Contents

Sources of Criminal Law- Common Law (lowest source).................................................................................................................3

R.v.Sedley [creating common law offenses]..................................................................................................................................3
Frey v. Fedoruk [peeping tom] [Parliament makes offenses]........................................................................................................3
R.v.Henry [obiter vs ratio].........................................................................................................................................................3
Sources of Criminal Law- Statutes.....................................................................................................................................................3
Interpretation of Statutes................................................................................................................................................................3
R.v.Clark [strict construction]...................................................................................................................................................4
R v Goulis [statutory interpretation rule; strict construction]...................................................................................................4
R v Paré [statutory interpretation of s. 231(5)][need 2 reasonable interpretations]..................................................................4
R v Mac [example of bilingual interpretation; strict construction only if statute is ambiguous].............................................5
Sources of Law- Constitution (Highest Source).................................................................................................................................5
Hunter v. Southam Inc [const’l interpretation]..............................................................................................................................5
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..................................................................................................................5
Canadian foundation for children, youth & the law v. Canada [leading case for vagueness]..................................................5
Bedford v. Canada [prostitution] [s7 violation and PFJ].........................................................................................................6
R v Malmo-Levine 2013................................................................................................................................................................6
1. The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such
reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society......................................6
Oakes test...................................................................................................................................................................................7
Procedural Overview...........................................................................................................................................................................7
3 types of offences..........................................................................................................................................................................7
How does a criminal prosecution proceed?...................................................................................................................................7
Presumption of Innocence-.................................................................................................................................................................7
Woolmington v D.P.P. [presumption of innocence]......................................................................................................................8
R v Lifchus [what is reasonable doubt?].......................................................................................................................................8
Rv Starr [reasonable doubt is closer to 100 than 50].....................................................................................................................8
R v S (JH) [credibility contest]......................................................................................................................................................8
R v Oakes [reverse onus]................................................................................................................................................................8
Criminal Justice Policy.......................................................................................................................................................................9
Adversarial System.............................................................................................................................................................................9
Aboriginal People and Justice......................................................................................................................................................10
R v R.D.S [reasonable apprehension of bias]..............................................................................................................................10
Actus Reus........................................................................................................................................................................................10
Consent making act lawful...........................................................................................................................................................11
R v Jobidon [vitiating consent]................................................................................................................................................11
R v Moquin [definition of bodily harm]..................................................................................................................................11
R v Cuerrier [HIV][consent vitiated by fraud-leading case]...................................................................................................11
R v Mabior [low viral load].....................................................................................................................................................12
R .v. Hutchinson[ poke holes in condom][consent vitiated]...................................................................................................12
Omission.......................................................................................................................................................................................13
Fagan v Commissioner Metropolitan Police [driving over foot][simultaneity of act and fault]............................................13
Legal Duties.............................................................................................................................................................................13
R.v.Miller [duty to act after causing danger][duty from common law]..................................................................................13
Moore v. R [duty to disclose info to police officer]................................................................................................................13
R.v.Thornton [HIV blood donation][ appealed w/ different finding].....................................................................................14
R.v. Browne [definition of undertaking s217]........................................................................................................................14
R.v.Peterson [s215- duty to provide necessaries, under charge].............................................................................................15
Voluntariness................................................................................................................................................................................15
R v Lucki [black ice]...............................................................................................................................................................15
R v Wolfe [reflexes are involuntary].......................................................................................................................................15
R.v. Swaby [reasonable opportunity not to take part].............................................................................................................16
R v Ryan [complex series of acts]...........................................................................................................................................16
Kilbride v Lake (New Zealand) [involuntary omission not an offense].................................................................................16
Causation......................................................................................................................................................................................16
Smithers v R [causation test]...................................................................................................................................................16
R v Harbottle [causation for 231(5) ]......................................................................................................................................17
R v Nette [rephrased to significant contributing cause test]...................................................................................................17
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R v Talbot [distinguishing factual and legal causation]..........................................................................................................17

Intervening Acts...........................................................................................................................................................................18
R v Smith [substantial and operating cause]...........................................................................................................................18
R v Blaue [Jehovah’s Witness][thin skull rule and religious beliefs].....................................................................................18
R v Maybin [intervening cause].............................................................................................................................................18
The Fault Requirement......................................................................................................................................................................19
Fault requirement for Regulatory offences..................................................................................................................................19
Beaver v R [possession is a subjective fault offence][courts can read in fault element]........................................................19
R v City of Sault Ste Marie [regulatory offences are strict liability]......................................................................................20
R v Wholesale Travel Group [regulatory vs criminal offence]...............................................................................................21
What does defense of due diligence require?..........................................................................................................................21
BC Motor Vehicle Act Reference [Charter minimum, no imprisonment w/ absolute liability]............................................21
R v Beauchamp [careless driving and due diligence].............................................................................................................21
Fault for Murder...........................................................................................................................................................................22
Simpson v R [s 229(a) subjective not objective mens rea for (attempted murder)]...............................................................22
R v Edelenbos [definition of “likely” under s. 229]................................................................................................................22
Constructive Murder................................................................................................................................................................23
Degrees of Murder...................................................................................................................................................................24
Subjective Fault............................................................................................................................................................................25
Introduction..............................................................................................................................................................................25
R v H(AD) [Wal Mart] [child abandonment; subjective vs. objective]..................................................................................25
R v Buzzanga and Durocher [leading case on knowledge and intention]..............................................................................26
R v Théroux [test for fraud].....................................................................................................................................................26
R v Boulanger [breach of trust by public official]..................................................................................................................27
Sansregret v R [recklessness and willful blindness]...............................................................................................................27
R v Briscoe [willful blindness as “deliberate ignorance”]......................................................................................................27
R v Lagace...............................................................................................................................................................................28
R v Blondin..............................................................................................................................................................................28
Objective Fault.............................................................................................................................................................................28
Criminal Negligence Provisions..............................................................................................................................................28
O’ Grady v Sparling.................................................................................................................................................................28
R v Tutton and Tutton..............................................................................................................................................................28
Waite v R.................................................................................................................................................................................29
R v Anderson...........................................................................................................................................................................29
R v Hundal...............................................................................................................................................................................30
R v Creighton...........................................................................................................................................................................30
R v Beatty.....................................................................................................................................................................................31
R. v. F(J)..................................................................................................................................................................................31
Crimes Based on Predicate Offenses...........................................................................................................................................32
R v Creighton...........................................................................................................................................................................32
Aggravated Assault......................................................................................................................................................................32
Sexual Assault...................................................................................................................................................................................32
Rape Laws in Context..................................................................................................................................................................32
Sexual Assault Provisions............................................................................................................................................................33
R v Chase [neighbour touched breasts] [leading case for meaning of sexual assault]...........................................................33
Mistaken Belief in Consent Defense Requirements....................................................................................................................34
Pappajohn v R [mistaken belief in consent defense]...............................................................................................................34
Sansregret v R [willful blindness and mistaken belief in consent defense]............................................................................35
R v Bulmer [s265(4)-mistaken belief in consent as defense requirement].............................................................................35
R v Davis [mistaken belief in consent defense – totality of evidence]...................................................................................36
Mistaken Belief in Consent..........................................................................................................................................................36
Consent.....................................................................................................................................................................................36
Criminal Code Provisions........................................................................................................................................................36
R v Ewanchuk [leading case on mistaken belief in consent]..................................................................................................36
Limits on the defence of mistaken belief in consent...............................................................................................................37
R v Cornejo[reasonable steps requirement]............................................................................................................................37
R v A(J) [consent prior to unconsciousness]...........................................................................................................................37
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Mistake of Fact..................................................................................................................................................................................38
General Principles........................................................................................................................................................................38
R v Hess; R v Nguyen [statutory rape; Charter violations]....................................................................................................39
Mistakes as to the nature of the offence.......................................................................................................................................39
R v Ladue [had sex with dead woman] [leading case; mistake of fact defense]....................................................................39
R v Kundeus [mens rea for trafficking met if believe you are trafficking any drug].............................................................40
Mistake of Law.............................................................................................................................................................................40
Criminal Code Provisions........................................................................................................................................................40
Policy.......................................................................................................................................................................................40
R v Esop [mistake of law not a defense].................................................................................................................................41
R v Campbell and Mlynarchuk [mistake of law based on judge’s ruling].............................................................................41
R v MacDonald [mistake of law vs. mistake of fact]..............................................................................................................41
Colour of Right........................................................................................................................................................................41
Incapacity..........................................................................................................................................................................................42
Age................................................................................................................................................................................................42
Mental Disorder............................................................................................................................................................................42
Cooper v R [“disease of the mind” and appreciation test][leading case]................................................................................42
Kieldsen v R [psychopath].......................................................................................................................................................43
R v Abbey [consequences does not mean penal consequences].............................................................................................43
R v Chaulk [definition of “wrong”; morally wrong vs. legally wrong]..................................................................................43
R. v Oommen [ability to tell right from wrong in particular circumstances][app of Chaulk]................................................44
Automatism..................................................................................................................................................................................44
Rabey v. R [non-insane automatism defense].........................................................................................................................44
R v Parks [sane automatism defense; sleepwalking]...............................................................................................................45
R v Stone [leading case on how to apply automatism defense; MDA vs. NMDA]...............................................................46
R. v. Luedecke [sexsomnia] [MDA; policy considerations, likelihood of triggers]...............................................................46
R v Bouchard-Lebrun [self-induced intoxication is not a mental disorder]...........................................................................47
Intoxication...................................................................................................................................................................................47
Introduction..............................................................................................................................................................................47
R v Bernard [general intent vs. specific intent offenses]........................................................................................................48
R. v. Daley...............................................................................................................................................................................50
R. v. Bouchard-Lebrun [self-induced intoxication is not a mental disorder].........................................................................51
Justification and Excuses..................................................................................................................................................................51
True Defenses...............................................................................................................................................................................51
Air of Reality for Defenses..........................................................................................................................................................51
Proving a Defense (2 steps).....................................................................................................................................................51
R v Cinous [air of reality test].................................................................................................................................................51
Defense of Person.........................................................................................................................................................................52
Introduction..............................................................................................................................................................................52
Provision..................................................................................................................................................................................52
R v Lavallee [battered woman and imminence requirement]......................................................................................................53
R v Mallot [battered women’s syndrome not a defense in itself]...........................................................................................53
Necessity.......................................................................................................................................................................................54
R v Dudley and Stephens.........................................................................................................................................................54
Perka v R [test for necessity; common law defense]...............................................................................................................54
R v Latimer [modified objective Perka test]...........................................................................................................................55
Duress...........................................................................................................................................................................................55
Criminal Code Provisions........................................................................................................................................................55
R v Paquette [statutory vs. common law defense of duress; defense of duress for murder]..................................................56
R v Hibbert [common law defense of duress, no safe avenue of escape]...............................................................................56
R v Ruzic [immediacy and presence requirements; s. 7 violation].........................................................................................56
R v Ryan [Charter standards of moral involuntariness].........................................................................................................56
Provocation...................................................................................................................................................................................57
R v Hill [defence of provocation]............................................................................................................................................58
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Sources of Criminal Law- Common Law (lowest source)

 Historically judges could make criminal offences in the common law.
R.v.Sedley [creating common law offenses] (1727)
 Facts: found naked on balcony in public, yelling and swearing, throwing bottles of urine down at people
o Charged w/ misdemeanors against the king's peace- vague term- found guilty
 Issue: can judge convict Sedley for conduct not previously recognized as a crime?
 Reasoning- it's high time to punish this type of behavior, creation of a new common law offence

Frey v. Fedoruk [peeping tom] [Parliament makes offenses] - SCC 1950

 Facts: Frey peeping in window at Fedoruk's mom. Fedoruk citizen arrests Frey and police arrests him w/o warrant.
o If he was caught committing an offence then arrest justifiable as peeping wasn’t offence in Canada
 Holding: Can’t make peeping an offence- not found in criminal code and not established in common law
o Parliament makes criminal offences not judges from now on- existing ones still stand?

Precedent- where do we find common law rules? Stare decisis- to stand by what is decided- like cases should be treated alike

Factors to decide if binding precedent

 Which court made the statement? Binding on lower courts in jurisdiction, persuasive decisions- from other jurisdictions
 Which judgment? - majority/minority?- only majority is binding, dissenting and concurring judgments could be
persuasive
 Which part of judgment- case is binding for what it decides (R v Henry-below)

R.v.Henry [obiter vs ratio] (2005, SCC)

 There are 2 views on what is binding
o View 1- - a case is only authoritative for what it actually decides- case is limited to its facts- case is limited to
its facts
o View 2 (Saler’s principle)- sometimes SCC rules on a point even when point not strictly necessary to decide
case- everything SCC says is binding: limits creativity
 Binnie: not all obiter dicta of SCC are binding- to foster creativity in lower courts- some are though (e.g. Oakes).
Case is binding for what it decides but what it decides might be really broad or really narrow
 Ratio and additional analysis that is meant to be binding
Sources of Criminal Law- Statutes
 1892- Parliament enacted criminal coded
 1955 Criminal Code- only criminal offences are those found in criminal code
o Only common law offense is contempt of court- judges controlling their courtrooms
 All common law offences abolished (s9) though some defenses exist only in common law- e.g. necessity
 Statutes codify and summarize legal principles and change common law rules
 Pros to abolishment of common law offences- citizens can know what an offence is
 Cons- statutes are slow, Parliament might pander to certain groups
 Criminal common law still decides criminal law principles that are not dealt in the statutes and interpret criminal
statutes
Interpretation of Statutes
 Both languages authoritative (bilingual)
 Where 1 is unclear, the common meaning of both versions would be preferred.
 Where 1 is broader, the common meaning would favour more limited one
 Strict construction- principle of interpretation
o Where there are 2 interpretations- the one that should be used is the one most favourable to accused-
e.g. limited def'n of offense etc
 b/c of serious consequences of criminal law- jail, when liberty is at stake err on side of liberty
 Want to give notice about offences
 need 2 reasonable interpretations- (Pare)
 Words of statute are to be read in their entire context and in grammatical and ordinary sense harmoniously w/
scheme of act
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o How are sections of acts organized? What is purpose of act? What did parliament intend?
 Interpretation Act- must give large and liberal interpretation- but courts recognize strict construction
 POLICY: There is a fundamental rule of law question here – people are acting in accordance with criminal statutes and
if they look up the law, they should be able to figure it out – part of the rule of law is that subjects should know in
advance if their conduct interferes with the law – if you cannot figure it out because the statute is ambiguous, you
cannot know in advance

R.v.Clark [strict construction]

 2005, SCC
 Facts: Mrs. S saw Clark masturbating in front of window in illuminated room, charged with committing “indecent
act…in a public space in the presence of one or more persons”
 Issues: What is the definition of a “public place” under the statute [s. 173(1)(a) and (b)]? Willfully indecent act in
public, indecent act w/ intention to insult/offend the public
o Additionally - Were the complainants in Clark’s “presence” when watching from their house? Did Clark
willfully commit indecent act, if he did not know he was being watched?
 Holding: Conviction overturned on appeal; unanimous
 Reasoning: S. 150 defines “public place” as any place to which the public have access as of right or by invitation,
express or implied…
 Legislative context differentiates between public place and any place (public or private) in s. 174
o Statute outlines 2 ways of committing indecent exposure: (i) indecent exposure in any public place public
place; or (ii) indecent exposure in any place with the intent to insult or offend – neither were present in Clark’s
actions
o Living room is not public, Mrs S not in Clark’s presence
 Ratio: A “public place” as defined in the statute is limited to a place that is physically accessible (not just visual) by the
public
 Notes: Strict construction rule – when law is ambiguous, statutes should be interpreted in favour of the accused
o access is physical not just visual- ordinary meaning of the word access is physical access
R v Goulis [statutory interpretation rule; strict construction]
 Ratio: When there is more than one accepted meaning of a statute, then either or both meanings may apply;
when there is still ambiguity, the Court must adopt the interpretation that is more favourable to the accused
 Reasoning: (i) subjects should know in advance when conduct infringes the law (ii) criminal law has extreme
consequences so must err on side of caution so as to limit incursion of individual’s freedom
R v Paré [statutory interpretation of s. 231(5)][need 2 reasonable interpretations]
 1987, SCC
 Facts: P lured and indecently assaulted 7 y/o boy; became concerned that the boy would tell his mother, threatened to
kill him if he told his mother, and then killed him through strangulation and by hitting him with an oil filter; in between
sexually assaulting and killing, P held boy down for a few minute
 Issue: How is “while committing” interpreted? How should doctrine of strict construction be applied?
 Holding: Appeal allowed; accused convicted of first degree murder; acts of assault and murder occurred in a single
transaction
 Reasoning:
o S. 231(5): murder is of the first degree when death is cause while committing an indecent assault; usually
planned and deliberate
o Defense argument: “while committing” means exactly simultaneously, which was not the case here – there is
ambiguity in statute; therefore, under strict construction rule P should be accused of 2nd degree murder only
o Murder was formed as part of a continuous sequence of events that began with indecent assault and
ended with murder - was temporally and causally connected to underlying offence- part of 1 continuous
sequence
o According to intention of statute: cannot exactly define beginning and end of assault; simultaneous approach
leads to irrational/arbitrary distinctions; same level of seriousness – can’t be what Parliament intended
o Doctrine of strict construction when there are 2 reasonable interpretations of statute; here, the single
transaction analysis is a reasonable interpretation
 Ratio: The single transaction approach is the only reasonable interpretation of this particular statute
 Policy considerations- some murders have exceptional penalties in law e.g during kidnapping, rape etc
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o Principle- where murder is committed by someone already abusing power by illegally dominating
another, the murder should be treated as an exceptionally serious crime
R v Mac [example of bilingual interpretation; strict construction only if statute is ambiguous]
 2001, SCC
 Facts: M charged with large-scale manufacture and sale of forged credit cards; charged with possession of tools
“adapted for the purpose of forgery”
 Issue: What should be the meaning of “adapted” in s. 369(b) of the Criminal Code?
Holding: Appeal allowed; “adapted” means “suitable for”
 Reasoning: Court looked at language in similar code provisions in both French and English – s. 369(b) clearly means
“suitable for” (as opposed to, for example, s. 342(1)).
o The machines were not altered to be suitable for but came that way
 Ratio: Strict construction can only be used when there is ambiguity in statute
 Notes: people must know what crimes are- if this is ambiguous then people must get fair notice
 Commitment to individual liberty- if there is doubt in criminal law the doubt must be resolved in favour
of individual liberty

Sources of Law- Constitution (Highest Source)

 Fundamental law- All other laws are based on constitution
 Charter-affects procedural criminal law- s8-13
 S52- null and void if inconsistent w/ charter/constitution

Hunter v. Southam Inc [const’l interpretation] (1984) 2 S.C.R 145

 Broad purposive analysis- interprets specific provision of a const’l doc in light of its larger objects
 Judiciary are the guardian of the const'n
 “The constitution is a living tree”- If we are going to be living with this constitution for the next hundreds of years, we
have to interpret it in a way that will grow, not a rigid definition

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 show a violation of section 7, must show a deprivation of either right to life, right to liberty or right to
security of person AND second, that deprivation must have a violation of the rights of fundamental justice
 PFJ primarily refer to procedural principles i.e. fair trial rights, right to silence, etc.
 PFJ state that criminal law must not be:
o vague – when scope of offense is unclear or imprecise;
o overbroad – too wide or expansive, covers circumstances beyond what would acceptably be considered
criminal;
o arbitrary – depends on discretionary matters rather than principle, based on the whim of the decision
maker; or
o grossly disproportionate – law provides punishment that is too harsh for circumstances
 PFJ directed towards: (i) absence of connection between law’s purpose and s.7 deprivation (arbitrariness,
overbreadth); (ii) deprivation that is largely disproportionate to law’s objective (gross disproportionality)

Canadian foundation for children, youth & the law v. Canada [leading case for vagueness]
 2004, SCC
 Facts: Appellant claims that s.43 is too vague and should be struck down as unconstitutional; s.43 delineates
circumstances under which it is justifiable to punish a child or pupil by spanking, where would otherwise be considered
assault (“by a teacher, parent, or person standing in place of parent, if by way of correction and reasonable
circumstances”)
 Reasoning: McLachlin: Law is not too vague; prescribes explicit limitation i.e. for purpose of correction;
reasonableness requirement (not excessive)
 Further limits i.e. must only be minor corrective force of transitory nature; limits who can be
punished; use of objects; where on body; etc.
 Delineates who can access it- parent, people in place of parents, teachers etc
 Corrective- /disciplinary purposes, child must be capable of benefitting from the correction (not
mentally capable, doesn’t know why being hit, older than 2)-
 6

o Dissenting judgment: Past cases of s.43 show that it is not successful in framing legal debate i.e. inconsistent
and irrational decisions; doesn’t adequately protect children under security of persons provision; doesn’t
adequately guide decision-makers
 Mere interpretation vs. drafting entirely new provision – McLachlin is essentially drafting new
provision by imposing limitations herein- statutory rewriting not interpretation
 Ratio: Vagueness Test – a law is unconstitutionally vague if: it does not provide an adequate basis for legal
debate and analysis; it does not sufficiently delineate any area of risk (re: concept of fair notice requirement); is
not intelligible (for both citizens and officials)
o Law must require a risk zone for criminal sanction, lest it be unconstitutionally vague
 Notes: Vague law prevents citizen of knowing whether they are in area of risk, prevents police/prosecutors/judges from
accurately applying law (have to decide whether this is criminal or not)- leaving too much discretion up to law
enforcement (rule of persons not law)
o How can a vagueness challenge succeed if the SCC just clarify statute?
o Policy issue- parent raise children, to what extent can we interfere w/ that?
Bedford v. Canada [prostitution] [s7 violation and PFJ]
 2013 SCC
 Issue: Const’l challenge to Criminal Code provisions prohibiting bawdy houses, living on avails of prostitution,
communicating for purpose of prostitution
 Reasoning:
o The provisions negatively impact security of person rights of prostitute – heighten risks and impose dangerous
conditions; prevent people engaged in a legal but risky activity from taking steps of protection
o Common bawdy house prohibition (s. 210) – purpose is to prevent community harms/nuisance, not to deter
prostitution; cannot infringe on right to protection of prostitutes (grossly disproportionate)
o Living on the avails of prostitution (s. 212(1)(j)) – purpose is to prevent exploitative conduct, but this law
punishes even non-exploitative relationships (i.e. security guards, drivers) (overbroad) – more dangerous
o Communicating for purpose of prostitution (s. 213(1)(c)) – purpose is to take prostitution off streets/prevent
nuisance, not to eliminate entirely; removes ability to screen clients and decrease risk (grossly
disproportionate)
 Ratio: When Criminal Code provisions violate s. 7 Charter rights, and cannot be saved under s. 1, the legislation is
unconstitutional and must be struck down
 Notes: For s.7, onus is on claimant to prove breach; for s.1, onus is on government to prove furtherance of public
interest
o Arbitrariness- asks if there is direct connection b/w purpose of law and effect on individual- limits s7
rights in way that there is no connection to objective of law
o Overbreadth- law is so broad it covers some conduct that’s not related to purpose- law is rational in
some cases but not all
o Gross disproportionality- looks at negative impact of law, impact on s7 rights are completely out of sync
w/ objectives- way too harsh
o Prostitution is not illegal so gov't can't make it more dangerous- making lawful activity more dangerous-
security of the person
o More important the objective of the law, then might be more lax on s7 rights
R v Malmo-Levine 2013
 Facts: Want to legalize marijuana use- CDSA s4(5) under notion that there is PFJ that criminal prohibition will offend
charter if conduct involves no harm? Rejected
 Reasons: A principle of fundamental justice has to be a legal principle, has to have a consensus that it is
fundamental to fair operation of legal system, has to be sufficiently precise so it gives a manageable standard to
judge violations
o Harm principle is not a legal principle
o No consensus that harm principle is vital to societal notion of criminal justice
o Not sole justification for criminal prohibition and some crimes don’t harm another (bestiality, cannibalism,
duel b/w consenting adults)
 No proof that harm to others is necessary for creation of criminal offence- Seatbelt laws
o Harm principle is not a manageable standard- not a precise standard-> people can argue harm or no harm in all
issues
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1. The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such
reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.
S. 1 has two functions:
1. It constitutionally guarantees the rights and freedoms set out in the provisions which follow
2. It states explicitly the exclusive justificatory criteria against which limitations on those rights and freedoms
must be measured
Oakes test
 To determine whether a law that infringes a charter right is saved by section 1, first you have to find the charter right
that appears to be infringed/breached by the law, and then you have to determine whether the law can be saved under a
limitation
 The party that wants to limit the charter right (government) has onus of proving the limit is reasonable under s. 1.
 The standard of proof that the government faces is the balance of probabilities, but the court says it must be rigorously
applied in this context because of the importance of rights
 Test
o Objective for limit must be of sufficient importance, standard must be high to ensure smaller objectives
don't get through- pressing and substantive- what's the purpose of the legislation and is it important- courts
determine objective
o Proportionality
 Rational connection b/w limit and objective- compares measure and objective
 Minimal impairment- was there a way the gov't could have met objective w/o impairing rights as
much?
 Proportionality of effects- b/w bad effects of measure on rights and social objective- higher effects
only for higher objectives-
o Need to pass all parts to keep law- fail one and law is struck down
 
