus reus
and the mens rea of the offence. A person commits the actus reus if he touches another person in a
sexual way without their consent. Consent for this purpose is actual subjective consent in the mind of the
complainant at the time of the sexual activity in question (Ewanchuk). S 273.1(2) limits this definition by
stipulating circumstances where consent is not obtained. A person has the required mental state, or
the mens rea, when he or she knew that the complainant was not consenting to the sexual act in
question, or was reckless or willfully blind to the absence of consent.

*So you would still use Davis for air of reality, and Ewanchuk for the actus and mens rea component and
then to raise a defence of mistaken belief of consent.

Mistake of Fact
Mistake of fact: I think it’s a bag of oregano, but it’s actually marijuana. It is a defence, which negates the
mens rea component.
Mistake of law: I think it’s legal to have a bag of marijuana, but it’s not. Generally not a defence.

General Principles:

1. On the issue of whether mistake of fact is a defence, Pappajohn is still the leading decision. It
constitutes a denial that the Crown has proved the fault element.
a. Where there is a subjective mens rea requirement the mistake need merely be honestly
held with reasonableness only relevant to assessment of credibility;
b. Where the fault element requires objective negligence, the mistake must be honest and
reasonable
c. Where there is due diligence, the mistake must be both honest and reasonable, with an
onus of proof on the accused in the case of regulatory offences; and
d. Where the offence is one of absolute liability, mistake of fact is not a defence.
2. The legal effect of a mistake will depend on the fault element of the offence (mens rea)
Fault level of offence Where mistake of fact is a defence
Subjective mens rea Any honest mistake
Objective fault Only an honest and reasonable mistake
Due diligence defence Only an honest and reasonable mistake, with
an onus on the accused to show
reasonableness
Absolute liability Mistake of fact is not a defence
*The mistake is only a defence if their belief is such that the acts that they were doing were not illegal

What happens when even if your mistake was true, you’d still be guilty of an offence? (thought it was
marijuana, but it was really cocaine):

Assuming the facts were as D believed, if D would be guilty of…

…no offence …a more serious offence …a less serious offence
Mistake is definitely a defence Mistake is probably not a Mistake may not be a defence
defence
Tolson, Beaver31 Ladue32 Kundeus33

30
A. (J.) 2011 – bondage sex, choked her, she was unconscious for three minutes and consented to being unconscious but not to
the acts performed on her while unconscious
31
Beaver 1957 – leading case on nature of mens rea requirement for possession cases. Sold a package of heroine to police
officer but thought it was sugar of milk. The essence of the offence is the possession of the forbidden substance. You cannot have
possession without knowledge of the character of the forbidden substance – you can’t be guilty without knowing.

21
Mistake of Law
Section 19 of the Code declares: ignorance of the law by a person who commits an offence is not an
excuse for committing that offence.

^This section has to do with policy considerations because if mistake of law were a defence, it would
promote a general wilful ignorance of the law

EXCEPTIONS to the rule that mistake of law is not a defence:

1. Colour of right for property offences (Dorosh)
a. Statutory defence
b. It is a defence to theft under s 322. Allows the defence that he or she acted “with legal
justification or excuse and with colour of right”
c. The mistake must give rise to either an honest belief in a proprietary or possessory right
to the thing which is the subject matter of the alleged theft or an honest belief in the
state of facts which if it actually existed would at law justify or excuse the act done.
2. Officially induced error of law
a. Common law defence
b. If you make an error of law after you receive advice from a legal official then it’s OK

R v Esop 1836: Guy from Baghdad has anal sex on English boat. He did not have a defence.

R v Campbell and Mlynarchuk 1972: Exotic dancer charged with performing an immoral performance.
Was dancing nude. Mistake of fact is a defence; mistake of law is not. This was a matter of: is it legal or
not to dance naked? She made a mistake of law by relying on the trial judge’s reasons. But she was not
ignorant of the law because she tried to inform herself. She was convicted but was not penalized.

R v Dorosh 2004: Man charged with stealing a trailer belonging to Zaishley. The deal was dead
according to Dorosh because Zaishley was not following through with what he was supposed to give him
in exchange so he went to take his trailer back. Used colour of right. The actus reus was taking the
trailer. The mens rea had to be: (i) fraudulent, (ii) absence of colour of right, (iii) intent for deprivation of
property. For colour of right, it has to be explicitly mentioned in the offence provision.