Can law that violate s7 be saved under s1?
 Sometimes b/c Oakes is about justifying infringements based on overriding public concerns which doesn't come in s7
which only looks at the objective
 S1 balances effects of law- good and bad (look at society as a whole)->not done in s7
 In s7- onus is on claimant to prove infringement
 In s1- onus is on gov't to justify
 No quantitative analysis on s 7 – even if 1 person was affected, this would be enough under s 7
Procedural Overview
3 types of offences
 Summary conviction- trial before provincial judge w/o jury or prelim inquiry. Max 6 months prison and/or $5000
 Indictable
o Most serious (s.469) – exclusively jurisdiction of superior court; almost always tried by jury
o Least serious (s.553) – absolute jurisdiction of provincial court; no jury
o Other (i.e. s.344, robbery) – accused can choose trial in superior court or provincial court, with/without
preliminary inquiry, with/without jury
 Dual (hybrid) offences- prosecution can choose summary conviction or indictment, higher penalty than summary
convictions (can get 18 months jail)
 Best for procedural rights- prelim inquiry in provincial court then jury trial in superior court
How does a criminal prosecution proceed?
1. Charging document (indictment or information)
2. Preliminary inquiry (before provincial court; is there enough evidence to support trial)
3. Plea submission (guilty/not guilty)
4. Trial (evidence for Crown and defense; includes testimony, direct or circumstantial)
5. Closing statements
6. Judge instruction to jury
7. Delivery of verdict
8. Sentencing (if guilty; fine, imprisonment, conditional discharge, etc.)
9. Appeals (considers error of law not error in fact i.e. jury instruction, reasoning in decision, legal ruling, etc.)
 Go to SCC if The accused has the right to this if a court of appeal turns an acquittal into a conviction
 8

 If the court of appeal splits over a question of law and 2 members of court go against you and 2 goes for you,
you have the right to appeal to supreme court for a final decision
 Nat’l importance
10. Appeal dismissed or appeal allowed (new trial ordered)

Presumption of Innocence- presumed innocence until conclusion of trial

o 11(d) of Charter
Woolmington v D.P.P. [presumption of innocence]
 1935
 Facts: Woolmington fatally shot his wife after she left him- he said it was an accident and he just had the gun to
threaten suicide
o Circumstantial evidence- fought bitterly w/ each other, sawed barrels off shotgun right before, fashioned a
holster under his coat, after arrest he said 'I done it'
 Issue: was there an error of law in judge's charge to jury?
o Presumption that all homicide is murder and malicious until proven otherwise. Prima facie presumption that
person causing death is murder- Burden to prove innocence
 Decision: principle that the prosecution must prove guilt of the accused is important. Crown must prove all
elements of the offence beyond a reasonable doubt.
o If there is reasonable doubt then must acquit
R v Lifchus [what is reasonable doubt?]
 Facts: 1997-Lichus charged w/ fraud. Judge said to jury that beyond reasonable doubt were words used in ordinary
sense
 Issue: what is reasonable doubt?
 Decision: Reasonable doubt has specific legal meaning not just ordinary meaning
o Jurors need to fully understand burden of proof- in every criminal case the judge must tell the jury the
definition of a reasonable doubt
o Reasonable doubt is linked to presumption of innocence and the burden of proof rests solely on
prosecution
o Reasonable doubt is not based on sympathy or prejudice but reason and common sense- logically
connected to the evidence
o Not proof to absolute certainty (this is impossible), not beyond any doubt. Not just probably guilty- if
probably then must acquit
o Not equated to moral certainty
Rv Starr [reasonable doubt is closer to 100 than 50]
 2000, SCC
 We tell jury that reasonable doubt is more than probably but less than absolute certainty- juries think this is 50%- 100%
o If you do measure reasonable doubt it is closure to 100 than it is to 50- closer to absolute certainty
R v S (JH) [credibility contest]
 2008, SCC
 Facts: Father accused of sexual abuse- only 2 principle witnesses
 Issue: what is proof beyond reasonable doubt in credibility contest case( trial w/ only witnesses- the complainant and
the accused)
 Reasoning: WD charge(precedent)
o Warn jury against thinking about which side you like better or whose credibility you like the most
o First, if you believe the evidence of the accused, obviously you must acquit
o Second, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must
acquit
o Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the
basis of the evidence which you do not accept, you are convinced beyond a reasonable doubt by that evidence
of the guilt of the accused
 Trial judge didn't use the WD charge- don't just choose one version of events but must look at all the evidence and
decide if event took place, even if they don't believe D this is not basis of conviction
 SCC- this charge is ok, must still be proof beyond reasonable doubt not just whose story you like better
 9

R v Oakes [reverse onus]

 1986, SCC
 Facts: Oakes convicted of possession for the purpose of trafficking- found w/ hash oil
o Narcotic Control Act- if found in possession of narcotic then assumed to be trafficking unless accused prove
this wasn't true
 Does this violate charter? Yes 11(d) but can be saved in s1
 If accused has burden then possibility of conviction despite reasonable doubt
o If there is evidence of innocence but not enough to convince jury that presumed fact was untrue- in regular
case if there is doubt of innocence, this would be enough
Criminal Justice Policy
 Criminal law- acts substantially damaging to society, manifest evil would result from failure to interfere
 Must be used as little as possible to bolster values
 Not just about wrongfulness but must also cause harm, harm must be serious, harm must be best dealt w/ in
criminal law
 Deterrence- preventing people from committing crime through fear of punishment-> one purpose of criminal law
o General deterrence- preventing public from committing offence
o Specific deterrence- preventing individual from committing crime again
o Deterrence works best when people are certain they'll be caught
o Deterrence works better for some offences- might not work for in heat of moment crimes where people don't
think about consequences
o General deterrence is recognized in criminal code
 Can’t conclude that variation in severity of sentences would have general effect- research doesn’t show this
o People don't know what sentencing laws are- don't know that they changed- severity doesn't matter
o Cost benefit analysis is implausible- stop robbery for 7 years versus 5 years? Doesn't make a difference
 No consistent and plausible evidence that harsher sentences deter crime
 For harsher sentences to worker people must believe they’ll get caught, must know that punishment is
harsher now, must be someone who care about punishment before they commit crime, must determine if
worth committing crime anyway
 Other purposes of sentencing- denunciation, incapacitation (stopping people from continuing to commit crime),
rehabilitation
Adversarial System
 Method of ascertaining facts in law is adversarial. The judge makes ultimate finding of fact but doesn’t investigate but
judges merits of 2 positions. Assumes power balance
 Purpose of trial is to seek truth about past fact and resolve conflicts about this
 Adversary system of trial has 3 basic features
 Party control- parties are in charge of the litigation. Crown lays charges and they and the defence bring
evidence
 They choose witnesses and the questions, they choose admissions (what both sides accept)
 They accept pleas of guilty
 Passive judge/jury- Judge is like umpire who keeps party to rules. Impartial- 'above the fray'
 Highly formalized rules- Rules of evidence/procedure etc
 Pros of adversary system- if both sides are competing there is motivation to bring all the evidence- self interest to find
truth
 If judge is not involved then unbiased
 Parties are satisfied that their argument got put forward- my argument was made- I was heard
 Cons of adversary system- assumes power balance but this is not true
 Parties choose which evidence they'll bring- might not get full picture
 Win/lose- not everyone is satisfied
 Not true that involvement of judge is bias- ok to ask questions- SCC does this all the time
 Creates incentive to lawyers to bend rules to serve case- not to find truth
 Doesn't serve equity seeking groups (women, aboriginals etc)
 Steven Coughlan- court says that prosecutors aren’t adversarial- not about winning but about presenting relevant facts-
doesn't really work that way
 10

 Many defense lawyers aren’t adversarial- rely of plea bargains to get people out of the system, withdrawals etc
where crown and defense negotiate
 Criminal law system involves a lot more non adversarial functions than adversarial ones
 Carrie Menkel-Meadow- feminist voice which is not adversarial but tries to please both parties by working outside
systems and changes the process not just win/lose
 Women voice similar to new fields in system like mediation
 Growing strength of women’s voice might change adversarial system into more cooperative system of
communication and agreements
 Idea that adversarial system reflects masculine voice
 Bertha Wilson- what is the value of diversity if judges has to be impartial
 If judges can't advance the interests of their own group then what's the point of impartiality
 By bringing in women's perspective then we'll better be able to understand humanity as a whole
 Victim’s rights- does accused have too much rights? Criminal trial is about determining guilt not victim redress-
serious consequences to accused lead to rights
 Victim not part of adversarial process- is state against person. Victim is just a witness
 Victims unaware of what's happening w/ case- not told, have very little influence on process, humiliating cross
examinations in sexual assault cases- revictimized
 Attempts to remedy this- rape shield laws (can't bring up victim's sexual history), victim services in
courthouses, bans on identifying some victims (esp kids)
 Victim Bill of Rights (2015)- to be protected from intimidation, info on case, have security respected
etc
 Victim impact statement- q of what role this should have?
Aboriginal People and Justice
 Aboriginals are massively overrepresented in the criminal justice system- growing fast
 Systemic discrimination, economic and social disadvantage, substance abuse, intergenerational trauma
 Ipelee- courts have to take into consideration colonial disadvantages etc in sentencing
 S718.2 (e- need to look for alt to sentencing
 Gladue
 Our system is completely foreign to them- Aboriginals believe that criminal justice system that does more harm than
good in their community - Feel they should deal w/ criminal offending themselves in their own way
 Their vision challenges common and civil law concepts
 Customary law w/ emphasis on harmony
 Not about punishing person but fixing underlying problem- no healing
 Until we realize that Natives have a radically different set of cultural imperatives, we are likely to continue
misinterpreting and misunderstanding them

R v R.D.S [reasonable apprehension of bias]

 1997, SCC
 Facts: 15 year old black youth arrested by white police officer after getting involved in arrest of anotherIt was his word
against the word of the police officer- they offered conflicting accounts. Justice Sparks (black judge) said that while there
was no evidence in this case, “police officers have been known to mislead the court and to overreact” with non-white
groups in the past – might be a reason why police would not tell truth. There wasn’t actual evidence to support this
 Was she biased? Reasonable apprehension of bias (reasonable person test)- went up to SCC
 Result- Test for reasonable apprehension of bias - would a reasonably informed person aware of all the
circumstances conclude that the remarks made give rise to a reasonable apprehension of bias?
 Majority believe the comments were at least worrisome
 (Corey)- Comments were worrisome, however acceptable in this context (i.e. because judge had already given
detailed reasons as to why she believed RDS); also, her comments were addressing court's claim that police
officers have bonus of credibility and must be believed
 L'Heureux Dube and McLachlin- she was using special knowledge- remarks were appropriate. Contextualized
judging- bringing in life experience, judges can't be expected to divorce themselves from life experience
 Major- remarks were unacceptable and were a reasonable apprehension of bias. There was no evidence to say
police officer was racially motivated
 Gonthier- remarks appropriate, no reasonable apprehension of bias
 11

 Reflect notions that white man is the default

Actus Reus
 External elements
 Actus reus
 Circumstance elements- outside elements that have to be proven by the Crown to prove offense
 Consequence elements- e.g. to prove murder person has to actually die
 Five legal aspects of the Act requirement
 Commission of an unlawful act
 Omission where there was legal duty to act
 Voluntariness
 Acting through an innocent agent
 If consequences are part of the offence charged, that the act or omission caused it (Causation)
Consent making act lawful
 Assault s265
 Assault requires the application of force without consent 
 Absence of consent must be proven by Crown. Defence of consent often argued by defence to get acquittal in
assault or sexual assault
 Defence has 2 meanings:
1. Broadly: any argument the defence makes that may help the accused to get acquitted i.e. defence of consent
(negates act requirement)
2. Technically: a true defence is a circumstance that justifies or excuses the conduct when the Crown has proven
all of the elements of the offence - i.e. self defence
 Vitiated Consent: consent is invalid in the eyes of the law (R v Jobidon)

R v Jobidon [vitiating consent]

 1991, SCC
 Facts: J got into bar fight – bartender stops fight; both men consent to “taking it outside”; J knocks man to ground and
struck him 4-6 times over head and he fell on hood of car. He was in a coma and died after being taken to the hospital.
Jobidon stated that he did not know that the man was unconscious when he continued to hit
 Trial: J did not realize man was unconscious when knocked him to ground and did not intend to kill him; intent was for
injury (not serious injury or murder) – did not exceed consent he was given; acquittal based on these facts
 Defense argument: No unlawful act because assault requires non-consent – if there was no assault then there
is no unlawful act and accused cannot be convicted under unlawful act of manslaughter
 Issue: Was consent vitiated?
 Holding: For Crown; appeal dismissed – no valid consent; D guilty of manslaughter
 Reasoning: (Gonthier J): Consent should be limited under 3 pillars of argument: (i) There are limits on statutes that are
derived from the common law where they are not inconsistent with the Code (common law as guidance to define
consent) i.e. s. 8(3) common law defences continue to apply; (ii) Case law reflects that common law puts some limits
on consent; (iii) Common law limits on consent are good policy i.e. limits on kinds of assault individuals can consent
to; balance individual autonomy against public safety
 S 8- common law rules and principles still apply- common law defences still effective
 Policy considerations: Support Crown – social uselessness of fist fights; consensual fights can lead to
breach of peace; eliminating limits on consent is regressive; right to fist-fights would lead to negative
consequences to others; morally incorrect for court to endorse this
 How and to what extent is consent limited? Leaves room for consent in sporting events, rules of the game,
medical treatment/surgical interventions – circumstances here were beyond standard; J’s sole objective was to
strike deceased as hard as he could
 For consent to be vitiated, bodily harm must be intended and caused
 Ratio: Law limits defense of consent between adults when they intentionally apply force causing serious hurt or
non-trivial bodily harm to each other in the course of an adult fist fight or brawl
 Notes: When code says common law defenses are okay this means true defense where act and guilt already established
not all defenses
 Sopinka concurring- majority creating offence that doesn’t exist in Code by applying common law, judicial overriding
of statute- Contrary to s 9(a)- can’t be convicted of offense at common law 
 12

R v Moquin [definition of bodily harm]

 To constitute "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", that being the standard for serious
bodily harm, which is a higher standard than bodily harm; it must interfere with the comfort of the victim. S2 of
code
 Trifling- nothing to do w/ duration of injury- can have serious injury and be healed in a month

R v Cuerrier [HIV][consent vitiated by fraud-leading case]

 1998, SCC
 Facts: C diagnosed with HIV in 1992 - advised by nurse that he had to use condoms and inform prospective sexual
partners of the disease before engaging in intercourse; C had unprotected sex with 2 partners; complainants had
consented to unprotected sex but testified that if they knew C was HIV+ they would not have had unprotected sex
 Issue: Did the accused commit fraud under s. 265(3)(c) by failing to disclose his HIV status, thereby vitiating consent?
 Holding: Appeal upheld; new trial ordered
 Reasoning: (Cory J) Consent was vitiated by fraud – C was dishonest by not disclosing important facts and the risk of
not disclosing these facts was serious bodily harm (deprivation=risk of HIV) so C is guilty of fraud; the greater the
risk, the greater the duty to disclose
 Ratio: The essential elements of fraud are dishonesty (which can include non-disclosure of important facts), and
deprivation or risk of deprivation in the form of serious bodily harm which results from the dishonesty
 Fraud should not vitiate consent unless there is significant risk of serious harm
 Dishonesty exposing person to significant risk of serious bodily harm
 Notes:
 L’Heureux-Dubé (concurring): fraud should vitiate consent where deceit deprives complainant of the ability to
exercise their will in relation to their physical integrity with respect to the activity in question - meaning if any
sort of dishonest representation turns sexual intercourse into sexual assault; any fraud that causes person to
consent is in fact vitiating consent – problem is that often dishonesty encourages consent – don’t need to limit
to sig risk of serious bodily harm
 In Code, fraud has no descriptor so parliament meant that fraud leading to consent vitiates consent
 McLachlin (concurring): using facts in Cuerrier, must recognize a narrow principle based on this case and
similar cases in future (i.e. STIs) - fraud vitiates consent in presence of deception with regards to sexually
transmitted disease if there is serious risk of bodily harm (narrow ratio); concern of criminalizing trivial
situations – doesn’t want to stretch the scope of the law too far
 Risk of HIV on victim mean it should be a policy to adopt a broad view of fraud vitiating consent
 
R v Mabior [low viral load]
 2012, SCC
 Facts: M had sex w/ women without telling them he had HIV. Was on anti-retroviral drugs and his viral count was
very low (undetectable) – also used condoms sometimes; none of the women got HIV from exposures
 Reasoning: (McLachlin) Complainants’ consent to sexual intercourse vitiated by fraud of accused (non-disclosure of
HIV status)
 Significant risk- base on degree of harm and risk of transmission
 Serious bodily harm: Any hurt of injury that interferes w/ integrity, health/wellbeing (HIV fits)
 Sig risk of serious bodily harm- realistic risk of transmission of HIV.
 For HIV cases, there is also risk when there is a reasonable possibility of HIV transmission
 Ratio: When there is a realistic possibility of HIV transmission, a "significant risk of serious bodily harm" is
established, thereby vitiating consent under s. 267(3)(c).
 Significant risk of serious bodily harm should be read as must disclose HIV if realistic possibility of
transmission
 A realistic possibility of HIV transmission is negated by a low viral load of accused at the time of sexual
relations and the use of a condom for protection
 Notes: Individual does not actually have to contract disease in order to hold accused criminally liable - only must
establish risk of deprivation (Cuerrier test, above)
 For other STDS, you'll have to look at what constitutes a significant risk of serious bodily harm
 Actual transmission is bodily harm- how would this be dealt w/? Language of decision seems to suggest person
would be guilty even if using drugs and condoms- Need to know if you have to disclose or not before
 13

 
R .v. Hutchinson[ poke holes in condom][consent vitiated]
 2014, SCC
 Facts: H told partner he was using condom during sexual activity to prevent conception but unbeknownst to her, poked
holes in condoms - partner became pregnant; complainant agreed to sexual activity, but not to "sex without an effective
condom": charged with aggravated sexual assault
 Holding: unprotected sex without consent is sexual assault
 Reasoning: Cuerrier test applied by analogy – dishonesty (did not disclose sabotaging condoms) and deprivation
(choice of woman whether or not to become pregnant, increasing risk of pregnancy)
 Accused argued no deprivation under Cuerrier test - not meant to be so narrow
 Judges agree there was no effective consent: (i) minority view – complainant never consented to sex, no
consent to be vitiated; (ii) majority view – consented to sex but not without condom, consent vitiated by fraud
 Consent for purpose of assault is voluntary agreement to sexual activity in question
 Ratio: There is a difference between consenting to unprotected vs. protected sexual activity; unprotected sex
without consent is vitiated by fraud under s. 265(3)(c)
 Depriving woman of choice of being pregnant and causing sig change to her body is as serious a sig risk
of serious bodily harm
Omission
 Omission can give rise to criminal liability when there is a legal duty to act- from statute or common law
 Not about moral duty to act
 Some offenses can be done by omission if worded broadly in code- offence worded broad enough to be done
by omission
 Bentham- must have duty to act to save others from harm if you can do it w/o harm to self
 Macaulay- extending scope of criminal law too far, concerns about defining limits of the principle, would he too heavy
a duty to place on citizens to help other people
 Common law accepts these arguments
Fagan v Commissioner Metropolitan Police [driving over foot][simultaneity of act and fault]
 1968, Eng. CA
 Facts: F accidentally drove his car onto a police officer’s foot; officer told him to move the car - F said “Fuck off, you
can wait”; engine stopped running, officer insisted that F move car; F slowly turned the ignition and then drove away
o Defendant’s argument: act first (drove on foot), fault later (wouldn’t remove it)
 Issue: Was there a legal duty for F to drive off the officer’s foot? Was F guilty of assault? Do AR and MR have to
occur at the same time?
 Holding: Yes; F guilty of assault
 Reasoning: (Lord Parker CJ) Assault requires intentional application of force – therefore omission cannot
constitute assault; simultaneity requirement was applicable because F’s conduct was considered one continuous action
(driving onto wasn’t assault but keeping it there on purpose was an act constituting assault)
 Ratio: A mere omission cannot constitute assault; in order to have criminal liability, the act element and fault
element must be present simultaneously

Legal Duties
 S. 215 – duties of persons to provide necessities
 S. 216 – duties of persons undertaking dangerous acts to life
 S. 217 – duties of persons undertaking acts
R.v.Miller [duty to act after causing danger][duty from common law]
 1983, House of Lords – example of legal duty to act arising from common law
 Facts: M crashing at friend’s house lit cigarette and fell asleep. Woke up and noticed mattress was on fire; went into
other room and fell back asleep and house burned down
 Issue: Did M’s actions constitute arson? Is the actus reus element of arson present when person fails to take action to
put out a fire that they originally started accidentally?
 Holding: Yes; M guilty of arson
 Reasoning: (Lord Diplock)
o Continuous act analysis: starting fire and not doing anything about it is continuous act – no liability for
omissions here
 14

o Legal duty analysis: M started fire by his own act so was under legal duty imposed by common law to put out
fire i.e. call fire department – creates liability for omission; judge goes with this analysis
 Ratio: Where a person unwittingly sets in motion a chain of events that present an obvious danger, a legal duty
to counteract that dangerous chain of events arises

Moore v. R [duty to disclose info to police officer]

 1979, SCC
 Facts: Accused ran red light on his bicycle; asked to give his name and address to police officer and refused to do so
 Issue: Did M have a duty under statute to provide name to police? Did police officer’s duty imply a duty on M?
 Holding: Yes
 Reasoning: (Spence J) Accused under obligation to provide information to police because it is bound up with the
police power to obtain information - officer was under a duty to identify the wrongdoer and failure to identify
himself constituted an offence under s.129 - obstruction of the police officer’s duty (example of statute worded
broadly enough to include omission); police officer duty to enforce law gave M reciprocal duty to give name to officer
o Dissent (Dickson J): Issue is an important one having to do with police power of interrogation and the right of
citizens to remain silent – the right has always been considered as absolute and as being firmly anchored to
two fundamental common-law principles – the presumption of innocence and the privilege against self-
incrimination
 Idea of reciprocal duty is problematic for this reason
 Concern of disproportionality – petty offence (run red light) leads to offence of criminal liability
(obstruct police)
 No statute identified here and no common law duty to incriminate self; cannot criminalize conduct
after the fact
 Ratio: There can be common law duties to act in the criminal sphere
 Is this creation of common law offence by creating common law duty? Problematic

R.v.Thornton [HIV blood donation][ appealed w/ different finding]

 1991, ONCA
 Facts: T donated blood to Red Cross knowing he was HIV+ and infectious - contaminated blood was screened and set
aside; accused charged with public nuisance under s.180
 Issue: Does accused’s conduct amount to offence under the law?
 Holding: Appeal dismissed – he had a duty and he failed to live up to it
 Reasoning: (Galligan JA) Court must find he breached legal duty when donating blood
o There is a duty here to refrain from engaging in conduct that is reasonably foreseeable to be injurious to
others (tort law) - donating blood known to contain HIV clearly constitutes a breach of this duty imposed by
law (T had knowledge he was HIV+ and knew the screening used by CRC was not perfect); legal duty
imposed under nuisance provision and thus duty was violated
 Ratio: The “legal duty” referred to in s. 180(2) is a duty which is imposed by statute or which arises at common law
o The common law duty to refrain from conduct where it is reasonably foreseeable that conduct could cause
serious harm is a “legal duty” under s. 180(2)
 Notes: BE CAREFUL APPLYING THIS CASE (it was appealed) – SCC instead of looking at s. 180 the SCC looks at
s. 216 and says that it imposes a duty of care on accused in giving his blood to the Red Cross. DOC was breached by
not disclosing that his blood contained HIV antibodies. This common nuisance obviously endangered the life, safety
and health of the public.
o Previous ruling of common law duties under s. 180 is not addressed and therefore ruling above still stands

R.v. Browne [definition of undertaking s217]