R v MacDonald 2014: Accused was charged with possessing a loaded and restricted firearm in a place
where he was not authorized to have it. He had the proper authorization in Alberta but not in Nova
Scotia. SCC said it was a subjective mens rea offence but the mens rea does not include that the
accused knew his possession as unauthorized in that place because that’s a matter of knowing the law

INCAPACITY

32
Ladue 1965 – accused attempted to have sex with a dead woman, circumstance element of the offence was that the body had
to be dead. If you mistaken view of the facts would make you guilty of an offence even worse than the offence you are charged
with then you can’t rely on mistake as a defence. Intention to commit a crime although not the precise crime charged will provide
the necessary mens rea. He could not be charged with rape because for rape she would have to be alive and that means that the
ACTUS REUS and MENS REA did not line up so he was not charged with rape but was charged with the other thing
33
Kundeus 1976 – This was a pre-Charter argument. accused sold drugs to a cop, thought it was mescaline but it was actually
LSD. He was not morally blameworthy enough to be guilty of trafficking a more serious drug. Majority said it doesn’t matter
because it was about deterrence, don’t want to create a flood gate. Laskin dissented and said they had the mens rea of a less
serious offence

22
There are some cases where people are not properly held responsible for acts that appear to be morally
blameworthy – they lack the capacity to act responsibly. Common law has always exempted young
children from criminal responsibility. A child between 7-13 can be charged if the Crown can show that
they were competent to know the nature and consequences of their conduct and appreciate that it was
wrong. Now the age has been raised to 12, no person can be convicted of an offence if 12 or younger.

Mental Disorder as a Defence

The question of mental disorder is a question of law for the judge. It is a very narrow defence and having
a mental disorder is not in and of itself a defence.

Mental Disorder = disease of the mind34. As a defence, it must be brought up by the defence and the
burden of proof rests on the party to raise the issue (reverse onus provision). The Crown can only bring
it up if the person is otherwise guilty.

The disorder can become important in two separate phases:

1. At the time of the alleged act
a. Were they mentally disordered at that time?
b. It has to be a defence to the act
2. At the time that they are brought to trial
a. Sometimes they are deemed not fit to stand for trial

Section 1635: (1) No person is criminally responsible for an act committed or an omission made while
suffering from a mental disorder that rendered that person incapable of appreciating the nature and
quality of the act or omission or of knowing that it was wrong.

(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.

Rules (Cooper, only applies to mental disorders, not automatism):

1. Disease of the mind is a question of law for the judge
a. 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)
2. Whether accused was suffering from the condition at the time is a question of fact for the jury
a. Based on the facts, was the disease of such intensity as to render the accused
incapable of appreciating the nature and quality of the violence act or knowing that it
was wrong?

Cooper v R 1980: Leading case on MENTAL DISORDER. Accused was charged with the murder of a
patient at a psych hospital, he had a psychiatric history himself. Case was on appeal because it was
thought that the trial judge erred in dealing with s 16 properly. The judge was correct to bring up defence
of insanity, but the explanation was incorrect. The question should not be whether the accused was
suffering from a disease of the mind; it should be whether this disease rendered him incapable of
appreciating the nature and quality of the act.
34
Cooper v R 1979: leading case on mental disorder, it is a disease of the mind and is a question of LAW. Accused strangled
female friend to death, he had a mental illness for a while. Whether the accused was in fact suffering from the condition is a
question of fact. Appreciating the quality and nature = knowing you are choking them but not knowing they may die from choking
35
Procedurally, s 16 does not result in automatic detention, it allows for an absolute discharge unless that person poses a
significant threat to public safety

23
Kjeldsen v R 1981: While section 16(2) exempts from liability an accused who by reason of disease of
the mind has no real understanding of the nature, it does not extend to one who ahs the necessary
understanding of the nature, character and consequences of the act, but merely lacks feelings of
remorse or guilt for what they have done, even though such lack of feelings stems from “disease of the
mind”. Appreciation of the nature and quality of the act does not import a requirement that the act be
accompanied by appropriate feeling about the effect of the act on other people. Presence of mental
illness does not automatically result in NCR. For disease of the mind to render an NCR verdict,
must be incapable of appreciating nature and quality. Psychopathy is a disease of the mind, but
you can still appreciate the outcomes and consequences of an act.

R v Abbey 1982: He imported cocaine and had a delusional belief rooted in a mental disorder that
nothing bad would befall him. He was acquitted on the basis of insanity. The SCC said the accused must
have the mens rea, the consequences needing to be appreciated are part of the actus reus. 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.

R v Chaulk 1990: Accused and friend aged 15 and 16 broke into a house, stole valuables and then
stabbed victim to death. They thought they were ruling the world and the victim did not matter. Wrong in
the context of s 16(2) means more than legally wrong, it means morally wrong according to the moral
standards of society. The person has to know that their act is morally wrong in the circumstances
according to the moral standards of society.

Automatism I & II – negates the ACTUS REUS

An act has to be voluntary to be attributed to the offence. Automatism refers to involuntary conduct that
is the product of a mental state in which the conscious mind is disassociated from the part of the mind
that controls action. It is a DISASSOCIATIVE STATE that can be caused by: disease, mental illness,
concussion, drugs, and parasomnia.

1. MD - mental disorder defences that are not part of automatism

a. Disease of the mind
b. Intrinsic lack of control
2. NMDA36 - non-mental disorder automatism/sane automatism defences
a. External causes  loss of control
b. Blow to the head or physiological conditions such as poisoning, stroke or hypoglycemia,
sleepwalking
3. MDA - mental disorder automatism defences
a. The source is internal
b. No acquittal, but will be found NCR-MD. If found to be a continuing threat, will be sent to
a hospital.

The main issue based on the facts is: was the person really in a state of automatism?
The bigger issue is: the line between sane automatism and mental disorder automatism
 You’re either innocent (NCR – not criminally responsible); or
 You are remanded to a psych detention center

36
Rabey 1980 – Accused suffered sudden disappointed love, followed by sudden “dissociative state” from emotional shock
wherein he assaulted acquaintance by beating her with a rock. Rule: everyday stresses and disappointments of life do not qualify
as an external source which causes dissociative states in individuals. If internal source + everyday stresses = MD. If external
source (extraordinary event) = NMDA/sane auto.

24
If sane automatism (NMDA) is raised (Parks, later affirmed by Stone below)37, the accused has to lay
evidentiary foundation to show that the accused was in a mental state (air of reality) that led them to
automatism. The judge must then decide if the condition alleged is sane or mental disorder automatism
and this is answered on the basis of policy:
1) Continuing danger theory
a. Any condition likely to present a recurring danger to the public is a mental disorder
b. This means the likelihood of the recurrence of the things that TRIGGERED the
episode38
2) Internal cause theory
a. Objective test, compare the accused with a normal person in the situation
b. May be based on psychiatric evidence

Rules/Steps for dealing with a claim of AUTOMATISM (Stone)39:

GENERAL RULE: The legal presumption is that people act voluntarily, the evidentiary burden is on the
accused to rebut this with the following steps:
1. Accused must raise the defence “I lost control”
a. This must be supported by expert evidence, judge must find an “air of reality”
b. The evidence must be sufficient to lay a proper foundation for the plea that the accused
person acted through his body without the assistance of his mind in the sense that he
was not able to make the necessary decisions and to determine whether or not to do the
act
c. Based on a variety of factors: severity of triggering stimulus, corroborating evidence
from bystanders, corroborating medical history, evidence of motive, whether the victim
was also the trigger
d. From this, the judge must conclude that 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 is satisfied, the judge must also decide MDA or NMDA
a. Must start with the assumption that the accused suffers from a “disease of the mind,”
accused works to disprove this using a holistic approach

POST-STONE (Luedecke40) COMPREHENSIVE LOOK AT AUTOMATISM CLAIMS:

Step 1: Pre-verdict, focus on social defence (protection of the public)
i. Where there is a risk of recurrence, it will almost always lead to an NCR verdict
a. This means, not criminally responsible, but will get sent somewhere
Step 2: Post-verdict, focus on the “individualized assessment” of the individual’s dangerousness
i. What events triggered the episode?
ii. It is likely to recur?
a. If so, it will be MD because it points to internal factors
iii. Continuing danger to public?
a. Also MDA (this is a question of law with policy considerations)