 1997, ONCA
 Facts: B and deceased partners in drug dealing; deceased swallowed bag of crack cocaine to avoid detection when
being strip searched by police - tried to vomit it up unsuccessfully; accused later found her shaking and sweating, he
said he would take to her hospital, called cab and waited for it; took 10 minutes to arrive, 15 more to drive to hospital -
she was pronounced dead shortly after
o Charged with criminal negligence causing death - can be done by omission as explicitly stated in the statute
 Reasoning: (Abella JA)
 15

o Undertaking: s.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
o B and deceased through partnership in drug dealing (must be explicit, and reliance must be placed on
commitment)
 B said “I’ll take you to the hospital” – hardly an undertaking; he said he would take her to hospital and
he did. Also no reliance because deceased did not act in detriment to self on reliance that B would
fulfill promise
 Ratio:
o The threshold definition of “undertaking” must be sufficiently high to justify serious penal consequences
o The mere expression of words indicating a willingness to do an act cannot trigger a legal duty;
“undertaking” requires something in nature of a commitment, generally (not necessarily) upon which
reliance can be reasonably said to have been placed – nothing short of binding commitment can give rise
to legal duty
 Without undertaking, there can be no finding of legal duty. Without a duty, there can be no breach.
R.v.Peterson [s215- duty to provide necessaries, under charge]
 Facts: A had Alzheimer’s; living in unhealthy conditions - forgot to eat, bathe, incontinent; A was also very energetic -
he did odd jobs around the neighbourhood would go for walks; D(son) rarely gave A food and would never call
community agencies to help him; after an incident, police officer had A committed to nursing home - Dennis charged
under s. 215
 Issue: Was the father "under the charge" of the son, making son liable for failing to perform his duty to provide
necessities under s. 215?
 Holding: Arnold was under Dennis’s charge; Dennis is liable
 Reasoning: (Weiler JA) “Under the charge” depends on amount of dependency and control and whether Dennis
explicitly stated that Arnold was under his control; A was under D’s care and therefore D is liable under s. 215
o A could not care for himself and D knew he was dependent in these ways (family relationship); D controlled
A’s living conditions/personal care - he publicly took A into his care when he was wandering the
neighbourhood; D chose not to call in help that was available; A was incapable of withdrawing from D’s
charge
 Ratio: Liability can be imposed on objective basis – the offense is made out by conduct showing marked
departure from conduct of a reasonably prudent person (objective fault) having the charge of another in
circumstances where it is objectively foreseeable that failure to provide necessities of life would risk danger to
life/permanent endangerment
o Test to determine whether one is under another’s charge: (i) is under it; (ii) is unable to withdraw
himself from that charge; (iii) is unable to provide himself/herself with necessaries
Voluntariness
 Actus reus has to be voluntary to be criminal- Its internal to the act requirement – irrespective of the fault
requirement
 “A person cannot be made criminally responsible for an act or omission unless it was done or omitted in circumstances
where there was some other course open to him” (Kilbride)
 VALUE: based on a theory of agency The value at stake here = human autonomy - Our choices are crucial to
us, so want to be treated as CHOOSING agents. We only want to punish people if their actions were a product
of their operating will.
 If Crown proves involuntary then has failed act requirement
 Sometimes described as will power/ a willing mind at liberty to make a choice
 Involuntary when no voluntary control / un-conscious
 There can be involuntary act even if someone is actually physically conscious. (physically no choice)
 Why do we have principle of not punishing people for involuntary acts? 2 reasons
 We should only punish people for the act they choose
 It seems morally unjust to punish people for actions they didn’t choose (absence of moral blame-
worthiness)
 Pointless to punish act not-chosen because we cannot deter them (pragmatic-wise)
 Absolute liability offenses > has no fault element (non criminal)
 Involuntariness is a defence for absolute b/c voluntariness is part of the act requirement 
 R v King- no actus reus unless willing mind at liberty to make choice, must be willpower to do act
 16

R v Lucki [black ice]

 1995, Sask.
 Facts: L driving slowly, made turn and his car skidded on black ice onto left side of highway and collided with another
car
 Reasoning: This wasn’t voluntary act because slide and resulting accident were result of black ice; L was driving
carefully in consideration of road conditions
 TJ made error in reasoning – thought he had to find this charge required fault element for involuntariness to be
defense
 Ratio: Voluntariness is an essential component of actus reus

R v Wolfe [reflexes are involuntary]

 D hit person in head w/ telephone out of reflex- not guilty
 Not voluntary action so no act, therefore not guilty
 
R.v. Swaby [reasonable opportunity not to take part]
 2001, ONCA
 Facts: D in car (driving) where J had loaded, unregistered gun. D says he was unaware of gun
 Issue: Did the accused have the requisite knowledge to satisfy the act element?
 Reasoning: 2 elements of offense – (i) being the occupant of the car (ii) knowing there is a gun in the car - court has
concern about voluntariness i.e. must have choice to act otherwise in order to be found guilty; S found out there was
a gun in car and had no opportunity to act otherwise
 Ratio: Crown must prove (i) occupancy in vehicle (ii) accused’s knowledge of weapon; voluntariness only exists
if accused had knowledge of possession
 As long as driver acts with appropriate dispatch to get himself or gun out of car, there is no
voluntariness

R v Ryan [complex series of acts] (Australia- not precedent) 1967

 Facts: D tried to emulate novel and robbed gas station, gun went off and killed attendant . Had gun cocked and loaded
and finger on trigger. Clerk made sudden movement and R “accidentally” discharged weapon and killed attendant
 Reasoning: Conduct was through complex acts; cannot apply “reflex” reaction to fully conscious man who presses
trigger of loaded gun leveled at another man because he was “startled”; consequences of actions were reasonable and
foreseeable and therefore constituted voluntary act
 Ratio: If the consequences of one’s actions are reasonable and foreseeable, their actions are considered
voluntary
 Notes: Other offenses would apply here under Canadian case law i.e. manslaughter, criminal negligence causing death;
presented here as murder or accidental murder (problem is there is no fault element if he didn’t intend to kill him)
 
Kilbride v Lake (New Zealand) [involuntary omission not an offense]
 1962
 Facts: D had certificate of registration on car but during his absence it was detached and lost; question of whether he
had a warrant to fitness as exemplified b y certificate
 Issue: Can lawful action of accused become offence by reason of an intervening cause beyond his influence or control,
and which had a produced effect beyond his control?
 Reasoning: “Cardinal principle” that an act or omission is only voluntary where accused had a choice to act or nor to
act; accused here had no choice to act otherwise – the act was not committed voluntary, so actus reus not established,
therefore no offence
 Ratio: A person cannot be made criminally responsible unless he made a choice
Causation
 Also part of the act element.
 Some criminal offenses are causation offences- require prohibited consequence
 Eg. Homicide (s.222) requires cause the death of human being
 Eg. Arson causing damage by fire or explosion
 Word 'causing' in offense in Criminal Code
 Crown has to prove prohibited consequences by actor
 17

 Factual Causation
 Physical, mechanical cause of death or whatever
 Whether criminal act caused death on matter of physical fact
 Legal Causation
 Whether act is close enough to prohibited consequence to say that the act caused the consequence
 Both factual and legal causation have to be proven
 In our criminal system the seriousness of consequences link to seriousness of offence
 Can do same action and it can lead to bodily harm in one case and death in another, different offences
 We punish people more for more severe consequences even with the same moral blameworthiness
 Test for Causation in criminal law is the significant contributing cause test
Smithers v R [causation test]
 1978, SCC
 Facts: S confronted C after game outside arena – punched and kicked him in head, he doubled over, kicked C again in
stomach, C vomited, fell to ground stopped breathing; C brought to hospital and pronounced DOA; death was result of
aspiration of foreign material present from vomiting (epiglottis malfunction following kick)- very rare
 Reasoning: (Dickson J) Finding guilt requires Crown to prove that kick caused vomiting, which then caused death;
jury was properly instructed
o Good reason to believe that kick caused death based on eyewitness testimony (dead within moments of kick);
S argues this was not only cause of death
o Kick does not have to be only cause of death; it must simply be one of the causes of death (malfunctioning
epiglottis does not prevent conviction of manslaughter)
o Causation test: contributing cause of death outside de minimis (trivial) range - kick only had to cause
vomiting which caused death through aspiration
 Ratio:
o Thin Skull Rule: one who assaults another must “take his victim as he finds him”; if some frailty in
victim contributed to assault or worsened consequences, it does not absolve accused or responsibility
o An action only has to be an operating cause outside the de minimis range in order to be deemed the
cause of a prohibited result in criminal law
o The illegal act doesn’t have to be the only cause of death or enough to cause death on its own
 Fairly low standard
 
R v Harbottle [causation for 231(5) ]
 1993, SCC
 Facts: Accused and companion forcibly confined young woman; companion brutally sexually assaulted her while
accused watched and they both discussed ways to kill her; accused held victim’s legs while companion strangled her
 Issue: Was the accused’s conduct (holding down victim’s legs) such that he could be found guilty of first degree
murder under s. 231(5) of Criminal Code?
 Holding: Yes; conviction upheld, appeal dismissed
 Reasoning: (Cory J) S. 231(5) provides person is guilty of first degree murder when death is caused by that person
“while committing” a list of crimes
 Ratio: A substantial and high degree of blameworthiness, above and beyond that of murder, must be established in
order to convict accused of first degree murder
o Substantial Cause Test: to cause death within meaning of s. 231(5), the accused’s acts must be a
substantial and integral cause of death- active role- usually physical
o For 1st degree under 231 (5): Crown must establish that: (i) accused was guilty of the underlying crime
of domination of attempting to commit that crime; (ii) accused was guilty of the murder of victim; (iii)
accused participated in the murder in such a manner that he was a substantial cause of the death of
victim; (iv) no intervening act of another which resulted in accused no longer being substantially
connected to death of victim; and (v) crimes of domination and murder were part of the same
transaction (Pare)
 Notes: Substantial cause test more onerous than Smithers test; only applies to murders under s. 231(5) i.e. planned and
deliberate murder does not have to meet this test

R v Nette [rephrased to significant contributing cause test]

 18

 Facts: someone broke in 95 yr old woman’s house and tied her up and wrapped clothes around her head. She later dies
from asphyxiation. D confessed to undercover cop but later said he only arrived at house after woman already dead
 Reasons: Smithers test applies to all homicides (except 231 (5))
o Must be rephrased b/c Latin and double negatives
o Rephrases to significant contributing cause test -Now treated as general test for causation in criminal
law
o Doesn't change meaning of test. Still a low standard
o L’Heureux Dube (dissent)- changing name could change meaning- not insignificant is diff from sig. Sig is
harder to prove
 Notes: Dufraimont- crazy to have diff causation standards for diff murder offences, why have diff tests for 1 st degree
murder offences in 231 (5) versus (2)
 
R v Talbot [distinguishing factual and legal causation]
 Factual causation- use but for test- but for the incident would the ____have occurred
o Multiple perpetrators are exception to this but for rule
o But for works in most but not all cases
 Legal causation- q is whether it's appropriate to hold accused for consequence. Sig contributing cause test is the
overarching test for causation- beyond reasonable doubt
 SO WHAT IS CAUSATION REALLY ABOUT?  POLICY
 We don’t want to punish people who are morally innocent. Causation points us to whether we think it’s
fair to hold the accused responsible for their actions.
Intervening Acts 
 There should be link b/w criminal act and consequence- intervening acts could break chain of events an actor is not the
sig cause of consequence
 Criminal Code has statutory provisions on what isn't intervening cause- these cases
o S 222 (5)c- culpable homicide by causing death by causing fear, deception, threat
 Chasing person w/ knife who jump out window to get away and die
 Homicide even though person jumped out of window and died
o S 224- cause death even though death could've been prevented (look this up)- leave person to bleed out
o S 225- cause death even though immediate cause is medical treatment rendered in good faith- if surgeon
messes up
o S 226- death from incident which accelerated his death from a disease or disorder- even though death would've
happened from natural causes your act is what caused it
 Similar to thin skull rule
 
R v Smith [substantial and operating cause] England so not precedent- cited in Maybin
 Facts: D was soldier who got in fight w/ other soldier (vic) and stabbed him w/ bayonet which pierced his lung, no one
knew about the back wound (lung)- due to mishandling (dropped twice) and inadequate medical care (did CPR which
probably made haemorrhage worse) he died but would’ve recovered otherwise
 Was death a natural consequence of wound or was there something else impeding recovery?
 Reasons: if at time of death, the original wound was a substantial and operating cause (in Canada it's sig
contributing cause) then death flows from that. Only when original wound is merely the setting where another
cause operates can you say death wasn’t from wound- second cause is so overwhelming that original wound was
just part of history can you say death was not form wound
 Notes: R v Jordan- stabbed, dr gives him something he was allergic to and he dies. At time of death he was recovering
(mostly healed) so chain of events broken- Smith is different b/c death flowed from stab wound
 S 225 covers improper med treatment so Jordan might be guilty, statute says bodily injury must result in death so
can argue that stabbing was not a significant contributing cause of death b/c he was healed
 Canada right now, Smith would fall into S225- so would be guilty
R v Blaue [Jehovah’s Witness][thin skull rule and religious beliefs]
 Facts: D stabbed vic who was Jehovah’s Witness. She refused blood transfusion and died. Signed paper saying she
didn't want blood even if she would die. Assume she would be saved from blood transfusion
 Reasons: Can’t q whether the demand not to have transfusion was unreasonable (b/c it was unreasonable it broke
chain) b/c this would depend on religion
 19

o thin skull rule- take vic as you find them, this means the whole man not just the physical man (w/ beliefs
and all)
 Notes: Canada today- S 224- even though death could've been prevented by blood transfusion this doesn't break chain
 
Broad law of causation- also have law of fault
Internal to causation is moral blameworthiness element- if person is morally innocent then we probably wouldn't say
causation
 
R v Maybin [intervening cause]
 2012, SCC
 Facts: Victim did something offensive to the Maybin brothers in a pool hall; they beat him up and knock him
unconscious, bouncer came over and asked who started the fight - Maybin brothers pointed to victim; bouncer punched
victim in the head; victim dies
 Issue: Was there evidence to show that the Maybin brothers' assault was a significant contributing cause to victim's
death? Was the bouncer’s punch an intervening factor breaking the chain of causation?
 Holding: Appeal dismissed; accused guilty - Maybin brothers held liable whereas acquittal for bouncer upheld
 Reasoning: Factual causation: Bouncer was acquitted because cannot prove beyond a reasonable doubt that the
bouncer did anything to cause this death because he may have been punching someone who would have died anyway,
whereas Maybin brothers are the “but for” cause of death
o Legal causation: Court says that the general test is the significant contributing cause test - there does not
have to be one cause of death
o Court also recognized that the intervening act of the bouncer caused problems
o Issue of intervening cause: looking at whether or not the intervening act was reasonably foreseeable can help
determine if the original act was a contributing cause of death
 Do the precise circumstances have to be foreseeable (i.e. bouncer would punch him) or is more broad
foreseeability enough (i.e. further harm would come to victim)? Physical intervention of bar staff and
a risk of harm were foreseeable and therefore chain of causation was not broken
 Also, there is something special about intervening acts that result from the volition of a 3 rd party; the
independent acts of another person can be as unpredictable as a freakish physical accident
o Were the bouncer's acts so independent that they should be seen as totally separate? Despite saying the two
assaults were separate transactions, Court says the act of the bouncer was not entirely independent; based on
the findings of trial judge it was interrelated with acts of Maybin brothers so it does not break the chain of
causation
 Ratio: Apply the Nette Test: Was the act a "significant contributing cause" of death?
o Independent Act Test and Reasonable Foreseeability Test should be used as analytical tools in
determining if the act was a "significant contributing cause" of death – however, they are NOT
determinative approaches, still use Nette
o Independent Act Test: the accused must be held responsible for what they did; but if a third party does
something completely independent of the accused, it should break the chain of causation because there is
a possibility that this 3rd party person's act caused the death
The Fault Requirement
 Fault elements normally mirror the act element e.g theft needs intention to deprive someone of property
 Fault is about the accused’s level of moral blameworthiness – don’t hold people as responsible when they didn’t
understand nature of the consequence that flowed from their actions
 Mens rea as a term is only applied to subjective fault; fault is a broader term that includes both objective and
subjective
 Absolute liability offences have no fault element
 Subjective standard- was D actually aware of risk, depends on person and circumstances, your actual state of
knowledge not reasonable person
 Q of fact- proven by circumstances, can conclude that you intended to kill (e.g. if you shot someone in the
head, chances are you intended to kill)
 Objective standard- not really a guilty mind thing but based on reasonable person, what they should’ve known not
what they actually did
 R v Theroux- Test for mens rea is subjective- whether accused subjectively appreciated those consequences as at lead
a possibility- intention. Can be guilty even if you don’t think it was wrong
 20

 R v Mulligan (1974)- look at actions, utterance etc to determine mens rea in subjective test
 R v Ortt- juries can be told that it is a reasonable inference that a man intends the natural consequences of his
act- not presumptive though (shifts burden)
Fault requirement for Regulatory offences
 Regulatory offences- not truly criminal offences, generally less serious, usually about public welfare
o No criminal record
o Includes all valid provincial offences (b/c only federal gov't allowed to make criminal offences)
o Usually less severe punishment
o Require lower level of fault
 Absolute liability- Only have to prove the act element or Subjective mens rea- prove both act and subjective fault
o Traditionally only these two were used
Beaver v R [possession is a subjective fault offence][courts can read in fault element]
 1957, SCC
 Facts: B and brother sold drugs to undercover police officer - accused was party to sale of package, and while he did
not have package in his possession, he and B were acting jointly; evidence suggested accused did not know heroin was
in bag (thought it was powdered milk but repped it as heroin)
 Issue: Was possession here an absolutely liability offence or was mens rea required?
 Holding: Mens rea required (not absolute liability offence) - possession conviction quashed but guilty of selling still
stands
 Reasoning: (Cartwright J) Fundamental principle of criminal law is requirement of mens rea and Drug Act is part of
criminal law; would be fundamentally unjust and unfair not to have mens rea requirement; absolute liability is unfair -
basic notion of fault is that if people don’t know that they are holding drugs then they can't be held morally guilty
o Common law can read in fault element, possession is subjective fault offence
o Arguments in favour of this being an absolute liability offence: this falls under public welfare offense i.e.
regulatory offence, which have no fault requirement; rejected by courts (heroin possession is criminal offence,
not public welfare offence)
o Additional argument: there is no mens rea requirement in statute - therefore Parliament intended absolute
liability; however, this is not enough - requires explicit legislation to this effect - no merit to this argument
o Beaver was still guilty on selling but not on possession charges; statute explicitly says if you are selling a
substance and say it's a drug, you are guilty of selling that drug even if the substance is benign (s.4.(1)(f))
 Ratio: Two forms of knowledge are required for a person to be guilty of possessing a substance: (i) knowledge
that you are possessing a substance; and (ii) knowledge of what that substance is
o Requirement from common law is now a statutory requirement

R v City of Sault Ste Marie [regulatory offences are strict liability]

 1978, SCC
 Facts: Accused (city) was charged with discharging pollutants from a landfill into Cannon Creek and Root River,
impairing the quality of the water; charge laid under s. 32(1) of Ontario Water Resources Act
o City had hired third party; they actually did the discharging - was city still responsible?
o Appeal is concerned with offences that are not criminal in any real sense but are prohibited in the public's
interest i.e. pollution case
 Issue: What is the level of fault with respect to this pollution offence; and more broadly, how do we decide the level of
fault applicable to a regulatory offence?
 Reasoning: (Dickson J) Public welfare offences are not absolute liability nor are they mens rea offences, instead
they are strict liability offences
o Distinguish regulatory offences from criminal offences because: (i) Criminal offence requires the
establishment of a subjective mental element (generally true; however some crimes do not require subjective
mens rea); (ii) Regulatory offences are not regulated by same principles as criminal law
o Arguments why regulatory offences should be held to an absolute liability standard:
 High standard of care: public interest requires high SOC; if there are no loopholes or technicalities
which people can use to get out of these charges then people will be more careful and more
incentivized not to commit infraction
 Administrative efficiency: requiring Crown to prove fault makes trials more complicated for
regulatory offences
 21

 Stigma and penalty : there are low stigma and penalties associated with regulatory offences
compared to criminal offences; even though absolute liability may convict the morally innocent, it is
acceptable when penalty and stigma are low
o Arguments against absolute liability standard (this is the position he takes):
1. Although there is less stigma, there is still stigma - concern of convicting people who are morally
innocent, cost of having to defend (both to person charged and to convicted)
2. No empirical proof for high SOC or administrative efficiency arguments - assumes that people
charged with polluting could not bring evidence proving otherwise
3. Even without strict liability, we would still be able to obtain convictions
4. Stigma can be high sometimes, and penalties can also be high i.e. imprisonment
o Overall view: Absolute liability should not be used for regulatory offences because it punishes the morally
innocent (foundation of criminal law is that we only punish the morally blameworthy); but it is wrong to think
about the question as being a dichotomy between absolute liability and mens rea - recommends middle
position of strict liability
o Strict liability: Crown must positively prove act element (same as in absolute liability), but once Crown
has proven unlawful act beyond reasonable doubt, the accused has the right to show on a balance of
probabilities that he was not negligent or that he did not intend the act i.e. defence of due diligence -
what does it actually mean? What a person might do to not be negligent depends on case
o Default rule applies in this case - it is a strict liability offence (new trial ordered)
 Ratio: Any regulatory offence will be of strict liability; unless the legislation clearly indicates another level of fault
o Strict Liability Rule - Crown must only prove actus reus; then the defendant can raise defence of
"reasonable care" (objective standard) on balance of probabilities i.e. "due diligence"
o Regulatory offences now fall under strict liability offences by default; but legislation can make offence
into mens rea or absolute liability offence if legislative intent is clear
 Notes: Traffic offences are absolute liability offences even though the statute doesn't say that

R v Wholesale Travel Group [regulatory vs criminal offence]

 1991, SCC
 Facts: Accused corporation charged with misleading advertising contrary to s. 60(2) of the Federal Competition Act -
$25,000 fine and imprisonment up to 5 years
 Issue: Was this a regulatory or criminal offence?
o Because it's a federal offence and penalties are high there is possibility that it is criminal law; if it was validly
enacted provincial law then it would easily have been classified as a regulatory offence
 Holding: Characterized as a regulatory offence despite high penalties
 Reasoning: (Cory J.) Distinction between criminal and regulatory offences:
i. Malum in se (inherently abhorrent - criminal) and malum prohibtum (prohibit act - regulatory)
ii. Regulatory offences involve shift in emphasis from punishing acts involving individual moral faults
(criminal) to protecting public interest (regulatory)
iii. Criminal punishes past wrongful acts; regulatory offences are legislated to prevent future harm
iv. Point of regulatory offences is to induce compliance with certain SOCs; criminal offences are
morally culpable; regulatory offences are failing to live up to statutorily prescribed SOC
v. Imprisonment is a factor in criminal offences as sentencing option; not in regulatory offence
o Why was this a regulatory offence?
 Serving public interest - activities need to be tightly regulated for safety
 Part of regulatory scheme under Competition Act, aimed at preserving competitive market; not at
punishing crimes
 Not much stigma attached to misleading advertising – public doesn’t know about differences in
liability so still stigma
o Regulatory measures are the primary mechanisms employed by the provincial governments to implement
public policy objectives; essential for our protection as individuals
o POLICY: appropriate to hold Crown to lower standard of fault for regulatory offences than criminal
offences:
 Licensing justification: by engaging in activity, one chooses to subject themselves to legislative
framework i.e. rules of road when driving
 Vulnerability justification: regulatory regimes are there to protect vulnerable parties of society
 22

What does defense of due diligence require?

Levis (Ville) c Tetreault (2006 SCC)- Doing nothing is not due diligence- were waiting on paper for suspended license in mail
R v Cancoil Thermal Corp (1986 ONCA)- took off guard for cutting machine and worker cut off fingers.
 Occupational Hazard Act mandated that needed guard for moving parts
 Defense- doing due diligence b/c taking guard off was for safety b/c couldn't clear machine
 Dufraimont- they took off guard on purpose- violated legislation on purpose (subjective mens rea) so
not strict liability defense of due diligence
 
 BC Motor Vehicle Act Reference [Charter minimum, no imprisonment w/ absolute liability]
 94 (2) of BC Motor Vehicle Act- driving while being prohibited from driving an absolute liability offence
 Minimum imprisonment of 7 days
 Reasons (Dixon)- contrary to s 7 of Charter
o You can't ever have an absolute liability offence w/ imprisonment (contrary to S7 of Charter)
o Charter minimum for offences involving imprisonment is strict liability (next up the fault ladder)
o Can't save this under s1 based on admin efficiency unless in extreme cases (not likely)
o Constitutionally required fault- basic fairness require a minimum level of fault for accused to be guilty of some
offences
o Principles of fundamental justice are not just procedural, they are substantive too

R v Beauchamp [careless driving and due diligence]

 1953, ONCA
 Facts: Accused (bus driver) charged under careless driving provision; wanted to park, thought street was deserted;
slowly backed up into car (couldn’t see it - dark and in blind spot). He had honestly tried to check for cars while
backing up
 Reasoning: (McKay J) Not enough to say that the act itself is proof of careless driving - the fault here is that the
accused breached SOC in light of the circumstances as driver understood them (or as reasonable person would have) -
were the driver's actions in line with those of an ordinary and reasonable driver? - first part of fault requirement
o Even if conduct falls below SOC (above), conduct must breach a duty to the public and be deserving of
punishment - second part of fault requirement  not every error of judgement will result in offense of
careless driving; bus driver's act was not deserving of punishment here
 Ratio: In order for the offence to be proven, the driver's actions must breach SOC and be deserving of
punishment
o SOC expected is what ordinary and prudent person would have done in that position i.e. of driver
 Notes: Example of express fault requirement; not strict liability because no reverse onus (accused has to prove
negligence beyond reasonable doubt)

Fault for Murder

 Murder is either culpable or non culpable
 Culpable homicide default is manslaughter
 Difference b/w murder and manslaughter is fault element- murder has a higher level of fault
 Need to go through requirement of murder first before you can establish 1st degree or 2nd degree
 S 229- Culpable homicide is person who means to cause death or means to cause bodily harm he knows is likely to
cause death whether death ensues or not
o Subjective mens rea
 Intention- not the same as desire, not about wanting to cause death
o Doing something when you're substantially sure what's going to happen

Simpson v R [s 229(a) subjective not objective mens rea for (attempted murder)]
 1981, ONCA
 Facts: Accused charged with attempted murder (victim survived); judge explains s.229(a) to jury incorrectly ("bodily
harm that he knew or ought to have known is likely to cause death" - correct requirement is only that one must know act
is likely to cause death); this instruction could lead jury to convict accused on basis of that he ought to have known the
consequences of his actions (objective)
 Fault element of attempted murder is same as murder- had to been intending to kill
 23

 Reasoning: (Martin JA) TJ’s instruction was wrong; exchanged subjective fault element; important because changes
subjective mens rea into lesser crime where objective standard is used
o What the accused ought to have known can be evidence of his subjective state of mind - in deciding what
accused knew; you can consider what reasonable person would have known but actual question that
jury must answer is what was actually in accused’s state of mind at the time of the act
 Ratio: Crown must prove beyond a reasonable doubt that the accused intended to cause death or cause bodily harm that
he knew is likely to cause death; apply the subjective (not objective) standard here  subjective, not objective mens
rea required for murder
o Interpretation of s229 (a)- need to also cite this
 Notes: Use of the word "ought" or "should" is an objective marker of fault
 
R v Edelenbos [definition of “likely” under s. 229]
 2004, ONCA
 Facts: Accused went to woman's house - raped and strangled her; E's excuse was that he was drunk at the time and
only put his hands on her throat (which caused death) to stop her screaming; was not his intention for her to die and
didn’t realize it was likely (claims lacked intent for murder but admitted to killing her this way  looking for
conviction of manslaughter instead of murder)
 Problem with judge's charge to jury - "likely" means more than a possibility; means substantial or real chance, distinct
from a mere possibility- doesn't mean 51%- means could well cause death
 Issue: Was the judge’s charge to the jury correct?
 Holding: Although there were certain problems, it was ultimately correct; no new trial
 Reasoning: (Lang JA) Court says that technical definition of "likely" is not necessary; people understand what
word means and did not need to be interpreted by judge; it would be extremely inefficient for judges to give a technical
definition/interpretation of every word of every statute to the jury
 Ratio: Definition of "likely" under s. 229 is meant to convey the notion of a "substantial or real chance" as
distinct from a mere possibility
 
Constructive Murder
 Law constructs this as murder even though you might not think its murder- S229 (c and s230
 Like felony murder in US
 Found unconst'l in Canada- though provisions are still in code
 
Vailancourt v R [striking down constructive murder provisions; ss. 229(c) and 230]
 1987, SCC
 Facts: V and accomplice tried to rob a pool hall; had planned to commit robbery with knives but accomplice brought a
gun and shot someone; prior to robbery V had insisted that accomplice's gun be unloaded - V claims his belief that is
was not loaded at the time; V charged with 2nd degree murder
 Issue: Is s.230(d), under which V was convicted, constitutionally valid?
 S.230(d): "Culpable homicide is murder where a person causes the death of a human being…whether or not
the person means to cause death to any human being and whether or not he knows that death is likely to be
caused to any human being if…(d) he uses a weapon or has it upon his person…"
 Reasoning: (Lamer J) The relevant provision does not require the accused to know that the actions are likely to cause
death; no subjective mens rea requirement
 Certain crimes or offences are so serious that in order to convict, must prove subjective mens rea; due to
special stigma attached to conviction-
 My view that death be subjectively foreseeable- Judge specifies that this is obiter
 Ratio: A constitutional minimum fault requirement for murder is at least objective foreseeability (reasonable
person) (temporary - see Martineau case below)
 Whether there should be a fault requirement and level of fault are a function of the penalty and social
stigma
 Notes: Direct effect of this case was to strike down the constructive murder provisions
 The greater effect was to set the constitutional minimum fault requirement for the offence of murder
 
R v Martineau [striking down constructive murder provisions; murder is subjective fault]
 1990, SCC
 24

 Facts: M broke into a trailer with a companion who had a pellet gun. They tied up couple living there and robbed them;
M thought they were only going to commit B+E; companion shot couple to death (b/c they saw his face); M charged
with murder under s. 230(a)
 s.230(a) culpable homicide is murder if it is committed during an offence (robbery, arson, sexual assault…)
(here its B+E) and death ensues when a person means to cause bodily harm to commit the crime or get away,
even if he doesn’t want to kill the person, or think that it is likely that they will die
 No requirement of intention to death or know it would likely cause death
 Reasoning: (Lamer CJC) s.230(a) seems to allow for conviction even without objective or subjective requirement for
murder; violates PFJ, unconstitutional - murder must be subjective foresight crime; must prove beyond reasonable
doubt that accused subjectively foresaw death; accused must intend to cause death or foresee likelihood of death
 Based on stigma/penalty analysis (highest in law) - unintentional killing is less culpable than intentional
killing; only intentional killer should be guilty of murder
 Very high stigma/penalty= high fault requirement
 PFJ consideration (s.7): proportionality between guilt and punishment - accused must be very morally
blameworthy in order to be guilty of murder; here accused is guilty of something, but not morally blameworthy
enough to be guilty of murder
 Provision doesn’t require subjective mens rea in order to find someone guilty for murder (as it should
under s 7); therefore entire section is invalid - not saved under s. 1
 Dissent: (L'Heureux-Dubé J) Murder should include requirement that death is objectively foreseeable
 S 230(a)- accused had to intend to cause bodily harm, commit underlying offence, had to cause death
 Death is objectively foreseeable based on these requirements
 Gravity of offense is not just moral blameworthiness - also must consider outcome of act (otherwise something
like assault could be just as "severe" as manslaughter)
 Actus reus plays into gravity of offense
 Mens rea not only thing to determine level of stigma/penalty
 Good policy because it would deter crimes/murders- lots of people get murdered during robberies etc and
Parliament is trying to deter this
 Claims that this is "misplaced compassion" and majority are overemphasizing stigma- if not
‘murderers’ how much better is it to be called a manslaughterer? These people are still committing
crimes anyways
 This is an argument of semantics- are these labels of const'l importance?- murder is a legal concept,
whether you call it murder or manslaughter the actus reus is still there
 S230- doesn’t deal w/ accidental killings but those that are objectively foreseeable as a result of the
abominable nature of predicate crimes, committed w/ specific intent, w/ intentional bodily harm
 Ratio: The constitutional minimum for murder requires proof beyond a reasonable doubt of subjective foresight
of death
 Notes: Martineau struck down all construction murder provisions as unconstitutional - because those provisions allow
conviction for murder without subject mens rea
 All of s230 unconstitutional- still in code
 Part of 229 c is unconst'l at least in part- has an objective foreseeability part- person has to ought to
know- Reading down the 'ought to know' part
 
Degrees of Murder
 Default category for murder is 2nd degree- then ask if there were aggravating factors to elevate it to 1st degree
 S235 (1)- life imprisonment for murder
 1st degree- parole ineligibility for 25 years (s745)
 2nd degree- parole ineligibility for 10 years
 1st degree murder includes
 Planned and deliberate murder 231 (2)
 Murder of specified victims (on duty police, prison workers etc) 231(4)
 Murder while committing specified offences of illegal domination 231(5)- R v Pare, R v Harbottle

R v Smith [shooting at farmhouse] [first degree murder – planning and deliberation]

 1979, Sask. CA
 25

 Facts: Accused and victim travelled out of city to abandoned farmhouse and S started firing a gun; they were both very
intoxicated (drugs and alcohol); 3rd party who was with accused and victim heard yelling and went outside - saw they
were in standoff with guns pointed at each other; accused shot victim in arm - victim started bleeding profusely,
screaming to go to hospital; accused walked back to his car and began thinking things over (reloaded shotgun); victim
started running away and accused shot him several times and killed him
 Issue: Is there evidence of planning and deliberation that would put this murder into category of 1st degree murder?
 Holding: No; accused guilty of second degree murder
 Reasoning: (Culliton CJS) Court held that there was no evidence on which jury could find planning and deliberation in
this case; planning and deliberation had to have taken place after the accused was shot in the arm (b/c no evidence of
previous scheme) - court says there was no previously determined scheme or design and therefore no evidence of
planning and deliberation; sudden impulse murders are not 1st degree murders but could be 2nd degree murder
 Plan doesn’t have to be a complicated one- could be really simple
 Ratio: In order to be guilty of first degree murder under s. 231(2), the murder must be both planned and
deliberate; deliberate meaning considered and not impulsive, and planned meaning arranged beforehand or the
result of a scheme or design previously formulated or designed by accused - something more than intentional
(intention required for all murders)
 Notes- so what is planned and deliberate? How much time do you need to plan?
 
R v Nygaard & Schimmens [intention to cause bodily harm can be intention for murder]
 1989, SCC
 Facts: Accused killed victim m with baseball bat; planned to beat him and carried it through - charged with first degree
murder
 Crown wanted to argue that it was first degree murder under s. 229(a)(ii)(means to cause bodily harm knowing
it's likely to cause death) - can you combine that with s. 231(2) to create planned and deliberate murder
charge?
 Planned and deliberate attempt to cause bodily harm knowing it would likely cause death- is this same as 1st
degree murder
 Reasoning: (Cory J) Case discusses relationship between s. 229(a)(2) and s. 231(2) – there was some doubt in this case
as to whether accused meant to cause death or just wanted to cause bodily harm
 Perhaps no intention to cause death but court says a murder can still be planned and deliberate even if it is a
murder where accused meant to cause bodily harm knowing it was likely that harm would cause death
 Can plan and deliberate w/o intending specifically death
 Counterargument: One cannot plan deliberate murder if goal isn't murder; but court says even if plan is to deliberately
cause grievous bodily harm likely to cause death, can be found guilty of first degree murder
 Ratio: A murder can still be planned and deliberate even if it is a murder where accused meant to cause bodily
harm knowing it was likely to cause death
 
R v Collins [murder of specified victims, identity must be known]
 1989, ONCA
 Facts: Accused charged with first degree murder of police officer under s.231(4)(a); unclear whether accused knew that
victim was a police officer
 Is there a mens rea requirement attached to s. 231(4)? Otherwise the distinction is arbitrary based only on occupation
without knowledge requirement; also, mens rea required to get into all essential elements of offense and here, in order
to elevate it into murder of first degree, must know victim's occupation
 Counterargument: mens rea only required for essential elements of offense, and essential elements of offense here are
for murder - occupation is only aggravating factor so no additional mens rea is required
 Knowing person is police officer is not a part of the element of offence just an aggravating factor
 b/c of sentencing diff b/w 1st and 2nd degree so add knowledge requirement
 Issue: Should the automatic first degree murder charge for killing a police officer apply when it is unclear if accused
knew the victim was a police officer?
 Holding: No; appeal dismissed
 Reasoning: (Goodman JA) Court says knowing victim is police officer adds to moral culpability of crime -
contrary to principles of fundamental justice to impose conviction of first degree murder based on s. 231(4) if
accused did not know in fact that victim was police officer
 Would impose much higher penalty for no rational or logical reason
 26

 Could interpret s. 231(4) as not requiring accused to know; however, we should interpret this legislation in a
manner that is consistent with Charter and principles of fundamental justice
 Has to do w/ moral blameworthiness- might be strange that a person could be charged w/ 1st degree murder for
killing one random person who happens to be a police officer (in plain clothes) versus another random person
 Ratio: The onus is on the Crown to prove beyond a reasonable doubt that accused knew victim was a police
officer
 Has to know the person was a police officer or at least perceive a risk that that person is a police officer
 Notes: Hasn't been decided in SCC yet

Subjective Fault
Introduction
 Crimes require subjective mens rea by virtue of: (i) Charter (e.g. Martineau- murder); (ii) Statute (e.g. other murder
sections 'means to'); (iii) Common Law (imposes subjective mens rea requirement)
 Subject mens rea requirement only necessary under Charter for (i) murder; (ii) attempted murder; (iii) accessory
liability to an offence constitutionally requiring a subjective test; (iv) war crimes and crimes against humanity; (v)
organized crime offences; and arguably, theft as argued in Vailiancourt
 Not requiring subjective mens rea- Manslaughter, dangerous driving, failure to provide necessities of life etc
 All true criminal offenses under common law are presumed to require subjective mens rea (where no express
fault element)- can be rebutted
 Default level of fault for regulatory offenses is strict liability but open to Parliament to change category
 Default level of fault for criminal offenses is subjective mens rea but also open to Parliament to change
category
 Subjective mens rea includes (i) intention (ii) knowledge (iii) recklessness (iv) wilful blindness

R v H(AD) [Wal Mart] [child abandonment; subjective vs. objective]

 2013, SCC
 Facts: ADH did not know she was pregnant - gave birth to baby in Wal Mart bathroom; thought baby was dead and left
it; mom charged with child abandonment under s.218 (requires that exposure or endangerment is likely to injure child;
not that child is actually injured)
 TJ: Acquittal based on fact that subjective awareness was not proven here- didn't know baby was alive
 Reasoning: (Cromwell J) Court says fault requirement here is subjective mens rea - there is common law
presumption that subjective mens rea is required, however fault requirement can be changed by explicit
language in statute
 Nothing in provision disproves subjective mens rea but wording says 'abandon' 'exposes'- need to know you're
abandoning someone to do it- suggests subjective mens re
 Words "expose", "abandon", and "willful" all suggest subjective fault requirement; alternately no language in
provision such as "dangerous", "careless", or "reasonable" conduct which suggests objective fault
 Subjective intent to abandon a live child was not proven beyond a reasonable doubt; therefore requisite mens
rea for the offense is not satisfied in this case
 Ratio: It is a presumption of Parliamentary intent that an offense requires subjective mens rea (the presumption
can be rebutted); this presumption endorses the belief that we should not punish the morally innocent
 Notes: Justice Moldaver (concurring) totally disagrees that the fault element here should be subjective mens rea - fault
element should be objective because legislation is meant to protect children and should therefore imply societal
minimum standard of conduct (should be similar to s. 215 - failing to provide necessities of life) Parliament wouldn’t
make a law to protect kids the give accused loads of ways to get off (mens rea loophole)
 If its subjective mens rea would have to consider age, temperament etc- defeats purpose of imposing a societal
minimum standard to protect children
 'likely to be endangered'- suggests objective standard?
 
R v Buzzanga and Durocher [leading case on knowledge and intention]
 1979, ONCA
 Facts: Accused were Franco-Ontarian activists - printed flyer against Franco-Ontarians in order to whip up
controversy; claimed it was satire and meant to show people what the bigots were really like - charged with wilful
promotion of hatred
 27

 Issue: Did the accused commit hatred against the French wilfully? S319 (2)- wilful promotion of hatred against an
identifiable group
 Holding: No
 Reasoning: (Martin J) Offense provision includes word “wilful” (mens rea word) – wilful promotion of hatred requires
promoting hatred intentionally; statute includes the word “wilfully” so recklessness does not apply b/c intention
required; clear that the accused's purpose was to create controversy and uproar but purpose was not to wilfully promote
hatred
 Trial judge made a mistake (they did not foresee that they would promote hatred; on one view they may have
even felt they were promoting sympathy)
 Ratio: Willful promotion of hatred requires promotion of hatred intentionally, and it does not include
recklessness
 Definition of intent: Person foresees that a consequence is certain or substantially certain to result from
an act which he does in order to achieve some other purpose; intends that consequence
 Acting even though substantially certain you'll cause prohibited consequence- foresight
 Conscious purpose to bring about a consequence
 Parliament intended for this provision to be limited by including the word “willful”
 Notes: “With intent to”, “means to” proves intention
 Recklessness refers to taking deliberate and unjustifiable risk; looks like negligence however still subjective
state of mind (inquiry into whether person actually saw risk in their mind and decided to take it anyway)
 
R v Théroux [test for fraud]
 1993, SCC
 Facts: Accused ran construction company building houses; took deposits from buyers saying they would be insured but
he never insured them; company became insolvent – buyers lost money; accused knew that he was not insured (not a
mistake); charged with fraud and convicted at trial
 Accused’s argument: Not his intention to take money from buyers; didn’t insure deposits because thought
project would be completed
 Reasoning: (McLachlin J) Test for fraud established (actus reus and mens rea minimum requirements)
 Actus reus for fraud requires (i) deceit (dishonest act i.e. lying about deposits being insured) and (ii)
deprivation (depriving victim of what should be theirs; putting someone's property at risk)
 Mens rea does not require desire i.e. desire to steal money; cannot use defence of not knowing buyers
would lose money; minimum level of mens rea here is level of recklessness – simply requires that you
perceive risk of consequences and act in any event
 Subjective awareness of the risk
 Substantially certain of the prohibited consequences would flow or recklessness
 Ratio: Test for fraud – where conduct and knowledge by these definitions is established, accused is guilty whether he
actually intended the prohibited consequences or was reckless as to whether they would occur; recklessness refers to
knowledge of the likelihood of prohibited consequences
 Actus reus of fraud will be established by proof of (i) the prohibited act, be it an act of falsehood or some
other fraudulent means; and (ii) deprivation caused by prohibited act, which may consist in actual loss or the
placing of the victim’s pecuniary interests at risk (“other fraudulent means” are determined by what a
reasonable person would consider to be a dishonest act, deceit or falsehood determined by objective facts)
 Mens rea of fraud is established by proof of (i) subjective knowledge of prohibited act; and (ii) subjective
knowledge that the prohibited act could have as a consequence the deprivation of another (which deprivation
may consist in knowledge that that victim’s pecuniary interest is put at risk)
 Notes: Provision for fraud s. 380
 
R v Boulanger [breach of trust by public official]
 2006, SCC
 Facts: Accused charged with breach of trust – using public office in corrupt way, not to benefit public; B's daughter got
into car accident and B used position to write document/accident report showing that accident was not daughter's fault
(to avoid paying deductible)
 Didn't ask official to lie- the accident really wasn't her fault
 Reasoning: (McLachlin J) Accused did not have intent to "betray public trust" or "undermine public good" - look at
evidence to infer mens rea; Crown failed to prove mens rea beyond reasonable doubt under these circumstances
 28

 Evidence → accused was acting within duties of his but report itself was not falsified (did not intend to
mislead insurance company or conceal his actions)
 Personal benefit → knew he would benefit by not having to pay deductible but not every case where one gets
personal benefit is considered improper purpose
 No intention to mislead insurance company- no dishonest, corrupt, oppressive purpose- not really partial either
b/c the report wasn't slanted in his favour
 Ratio: Establishes actus reus and mens rea for breach of public trust
 Mens rea for breach of public trust - the accused must have acted with the intention to use his office for
a purpose other than the public good (i.e. purposes that are dishonest, partial, corrupt or oppressive)
 Actus reus for breach of public trust - the accused's action must constitute a marked departure from the
reasonable course of action that a public official should have taken
 Notes: What is public good – should it be appreciated objectively or subjectively?
 
Sansregret v R [recklessness and willful blindness]
 1985, SCC
 Ratio: Recklessness is the conduct of one who, aware that there is danger that his prohibited conduct could
bring about the result prohibited by criminal law, nevertheless persists, despite the risk; it is the conduct of one
who sees the risk and takes the chance
 Willful blindness is the equivalent to knowledge - willful blindness occurs 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 i.e. avoiding confirmation of fact (narrow)
 Is also a subjective state of mind
 A wilfully blind person is treated in law as a person w/ knowledge
 
R v Briscoe [willful blindness as “deliberate ignorance”]
 2010, SCC
 Ratio: Willful blindness is of narrow scope and involves no departure from the subjective focus on the workings of the
accused's mind (equivalent to knowledge); while a mere failure to inquire may be evidence of recklessness (i.e. where it
is marked departure from conduct of a reasonable person), wilful blindness is not simply a failure to inquire - rather
it is deliberate ignorance. It involves an actual process of suppressing a suspicion
 
R v Lagace [application of willful blindness as deliberate ignorance]
 2003, ONCA
 Facts: Defendant’s argument - doctrine of willful blindness cannot operate against D because he made inquiry after his
suspicion was aroused. Is this still wilful blindness?
 Reasoning: (Doherty JA) When accused makes inquiry, question remains whether accused harboured real suspicions
after inquiry and refrained from making further inquiries because they preferred to remain ignorant - determined based
on nature of inquiry
 Ratio: Wilful blindness rests on finding of deliberate ignorance - if an inquiry is made, the nature of the inquiry
is an important consideration in determining whether accused remained suspicious
 Trier of fact will decide whether Crown has proved beyond reasonable doubt that despite inquiry, the accused
remained suspicious and declined to make further inquiry in order to remain ignorant of the truth
 
R v Blondin [hashish in scuba] [knowledge of type but not specific knowledge of kind is sufficient]
 1971, BCCA
 Facts: B imported 23lbs of hashish into Canada inside scuba tank; customs found it - accused was charged with
importing hashish; B told police he knew something illegal was in tank but did not know what it was- was paid to bring
it over
 Issue: What is the mens rea required for importing hashish if B did not know it was hashish?
 Holding: Appeal allowed; new trial ordered
 Reasoning: (Robertson J) Trial judge was wrong to require such demanding mens rea i.e. that it was hashish - it's
enough for accused to suspect that substance was a narcotic
 Could be convicted if he was reckless as to what it was i.e. perceived risk that it was a narcotic, or if he
wilfully shut his eyes to what it was and suspected that it was a narcotic- subjective mens rea to it being a
narcotic not just that it was something illegal in tank
 29

 Potential issue: some illegal things are worse to import than others i.e. cigarettes vs. hashish, what if he
thought he was importing knockoff Chanel scarves?
 MacFarlane JA: Importing narcotics is a fairly serious offence so accused must know they're importing drugs
 Ratio: There is no possession in law without knowledge of the character of the forbidden substance; the specific
substance need not be known however type of substance must be
 Notes: Some departure from principles of mens rea here - mismatch between mens rea of accused and offence that
accused is charged with

Objective Fault
 Words that indicate objective fault- 'ought to', 'reasonable care' etc
 Some offences have been interpreted to have objective fault even if not written into legislation
 
Criminal Negligence Provisions
 Culpable inadvertence on objective reasonable person standard – not thinking at all when one ought to have been or
thinking in a certain way when one ought to have thought differently (controversial basis for criminal responsibility)
 S. 219 - criminal negligence: special fault element for negligence; “shows wanton disregard or reckless
disregard for the lives or safety of other persons” (neither wanton nor reckless is defined)- in doing anything or
omitting to do anything that is their duty to do
 Not an offence- just a def'n
 S. 220 - criminal negligence causing death (form of manslaughter (s.222))
 S. 221 - criminal negligence causing bodily harm - criminal negligence must cause consequence
 Criminal negligence that doesn't cause death or bodily harm is not an offence
 What is fault element for criminal negligence causing death? section doesn't really specify
 
O’ Grady v Sparling [minimal subjective standard for crim. neg.]
 1960, SCC
 Ratio: Criminal negligence is a form of negligence that connotes advertence (actually knowing); this shows that
a minimally subjective standard of fault is required
 Notes: Subjective mens rea standard - was largely ignored by courts until Tutton case (below)
 
R v Tutton and Tutton [diabetic son] [disagreement over fault level for crim. neg. causing death]
 1989, SCC
 Facts: Couple's son was diabetic; believed in faith healing and stopped giving son insulin because thought he was
healed by prayer; son got very sick and was rushed to hospital - doctors saved him and specifically warned Tuttons not
to do this again (keep giving insulin); Mrs. T did not give insulin again (had vision from God) and son died of diabetic
hyperglycaemia
 Liability based on omission- act of omission to provide medical treatment; parents under legal duty to provide
necessaries of life to their children (s. 215)
 Issue: What is the fault level for criminal negligence causing death?
 Holding: 3-3 split
 Reasoning: (McIntyre J, objective standard) Fault element the same for omission and commission (same statute)-
everyone agrees w/ this
 Test for criminal negligence: Since offence criminalizes negligence this is clear indication of objective fault.
Test of reasonableness; proof of conduct which reveals a marked and significant departure from
standard which could reasonably be expected of a reasonably prudent person in the circumstances
(objective standard)
 Section focuses on conduct of accused - the person's conduct is required to show wanton disregard for the lives
and safety of other persons; suggests objective fault offense
 S. 219 uses word "reckless" which is a form of objective mens rea; however, reckless disregard does not mean
recklessness in the mens rea sense of that word; rather, conduct, when viewed objectively, must show wanton
and reckless disregard
 Apply this standard as accused would reasonably foresee consequences in the circumstances i.e. welder
example - believes nothing flammable in sight and starts fire after asking owner who says no
 Reasonable defence here- welder asked owner who say ok to weld
 30