Section 33.1 applies where three conditions are met (Bouchard-Lebrun)41:

37
Parks 1992 – Confirms that disease of the mind is a question of law and based on policy issues. Sleepwalking case, drove to in-
laws and killed mother but brutally injured father. Internal cause and continuing danger theory. Policy implications. If Parks came to
court today, he would be given an MD defence, not NMDA
38
Luedecke 2008 – Accused fell asleep at party and sexually assaulted a girl while being asleep. Things that triggered the
episode: being at a party, being sleep deprived, having something to drink
39
Stone 1999 leading case for AUTOMATISM DEFENCE, defence is also in section 16 of the Code. The accused stabbed his
wife 47 times after she repeatedly insulted him in the car. He only remembers a sudden “whoosh” come over him and doesn’t
remember anything after except for regaining consciousness and finding his wife’s body in front of him. Guilty of murder. There
were no extraordinary circumstances that would put him in sane automatism
40
Luedecke 2008 – what events triggered the parasomnia/sexomnia episode? The accused had a history of sexomnia and was
reckless as to sleep hygiene and alcohol consumption. But the court failed to consider intoxication. Key factor = continuing danger
41
Bouchard-Lebrun 2011 – Self-induced toxic psychosis. Charged under section 33.1 which prevents self-induced intoxication to
be a defence

25
 1. Accused was intoxicated at the material time of the offence
2. Intoxication was self-induced
3. Accused departed form the standard of reasonable care by interfering or threatening to interfere
with the bodily integrity of another person

R v Bouchard-Lebrun 2011 (self-induced toxic psychosis): when you see a situation of toxic
psychosis, you have to start from the proposition that the toxic psychosis is covered by the exclusion
from Cooper. In Cooper under MD, the exclusion states, “self-induced states caused by alcohol or drugs,
as well as transitory mental states such as hysteria or concussion.” There are situations where the
accused could show that the state caused by drugs is an MD but the accused would have to
show that they had a separate case of MD interacting with the intoxication. Then a holistic
approach from Stone would be used. In terms of internal cause, a normal person would have reacted by
going into a temporary state of toxic psychosis. This was not internal – the drugs were external so that
suggest NON MENTAL DISORDER. In terms of continuing danger, need to look at whether the accused
himself presents a continuing danger.

Defence Result for Accused

Non-mental disorder automatism Acquittal 
Mental disorder (including mental Possible psychiatric detention -_-
disorder automatism)
Self-induced intoxication Generally not a defence 

R v Rabey 1977 (Automatism: MDA v NMDA/sane): accused was infatuated with acquaintance, she
thought of him as just a friend and he found out so he took a rock form his lab and struck her on the
head twice then strangled her. She survived. Defence psych said he was in a dissociative state from the
powerful emotional shock; Crown psych said no mental disorder. Rule: every day stresses and
disappointments of life do not qualify as an external source, which causes dissociative states in sane
individuals. What constitutes a mental disorder is the internal makeup of the person (Cooper). His own
frailties make it non-mental automatism.

R v Parks 1992 (Automatism: Internal Cause and Continuing Danger): Parks did not have any
mental conditions although several of his family members had a history with sleepwalking. He had been
working long hours at work and had recently been charged with theft from employer. He was
sleepwalking when he drove to his in-laws house and killed the mother and stabbed the father. He did
not remember his actions and had no reasonable motive to kill them. Once the D raises automatism as a
defence, the burden is on the Crown to prove voluntariness or insane automatism, which results in no
criminal respy but does result in a psych ward. Here sleepwalking was a separate sane automatism, not
mental disorder. Today, it would have been a mental disorder. A finding of automatism that is internal
and continuing suggests a disease of the mind. In this case, there was no evidence of a recurrence of
sleepwalking causing similar outcomes so he was acquitted.

R v Stone 1999 (LEADING CASE on Automatism): Accused stabbed wife 47 times. A claim of the
defence of automatism has two steps: the accused must establish on a balance of probabilities that
there is sufficient evidence to make the defence operate. In order to do this, the accused must have
expert evidence to go along with the testimony. If this is not met the defence fails. The judge must then
decide if there is a disease of the mind. If there is, then a special verdict is entered and normal s 16
procedures are followed. If there is not, then the question must be left to the jury if the accused acted
involuntarily. If he did, then he is acquitted.