 What reasonable person would've done in the certain circumstances- need to take into account
surrounding factors, can include what person knew
 Ratio: Only agreement of SCC was that fault standard for criminal negligence had to be the same whether there
was an act of omission or commission
 Notes: This case was an opportunity for deciding proper test for criminal negligence under s. 219. Best explanation of
issue
 Lamer J: Take factors of accused's situation into account - somewhere between objective and subjective
standard (more fair); Worried we're laying out standards that some people wouldn't be able to meet
 Wilson, Dickson & LaForest (subjective standard): Objective fault standard would make this an absolute
liability offense (which means no fault element at all) (Dufraimont- this is incorrect b/c objective fault is fault);
 test for criminal negligence requires some degree of awareness or advertence to the threat to
lives or safety of other, or wilful blindness - minimal level of awareness of risk.
 If conduct departed markedly from reasonable standard then this is evidence of subjective
awareness of risk but main test is subjective mens rea.
 Close call and that they were warned by doctor doesn’t act in their favour even under a subjective test
 Deterrence may be important in this case - parents must provide medical care for their child regardless of their
religious beliefs
 
Waite v R [objective standard for crim. neg.– marked and substantial departure]
 1989, SCC
 Facts: Accused was drunk and was then speeding towards a hayride at night (w/ headlights off on unlit road) - told
people in car "let's see how close we can get to hayride"; didn’t see 5 people walking and hit them - killed 4, injured 1;
charged with criminal negligence causing death and bodily harm and dangerous driving causing death (4) and bodily
harm (1)
 Holding: Accused found guilty - example of criminal negligence (marked and substantial departure…)
 Reasoning: (Wilson J) Trial judge did not understand the minimal nature of subjective mens rea
 Too high of an onus on Crown - mental element of criminal negligence is the minimal intent of
awareness of risk or wilful blindness (Tutton); too much to prove accused deliberately and wilfully
assumed the risk
 Mental element- awareness of the prohibited risk or wilful blindness
 Ratio: No one is saying that criminal negligence is completely subjective mens rea- Even for subjective standard in
criminal negligence, fault standard is very low i.e. minimal subjective mens rea
 
R v Anderson [modified objective test]
 1990, SCC
 Facts: Accused was distracted and ran a red light - passenger died as a result of injuries suffered in resultant accident;
no evidence of erratic driving aside from going through red light; charged with criminal negligence causing death
 Reasoning: (Sopinka J) Central question in criminal negligence is deciding whether standard should be subjective or
objective to determine whether conduct of accused constituted marked departure from SOC of reasonable person
 The riskier the behaviour, the easier it is to conclude that a reasonable person would have appreciated
risk, and that accused appreciated risk (i.e. assume some subjective awareness of risk when there is
marked departure from SOC)
 Finding that the conduct was a marked departure from SOC is the beginning for both objective and subjective-
in subjective, the riskier the behaviour then more easy to assume that person aware of risk
 Ratio: As the risk of harm increases, the more acceptable it is to conclude that a reasonable person would foresee
the consequences, and the easier it is to conclude that accused must have foreseen the consequences
 Notes: Clarifies objective test set out in Tutton - "modified objective test"
 Distinctions between "departure", "marked departure", "marked and substantial departure"
 
R v Hundal [marked and substantial departure test; dangerous driving]
 1993, SCC
 Facts: Accused driving dangerously, ran red light, killed someone; court must determine fault requirement for crime of
dangerous driving
 Issue: What is the fault requirement for the crime of dangerous driving?
 Holding: Modified objective test applied to dangerous driving
 31

 Reasoning: (Cory J) modified objective test for dangerous driving which takes into account the circumstances e.g. if
person had heart attack- can't make person liable
 McLachlin- don’t call it modified objective test, is just an objective test which take circumstances into account
 Heart attack example is inappropriate b/c person who had heart attack is acting involuntarily which
means not liable b/c no act requirement- Dufraimont agrees
 Ratio: Modified objective test: test for negligence is objective, requiring a marked departure from the standard
of care of a reasonable person - test must be applied with some measure of flexibility, may be lessened by the
consideration of certain personal factors as well as a consideration of a defense of mistake of fact, the test should
be applied in the context of events surrounding the incident
 Dangerous driving requires a marked departure from the norm- accused's perception of facts is part of
circumstance
 
R v Creighton [marked departure standard for objective fault/neg. crimes]
 1993, SCC
 Facts: C, companion and deceased shared large quantities of alcohol and cocaine at deceased's apartment over 18-hour
period; C injected cocaine into deceased's forearm with her consent - deceased had convulsions and companion
suggested to take her to hospital; C did not want to get caught so intimidated companion and said not to call, cleaned
place of fingerprints and left; C charged with unlawful act manslaughter i.e. drug trafficking
 Issue: How do you take personal factors into account in objective tests?
 Holding: Marked departure, short of incapacity
 Reasoning: (McLachlin J) Discussion of considering personal factors of accused under objective standard of fault
using Lamer's test (Tutton) makes objective test into subjective test (not what we want in objective tests); however
objective fault test should require something more than standard at civil law
 McLachlin argues that you can have crimes based on negligence but must be more than civil negligence. But
test must be rigid application of objective (marked departure) standard that applies to all objective fault
crimes; only exceptions where accused had incapacity of appreciating nature of risk i.e. severe
intellectual disabilities
 Do not bring too many subjective factors into marked departure test because it undermines its
objectivity; only very limited consideration of personal factors- but still look at circumstances of
situation
 Whole point of objective test is to set up minimal standard
 People who engage in risky activity should be held to minimum SOC, morally innocent shouldn't be
punished (limitation on universal app of objective test- if person is incapable of appreciating the
risk- incapacity is high standard)
 Doesn't include religious beliefs
 Don Stuart (criticism): stringent standard cuts across well-recognized need to ensure criminal justice system is
sensitive to issues of gender, race, and disadvantage; approach is also impractical (i.e. new driver vs. adult
experienced driver?) - argument for less stringent standard
 Dissent: (Lamer CJ) objective standard is only morally appropriate for criminal sanction where generous
allowance is made for individual factors
 Raise standard i.e. well-trained police officer held to higher standard of gun care (b/c of training) -
similarly Creighton was a drug user who knew more about overdose than average person
 Cannot include self-induced personal factors i.e. cataracts (develop slowly and can be managed), self
induced intoxication; frailties more concerned with lack of control i.e. youthfulness, inexperience,
intellectual impairment- not drunkenness b/c can choose not to drink
 Ratio: The standard of a marked departure from conduct of a reasonable person is required by all objective
fault/negligence crimes (some exceptions i.e. manslaughter)
 The law cannot hold a person criminally responsible if they were incapable of recognizing potential
harmful consequences of their acts (incapacity); standard should be particularized in application by nature
of activity and circumstances surrounding accused's failure to take requisite care
 Notes: Crimes of negligence = negligence crimes = objective fault crimes NOT THE SAME AS criminal negligence
(which refers to s. 219 negligence (i) causing death and (ii) causing bodily harm)
 What about when people fail to reach SOC b/c odds are stacked against them- e.g. the poor
 
R v Beatty [dangerous driving test; momentary lapse of attention defense]
 32

 2008, SCC
 Facts: B driving normally - momentary lapse of attention and veers into opposite lane; hits oncoming car killing 3
people; charged with 3 counts of dangerous driving causing death
 Issue: Was there an explanation for accused's conduct that would raise a reasonable doubt that a reasonable person
would have been aware of the risks of the accused's conduct?
 Holding: No marked departure
 Reasoning: (Charron J) Dangerous driving is objective fault crime and requires a marked departure from
standard of reasonable person. No marked departure from standard of reasonable care; momentary lack of attention
was not a marked departure from objective norm - few seconds of negligent driving does not meet criminal standard of
negligence causing death
 Driving is done usually w/o conscious thought so no sense to make it subjective test
 Allowance for exculpatory defenses i.e. sudden or unexpected heart attack, detached retina - if not
sudden, then the expectation is that you manage it
 Need to separate actus reus from fault - to be convicted, both fault and act must be proven; test for act
laid out in Code (driving in manner that is dangerous to public) and in terms of fault element - whether
on all circumstances, the conduct was a marked departure from standard of reasonable person (use
evidence to analyze accused's mind)
 All dangerous driving is negligent, but not all negligent driving is dangerous, so for the AR
we must look at manner of driving (NOT consequences) to determine if it was dangerous
 Conduct has to be serious enough to merit punishment
 Ratio: Dangerous driving test requires
 (i) proof of marked departure from SOC of reasonably prudent driver
 (ii) person driving in manner dangerous to public (look at manner of driving, not consequences)
 Notes: This case could give rise to momentary lapse of attention defense in many dangerous driving cases
 Many events will now be charged under provincial statute on careless driving because marked departure
standard is quite onerous, and it has the momentary lapse of attention defense
 Marked departure from SOC required for objective fault, momentary lapse is not enough to be accused of
dangerous driving
 
R. v. F(J) [leading case, marked and substantial departure standard for crim. neg.]
 2008, SCC
 Strict liability offence - due diligence offence; simple negligence standard w/ a reverse onus
 Objective fault - marked departure from objective norm with reverse onus on accused for regulatory offences; gross
negligence i.e. dangerous driving, failing to provide necessaries of life
 Criminal negligence - objective fault crime; requires marked and substantial departure; higher standard than gross
negligence
 Ratio: Criminal negligence offenses under s. 219 require a marked and substantial departure from the objective
norm (rather than just the marked departure required as Charter standard for other objective crimes)

Crimes Based on Predicate Offenses (Unlawful Act Manslaughter)

Introduction
 Crime based on underlying offence i.e. unlawful act manslaughter, aggravated assault only
 Main offence is defined in such a way that it requires another offence to be proven (predicate offence)
 To be guilty of UAM, accused must be guilty of some other offence (the 'underlying' or 'predicate' offense-
usually assault) that caused death
 Not about assault causing bodily harm or aggravated assault- just assault as predicate offence
 
R v Creighton [cocaine injecting] [unlawful act manslaughter; reasonable foresight of bodily harm]
 1993, SCC
 Facts: Charged with unlawful act manslaughter (objective fault crime); predicate offense is drug trafficking
 Objective fault crimes: consequences must be reasonably foreseeable for one to be convicted
 Issue: Does the objective test for UAM require reasonable foresight of death, or merely reasonable foresight of bodily
harm?
 Holding: Requires reasonable foresight of bodily harm
 33

 Reasoning: (McLachlin J) Manslaughter sanction must reflect fact that death occurred to show societal concern for victim's
fate; additionally, this position promises greatest measure of deterrence and avoids troubling trier of fact with drawing the
"fine distinction" between foreseeability of risk of bodily harm and foreseeability of risk of death
 Manslaughter covers wide variety of circumstances with 2 requirements (i) conduct must cause death and
(ii) must have some type of fault, short of intention to kill (would be murder)
 (1) Fault element for unlawful act manslaughter must have predicate offense (i) that is a dangerous act (ii)
that is not absolute liability offense (iii) that is constitutionally valid
 (2) Additional fault requirements for manslaughter - objective foreseeability (doesn’t require death to be
foreseeable, only that risk of bodily harm which is neither trivial nor transitory be foreseeable)
 Ratio: Manslaughter by unlawful act requires reasonable foresight merely of risk of bodily harm which is neither trivial nor
transitory; does not require reasonable foresight of death - objective test (i.e. foreseeable, not foreseen)
 Notes: 5-4 SCC split; Lamer dissented, holding there should be requirement of reasonable foresight of death
 McLachlin disagrees- manslaughter is not an offense that is so grave that objective foreseeability of death is
const'lly required
 Level of stigma- manslaughter has low stigma, whole point of manslaughter is to differentiate from
murder
 Public would be shocked that person who killed someone would only be convicted of aggravated assault-
consequence becomes important to the gravity of the offense
 Punishment for manslaughter isn't very high- has no minimum unless firearm involved
 Symmetry b/w act and fault- not here in manslaughter b/c no fault element of death but consequence is
death- not const'l requirement that the act and fault mirror each other perfectly just proportionate fault- not
a lot of difference between objective foresight of bodily harm and objective foresight of death (along same
lines as TSR principle - if could cause non-trivial harm, could cause death)
 Not unjust to hold those who aggress against others in a way that causes harm to be held responsible for all
consequences that result from their acts
Aggravated Assault
 S 268(1)- Everyone commits an aggravated assault who wounds maims, disfigures, or endangers the life of the
complainant
 Traditional view: all aggravated forms of assault require is intentional assault and the act element (usually bodily harm)
 R v Godin SCC 1994- aggravated assault requires
 Assault that wounds, maims, disfigures or endangers life AND
 Objective foreseeability of bodily harm (from Creighton)

Sexual Assault
Rape Laws in Context
 Sexual offences overhauled in 1982- rape replaced w/ sexual assault- sexual assault is a more broader term than rape
 Lack of consent is element of both offences that must be proven by the Crown
 Defense of consent in sexual assault and rape cases
 Sexual assault usually by men to women, women w/ disabilities and indigenous women have higher rates of
assault
 Law tries to address rape myths
 Sexual assault/abuse are very uncommon- not true are very common (culture of disbelief- seeing assaults as
lies)
 Rape is strangers in dark alley- most rapes are committed by family, partners, acquaintances etc
 Rape by spouse/friend is less traumatic than being raped by a stranger- no evidence for this
 Once woman gives consent then can't be withdrawn
 Victim blaming- victim was at fault- idea that good women don't get raped-> leads to sexual assaults not being
reported
 How Sexual Assault was Historically Viewed
 Rape was historically a harm to property- to husband or father- for damaging property by making woman less
marriageable
 Prior sexual history: previous sexual history of victim as relevant to trial outcome (i.e. consent and credibility)
 Relevant because (i) woman who has consented to sex before would be more likely to consent to sex
in this case (ii) unchaste women seen as unworthy of belief (chastity as marker of credibility at
common law)
 34

 Rape Shield Laws (1980s): prior sexual history much less frequently admissible as evidence; when
admitted it is limited to a greater extent
 Doctrine of recent complaint: complaints must be made at first reasonable opportunity and spontaneously
(shows distrust of women; contrary to general common law rule that witness' previous statements are
inadmissible)
 Absence of early complaint was indication of untruthfulness of accusation
 Actual victims report immediately is a fallacious claim - this doctrine has been overturned; however,
open to defense to question when complaint was made, etc.
 Corroboration: examination of female complainant's social history and mental make-up by physician prior to
jury trial – independent evidence implicating the accused
 False allegations are of particular concern so requires 2 types of evidence; makes prosecution of
sexual assault very difficult
 Ultimately rule was abandoned and accused can now be convicted based only on testimony of
complainant
 Sexual assaults are 2 person cases- not much evidence or avenues for defence
 Just about complainant's words versus accused- one relevant thing to look at might be history- explaining trend
 
Criminal Code Provision [old]
S. 143: a male person commits rape when he has sexual intercourse with a female person who is not his wife (a) without consent
or (b) with her consent if the consent (i) is extorted by threats of fear or bodily harm (ii) is obtained by impersonating her
husband (ii) is obtained by false or fraudulent representations as to the nature or qualities of the act
Doesn't include possibility of man raping his wife- idea that consent can't be withdrawn
Limits rape to penetration
No express mens rea requirement
 
Sexual Assault Provisions
 S. 271 (sexual assault simpliciter (alone- no aggravating feature); maximum sentence 10 years as compared to assault
with maximum 5 years- based on theory that sexual assaults are an aggravated form of assault) - hybrid offence
 S. 272 (sexual assault (a) with weapon (b)or with threats to a third party (c)or causing bodily harm); indictable offense
with maximum sentence 14 years as compared to assault with a/b/c is hybrid offense with maximum 10 years)
 S. 273 (aggravated sexual assault; that wounds, maims maximum sentence of life)
 Additional changes: M/F can commit assault or be victim; no immunity for spousal rape; rape shield laws- to limit use
of prior sexual history as evidence
 Eliminated doctrine of recent complaint and need for corroboration
 
R v Chase [neighbour touched breasts] [leading case for meaning of sexual assault]
 1987, SCC
 Facts: Adult male went to 15 y/o neighbour’s house without invitation while she was playing with her brother; grabbed
her chest and said “I know you want it” (sexual purpose?) but did not touch her genitals; charged with sexual assault
 According to New Brunswick AC, breasts were considered only secondary sexual organs and therefore cannot
constitute sexual assault - convicted of assault
 Holding: Charged with sexual assault
 Reasoning: (McIntyre J) Viewed objectively under all circumstances, conduct of accused constituted sexual assault
under the definition provided by SCC (in addition to being an assault defined by s. 265, must be added sexual
component)
 Assault- 3 forms of assault (s. 265): (a) intentionally applies force directly or indirectly without consent of
another; (b) attempts or threats to apply force through a gesture; (c) accosting someone while openly wearing
weapon – sexual assault can be an assault under any of these manners
 Sexual assault is subset of assault- def'n of assault applies to all forms of assault including sexual ones
 Sexual- Factors to consider: part of body being touched, nature of contact, situation in which it
occurred, words and gestures accompanying act, and all other circumstances surrounding conduct i.e.
threats which may or may not be accompanied by force (sexual circumstances)
 Additionally: consider accused’s intent or purpose as well as motive, i.e. sexual gratification (relevant, but not
determinative)
 35

 Ratio: Sexual assault is an assault committed in circumstances of sexual nature, such as that the sexual integrity
of victim is violated
 Test for determining whether conduct has requisite sexual nature (objective) – viewed in light of ALL
circumstances; is the sexual or carnal context of assault visible to a reasonable observer?
 Sexual assault is an offense requiring general intent only (accused does not need specific intent)
 
Mistaken Belief in Consent Defense Requirements
Pappajohn v R [mistaken belief in consent defense]
 1980, SCC
 Facts: Victim comes running out of house screaming and naked with hands tied behind her back (with bathrobe string)
3 hours after going home drunk with accused; a few scratches, no serious injuries; accused charged with rape
 Not much evidence of struggle- clothes neatly folded
 Defense argument: Jury should have been told about defense mistaken belief in consent
 Holding: No; evidentiary burden to raise defense not satisfied- only raise defence if it is an issue on the facts
 Reasoning: (McIntyre J) Defense of mistaken belief in consent should only be used when there is "some evidence
which would convey a sense of reality in the submission" - on the facts there was no evidence other than statement of
accused to raise air of reality
 Mistaken belief has to be freely given and not procured by threats
 Judge only puts to jury those defenses that are potentially at stake in trial; before defenses are put to jury there
must be evidentiary foundation for them when there is a real issue on the defense about evidence
 Only issue which arises is simple issue of consent vs. non-consent - if mistaken belief defense was put to jury
here, it would have to be put to jury in all cases – nothing to suggest ambiguity here
 Dissent: (Dickson J) The mental element must be proved with respect to all circumstances and consequences that
constitute actus reus; intention or recklessness must be proved with regard to all elements of the offense including
mistake of fact (belief in facts that would make accused innocent); if accused believed that complainant consented then
lacked mens rea and moral blameworthiness
 Difficulty in establishing rape is that it's hard to separate consensual and non-consensual intercourse; mistaken
belief in consent only has to be honest but not reasonable (applying reasonable standard would make rape
an objective fault crime) - still true today
 Floodgate concern: distinction between reasonable and unreasonable mistakes are important in theory but in
reality, juries would be very reluctant to accept that accused made an unreasonable mistake - juries won't
believe that accused actually held such an unreasonable belief
 Not arguing that there was definitely a mistaken belief in consent, but that there is evidentiary basis from
which to make this argument (i.e. folded clothing, fact that she was there for 3 hours, no injuries/evidence of
struggle etc.)
 Can D rely on mistaken view based on woman not living up to standard of objection and protesting violently?
 Ratio: Mistaken belief in consent is a defense for rape - if the accused honestly thought there was consent, then it
negates the mens rea and he is entitled to acquittal
 However, for accused to make a defense of mistake of fact, there must be some reasonable evidence
which would convey an air of reality
 mistaken belief in consent only has to be honest but not reasonable
 Notes: This case still stands in some areas i.e. mistaken belief in consent defense
 What is the evidentiary basis for mistaken belief in consent?
 Non consent is a circumstance element- part of the act element
 Corresponding mental element? Accused's subjective awareness of non-consent
 Whole court agrees that there is such a thing as mistaken belief in consent which negate mens rea and leads to
acquittal
  
Sansregret v R [willful blindness and mistaken belief in consent defense]
 1985, SCC
 Facts: Accused and complainant were live in partners. She broke up with him and he left; he came back to reconcile
several times. One time, he broke in at 430 am, and he was raging. She held out hope that they would reconcile. They
had sex. She said she was only having sex with him to calm him down. Second incident when he again broke in at 430,
threatened her, made her strip and stand in the doorway, struck her in the mouth, and again she held out hope for
reconciliation, and had sex with him so he wouldn’t kill her; accused charged with rape
 36

 Holding: No defense of mistaken belief; accused guilty

 Reasoning:Need mistaken belief that she was consenting freely- w/o fear or threats
 (McIntyre J) Trial judge had found that he was wilfully blind on issue of consent - meaning he was aware of
her lack of consent; SCC found that you cannot accept mistaken belief in consent defense in case where
accused was wilfully blind (wilful blindness is subjective mens rea)
 D clearly knew that complainant had accused him of rape in incident 1.
 Ratio: Mistaken belief defense does not apply in sexual assault where accused was willfully blind to lack of
consent
 In a case that involves threats, mistaken belief in consent requires any honest belief in consent that was
not extorted by threats or fear
 Notes: Article: Did McIntyre reverse trial judge's facts here? TJ said D honestly believed in consent, McIntyre says
wilful blindness (strong suspicion in non consent but wilful ignorance)- not the same thing- SCC reversing facts to
convict - thinks it’s impossible for wilful blindness and honest belief can't coexist
 
R v Bulmer [s265(4)-mistaken belief in consent as defense requirement]
 1987, SCC
 Facts: Prostitute had sex with 3 men – says she consented to sex with 1 and then others showed up but she did not
consent to sex with them; men claim she did consent after some haggling about price; accused charged with sexual
assault
 265(4)- requires judges to instruct juries on mistaken belief in consent if there's enough evidence of defense
 Issue: When should mistaken belief in consent defense be put to the jury and in what way?
 Reasoning: (McIntyre J) Mere assertion of mistaken belief by accused does not necessarily raise air of reality and
mandate this defense be put to jury – in order for it to be valid issue, there must be some circumstances or evidence that
support the defense (otherwise this defense would always need to be considered)
 If mistaken belief in consent defense is put to jury, judge must tell them to consider reasonableness of belief
(however it need not be reasonable)
 S. 265(4) is meant to provide some modest additional safeguards to ensure that juries do not consider
reasonableness of belief in determining if accused truly held that belief
 If accused claims mistaken belief in consent, then it must be put to the jury and considered as evidence (air of
reality can come from the accused)
 Ratio: For mistaken belief in consent defense to be put to jury, there requires more than a mere assertion of
consent by accused; there must be evidence before court that gives an air of reality to defense
 IF jury finds an honest but mistaken belief in consent, they MUST acquit; belief in consent does not
have to be on reasonable grounds, HOWEVER when considering evidence relating to question of
honesty of accused’s belief in consent, they must consider the presence or absence of reasonable grounds
for that belief
 Air of reality test- used for all defences today
 Dissent- Lamer- defense should always be put when the D testified under oath that they believed in consent, when D
says they consent- shows that they believe in consent
 McIntyre concerned about opening floodgates and having to put forward defense in ever sexual assault case
 Notes: R v Osolin- Defense can arise from accused testimony but mere assumption is not always be enough-
there must be a foundation in the case
 
R v Davis [mistaken belief in consent defense – totality of evidence]
 1999, SCC
 Reasoning: (Lamer CJC) Mistaken belief in consent negates mens rea for sexual assault; court reiterates that
before defense is considered, there must be air of reality to the idea that (i) the complainant did not consent and
(ii) accused honestly believed complainant consented – court must look at totality of evidence in determining if
there is evidentiary foundation for this issue to be in play
 Evidence that raises mistaken belief in consent can come from any source
 Air of reality can arise even when accused does not specifically claim he had mistaken belief in consent; conversely,
accused’s mere assertion that victim consented is not enough by itself to raise air of reality
o Requires situation of ambiguity in order for this defense to arise (pappajohn)
o There is no air of reality when accused is willfully blind or reckless (sansregret)
 37

 Ratio: When putting mistaken belief in consent to jury, the trial judge must consider the totality of evidence and
NOT attempt to weigh it; judge should not conduct a substantive evaluation of the merits of the defense
 
Mistaken Belief in Consent
Consent
 Non consent is one of act elements of sexual assault
 Code defines consent and lists situations where consent is vitiated

Criminal Code Provisions

 in sexual activity in question (applies only to charges under ss. 271, 272, 273)
 No definition of consent for all other assaults
 S. 265(3) When consent is vitiated – in situations where there is application of (i) force; (ii) threats or fear; (iii) fraud;
or (iv) the exercise of authority (applies to all assaults)
 S. 265(4) – mistaken belief in consent defense (any assault)
 S. 273.1(2) When consent is vitiated (applies only to sexual assaults) – in situations where (i) agreement is expressed
by words or conduct of person other than complainant (Morgan); (ii) complainant incapable of consenting to activity
i.e. intoxicated, unconscious; (iii) accused induces sexual activity by abusing position of trust, power or authority
(similar to s. 265(3)); (iv) complainant expresses lack of agreement by word or conduct (“no means no”); (v)
complainant consented and then expresses, by words or conduct, lack of agreement to continue i.e. permits withdrawal
of consent
 Accused cannot say he understood it as “yes” if complainant said “no”
 Jobidon- common law can give other situations where consent can be vitiated (some subjective awareness in
non-consent)
 S. 273.2 Mistaken belief in consent (applies only to sexual assaults) – no defense of mistaken belief when (a)
accused’s belief arose from (i) self-induced intoxication; (ii) recklessness or willful blindness; (b) accused did not take
reasonable steps in circumstances known to accused at time to ascertain that complainant was consenting
 S. 273.1 2(e) Cannot rely on mistaken belief in consent when complainant expressly withdraws consent
 S. 273.2(b) Reasonable steps requirement- belief doesn't have to be reasonable, reasonable steps not all
reasonable step
 
R v Ewanchuk [leading case on mistaken belief in consent]
 1991, SCC
 Facts: Accused brought 17 y/o woman into his truck for interview and then invited her to his trailer – made sexual
advances at her that she refused but he did not stop sexual conduct (she kept saying no, he kept appeasing her and
continued with even more intimate contact ); accused paid victim $100 not to tell anyone
 TJ: Subjectively she did not consent- was fearful but was trying not to seem too afraid. b/c she concealed her
feelings, then should imply consent- appellate court upheld this
 Issue: Is there a defense of implied consent available in sexual assault?
 Was there an air of reality to E’s defense of mistaken belief?
 Holding: Appeal allowed; accused guilty of sexual assault – SCC imposes conviction for the first time (rare)
 Reasoning: (Major) Actus reus of sexual assault requires (i) touching of sexual nature (ii) determined objectively
(Chase) (iii) absence of consent
 Accused doesn't need mens rea requirement that matches the sexual nature of the touching (Chase)
 SCC says consent is subjective state of mind – if complainant did not subjectively consent then consent
cannot be implied (either inwardly consented or did not consent at all)
 Trial judge shouldn't have found actus reus consent by implying consent
 Consent vitiated by fear – no need to resort to s. 265(e) because finding said no consent (fear needs only be
honestly held, must be actual reason for submission; does not need to be communicated – subjective)
 Mens rea of sexual assault (i) intention to touch (ii) subjective mens rea regarding non-consent (accused
knew or was willfully blind or reckless with respect to element of consent)
 It is due to subjective mens rea requirement that defense in mistaken belief arises
 Defense in mistaken belief in consent is limited by common-law: (i) accused must believe that victim
affirmatively expressed consent by words or conduct (ii) silence, ambiguity, etc. does not constitute
mistaken belief in consent (iii) belief of “no means yes” is not defense (iv) following a “no” where no
reasonable steps were taken to ascertain consent
 38

 Complainant said no, evidence did not raise mistaken belief in consent/air of reality based on facts
 Minority Judgment (L'Heureux Dube): Distance from “offensive language” of trial judge/CoA - assumed
women want to be persuaded even when they say “no”; assumed constant consent to sexual activity;
assumption that complainant was “of loose moral character” because she was living with her boyfriend;
assumed she should have “fought her way out”
 Ratio: There is no defense of implied consent in sexual assault
 Notes: S. 273.2(b) requires asking what reasonable man would do in the same circumstances i.e. would he take
further steps before proceeding with sexual activity? If answer is YES, and accused has not taken further steps,
then accused is not entitled to mistaken belief in consent defense; if answer is NO, then accused is required to
take further steps and defense will apply (Malcolm)
 Defense of consent- actus reus
 Defense of mistaken belief- mens rea
 Consent doesn't have to be verbal it can be by conduct too- actus reus
 
Limits on the defence of mistaken belief in consent
 Air of reality requires a situation of ambiguity (Davis, Pappajohn)
 Some limits in the Code s 273.2 and 265(4)
 Not w/o reasonable steps
 Not based on self induced intoxication, recklessness, wilful blindness
 From Ewanchuk
 Must be a belief that consent was expressed or communicated
  belief that no means yes, or that silence, passivity or ambiguous conduct equals consent is no defence
 Once complainant says no, the accused must be sure that consent is communicated before proceeding
 Limits defence too much? Not open to some cases where people aren't completely blameworthy
 
R v Cornejo[reasonable steps requirement]
 2003, ONCA
 Facts: Accused and Complainant were both drinking, she went home and he called her to go over, came over and she
was on couch sleeping and waiting for boyfriend, tried to have sex, she woke up and said no. He said she lifted her
pelvis up when he took off her clothes
 Acquitted at trial- argument that consent was communicated by raising pelvic
 Reasoning: test is whether there is evidence on the record upon which a properly instructed jury could reasonably
acquit
 Two elements: (1) that the accused honestly believed the complainant consented and (2) the accused was
mistaken in belief
 No air of reality here- was drinking, asleep, rejected advances before- cannot give rise to assumption that she
was consenting
 No reasonable steps (introduces objective element to subjective defense)- can't say that by kissing her, running
fingers through her hair there was reasonable steps- Abella- these are sexual assaults, can't make sexual
assaults reasonable steps
 
R v A(J) [consent prior to unconsciousness]
 2011, SCC
 Facts: Accused and complainant engaged in autoerotic asphyxiation; she was unconscious and he penetrated her with a
dildo – she was injured by anal penetration; she woke up and they had vaginal intercourse
 Issue: Can a complainant consent in advance to sexual touching which then takes place as agreed while complainant is
briefly unconscious? In order to be consenting, does person have to be conscious throughout sexual activity?
 Holding: A person must consent throughout the activity for consent to be valid
 Reasoning: (McLachlin CJ) There must be ongoing conscious consent for 2 reasons – (i) to protect individuals
from sexual exploitation; (ii) so that individuals are able to ask their partners to stop at anytime (ability to
withdraw consent)
 Consent for sexual assault is actual subjective consent in complainant’s mind – mens rea requires that accused
know or be reckless or willfully blind that complainant is not consenting; consent can only be given by the
operating mind (not when complainant is incapable of giving consent)
 Issue here is actus reus consent
 39

 Reasonable steps requirement – complainant must be awake and conscious; cannot take reasonable steps to
determine whether unconscious person is consenting; clearly Parliament meant consent to require a conscious
mind capable of continually consenting to each act or withdrawing consent
 Consent has to be directed towards each and every sexual act- no broad consent- from def'n of consent in the
Code
 273.1(2)- no consent when person is incapable - need consciousness
 Distinguishes consent here from in Ewanchuk which referred to consent based on act; whereas mistaken belief
in consent refers to expression of consent
 s. 273.1(2) refers to mens rea of consent- when talking about what is expressed b/w the 2 parties this
is about mens rea
 s. 273.2(e) Cannot rely on mistaken belief in consent when complainant expressly withdraws consent
– in order to do so, must be conscious because an unconscious person cannot revoke consent - about
mens rea and can't say mistaken belief
 s. 273.2(b) Reasonable steps requirement – can only be taken when complainant is conscious;
unconscious person does not have the capacity to consent, so it follows that Parliament meant
conscious consent of operating mind
 Dissent (Fish J): Issue is not whether unconscious person can consent (they can't), rather whether a conscious
person can consent in advance to sex acts that take place during brief period of unconsciousness –
answer is yes
 Provisions do not say anything about timing of consent so it can be obtained in advance- nothing to
limit in Code
 S. 273.1(e) does not suggest that consent cannot be obtained in advance; still generally capable of
revoking consent (“having consented to engage in sexual activity can later revoke” – operative until
revocation; suggests it can carry through period of unconsciousness)
 S. 273.2(b) does not preclude idea of consent carrying through period of unconsciousness; must take
reasonable steps to obtain consent prior to engaging in sexual act
 Policy arguments:
 In favour of consent – argument to the absurd result i.e. if husband kisses wife while she is
asleep, technically would be assault? (captures too much?) But then would likely not be reported
as assault
 Criminal law is made for vulnerable people so there should be a balance between limiting
person’s autonomy and preventing exploitation
 Sexual autonomy- allowing people to participate in whatever sexual behaviour they want-
penalizing certain types of conduct
 Overreach of courts? Idea that state has no place where there are 2 consenting adults
 Ratio: Consent is the conscious agreement of complainant to engage in every sexual act in a particular
encounter; this means there must be ongoing consent through every sexual act (s. 273.1(1))
 Complainant cannot validly consent to sexual activity in the future; implied consent has no application
 Notes: issue is whether to consent, the person has to be conscious throughout? (actus reus consent)
 Majority and dissent disagree on issue- is it about obtaining or maintaining consent?

Mistake of Fact
General Principles
 Mistake of fact issue- is a defence (e.g. Think you have oregano but its drugs)
 An honest but mistaken belief in consent negates the mens rea and will result in acquittal; shows that Crown has not
proved fault element (Pappajohn v R; leading case)- mistake of fact is a defence
 If subjective mens rea required, mistake must be honest
 If objective fault required, mistake must be honest and reasonable
 For strict liability, where there is due diligence defense, mistake must be honest and reasonable, and
onus of proof on accused to show reasonableness (for regulatory offenses)
 If absolute liability, mistake of fact is not a defense because there is no fault element (potential Charter
challenge under s. 7)(BC Motor Vehicles Act- can't combine absolute liability and imprisonment)
 If statute says mistake of fact is not a defence then to that extent it is an absolute liability offence
 Comparably, mistake of law generally not a defense
 
 40

R v Hess; R v Nguyen [statutory rape; Charter violations]

 1990, SCC
 Facts: Accused had sex with girls under age of 14 thinking they were older – claimed mistake of age; charged with
statutory rape (s. 146(1)) – challenged constitutionality of provision under s. 7 because this was an absolute liability
offense combined with imprisonment
 According to statute, mistake of age is not a defense-(…”whether or not he believes that she is 14 years of age
or more…liable to up to imprisonment for life”)
 Also claims s. 15 violation (equality issue)
 Provision no longer in code
 Issue: What is the legal effect of accused’s mistake of age?
 Holding: Court reads down provision, excluding phrase that removes mistake of age defense
 Reasoning: (Wilson J) S. 7 analysis – a provision that does not at least allow for defense of due diligence is
contrary to Charter when combined with imprisonment
 Can s. 7 violation be saved under s. 1 (principles of fundamental justice)?
 Deterrence argument – mistake of age as defense must be removed in order to protect young girls and
deter men from having sex with very young girls; law trying to put men on notice that they're not
allowed to have sex with girls >14.Wilson disagrees – cannot punish the mentally innocent (thinks
they are doing act that would be allowed by law); fundamentally unfair principle not saved by social
policy objectives; cannot deter one who does not know they are committing an offense (deterrence
arguments assumes that men will know about this obscure part of code). No evidence to support
deterrent argument.
 New offences which provide for defence of due diligence- shows that this is no minimal impairment
b/c new provisions are acceptable to gov't so obviously this isn't minimal impairment
 Dissent (McLachlin J): sees a violation of s.7 and s.15 of Charter because offense provision only applies to
men and only protects girls; however, this is a reasonable limit prescribed by law under s.1 i.e. a pressing and
substantial objective; purpose to protect young girls from harms associated with early intercourse; deterrent
factor encourages men to be more responsible (this provision is in the public consciousness "jailbait")
 Imposing absolute liability is a rational objective; otherwise mistaken belief will always be used as
defense i.e. ask for ID – but fake ID in child prostitution is common
 Regarding minimal impairment – there is no other way to achieve this objective- new provisions are
for limited objective
 There is proportionality between imposing absolute liability and the law’s objective
 Ratio: Accused must take reasonable steps to ascertain age of complainant; after they have done so, mistake of
fact defense becomes available
 Statutory rape provisions offend s.7, not saved by s.1 – exclusion of mistake of age defense read out of the
provision
 
Mistakes as to the nature of the offence 
 2 views (Tolson)- Only a defence if the belief you think is true is not an offence, if beliefs were true you'd be innocent-
e.g. Think you have oregano, having oregano not an offence
 
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 a defence Mistake probably not a defence Mistake may not be a defence

Tolson, Beaver Ladue Kundeus

 
 
R v Ladue [had sex with dead woman] [leading case; mistake of fact defense]
 1965, YT CA
 Facts: Accused copulated with a dead woman – accused of indecently interfering with human body which requires that
accused know that other person is dead
 Ladue argued he did not know she was dead, only unconscious
 41

 Reasoning: (Davey JA) Court says this is not a defense to charge because if accused actually believed that, he would
be guilty of worse offense of rape than lesser offence of indecently interfering with human body. Can't argue that b/c
she turned out to be dead then can't argue innocence
 Ratio: If mistake of fact will make accused more guilty than the offense he is charged with, it cannot be used as
defense
 Notes: intention to commit a crime although not the specific crime charged creates necessary mens rea. Laskin in
Kundeus says the proper charge should've been attempted- wants a stricter application of actus reus matching mens
rea
 
R v Kundeus [mens rea for trafficking met if believe you are trafficking any drug]
 1976, SCC
 Facts: Accused thought he was selling drug called mescaline but actually sold officer LSD; mescaline was a restricted
drug (less serious offense), however trafficking LSD is a serious offense
 Issue: Is accused guilty of trafficking LSD? Does he have required mens rea given that he thought drug was
mescaline?
 Holding: Yes
 Reasoning: (De Grandpre J) Accused believing he was selling mescaline is enough to fulfill mens rea requirement for
selling LSD (similar to Blondin – with respect to narcotics, all you need is mens rea in the widest sense i.e. know that
you are selling an illicit substance)
 Offenses with respect to narcotics require mens rea in relation to narcotic, but as long as one had mens
rea related to a narcotic more broadly, it is enough to make one guilty of offense
 Du is not a fan of this reasoning- still morally blameworthy- thought he was doing something illegal
anyway
 Policy reasons: otherwise people could get off very easily if they “don’t know” which drugs they’re
selling
 Feature of trade that mistakes are made- similar looking white powders
 Dissent: (Laskin J) You can’t be convicted if you don’t have the mens rea for the offence you are being
convicted of. Even if the thing you think you are doing is more serious, you should not be guilty because
you don’t have mens rea that matches actus reus
 Concerned that a person is convicted of more serious offence while having mens rea of less serious
offence- different classes of drugs
 Ratio: Offenses with respect to narcotics simply require mens rea that you are trafficking some sort of illicit
substance
 Notes: Policy issue – perhaps you think you are trafficking less harmful but illegal illicit substances but you are
trafficking a more harmful illicit substance; seems unjust
 Beaver is leading case on possession in general; combined with Kundeus which refers to mens rea of drug
cases; also consider Blondin (wide scope of mens rea for drug offenses)
 This was pre-Charter- could raise disproportionality argument under Charter and Martineau
 
Mistake of Law
 
Criminal Code Provisions
 S. 19: “ignorance of the law by a person who commits an offense is not an excuse for committing that offense”
 
Policy
 Everyone should be held accountable in the same way; same burden of proof (O.W. Holmes, The Common
Law, p. 722)
 Difficult to prove whether or not someone knows the law- would create whole other set of inquiries; also,
people would be intentionally ignorant – this incentivizes people to be aware of the law - public policy
sacrifices the individual to the public good
 “Any restraint imposed upon man is, in a sense, offensive to human dignity. The aim of free society is hence
to reduce legal restraint to the minimum required in a given situation…Subjections of man to sanctions
under a law which is unknown and unknowable to him and which he has no opportunity to accept or reject
expresses the view that he is a mere object of the law…” (Ryu, SIlving, Error Juris, p. 722)
 42

 Difficult to assume that everyone would know the law, especially if having just arrived into new jurisdiction
(R. v. Esop)
 Empirical reality is that not everyone knows the law - at least in theory people should know law
 
R v Esop [mistake of law not a defense]
 1836, England
 Facts: Sailor accused of buggery on English ship in English harbor; sailor was from Baghdad
 Defendant’s argument: Buggery not an offense in Baghdad and therefore he cannot be guilty of offense here
 Reasoning: Mistake of law claim i.e. that people need to know what is illegal to be culpable is not a defense
 English law applied to him as he was on English soil
 Ratio: Mistake of law is not a defense
 
R v Campbell and Mlynarchuk [mistake of law based on judge’s ruling]
 1972, Alberta. Dist. Ct.
 Facts: 1. Johnson – nude dancing OK; 2. Campbell – dances nude, relying on trial decision; 3. Johnson – trial decision
appealed, and on appeal it was held that there should be no nude dancing; 4. Campbell – convicted, despite her mistake
of law
 Reasoning: (Kerans CJC) Mistake of law was relying on judge’s previous decision – mistake to understand judge’s
reasons or think judge’s reasons correctly represent the law; unless very recent SCC judgment
 Ratio: Mistake of law, even based on judgment given by a trial judge, is not a defense
 Notes: Formalist approach; law is discoverable – even though trial judge said dancing was not offense, it was
inconsistent with law- doesn't matter that she committed offence before trial was overturned- trial judge was wrong all
along
 Johnson was further appealed and nude dancing was held acceptable (trial judge reinstated) – Campbell was
acting lawfully
 
R v MacDonald [mistake of law vs. mistake of fact]
 2014, SCC
 Facts: M charged with possession of a loaded and restricted firearm in a place not authorized to have it (under s. 95) –
had proper authorization to have gun in Alberta but not in Halifax
 Defense argument: Crown should have to prove that he knew his possession was unauthorized in that place
 Issue: Was this a mistake of law or mistake of fact?
Holding: Mistake of law
 Reasoning: (LeBel J) Accused knew or was willfully blind to the fact that possession was unauthorized which is
considered a mistake of law and cannot be used as defense (s. 19); trial judge erred in considering this a mistake of fact
 S. 95(1) is a mens rea offence and this is a mistake of law which requires knowledge that one possesses a
loaded restricted firearm and intention to possess that firearm in that place to sufficiently meet mens rea
requirement
 Ratio: Subjective belief that something is not an offence is a mistake of law, and not a defense
 Notes: 2 exceptions – (1) colour of right (2) officially induced error of law (not examinable)
 
Colour of Right
 The rule that mistake of law is not a defence has 2 major exceptions
 Colour of right for property offences, and
 Officially induced error of law- common law defence.
 If you make an error of law after seeking advice from official- very narrow defence
 A defence for theft under s322 (1) Every one commits theft who fraudulently and without colour of right takes, or
fraudulent and without colour of right converts to his use or to the use...(a) to deprive, temporarily or absolutely, the
owner of it.- person acting w/ mistaken view of legal claim to something
 
R v Dorosh [stealing trailer, definition of colour of right]
 2004, Sask CA
 Facts: D and Randy agreed to trade trailer for van and cleaning machines, some of the stuff not working and D's lawyer
told him that there were writs against Randy (were actually for his son). D felt he was scammed so went and took
trailer- thought the deal was dead so went and got the trailer back. Charged w/ theft
 43

 Issue: did TJ err in his interpretation of 'colour of right'? Thought it was a mistake of fact
 Reasoning: actus reus was proven- taking of trailer
 Mens rea of theft: (i) fraudulent intent on the part of the D when taking trailer, (ii) absence of any
colour of right asserted by the D, and (iii) an intent on the part of the D to deprive, temporarily or
absolutely the owner of the trailer.
 Ratio: Colour of right is when there is an honest assertion of proprietary or possessory right to the thing which
is the subject of the alleged theft
 Colour of right is a mistake of fact but can also be a mistake of law- if you think you have a civilly
justifiable claim
Incapacity
 Notion of criminal law is to punish people for morally culpable acts; unjust to punish when this is not the case
 People can lack the capacity to be responsible for criminal acts
 Can arise from
 Age
 Mental disorder
 Automatism
 Intoxication
 
Age
 Until 1982, children under 7 were absolutely exempt from criminal punishment (7-13 could be responsible of Crown
could show child was aware of nature of conduct and its consequences and that it was wrong); later, criminal
responsibility was raised to 12 y/o (age is measured at the time of the offense)
 Criminal Code s13: No person shall be convicted of an offense while under the age of 12
 Youth Criminal Justice legislation applies to children ages 12-17 y/o – rules and procedures very different but
substantive rules of criminal law are the same as for adult offenders- can be convicted of criminal code offence but
sentencing would be different
 Law's notion of child saving- youth are more capable of being rehabilitated than adult offenders
 It is a PFJ that young people who engage in criminal conduct should be presumed to have less moral
blameworthiness and culpability than adults (R. v. B(D), 2008, SCC)
 
Mental Disorder
Defense of Mental Disorder – Criminal Code
 Mental illness vs badness- criminal law concerned w/ badness
 Not everyone who is diagnosed with a mental disorder will get a mental disorder defence-e.g. depression
 S. 16 says no one shall be convicted of an offence if (1) they committed the act while suffering from a mental
disorder (2) that rendered them incapable of (a) appreciating the nature and quality of the act or (b) knowing
that it was wrong (used to be called defense of “insanity”)
 Criminal law takes the position that “badness” cannot always be explained by medical reasons/mental illness
 Psychopathy/Sociopathy: imprecise idea so not helpful in criminal law (i.e. can look like persistent recidivist); not a
criterion for legal liability (different than fitness to stand trial – if in psychotic break then trial will not proceed at that
time)
 Can still be criminally responsible
 Proper verdict, if proven, is “not criminally responsible by reason of mental disorder” (s. 672(34)) – automatic
detention in mental institution is the usual result (R. v. Swain said this violated Charter); Now it is absolute discharge
 Absolute discharge should be ordered unless accused poses significant threat and danger to society or if they
pose threat, indeterminate detention at the discretion of mental health authorities
 Mentally disordered at time of act- defence to the act
 Mentally disordered at time of trial- not fit to stand trial
 
Cooper v R [“disease of the mind” and appreciation test][leading case]
 1997, SCC
 Facts: Accused had history of psychiatric problems (including blackouts, seizures, sudden mood changes,
hallucinations); strangled female friend to death and charged with murder; due to mental illness he may not have
understood that strangling would kill her
 Mental disorder defined in s2 as a 'disease of the mind'
 44

 Issue: What does disease of the mind mean, and is any particular type of disorder a disease of the mind? (question of
law for judge)
 Holding: Accused suffering from disease of the mind
 Reasoning: (Dickson J) The underlying concern in defining disease of the mind is concept of responsibility (legal
concept) – pivotal issue is the Appreciation Test (see ratio) – more than just to “know” (requires deeper level of
understanding, emotional awareness)
 Trial judge essentially deferred to psychiatrist as if it were a factual/medical question (determined he was not
suffering disease of mind), however this was an error because it is fundamentally a legal question as to whether
accused suffered from disease of the mind (i.e. “rendered accused incapable of appreciating…knowing act was
wrong…”)
 Accused knew he was choking the victim but did not have the capacity to apprehend the nature of the act and
its consequences- Appreciating has a higher threshold than knowing
 To appreciate nature and quality of the act then you have to know the act and its consequences
 Ratio: Appreciation Test – the pivotal issue is whether the disease of the mind rendered the accused incapable of
appreciating the nature and quality of the act and its consequences, or of knowing it was wrong- not just
knowledge of physical quality of the act
 “Disease of the mind” under s. 16 includes any illness, disorder, or abnormal condition that impairs
human mind of its functioning (excluding self-induced states caused by alcohol or drugs as well as
transitory mental states i.e. Hysteria, concussion)
 
Kieldsen v R [psychopath]
 1981, SCC
 Facts: Accused randomly raped and murdered a person; accused was a psychopath
 Issue: Is psychopathy a disease of the mind under s. 16?
 Holding: Yes; but accused is guilty because he knew the nature and quality of act
 Reasoning: (McIntyre J) Accepted psychopathy as “disease of mind” (under s. 16) however this does not automatically
lead to NCR – requires satisfaction of 2-step test (here it didn’t meet the 2nd requirement in s. 16)
 Accused was incapable of having normal feelings about raping and murdering someone so argued he was
incapable of appreciated consequences of his actions; however, this is not grounds for defense where person
simply lacks appropriate feelings of remorse or guilt but still understands the nature and quality of act
 Ratio: Mental disorder is not a defense where person simply lacks appropriate feelings of remorse or guilt but
still understands the nature and quality of the act
 
R v Abbey [consequences does not mean penal consequences]
 1982, SCC
 Facts: A had belief in his own invincibility/that no harm would come to him – attempted to walk through customs with
bag of cocaine (knowingly and admittedly); charged with smuggling narcotics
 Reasoning: (Dickson J) Trial judge acquitted because he did not understand penal consequences of act; however,
Court says “consequences” in this context does not mean “penal consequences”
 Appreciating nature and quality of act means the consequences of the actus reus; but this was not a
consequence crime so all that is required is that he knew of the possession – which he did, and he knew the act
was wrong
 Consequences are those that are internal to criminal act not penal consequences
 Ratio: The inability of the accused to appreciate the penal consequences of the act does NOT amount to an
inability to appreciate the nature and consequences of the act, nor does it amount to an inability to appreciate
that the act was wrong
 
R v Chaulk [definition of “wrong”; morally wrong vs. legally wrong]
 1990, SCC
 Issue: What does “knowing conduct is wrong” mean?
 Reasoning: (Lamer CJC) Often mental disorders give rise to delusion that accused is living under special
circumstances – take this into account and only punish accused who believe their actions to be in contravention of
 Dissent: (McLachlin) If accused appreciates either that act was morally wrong or that it was legally wrong, he
cannot have NCR defense; policy behind this is that the criminal law does not usually care about moral
blameworthiness
 45

 Worried about mentally disordered people getting special treatment- don't usually consider if person
has diff moral compass
 Worried about having to make judgements about what is morally wrong
 Ratio: “Wrong” means more than just legally wrong; “wrong” means morally wrong under the circumstances
according to moral standards of society i.e. accused may understand that it is legally prohibited to kill and morally
wrong in general, but in this particular situation, the accused might have thought it was ok to kill (god commands you
to kill)

R. v Oommen [ability to tell right from wrong in particular circumstances][app of Chaulk]

 1994, SCC
 Facts: Accused shot and killed friend for no apparent reason – had delusional belief that friend was going to kill him
 Holding: Trial court rejected mental disorder defense but SCC rejected this and ordered new trial
 Ratio: For mental disorder defense, we are not looking for the accused’s general ability to tell right from wrong;
rather for the accused’s ability to tell right from wrong in those particular circumstances
o A person who lacks capacity to know that the act he is committing is wrong is exempt from criminal
responsibility if the mental disorder deprived him of the capacity to know his act was wrong by the standards
of the ordinary person. “Does the accused possess the capacity present in the ordinary person to know that the
act was wrong having regard to the everyday standards of the ordinary person?”
 Notes: Procedural note - Defense can bring up MD or TJ bring it up (Cooper) when there is evidentiary burden for it
o Crown can also raise MD defense – but only when there is evidence that accused was guilty; don’t want to
force someone into NCR detention when acquittal should have been made- burden of proof for defence is on
the person raising it s16(3)
o Mental disorder can impede person from having full mens rea- is a factor in mens rea dept

Automatism
Definition
 Automatism means there was an unconscious involuntary act where the mind does not match with the act being
done; accused is in a psychotic state that makes complex acts involuntary i.e. entirely altered state of
consciousness – accused acts without physically being conscious of what he is doing- mind does not go with
what's being done (Ritchie J in Rabey)
o On the surface it looks like a voluntary act
o Can come from mental disorder or from external cause (i.e. blow to the head) – MDA or NMDA (“sane
automatism”)
o MDA leads to NCR defense (generally detention in psychiatric facility); NMDA leads to acquittal
o Very difficult to get a defence of sane automatism in Canada today
 Questions: (i) What mental diseases are diseases of the mind? (question of law); (ii) Whether the claimed state of mind
was a disease of the mind? (question of law); (iii) Whether accused suffered claimed disease of mind (question of
fact)
o Bastarache J (Stone): law will decide whether or not there is a defense of automatism and whether it is
MDA or NMDA
o Court should start with assumption that there is a disease of the mind, and only move out from that
description if there is evidence to do so
o Considerations: (i) Internal/External Cause Factor (ii) Continuing Danger Factor (iii) Policy Considerations i.e.
floodgate concern
 
Rabey v. R [non-insane automatism defense]
 1980, SCC
 Facts: R was 20 y/o 3rd year university student – infatuated with Ms. X who thought of him only as a friend; found
letter she wrote to a friend saying she did not like him – he took it home and read it over and over; responded by
bashing her with a rock and strangling her
o Ran into people afterwards and was bewildered, confused, claiming incoherent things – later said he
remembered very little
o Trial: R found to have no mental disorder and acquitted b/c of NMDA
o Crown psychiatrist said R was likely in an extreme state of rage and not a dissociative state (not a defense);
memory loss afterwards was a separate instance i.e. blocked out afterwards
 46

 Issue: What was the appropriate defense here – MDA or NMDA?