R v Luedecke 2008 (Automatism: parasomnia vs. mental disorder of sexomnia): this case must be
treated as a non-criminally responsible mental disorder instead of automatism. Must look at triggers, if
they are recurring, internal factors. We start from the presumption that is automatism exists, it flows from
mental disorder. Parks asked: what is the likelihood that this event would happen again – the recurrence

26
of factors that lead to episodes like this. This case looks at the possibility of those things occurring
creates a danger and higher risk exposure for those things to occur.

R v Bouchard-Lebrun 2011 (Automatism: self-induced toxic psychosis is never automatism): B

brutally assaulted two people after taking drugs. Trial judge convicted based on elements of s 33.1,
which prevents self-induced intoxication from being a defence to an offence against the bodily integrity
of another person. B tried to get a NCR by pleading MD under s 16 but was unsuccessful. There is a
two-stage test for s 16 insanity defence: was the accused suffering from a MD in the legal sense at the
time of the alleged events? Was the accused, owing to their mental condition, incapable of knowing that
the act or omission committed was wrong?

Intoxication – General and Specific Intent Offences

GENERAL RULE: A person is voluntarily intoxication if they are voluntarily or knowingly taken knowing it
will cause impairment

SPECIFIC/GENERAL INTENT OFFENCE (SI/GI):

1. General intent – the only intent involved related solely to the performance of the act with no further
ulterior intent or purpose
Example: ordinary assault, slapping somebody, the intent would be to just slap them)
RULE: cannot have a defence of intoxication; GIs require less complicated mental processes
mens rea can be inferred by the act
2. Specific intent42 - involves the performance of the actus reus coupled with some intent or purpose
that goes beyond merely performing that act
Example: slapping the police office trying to arrest you so that he would not be able to arrest
you; murder
RULE: intoxication can be a defence here where there is incapacity to form the intent; Sis
require more complicated mental processes and they are more serious with higher penalties

SPECIFIC INTENT (SI) GENERAL INTENT (GI)

- Murder - Manslaughter
- Assault with intent to resist arrest - Common assault (simple intent to
(extra intent to resist arrest) apply force only)
- B & E with intent to commit - B & E and committing a GI
indictable offence indictable offence
- Robbery (application of force to - Sexual assaults
facilitate taking of property) - Assault causing bodily harm
- Theft
- Attempted crimes
- Aiding and abetting a crime

VOLUNTARY INTOXICATION is a partial defence to murder, “I was too drunk to intend to kill, I was too
drunk to foresee death when kicking him in the head”

COMMON LAW INTOXICATION

Bernard 1988 – VERY important because of Court’s split decision:

1. MCINTYRE (+2) – Intoxication can be a defence for specific intent offences, but never for
general intent

42
Bernard 1988 – Accused forced female acquaintance to have sex, punched her in the face and threatened to kill her while drunk

27
 a. The mens rea for general intent can be inferred by the act
b. Where intoxication is to the state of automatism/involuntariness, we can substitute intent
to become intoxicated for the mens rea for the general intent
c. UPHOLD common law rule (Leary)
2. WILSON (+2) – Intoxication can be a defence for specific intent, generally not a defence for
general intent
a. But, have to allow for defence in extreme intoxication/automatism because of Charter
b. Normally you would infer mens rea from the act, but we want to avoid punishing the
morally blameless
c. Make common law rule more flexible
3. DICKSON (+2) – Intoxication goes to mens rea for any offence, along with any other evidence
a. In most cases, intoxication will not negate mens rea
b. Parliament should be deciding policy, not the court, this is arbitrary
i. Dufraimont agrees that it is arbitrary
c. ABOLISH common law rule
4. LAFOREST DISSENT (+1) – intoxication goes to mens rea for any offence
a. ABOLISH common law rule

THE DAVIAULT43 DEFENCE

This is a Charter minimum; the reverse onus is on the accused and applies to GI offences.
1. RULE: the accused lacked intent due to intoxication for GI.
a. Does not apply to SI
b. GI includes manslaughter and sexual assault
2. Only applies to cases of extreme intoxication, otherwise infer mens rea from act
3. Onus on accused to prove extreme intoxication
4. Section 33.1 removes the Daviault defence for GI violent offences
a. EXCEPTION: subsection 3 only removes the Daviault defence for violent offences, if
you get extremely drunk to the point where you go and smash the woman’s car but not
rape her, you get the Daviault defence. If you rape her, you do not get the defence.