 Holding: Case sent back for new trial on basis that R should at most get MDA
 Reasoning: (Richie J) Automatism means there was an unconscious involuntary act where the mind does not
match with the act being done.
o Central question in automatism case is often whether accused deals with a disease of the mind by legal
definition
o Rabey's dissociative state must have been caused by a mental disorder- Only defense available here is MDA –
if R was in fact in a dissociative state then he had a disease of the mind (not normal to fly into a dissociative
state and act violently); argued this was due to internal cause (source of psychological makeup, underlying
pathology) b/c there was no external cause
 MDA if cause is internal, NMDA if cause is external (blow to the head)
 There is the possibility of psychological blow causing MDA but that was not the case here-
lack of severity here for psychological blow automatism as an external cause (if you see
someone murdered then that would work)
o Ordinary stresses and disappointments of life are not external causes
o Dissent: (Dickson) Evidence that R did not have disease of the mind – psychiatrists believed him to be normal
despite fact that he had gone into dissociative state; purpose of putting people in psychiatric detention facilities
is not punishment but to protect society from dangerous, mentally disordered people (so if no disease of mind,
he shouldn’t be put there)
 Ratio: Defense of non-insane automatism – automatism describes unconscious, involuntary behaviour; the state
of a person who, though capable of action, is not conscious of what he is doing
o When an individual goes into automatistic state based on ordinary stresses of life, it indicates an
underlying cause – cannot say that this was an external cause of automatism (whereas seeing someone
murdered in front of you, if causes state of automatism, would lead to MDA automatism)
 Notes: need to establish automatism first before determining MDA or NMDA
o Automatism always involves amnesia; however, the presence of amnesia does not mean that act was definitely
automatism
 
R v Parks [sane automatism defense; sleepwalking]
 1992, SCC
 Facts: P drove to in-law’s house and attacked them with a kitchen knife - killed mom and left father seriously injured;
went to police station and turned himself in after (strange behaviour may suggest altered state of consciousness i.e.
holding knife by blade, etc.)
 Trial – Defense argument: Actions while sleepwalking were involuntary and outside control of accused
 Trial – Crown argument: Mental disorder automatism defense should have been put to jury
 Trial outcome: Acquittal based on sane automatism defense- jury
 Reasoning: Defense called 5 experts who all said P had been sleepwalking and that sleepwalkers cannot perform
voluntary acts, therefore he was in state of automatism; also said sleepwalking is not a disease of mind (very common)
 Violence during a sleepwalking episode is extremely rare and the risk that P would engage in another act of
violence sleepwalking was infinitesimally small; most effective way to prevent sleepwalking is sleep hygiene
 Whether or not person is mentally disordered for purposes of law is a legal categorization and not solely based
on psychiatric evidence – question of whether or not something is a disease of the mind is a legal question,
must consider policy implications - not just what psychologists thinks
 First accused has to lay evidentiary foundation for claim of automatism broadly then judge has to decide
whether it is NMDA or MDA (legal question) which is based on policy
 Policy for determining whether something is “disease of the mind”:
 (i) Internal Cause Theory (stems from emotional or psychological state) (ii) Continuing Danger
Theory (poses continuing danger to public then likely to be seen as a MD) – both lead to MDA
 Are factors to take into account when determining NMDA or MDA
 (iii) External Cause Theory leads to NMDA
 Must consider likelihood of recurrence
 Policy is this way because automatism is “easy to feign” and because of floodgate concern that
everyone will use this as a defense - not really relevant in sleepwalking context b/c defense has
existed for decades and no floodgates
 47

 Internal cause theory doesn't really apply to sleepwalking and person not a continuing danger- factors don't
really work here
 Ratio: Accused must bring evidentiary foundation to show state of automatism
 Judge must then distinguish between mental disorder automatism and sane automatism using evidence
and policy considerations (i.e. protection and likelihood of recurrence)
 Automatism, although used as a defense, is conceptually a subset of the voluntariness requirement
(under actus reus liability)
 Notes: If this case were decided today, P would likely be found NCR instead of fully acquitted  
R v Stone [leading case on how to apply automatism defense; MDA vs. NMDA]
 1999, SCC
 Facts: S subject to torrent of verbal abuse – felt something “come over him” and stabbed his wife 47 times and killed
her; he left a note, fled to Mexico and later returned and surrendered
 Defense: Wanted to rely on defense of sane automatism (snapped because of wife’s verbal abuse)
 Trial: Judge found evidentiary basis to consider automatism in this case – only MDA available
 Reasoning: (Bastarache J) “Psychological Blow Automatism” – negates actus reus; otherwise law assumes acts are
voluntary
 Why is it justified to shift burden of proof for defense of automatism to accused? (i) it is easily feigned that one
can make up a story consistent with automatism (ii) all of the knowledge rests with accused; (iii) person who
raises a mental disorder defense has burden of proving existence of a mental disorder on balance of
probabilities in Code (should have same burden of proof for sane and mental disorder automatism; reverse
onus)
 (1) What does the defense have to do to put the issue in play? Assertion by the accused (sometimes other
people can be relevant) that the act was involuntary, AND expert evidence confirming the assertion in
order to convince trial judge of evidentiary foundation on which jury could find that accused was in a
state of automatism and look at general circumstance (Fontaine- don't need to look at circumstances
anymore) – criteria were satisfied in this case
 (2) Should it be left as MD-A or NMD-A (sane automatism)?
 (i) What mental disorders are a disease of the mind – for the judge
 (ii) Is the condition the accused claims to be in a disease of the mind – for the judge
 (iii) Whether the accused actually suffered from the condition – question of fact for jury
 Holistic approach: all 3 factors were considered (internal cause, continuing danger, external
cause), no extraordinary external event or psychological blow that would lead normal person to
enter into psychotic state (Rabey)
 Fundamental question is whether society requires protection from the accused such that
they should be subject to evaluation
 Takes judicial notice that NMDA is very rare
 Dissent: (Binnie J) Mental disorder provisions of CC were not appropriate to resolve automatism issue
 Rejects internal cause theory – cannot presume automatism results from MD
 Jury faced with question of fact – was he actually unconscious during the attack or just lying at trial?
 Burden of proving voluntariness is on the Crown
 Ratio: Accused bears burden of proving automatism on a balance of probabilities, also has to prove NMDA b/c
presumption is MDA
 Notes: Factors impacting plausibility whether or not there is an evidentiary foundation for automatism (for jury to
consider) – severity of triggering stimulus (more severe, more likely to determine there was state of automatism),
corroborating medical history (more likely to believe if there is automatism), motive for crime (less likely to
determine state of automatism), corroborating evidence by bystanders (glassy eyes etc to show altered state of
consciousness), whether alleged trigger of automatism is also target of violence (looks more like reaction of
extreme rage rather than automatism)
 Fontaine – all that is required is a claim of automatism from accused and expert evidence to support
claim
 Reverse onus defences- automatism, mental disorder, extreme intoxication
 
R. v. Luedecke [sexsomnia] [MDA; policy considerations, likelihood of triggers]
 2008, ONCA
 Facts: Accused was sleeping at a party and had sex with a stranger while asleep; defendant argued “sexsomnia”
 48

 Brainwave patterns were consistent with parasomnia, had history of having sex while asleep with former
girlfriends
 Reasoning: (Doherty JA) Trial judge erred in his finding of sane automatism – hereditary nature of accused’s condition
(internal cause and recurrence) suggest mental disorder defense i.e. concerns of recurrence due to external causes (bad
sleep hygiene, alcohol consumption)
 Sexsomnia is not a mental disorder; can be improved with good sleep hygiene
 Looks at holistic approach from Stone
 Involuntary actions do not generally fit under s. 16, but it’s understood that person in state of automatism has
mental disorder defense – most automatism cases fall under mental disorder
 Doherty dismissed what medical expert said about whether this is disease of the mind – court will decide what
disease of the mind is based on policy considerations about social harm - there was continuing danger here,
not just likelihood of recurrence of violence but also things that trigger the episode (drinking, sleep
deprivation etc)
 Ratio: Applies ratio from Stone – treats this case as mental disorder automatism based on policy considerations about
social harm
 Parks would’ve had mental disorder automatism defense if decided like Stone (not sane automatism)
 Notes: Public protection issues will funnel almost all these cases in MDA due to general overall policy concern – gives
the state any sort of way to monitor accused
 Sleepwalking cases dealt with on case-by-case basis (i.e. Stone analysis) but will likely be MDA (Luedecke)
 
R v Bouchard-Lebrun [self-induced intoxication is not a mental disorder]
 2011, SCC
 Facts: Accused took ecstasy which caused psychotic religious fervor; tried to kill someone who he believed to be
wearing upside down cross; main victim was someone who intervened – accused threw him down the stairs and he
ended up with very serious brain injuries
 Defendant’s argument: defenses of involuntary intoxication are extremely narrow – accused was in state
similar to mental disorder, and thus should be treated in the same way
 Issue: Does toxic psychosis that’s caused exclusively by a single episode of intoxication constitutes a mental
disease/disorder?
 Holding: No, it’s not
 Reasoning: (LeBel J) SCC finds self-induced toxic psychosis is not a disease of the mind – one of the reasons is
precedent (Cooper explicitly excludes self-induced states caused by alcohol or drugs)
 Accused can rebut this presumption if he had major mental illness in addition to intoxication
 Factors that say toxic psychosis is not a mental disorder: Assessment of (i) internal cause – how would normal
person react to this? Normal person could go into toxic psychosis when taking ecstasy so doesn't come from
accused; (ii) continuing danger – accused is inherent continuing danger because of accused’s mental condition,
risk of recurrence must be independent of will of accused- here he chose to take drugs; (iii) external cause –
condition was clearly a result of taking the drug
 Danger of recurrence – there must be a danger that something can arise outside the control of the actor
 No valid reason to believe accused is mentally disordered – his condition was entirely the result of self-induced
toxic psychosis
 Ratio: A malfunctioning of the mind that results exclusively from self-induced intoxication cannot be considered
a disease of the mind in the legal sense, since it is not a product of the individual’s inherent psychological
makeup
 Disease of the mind categorization – consider: (i) internal cause factor; (ii) continuing danger theory; (iii)
external cause factor
 Notes: Some doctors did testify that self-induced psychosis is a mental disorder
 Using holistic approach from Stone

Intoxication
Provisions in the Criminal Code
 See s. 33
 
 49

Introduction
 By alcohol or drugs
 Compares intoxication with insanity – incapacity to know something is wrong; if this incapacity exonerates someone of
mental disorder, should it be any different than intoxication?
 We see incapacity arising from intoxication as less worthy of a defense than from MD- b/c intoxication is voluntary
 Distinction between voluntary and involuntary intoxication
 Voluntary intoxication: rules apply that limit the defense of voluntary intoxication
 Person consumes a substance knowing or having reasonable grounds to believe it might cause
impairment
 Moral difference – there is some blameworthiness when individual drinks to the point where he is a
danger to others
 Cannot form mens rea for the crime at this point which can pose problem in finding conviction
 Social reality that there are many intoxicated offenders – cannot create a wide defense of voluntary
intoxication that would allow criminals to get off for violence when intoxicated
 Is there automatism from intoxication? i.e. acts not considered voluntary
 Involuntary intoxication: use rules of regular criminal liability – take involuntary intoxication into account
when deciding whether person had mens rea for the crime
 A person ingested something by accident or unknowingly
 Also, could argue sane automatism – if someone slipped you a drug that put you into a state of
involuntary intoxicated automatism, this is a case of sane automatism – this argument could be used if
you were dealing with a case of sane automatism under the normal rules of criminal liability
 Not subject to the limits on the defense of voluntary intoxication
 
R v Bernard [general intent vs. specific intent offenses]
 2011, SCC – complex case with 4 judgments
 Facts: Accused forced female to have sex with him – there was violence (punched her twice in face, causing her eye to
swell; threatened to kill her); accused charged with sexual assault causing bodily harm – was quite drunk but also had
ability to perform ordinary actions
 Issue: When, if ever, can drunkenness ground a defense to a criminal charge?
 Holding: Conviction upheld; drunkenness is never a defense for general intent offenses; can be defense for specific
intent offenses
 Reasoning: (McIntyre J) Distinction between specific and general intent offenses
 General intent offense is an offense where the only intent involved relates solely to performance of the
act in question with no further ulterior intent or purpose i.e. assault requires only minimal intent to
apply force
(1) other examples: manslaughter, sexual assault, sexual assault causing bodily harm, assault causing
bodily harm, B&E and committing general offece
 Specific intent offense is one which involves the performance of the actus reus coupled with an intent or
purpose going beyond the mere performance of the questioned act i.e. murder requires the intent to kill
(1) other examples: break and enter w/ intent to commit and indictable offence, robbery, theft, attempted
crime
(2) Intoxication could be a defence
 Individuals who commit murder when they are intoxicated can sometimes have their charge lowered to
manslaughter because there was no specific intent-partial defense
 Good policy to never have intoxication as a defence for general intent offences
 Reasoning: (Wilson J) B was not in a state of intoxication to the point of involuntariness – Wilson is worried about
Leary rule that McIntyre applies and is worried about cases where one might be extremely intoxicated; worried about
Charter problems
 GI – intoxication can be a defense where it is extreme (akin to automatism); but normally not a defense
for GI and can infer mens rea from the act (as we can do in facts of this case (2) SI – intoxication a
defense of incapacity
 Dissent (Dickson): Perhaps we should allow jury to consider evidence of intoxication in establishing mens rea;
 No reason to think we are opening floodgates for defenses of intoxication because in most cases intoxication
will not negate mens rea
 50

 No SI or GI distinction – intoxication can be considered on the issue of mens rea along with any other
evidence on that issue (is a factor)
 Ratio: Intoxication is not a defense for a general intent offense
 Why? Crown must prove mens rea in 2 different ways: (i) can be inferred from act; and (ii) where
accused is so drunk as to reach a state of involuntariness or insanity we substitute the blameworthiness
of getting drunk for the mens rea of the specific charge (idea of substitute mens rea i.e. proof of voluntary
intoxication = proof of guilty mind)
 Crown still has to prove MR- can still argue no MR
 Intoxication can be a defense for a specific intent offense
 Notes: This rule raises concerns – substitution of blameworthiness is problematic; Leary rule turns sexual assault in
this case into an absolute liability case because mens rea can be substituted for mens rea to get drunk – Charter
problems arise
 The distinction between GI and SI offenses is made based on policy – should only have a narrow defense
of intoxication
 

R v Daviault [defense of extreme intoxication for general intent offenses, Charter minimum]
 1994, SCC
 Facts: D was 69 y/o alcoholic and acquaintance of victim; got extremely drunk and sexually assaulted victim, got
dressed and left
 Issue: Can a state of drunkenness which is so extreme that an accused is in a condition that closely resembles
automatism or a disease of the mind as defined in s. 16 of the CC constitutes a basis for defending a crime which
requires not specific but general intent?
 At trial (expert): D had blood-alcohol level that would have caused death or coma in a normal person but he
had a higher tolerance since he was an alcoholic; “alcoholic blackout” or alcoholic automatism – state of
automatism
 Holding: Yes; accused acquitted
 Reasoning: (Cory J) Applies Wilson J’s test from Bernard – the Leary rule would violate s. 7 and s. 11(d) of
Charter because substituting blameworthiness for getting drunk with mens rea for the offense means convicting
accused without mens rea – offends PFJ and presumption of innocence
 Can't be saved under s1 because there is no pressing objective
 Defense of extreme intoxication: required by Charter; applies only to GI offenses where intoxication is
extreme to state of automatism (difficult to prove because if accused can remember what happened, it will
show he was not in a state of automatism; if accused cannot remember, he will have difficulty making an
argument); may also be actus reus problem here because no voluntariness
 Doesn't believe in floodgates argument as successful defenses would be rare
 Dissent: (Sopinka J) Gives 4 reasons why he believes that intoxication should not be a defense to a GI offense (i) there
does not have to be perfect symmetry between actus reus and mens rea to not violate Charter, (ii) takes issue with
premise that someone who lacks voluntariness lacks moral blameworthiness for crime – believes mens rea is a legal
construct that is there to reflect moral responsibility, people who get extremely intoxicated and hurt others are still
morally blameworthy, (iii) intoxication is still a defense for specific intent offenses which is a way of reflecting
proportionality in these cases, (iv) the voluntariness requirement of the Act itself is not an absolute requirement under
the Charter
 Whole idea is to only punish people who are morally blameworthy; creating wide defense of intoxication
contradicts this moral blameworthiness and responsibility
 Can consider intoxication during sentencing instead
 Ratio: Court adopts Wilson J’s rule for intoxication – Intoxication can be a defense for a general intent offense,
where the intoxication is so extreme to the point of something akin to automatism
 This becomes Charter minimum (referred to as defense for extreme intoxication); burden of proof for defense
(must be proven on balance of probabilities which violates presumption of innocence) – reversal of burden of
proof here is justified for 3 reasons: (i) because this defense is similar to automatism and disease of the mind,
and in these cases the burden of proof is reversed; (ii) extreme intoxication will only arise rarely as a defense
so it will not be a problem in too many cases; and (iii) accused is the one who has means to prove extreme
intoxication, knowing how much alcohol was consumed, and can call expert evidence to speak to mental state
etc. so it would be difficult for Crown to prove that accused was not at extreme point of intoxication
 51

 Works for both mens rea and actus rea (disproving voluntariness ) defences
 
Bill C-72
 Overall purpose: Remove Daviault defense of extreme intoxication for violent general intent offenses
 Parliament agrees with Canadians that people who do violence to others while intoxicated are blameworthy in
relation to their harmful conduct; in Daviault, defense of extreme intoxication was separating the two offenses
– the people are blameworthy, so the right thing is to make them guilty of the substantive offence
 Parliament rejects idea of alcoholic automatism
 Concerned that self-induced intoxication may be used socially and legally to excuse violence (eg. Daviault
defence)
 Passes s.33.1- removes the Daviault defence from most general intent offences that involve violence (does not
apply to specific intent offences)
 Removes defense of extreme intoxication for general intent offenses but does not affect the common law
defense of drunkenness available to specific intent crimes such as murder
 When [self-induced intoxication] defense not available
 33.1 (1) It is not a defense to an offence referred to in subsection (3) that the accused, by reason of self-
induced intoxication, lacked the general intent or the voluntariness required to commit the offence,
where the accused departed markedly from the standard of care as described in subsection (2).
 Clearly talking about general intent offenses not specific intent
 Criminal fault by reason of intoxication(2) For the purposes of this section, a person departs markedly from
the standard of reasonable care generally recognized in Canadian society and is thereby criminally at fault
where the person, while in a state of self-induced intoxication that renders the person unaware of, or incapable
of consciously controlling, their behaviour, voluntarily or involuntarily interferes or threatens to interfere with
the bodily integrity of another person.
 Application(3) This section applies in respect of an offence under this Act or any other Act of Parliament that
includes as an element an assault or any other interference or threat of interference by a person with the bodily
integrity of another person.
 Effect of Bill C-72:
 Murder charge – since it is a specific intent offense, Bill C-72 does not apply, still have the defence
 Manslaughter charge – since it is a general intent offense, under old legislation, extreme intoxication would be
a defense but under this new bill, extreme intoxication would not be a defense
 Note: Whether this section will survive a Charter challenge remains to be seen – is s. 33.1 contrary to the Charter
and then of no force and effect? Court set Charter minimum in Daviault. Seems to take away any level of mens rea
(and perhaps even the actus reus) if there is no voluntariness and still leads to criminal liability – potentially an
absolute liability offense
 Daviault: Based on Charter reasoning – looks like there is a clear violations of s. 7 and s. 11(d) [presumption
of innocence] – if SCC decided that there was a clear violation, it may be difficult to save under s. 1
 Can argue that there is a pressing and substantial objective- protecting vulnerable women and children
as stated in preamble of law
 Minimal impairment- only for violent offences, weakness- violent offences is a broad category
 There is still sense of moral blameworthiness
 Alcoholic automatism thought by most experts to not exist at all
 In exam, say that Daviault recognizes extreme intoxication as a defence for general intent offences but
removed by section 33.1 but may violate Charter but may be saved by section 1
 
R. v. Daley
 2007, SCC
 Ultimate question is whether intoxication actually prevented person from forming intent not whether they had
capacity to form intent; if so, then defense is successful
 Ratio: Classification of intoxication defenses
 Mild – never a defense
 Lowered inhibitions etc
 Advanced – can be a defense for specific intent offenses; renders accused lacking in specific intent (the
accused’s foresight of consequences of his or her act impaired enough to raise reasonable doubt with
regards to mens rea)
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 Intoxication is advanced enough that the accused lacked the specific intent
 Ultimate question is whether they had intent or not- could still have specific intent w/ advanced
intoxication- it depends on the facts
 If accused pulled out gun and shot someone in face- could foresee death because it was so obvious
 If accused go in a bar and kicked someone in the face- might not have been able to foresee death
 Extreme – can be a defense for specific and non-violent general intent offenses; akin to automatism, negates
voluntariness and thus is complete defense
 Can't be guilty of anything- subject to subject 33.1 and Charter
 
  Mild Advanced Intoxication Extreme Intoxication
Intoxication

Specific Intent Offence Never a defence May raise reasonable doubt re: May negate physical voluntariness
mens rea

General Intent Offence Never a defence Never a defence May negate general intent or physical
voluntariness except per s.33.1(3)-
violent offences
 