Section 33.1:
1. Abolishes the Daviault defence for violent offences, but does not affect common law defence
available to SI offences such as murder
2. Argument: this section saves people form vulnerable groups – the objective of the removal of the
defence is that we need to protect the physical integrity of specific groups like women and
children. They have a right to have the benefit of the law
3. Proportionality test  is this law minimally impairing of section 7?
4. ON AN EXAM: if you have a defence of extreme intoxication for GI, Daviault has a defence, BUT
section 33 removed it, BUT it may infringe section 7, BUT it might be saved by section 1

DEGREES OF INTOXICATION (Daley) the issue is always actual intent:

QUESTION: Whether the accused held the actual intent or not?
1. Mild Intoxication  induces relaxation of inhibitions and an increase in socially unacceptable
behaviour
a. Never has been accepted as a factor in determining if the accused possessed mens rea
2. Advanced Intoxication  serious enough that the accused lacked the specific intent
a. This is specific to SI offences
b. Dependent on the facts
c. Example: If the accused pulled out a gun and shot at someone’s face that was close in
range, even if they were very drunk, we still think that they would have foreseen the
consequences. But if they were in a bar brawl and were so drunk that when they kicked
43
Daviault 1994 – extreme intoxication can be a defence. Accused was 69 y/o alcoholic, was friends with 65 y/o paralyzed
woman. Went over to her house intoxicated with a bottle of Brandy. She had one drink with him and he threw her on the bed and
sexually assaulted her. His defence was extreme intoxication, a defence expert testified that his blood alcohol level was 5x the
legal limit, which would cause death or coma in a normal person. Court upheld distinction between SI and GI but uses Wilson’s
compromise. There is a Charter minimum for this case.

28
 someone in the head, then maybe the defence would work because if they were sober
they would have known that a kick to the head could cause death
3. Extreme intoxication  akin to automatism
a. Complete defence to criminal responsibility
b. Daviault defence for GI offences
c. Section 33.1 takes this away for violent offences
d. Also know that there is a Charter defence for section 33.1
*This is not a matter of proving the accused was in the state to rid their guilt; it is about actual intent and
if you were in a state of advanced intoxication because it raises an issue about whether you had the
specific intent

OFFENCE MILD INTOXICATION ADVANCED EXTREME

INTOXICATION INTOXICATION
SPECIFIC INTENT Never a defence May raise reasonable May negate physical
doubt re: mens rea voluntariness
GENERAL INTENT Never a defence Never a defence May negate general
intent or physical
voluntariness except
per 33.1(3) limited to
non-violent

Chaulk (2007 – same year as Daley): the rule is intoxication is considered voluntary if the accused
consumed a substance that a reasonable person would have known is intoxicating. This becomes
difficult to determine involuntariness and voluntariness where someone had the intention of smoking a
joint of marijuana that actually contained a strong dose of PCP.

Justifications and Excuses

In general, apply codified defences before trying common law defences.
This section is about true defences = situations where all the elements of the offence are fully proven
against the accused and yet they can still have a justification or excuse
The defence of automatism and intoxication deal with situations where the fault requirement is met but
there is still some circumstance where the defence is allowed. It is a PARTIAL defence.

COMMON LAW DEFENCES

These operate to the defence of the accused where a common law offence is not present.

AIR OF REALITY TEST (Cinous; applies to all defences) to proving/bringing forward a defence:
1. Meeting the evidentiary burden (raising the defence)
a) Is there an air of reality to the defence (question of law for the judge)
2. Meeting the persuasive burden
b) Should the defence apply (question of fact for the jury)?
c) Whoever has the burden of proof on this defence actually has to prove or disprove it beyond a
reasonable doubt
d) Reverse onus defences lie on the accused and they have to prove the defence on a balance of
probabilities
a. Mental disorder, automatism, extreme intoxication
3. Judge must consider the totality of the evidence and assume evidence relied upon by the accused is
true44

44
Cinous 2002 – in this case, the 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

29
Self Defense – justification, not an excuse

Section 34 - A person is not guilty of an offence if:

1. They believe on reasonable grounds that force or a threat of force is being used against
them or another person
2. The act that constitutes the offence is committed for the purpose of defending
themselves or another person and all three of these requirements have been met
3. The act committed is reasonable in the circumstances
4. LIMITATIONS:
a. The act must be for the purpose of defending or protecting yourself or another person
b. The act of alleged self-defense has to be reasonable in the circumstances
5. FACTORS for purposes of Section 34:
a. Nature of the force and threat  the more serious the threat, the more serious the
response
b. The extent to which the force was imminent
i. Was there something else you could have done? Were there other means?
c. Person’s role in the defense
i. Did you start the fight?
ii. Whether any party to the incident used or threatened to use a weapon
iii. Was the person armed or not armed?
d. The size, age, gender of the parties present in the incident
e. Nature, duration, history of the relationships of the parties involved
i. The threat may not seem reasonable within the context of the relationship so it
seems reasonable to act out with self-defense
f. Whether the act was committed in response to the act committed against them
6. It’s not just what the threat was but what the accused reasonably thought the threat was 45
a. Example: someone could threaten that they are armed but they are not and the accused
reasonably thought that they were armed because they reached into their coat where a
gun would be

BATTERED WOMAN SYNDROME (Lavallee later affirmed in Malott46):

Instructions for jury to understand: why abused woman stays 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 – excuse, not a justification

Necessity is applicable to emergencies, normally dealing with the preservation of life. There are certain
cases where you need to break the law to preserve life. To apply necessity, the situation has to be really
limited with clear imminent imperil. The prior authority on necessity was Morgentaler. Today, it is Perka
and Latimer.

JUSTIFICATION = the otherwise criminal act is thought to be the right thing to do in the circumstances
Example: police sniper who shoots a person holding hostages about to kill them
EXCUSE = act was wrong in the circumstances, but there is something about the circumstances that
says we cannot hold the actor responsible
Example: assaulting another person because they have a gun to your head. Wrong to assault
45
Lavallee 1990 – woman shot husband at back of head when walking out door. History of abuse. Imminence requirement
lowered for nattered women, it speaks to the reasonableness of apprehension of grievous harm or death. Question put to the jury:
whether, given the history, circumstances and perceptions of the woman, was it reasonable for her to believe that she needed to
shoot him as self-defense?
46
Malott 1998 – abused woman kills her husband then goes to his girlfriend’s house and tries to kill her. Charged with murder and
attempted murder

30
 But in the circumstances it was the right thing to do.

RULE: Breaking the law must be realistically unavoidable. Requirements for NECESSITY (Perka47):
1. Urgent situation of imminent peril
2. No reasonable legal alternative (Morgentaler)
i. Must ask: was there a legal way out?
3. Proportionality between harm inflicted and harm avoided
ii. The harm inflicted must be less than the harm you are avoiding
RULE: it is part of an ordinary offence, which means the CROWN must disprove the defence beyond a
reasonable doubt, BUT the accused has the onus to bring evidence.

MODIFIED NECESSITY TEST/AIR OF REALITY (Latimer48):

RULE: In order for the defence to arise, there has to be an air of reality ALL THREE REQUIREMENTS
1. Urgent situation of imminent peril
a. Modified objective test (accused must have honestly believed on reasonable grounds
that he or she was in imminent peril with no legal way out)
b. The peril must be “on the verge of transpiring and virtually certain to occur”
2. No reasonable legal alternative
a. Modified objective test
3. Proportionality between harm inflicted and harm avoided
a. Not required that the harm avoided clearly outweighed the harm inflicted
b. This is assessed objectively

Duress – justification, not an excuse

Accused commits a crime under pressure from a threat of another person:

a. Threat of death or bodily harm to the accused or a third party
b. Immediacy: act committed under threat of “immediate death or bodily harm”
c. Presence: threatener must be “present when the offence is committed”
d. Belief: accused must “believe the threats will be carried out”
e. Accused not party to conspiracy: Dufraimont’s Hell’s Angels example
f. Exclusion of certain offences: statutory defence of duress not available for murder,
sexual assault, robbery, etc.
g. These requirements have been modified in light of the Charter