R. v. Bouchard-Lebrun [self-induced intoxication is not a mental disorder]
 2011, SCC
 Issue: Does s. 33.1 apply on the facts of this case?
 Holding: Yes
 Reasoning: (LeBel J) S. 33.1 holds someone at fault for committing crimes during the period in which they were
intoxicated – it prevents accused from avoiding criminal liability on ground that his or her state of intoxication rendered
them incapable of forming mens rea element or voluntariness requirement
 Ratio: S. 33.1 applies when 3 conditions are met – (i) the accused was intoxicated at the material time, (ii) the
intoxication was self-induced, and (iii) the accused departed from the standard of reasonable care generally
recognized in Canadian society by interfering or threatening to interfere with the bodily integrity of another
person
 When these 3 elements are proved, it is NOT a defense that the accused lacked the general intent or the
voluntariness required to commit the offense
 Daviault defense still exists for non violent offences
 Notes: Policy
 Distinction between involuntary and voluntary intoxication – s. 33.1 uses “self-induced” to mean voluntary
 Chalk from NSCA tells us how to interpret voluntariness for self-induced intoxication – if accused
intentionally consumed such a substance that a reasonable person would know was a substance that
could result in intoxication
 Objective fault argument – did this person know that it was an intoxicating substance?
 Is objective standard appropriate? What if it is a really naive person?
 Did the person reasonably expect to become intoxicated but unbeknownst to them, their joint was
laced with a more severe drug
 Unclear how this would work. Unclear if you need to know each substance that you're
consuming
 S. 33.1 will take away intoxication defense if you voluntarily take intoxicating substance (therefore if you take
marijuana and it’s laced with PCP then it may not even matter)
 
Justification and Excuses
True Defenses
 Where full mens rea and actus reus are made out but person still has a defense
 Other defenses i.e. mistaken belief, automatism show issue with actus reus or mens rea
 Rooted in common law or statute – s. 8(3) common law defenses continue in force
 Why do we have common law defences but not offences
 Operates to the accused's advantage versus detriment of common law offences where people could be charged
retroactively by judges (Sedley)- give every protection to the accused in criminal law
 53

 Impossible to foresee in advance what all the justifications might be to explain crimes
 
Air of Reality for Defenses
Proving a Defense (2 steps)
 (1) Prove evidentiary burden – is there an evidentiary foundation to put the defense in play?
 Burden on accused
 The jury is told whether or not to consider a specific defense, decided by the judge
 Test = air of reality
 (2) Prove persuasive burden – does the defense succeed or fail based on the facts of the case?
 Persuading trier of fact
 Ordinary rule is that persuasive burden is on the Crown (i.e. disprove self-defense beyond reasonable doubt)
 Reverse onus defenses is when the burden is on the accused to prove the defense on a balance of
probabilities (i.e. automatism, extreme intoxication, mental disorder)
 
R v Cinous [air of reality test]
 Facts: D was a member of an organized crime group; was on a robbery with a gang member and he thought the gang
members were going to kill him so he shot them first – argued self-defense (s. 34(2))
 Reasoning: Self-defense requires accused to show they reasonably believed they were being assaulted, were going to
die, and that there were no alternatives to the killing – the accused did not meet any of these evidentiary burdens
 Ratio: Air of Reality Test : Is there evidence on the record upon which a properly instructed jury acting
reasonably could use the defense to acquit?
 Does the evidence disclose a real issue to be decided by the jury? Not a question of whether the defense
will succeed or not.
 Judge must consider the totality of the evidence and assume evidence relied upon by the accused to be
true
 Applies to ALL defenses
 Notes: Judge must put to the jury all defenses that arise based on the facts; whenever there is an air of reality to
the defense it must go to the jury
 Trial judge has duty to keep defenses that lack air of reality from the jury (even if the defense is the
accused’s only chance at acquittal)
 Why? Instructing jury on defenses that do not rise on the facts would create confusion and invite juries
to accept defenses that are not true
 Evidence can come from any source i.e. Crown, cross-examination, accused, etc.
 Error in law to not put defense that has air of reality to jury or to put a defense that does not have air of reality
to jury- Appeal Courts can review
 
Defense of Person
Introduction
 Commonly known as self-defense but also applies to defending another person
 Considered to be a justification in the sense that the action in defense of person is considered rightful as opposed to
being a wrongful offence that would generally not be excused
 Even thought the test is objective, all factors of accused and circumstances are taken into consideration; mistaken self-
defense can also be considered
 In order for self-defense to be left to the jury there must be evidence upon which a jury acting reasonably could
find:
 A belief on reasonable grounds that force or threat of force is being made against the accused or
another;
 What the accused thought the threat was, could be a mistake- but still has to be grounded in
reasonableness
 That the act was done for the subjective purpose of defending the accused or the other person; and,
 That the act was reasonable in the circumstances
 Proportionality is very much considered but how strictly do we enforce this? Not overly strict but
some threats are too minor to warrant the use of excessive force
 Wendell Holmes- detached reflection can't be accredited to a person in the face of an upraised knife
 Limits of defensive force- act must be for the purpose of defense, act must be reasonable in the circumstances
 54

 Not required to retreat or stand your ground but depends on situation and what is reasonable
 When you're in your own home then more reasonable to be aggressive and not run away- castle doctrine
 Unclear what is covered in section- any otherwise criminal act done to protect self is justified if reasonable. What if
you break and enter to escape someone?- Creates overlap with duress defence
 
Provision
 34. (1) A person is not guilty of an offence if
 (a) they believe on reasonable grounds that force is being used against them or another person or that a threat
of force is being made against them or another person;
 (b) the act that constitutes the offence is committed for the purpose of defending or protecting themselves or
the other person from that use or threat of force; and
 (c) the act committed is reasonable in the circumstances.
 Factors (2) In determining whether the act committed is reasonable in the circumstances, the court shall consider the
relevant circumstances of the person, the other parties and the act, including, but not limited to, the following factors:
 (a) the nature of the force or threat;
 More serious threats ground more serious responses
 (b) the extent to which the use of force was imminent and whether there were other means available to respond
to the potential use of force;
 Was there something else you could do? Could you run away?
 (c) the person’s role in the incident;
 If person starts a fight then less reasonable to apply force in self defence
 (d) whether any party to the incident used or threatened to use a weapon;
 More serious threat if person armed
 (e) the size, age, gender and physical capabilities of the parties to the incident;
 People less strong can reasonably react stronger and earlier
 (f) the nature, duration and history of any relationship between the parties to the incident, including any prior
use or threat of force and the nature of that force or threat;
 (f.1) any history of interaction or communication between the parties to the incident;
 Relationship might leave a person to foresee a threat that other people might not see
 (g) the nature and proportionality of the person’s response to the use or threat of force; and
 (h) whether the act committed was in response to a use or threat of force that the person knew was lawful (i.e.
arrest)
 No defense(3) Subsection (1) does not apply if the force is used or threatened by another person for the purpose of
doing something that they are required or authorized by law to do in the administration or enforcement of the law,
unless the person who commits the act that constitutes the offence believes on reasonable grounds that the other person
is acting unlawfully.
 
R v Lavallee [battered woman and imminence requirement]
 1990, SCC
 Facts: Battered woman who killed common-law partner by shooting him in back of head; had company over and he
was abusing her and threatened to “get her later”; she shot him when company left
 Reasoning: (Wilson J) There is an imminence requirement under traditional law of self-defense in order for it to be
justified – if force is not imminent, it just looks like revenge; however, for battered woman to wait until being abused
puts her in danger so SCC loosens evidentiary burden here (battered women syndrome is not a defense; but
apprehension of grievous harm/death can be)
 Expert evidence used to help jury understand experiences of battered women – described theory that showed
degree of predictability in battering behaviour and that battered spouse could reasonably predict violence and
when it would get out of hand so her reaction in her specific circumstances would be considered reasonable
 Basic question is whether given the history and circumstances, could she have protected herself without
using this force?
 If battered women wait for imminent threat it might be too late, requirement is too restrictive for battered
women
 Ratio: Battered women’s syndrome is not a defense in itself, but speaks to whether the apprehension of grievous
harm/death was reasonable
 Notes: not what outsider would perceive but what person in circumstances with history and experience would perceive.
 55

 Under new legislation, imminence is a factor but not determinative

R v Mallot [battered women’s syndrome not a defense in itself]

 1998, SCC
 Facts: Long-time abused woman kills her husband then goes to his girlfriend’s house and tries to kill her; charged with
murder and attempted murder
 Reasoning: Where battered women’s syndrome is raised as a defense, the jury must be instructed about the use of
evidence to help them understand (i) why an abused woman might stay in an abusive relationship (ii) the nature and
effect of the violence that may exist in an abusive relationship (iii) the ability of the accused to perceive danger from
her abuser (iv) whether the accused believed, on reasonable grounds, that she could not otherwise preserve herself from
death or grievous bodily harm
 Ratio: Battered women’s syndrome is not a defense, but is a factor relevant to the inquiry into the woman’s state
of mind
 Note: Use battered women’s syndrome as a way to help analyze woman’s state of mind in respect to self-defense
 Concern that the battered woman has created stereotype of weak women where women who don't fit stereotype
would not be able to access defence
 Judges say to avoid the syndromization of battered women

 Policy
 Area of law that governs police shootings which often intersects with issues of race (Yatim-Forcillo etc)
 Idea that we're not very strict about self defence in emergency shootings but on the other hand there are racially
motivated shootings

Necessity
R v Dudley and Stephens
 1884
 Facts: 4 people stranded at shipwreck for 20 days without food; D & S decide that cabin boy (RP) should be killed and
eaten; D killed RP, S consented, B dissented – but all 3 ate boy once killed (without RP consent); rescued 4 days later –
charged with murder
 Issue: Was killing RP considered murder under the circumstances, or is necessity a defense for murder in this case?
 Holding: D & S guilty of murder
 Reasoning: Necessity as a defense does not give the right to take away the life of another to save your own life
when the other is neither attempting nor threatening yours, nor is guilty of any illegal act whatever towards you
or anyone else
 Value of life is indeterminable; judge worries of putting label on weakest and most vulnerable as those in
group who “deserve to die” by necessity of self-preservation (vs. moral necessity to save lives)
 Right to fair procedure; no fair procedure in deciding to kill RP
 Higher moral order must be reflected in the law to a degree
 Ratio: Necessity is not a defense for murder (broad) i.e. here, when starving people kill someone to save their
own lives (narrow)
 Notes: This was a special verdict, where jury decided the facts and panel of judges decided the law
 
Perka v R [test for necessity; common law defense]
 1984, SCC
 Facts: Drug smugglers traveling from Columbia to Alaska – ship gets in trouble and they come on shore to Vancouver
Island and unload cargo which contained 33 tons of illegal drugs; accused claimed they only landed on Vancouver
Island because they were forced to in order to avoid death – no intention to smuggle or traffic drugs in Canada
 Issue: Is the defense of necessity a justification or an excuse?
 Holding: Excuse
 Reasoning: (Dickson J) Defense of necessity has to do with the need to break the law in emergencies and in order to
preserve life
 Two different ways of understanding necessity
 (i) Justification – challenge wrongfulness of an action which technically constitutes a crime –
where actor “chooses between 2 evils”; must decide whether it is better to break law and avoid
harm or comply with law and suffer harm i.e. police sniper shooting a hostage taker = justified.
 56

The accused is not punished because, in the circumstances, the values of society are better promoted
by disobeying a given statute than by observing it.
 More wide-ranging in holding that certain values are so important that they justify disobeying
the law.
 (ii) Excuse – concedes wrongfulness of an action but asserts that the circumstances are such that
it ought not to be attributed to the actor – complying with the law would result on intolerable
burden on the accused i.e. violent mentally disordered person doing something that is wrong but
excused due to mental disorder
 Excuses absolve the accused of personal accountability by focusing not on the wrongful act,
but on the circumstances of the act and the accused’s personal capacity to avoid it.
 Inherently limited by what is thought necessary for a realistic concession to reasonable human
weaknesses
 Necessity is an excuse: rests on realistic understanding of human weakness; this is the only course available to
the accused – a humane criminal law cannot punish people for failing to obey the law in emergencies where
human instincts for self-preservation compel disobedience
 Moral involuntariness exists when person has no other choice but to do the act; if this is the case then
often the act is morally involuntary and thus not punishable by law. Act is realistically unavoidable.
 Why do we not punish morally involuntary acts? Unjust to punish if actor could not realistically have
acted otherwise; no moral blameworthiness means not punishable (also cannot deter from acts that are
not morally blameworthy so pointless to punish)
 Ratio: 3-part Test for Necessity – (i) must be an urgent/emergency situation of imminent risk where action taken
was to avoid peril; (ii) must be no reasonable legal alternative (core requirement – whether person had choice,
drawn from Morgentaler); (iii) proportionality between harm inflicted and harm avoided (harm inflicted< harm
avoided, resist pressure to break law)
 Potential 4th requirement – defense of necessity cannot arise through illegal act i.e. they were transporting
drugs; however, Dickson J says it is just a potential limitation i.e. if you reasonably (clearly) foresee that you
will be putting yourself into a situation of necessity where you would have to defend yourself but in some
circumstances is still available
 Onus of proof: evidentiary burden on accused to show air of reality; Crown has persuasive burden to
disprove evidence beyond reasonable doubt
 Defence must be limited so it only covers acts that are truly morally involuntary
 Notes: Defense of necessity is a common law defense, not found in the Criminal Code
 R v Morgentaler – recognition that there could be a defense of necessity but if it did exist, it would be very
limited (can only justify non-compliance with the law in situations of clear and imminent peril when
compliance with the law is demonstrably impossible i.e. high standard for when necessity would be available
as defense to criminal charge)
 Dickson's examples of necessity: Could have necessity when person steals food to give to starving children,
speeding to hospital
 Lost alpinist versus squatters- court accepts one off situations
 
R v Latimer [modified objective Perka test]
 2001, SCC
 Facts: L killed his severely disabled 12 y/o daughter – she had undergone numerous surgical treatments that put her in
severe pain – doctors wanted to do more surgery but L perceived this as mutilation so decided to kill her; charged with
murder
 Issue: Do we determine necessity based on an objective or subjective standard?
 Holding: No air of reality to any element of Perka test
 Reasoning: Court applies 3-part necessity test (Perka) – (i) there was no imminent peril i.e. must be on the verge of
transpiring and immediately certain to occur not simply an ongoing and unfortunate situation; even if he did perceive it
as imminent peril, that is unreasonable; (ii) L had other lawful alternatives i.e. careful and realistic evaluation of
continued treatment and care, feeding tubes etc; realistic appreciation of alternatives (looser requirements) (iii)
proportionality requirement is difficult to meet in homicide case, harms here were completely disproportionate
to the harms avoided (there is a suggestion that necessity cannot be a defense to murder but leaves it open in
cases where harm avoided is comparable to death) - at minimum, proportionality must be equal (looser)
 Advantages of modified objective test – contextualizes the defense in a way that pure objective tests cannot
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 Ratio: Court relaxes Perka rules by opting for a modified objective test – requirements (i) imminent peril and
(ii) no legal alternative should be evaluated based on objective and subjective elements (Courts can consider
accused’s perceptions based on their “circumstances and attributes” as long as these are reasonable)
 The harm inflicted need not always be less than harm avoided – the harm must be either comparable to
or greater than that inflicted (purely objective test, based on community standards)
 Take into account situation and characteristics of the accused in objective test
 Notes: Can necessity be a defense to a deliberate killing? Conjoined twins case (Re: A) – separating them would cause
one of them to die yet courts ordered doctors to do the surgery, even at the parents’ opposition; therefore, this shows
that sometimes necessity can be a defense to killing
 Necessity usually a residual category- not self defence and not duress
 
Duress
Criminal Code Provisions
 Certain situations where accused commits a crime under threat from another person
 Complicated relationship between common law and Criminal Code – originally there was defense under
common law, and then Code came up with another one under s. 17 (“Any person who commits…”)
 S. 17: “A person is excused…”
 Requirements: (i) threat of death or bodily harm to person (you or 3rd party) – not property, pet etc.;
(ii) immediacy (iii) presence: the threat has to come from the threats of a person who was present at the
time the offense was committed; (iv) belief – accused has to believe that threat will be carried out; (v)
accused can’t be party to a conspiracy (i.e. if join Hell’s Angels and then refuse to sell drugs and are
threatened – no defense of duress); (vi) exclusion of various offenses i.e. murder, robbery, aggravated
assault, etc.
 S. 18
 R v Paquette [statutory vs. common law defense of duress; defense of duress for murder]
 1977, SCC
 Facts: Robbery resulted in innocent bystander being shot to death; accused also charged with murder – he had driven
robbers to the store but claimed he was compelled by the robbers, threatened with gun
 Reasoning: (Martland J) Murder is an exception to s. 17 defense of duress (excluded in code) and P would be guilty
under party liability provisions – defense decided to argue that s. 17 did not apply to P because it only applies to
accused who actually commits the offense and therefore the common law defense of necessity should apply, which has
no exclusions
 S. 17 inapplicable to accused because he did not commit the murder; he was simply liable as a party and
therefore the defense of duress applies
 Moral voluntariness
 Ratio: S. 17 ONLY applies when the accused was the one to actually commit the offense – those liable as parties
are not covered by the provision (based on wording “a person who commits an offense”, not a person who is
party to an offense)
 Common law defense of duress IS available to those who are liable as parties, while statutory defense of
duress is only available to those who are principals to the crime
 Notes: this was pre-Charter
 Du agrees w/ policy argument that defence of duress should be broader and available for more people who
aren't morally blameworthy
 
 R v Hibbert [common law defense of duress, no safe avenue of escape]
 1995, SCC
 Facts: Accused charged with attempted murder – was afraid of principal who compelled him to participate; H was an
aider and abettor and not a principal offender
 Issue: Does defense of duress apply? Yes
 Reasoning: Accused had no safe avenue of escape. Like necessity, duress is an excuse so need idea of no choice
 Ratio: Accused must have had no safe avenue of escape as measured on the modified objective standard of the
reasonable person similarly situated
 This is an additional requirement to the s. 17 requirements of duress
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R v Ruzic [immediacy and presence requirements; s. 7 violation]

 2011, SCC
 Facts: Woman was importing heroin into Canada – said she did it under threats from a criminal in her native Serbia.
She was supposed to take the drugs to a restaurant in Toronto, and the guy told her if she didn’t do this, he would harm
her and her mother
 Issue: Do the immediacy and presence requirements of s. 17 offend s. 7 of the Charter?
 Reasoning: She was the principal offender so s. 17 applies; however, problem for defense because immediacy and
presence requirements not satisfied – these requirements are unconstitutional
 Supposed to take drugs to restaurant in Toronto and the guy told her that he would harm her and her mother if
she didn’t
 Ratio: Struck down immediacy and presence requirements – contrary to s. 7 because they can excuse from the
defense of duress morally involuntary acts
 Additionally, s. 17 does not preclude reliance on threats to 3rd parties
 Recognizes a new PFJ- only morally voluntary conduct can attract criminal liability- Need to make
defences available for people who act involuntarily
 
R v Ryan [Charter standards of moral involuntariness]
 2013, SCC
 Facts: Accused abused by husband – he repeatedly threatened hers and daughter’s life; police reportedly refused to
help accused; she repeatedly attempted to hire a hit-man and finally hired a contract killer who turned out to be a
policeman. Charged with commission of a murder
 Issue: Does defense of duress become available in this situation?
 Holding: No; by definition the defense of duress does not apply to these facts
 Reasoning: (LeBel J) Defense of duress argued due to its flexibility but court outlines relationship between defense of
self-defense, duress and necessity; these defenses must be distinct
 (i) duress and necessity – very similar; based on same juristic principles; both of these defenses based on idea
of moral involuntariness – both are excuses
 defense of duress – when “threat made for purpose of compelling him to commit an offense”
 (ii) self-defense – distinct in several ways (a) distinction about who is the victim (is the victim issuing the
threat, or an innocent third party), self-defense is justification not excuse because the victim is the author of his
own misfortune, (b) purpose behind threat, in self-defense the purpose is relevant, in duress there must be a
specific purpose, (c) codification – self-defense provisions are completely codified, duress is partly codified
but common law version of defense still applies to parties, and necessity is not codified, (d) underlying
rationale – moral involuntariness forms basis of necessity and duress (excuses), (e) broadness – self-defense
should be broader, whereas duress is limited by statute
 Requirements: (i) threat of death or bodily harm (ii) actual belief that is reasonable (iii) no conspiracy
(iv) exclusion of specific offenses PLUS common law requirements to ensure moral involuntariness (v)
no safe avenue of escape (vi) close temporal connection (vii) proportionality (harm threatened has to be
at least equal and person must resist)
 [Underlined requirements are for the common law defense and based on modified objective test]
 Common law defense is same list WITHOUT the exclusion of specific offenses
 Ratio: Defense of duress is available when a person commits an offence while under compulsion of a threat
made for the purpose of compelling him or her to commit it
 Notes: Only defense that can be argued in this case is self-defense – NS courts concerned that self-defense unavailable
in situation of secondhand self-defense (i.e. hiring someone to kill another)
 Du thinks they should've keep proportionality as objective test same as in necessity, idea: sometimes a defence
might be a justification and sometimes an excuse even within the same defence
 New self defence provisions may swallow situations that look like necessity and duress
 Person coming at you so you steal bike- necessity and self defense
 Person puts gun to head and tells you to steal bike- duress and self defence
 One view is that have all defences available to D- unclear
 Because there is a statutory defence of self defence then other defences will get swallowed b/c statute
supersedes common law
Provocation
 ONLY A PARTIAL DEFENCE TO MURDER, REDUCES MURDER TO MANSLAUGHTER
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 Once raised by the facts, must be disproven by Crown

 In the heat of passion caused by sudden provocation (s.232)- statutory defence
 Can partially excuse someone who kills someone intentionally on the basis that they did it when they were
provoked
 New definition of provocation (from statute):
 (i) Conduct of the victim that would constitute an indictable offence under this Act that is punishable by
five or more years of imprisonment and
 Note: covers hybrid offences as well as indictable offences (if the hybrid offence carries 5 or more
years)
 Nothing in Code says the indictable offence has to be done towards you
 (ii) That is of such a nature as to be sufficient to deprive an ordinary person of the power of self-control
 (iii) If the accused acted on it on the sudden and before there was time for their passion to cool
 Old definition of provocation: a wrongful act or insult which was thought to be too broad- now it is an indictable
offense (changed in 2015)
 2 parts to defence
 Objective element to provocation: there has to be some provoking conduct sufficient to deprive an
ordinary person of self control
 Subjective element to provocation: accused has to have actually been provoked (even if someone had
done something provoking to you, and you don’t lose your cool and just murder that person in cold
blood, that would not result in provocation defence) – you must have reacted in a relevant way (heat of
passion)
 3 types of provocation cases that generally came up historically
 (1) Gay panic cases (like Hill) – but going forward, the provocation defence would only apply of this sexual
advance was of a nature of sexual assault that would give rise to 5 years imprisonment
 Discriminatory baggage to defence- homophobia
 (2) Adultery cases (ex. man comes home to find wife with another man, kills someone) – going forward, these
will no longer be covered by provocation, because adultery is not an indictable offence (unless the adultery
goes along with something like assault)
 Discriminatory baggage- misogyny
 (3) Excessive self-defence (someone was defending themselves, and goes too far and kills the person)- seem to
fit in new provocation regime b/c assault is an indictable offense
 
R v Hill [defence of provocation]
 1985, SCC
 Facts: Accused 16 y/o male, stabbed victim (someone he knew through Big Brothers) to death. They were at victim’s
apartment, and Hill says victim made unwelcome sexual advance, which provoked Hill
 Note: There is no information about the nature of the sexual advance, which would be very important under the
new section of the code – if it were something of a nature to commit a sexual assault (indictable offence), then
the provocation defence would fly, but if it was just a comment or something that is not indictable, then
provocation would not be allowed anymore
 Issue: Did the trial judge properly explain the defense of provocation to the jury? To what extent do we factor the
accused’s personal characteristics into the ordinary person for the purpose of provocation (i.e. he was a young,
inexperienced male)
 Holding: TJ didn’t instruct jury to take into account accused’s age and sex, but they jury would do so anyways, so the
TJ made no error
 Analysis: Court says we should consider whether a person of similar personal characteristics to the accused would
have been provoked (look to case to determine why we take into account personal characteristics; one reason is that
personal characteristics can be the reason for the insult)
 Best to keep the jury charge clear and simple, so there was nothing wrong with the jury charge but in principle
the age and gender of the accused could be taken into account in the ordinary person standard
 Ratio: To determine if defense of provocation applies, ask 3 questions – (i) would ordinary person be provoked by the
wrongful act or insult? (ii) Did the accused in fact respond to those provocative acts? (iii) Was the accused’s response
sudden, and before their passion could cool?
 The ordinary person has a normal temperament and level of self-control and is not exceptionally
excitable, pugnacious, or in a state of drunkenness- still binding definition despite statutory changes
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 Can take into account some characteristics of the accused if relevant to provocation defence- e.g.
Race of a person in a racial slur provocation defense
 Judge doesn't necessarily have to tell jurors about this as jurors would take it into account
anyway
 Notes: Dickson- the defence of provocation acknowledges that all humans are subject to uncontrollable anger and
outbursts that lead them to violence- but murder? Really?