STATUTORY DEFENCE: Section 17 applies to people who are charged as principals, who were
actually charged with the offence
COMMON LAW DURESS (Paquette49): defence is for aiders and abettors, other parties to the crime

THREE COMMON LAW REQUIREMENTS TO ENSURE MORAL INVOLUNTARINESS, these are to be

added to the list above with statutory requirements (Ryan50):
RULE: Duress is only available when the accused commits an offence under compulsion of a threat
made for the purpose of compelling

47
Perka 1984 – the major question is whether the person had a choice. Uses example of alpinist breaking into a cabin because
otherwise would freeze to death. It is no longer a justification as per DICKSON because it would be too subjective and be about a
“choice of evils” too much of a cost-benefit analysis. The accused were smuggling drugs and had to stop in Vancouver
48
Latimer 2001 – severely disabled 12 y/o daughter put in car with carbon monoxide to rid her of suffering. Guilty of second
degree
49
Paquette 1997 – robbery resulting in someone being shot to death, the two robbers plead guilty for second degree, Paquette
was charge for murder as well but he drove the robbers to the scene. Accused was party to offence but not primary actor
50
Ryan 2013 – Leading case for duress. Accused was abused, husband threatened to take lives of her and her daughter, sought
police protection in the past but they did not help, so she hired a hit man to have him killed to protect herself and her daughter
(Self-defense would not have applied under old Code). Duress was not available here.

31
 1. No safe avenue of escape (Hill)
a. Modified objective standard test
2. Close temporal connection/ no legal alternative
3. Proportionality
a. Objective standard test

DURESS TEST (Ryan):

1. Person threatening must be threatening for the purpose of compulsion, “not any old threat will
do”
2. Threats must compel the person to commit the specific offence for which they are charged – “if
you don’t do X I will kill you” – cannot be used to fill vacuum created by statutory limitations on
defence of a person

Provocation – excuse, not a justification

Section 232: This is a STATUTORY defence to reduce the murder charge to manslaughter (in the heat
of passion) – it is only a PARTIAL defence. Must mention section 232.
Two Parts to Provocation:
1. Objective
a. Provoked conduct that was sufficient to deprive the ordinary person of self-control
2. Subjective
a. If the person did not actually lose control, they don’t get the defence

ALL four requirements must be met to have charge reduced (Hill51):

1. Has to be provoked by conduct that would be an indictable offence liable of 5 years of
imprisonment or more
2. Would an ordinary person be deprived of self-control by the wrongful act or insult?
a. Modified objective, must look at age and gender of accused
3. Did the accused in fact act in response to those “provocative acts”?
a. Subjective
4. Was the accused’s response sudden and before there was time for ‘passion’ to cool?
a. Subjective

According to Ryan, SELF-DEFENSE NECESSITY DURESS

we must distinguish…
When does it apply?
Main question?
Who is the victim?
Defending against
aggression by
aggressing against
the person
aggressing against
you
Was the act
reasonable in the
circumstances? If no,
the defence fails
The person
threatening the
accused
When it is realistically
unavoidable to break
the law
Was there a legal way
out of the situation? If
yes, defence fails
An innocent third
party
Accused breaks the
law under threat by
another, made for the
purpose of compelling
the accused to
commit the offence
(Ryan). Threat must
be death or bodily
harm
Was there a legal way
out of the situation? If
yes, defence fails
An innocent third
party

51
Hill 1986 – big brother sexual advance. Issue was whether the judge needed to tell the jury about his age and sexe. Page 998
Dufraimont finds DICKSON’s statement extraordinary.

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What is the purpose Doesn’t matter what No requirement of Purpose must be to
behind the threat? the purpose is, so threat compel accused to
long as there is a commit the offence
threat
Is the defence Yes, the requirements Not codified, S 17 codifies defence
codified? are explicitly set out established in for physical
(s 34) common law perpetrator; common
law establishes
defence for parties
Underlying rationale Offence is justified Moral involuntariness Moral involuntariness
given the situation excuses the offence excuses the offence

Broadness Justification defences Very limited – makes Very limited – makes

should be broader no sense to invoke no sense to invoke
and easier to invoke excuse defence if excuse defence if
justification failed justification has failed

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