Table of Contents

SOURCES OF CRIMINAL LAW..........................................................................................................................1

INTRODUCTION...........................................................................................................................................................1
R. v. Dudley and Stephens (1884, QB) – Introductory case (necessity)........................................................................................1
SOURCES OF CRIMINAL LAW.......................................................................................................................................1
COMMON LAW.............................................................................................................................................................1
R v Sedley (1663)...........................................................................................................................................................................1
Frey v Fedoruk (1950, SCC) – NO more new common law offences............................................................................................2
R v Henry (2005, SCC) - Some SCC obiter dicta should be authoritative......................................................................................2
STATUTES...................................................................................................................................................................... 2
General Principles of Statute Interpretation.................................................................................................................................2
R v Clark (2005) SCC - Statutory interpretation............................................................................................................................3
Bilingual Interpretation.................................................................................................................................................................3
Strict Construction.........................................................................................................................................................................3
R v Goulis (1981) – Interpretation more favourable to the accused should be adopted............................................................3
R v Pare (1987, SCC) - strict construction, single transaction.......................................................................................................4
Criminology (maybe policy question)............................................................................................................................................4
Punishment and Deterrence (maybe policy question).................................................................................................................4
DIVISION OF POWERS...................................................................................................................................................4
CHARTER OF RIGHTS AND FREEDOMS..........................................................................................................................5
Hunter v. Southan (1984, SCC) – purposive approach to the interpretation of the Charter........................................................5
Section 7........................................................................................................................................................................................6
Canadian Foundation for Children, Youth & The Law v. Canada (Attorney General) (2004, SCC) – the Spanking case..............6
Bedford v. Canada (Attorney General) (2013, SCC) – Bawdy house case, TEST of s. 7.................................................................8
Section 1........................................................................................................................................................................................9
R v. Oaks (1986, SCC) – OAKS TEST...............................................................................................................................................9
Relationship between Section 1 and Section 7...........................................................................................................................10

THE CRIMINAL PROCESS...............................................................................................................................10

PROCEDURAL OVERVIEW..........................................................................................................................................10
PROCEDURAL CLASSIFICATION OF OFFENCES............................................................................................................10
OFFENCES TRIABLE ONLY ON INDICTMENT................................................................................................................10
SUMMARY CONVICTION OFFENCES...........................................................................................................................10
CROWN ELECTION OFFENCES.....................................................................................................................................10
PRESUMPTION OF INNOCENCE.................................................................................................................................11
Woolmington v. DPP (1935, UK) – classic authority that the Crown bears the burden of proof to overcome presumption of
innocence....................................................................................................................................................................................11
REASONABLE DOUBT................................................................................................................................................12
R v Lifchus (1997, SCC) – leading case on how to explain ‘proof beyond a reasonable doubt’ to a jury...................................12
R v Starr (2000, SCC) – much closer to absolute certainty than probability...............................................................................12
R v JHS (2008, SCC) – proof beyond a reasonable doubt definition for credibility contest cases..............................................13
R v Oakes (1986, SCC) – Reverse onus provision for drug trafficking violates presumption of innocence under Charter........13
CRIMINAL JUSTICE POLICY.........................................................................................................................................14
Victim’s Rights:............................................................................................................................................................................14
Scope of Criminal Law.................................................................................................................................................................14
R v Malmo-Levine (2003, SCC) – leading case on defining what a Principle of Fundamental Justice is for purpose of s.7, harm
principle not a Principle of Fundamental Justice........................................................................................................................14
ADVERSARY SYSTEM.................................................................................................................................................15
Steve Coughlan, “the ‘Adversary System’: Rhetoric or Reality”.................................................................................................16
Carrie Menkel-Meadow, Portia in a Different Voice: Speculation on a Women’s Lawyering Process.......................................16
Madam Justice Bertha Wilson, Will Women Judges Really Make a Difference? – women & bias.............................................16
Aboriginal Peoples and Criminal Justice – Law Reform Commission of Canada........................................................................16
Rupert Ross, Dancing with a Ghost.............................................................................................................................................17
R v RDS, 1997 SCC – judges’ remarks should not give rise to reasonable apprehension of bias...............................................17
THE ACT REQUIREMENT...............................................................................................................................18
INTRODUCTION.........................................................................................................................................................18
Elements of offences:..................................................................................................................................................................18
CONSENT MAKING AN ACT LAWFUL.........................................................................................................................18
R. v. Jobidon (1991, SCC) – bar fight. LEADING CASE for consent limitations for assault..........................................................19
CONSENT VITIATED BY FRAUD....................................................................................................................................20
R. v. Moquin (2010, Man. CA) – What bodily harm means........................................................................................................20
R. v. Cuerrier (1998, SCC) – fraud, vitiated consent, failure to disclose HIV vitiates consent....................................................21
R. v. Mabior (2012, SCC) – Realistic possibility of HIV transmission – What constitutes “significant risk of serious bodily
harm”?.........................................................................................................................................................................................21
R. v. Hutchinson (2014, SCC) – Consent vitiated buy fraud (holes in condoms)........................................................................22
OMISSIONS...............................................................................................................................................................22
Fagan v. Commissioner of Metropolitan Police (1968, England) – omission v. assault.............................................................23
HOW DO LEGAL DUTIES ARISE? (STATUTES AND COMMON LAW).............................................................................23
R. v. Miller (1983, House of Lords) – English case; legal duty arises from common law............................................................24
Moore v. R. (1979, SCC) – LEADING Canadian case of Omission................................................................................................24
R. v. Thornton (1991, Ont. C.A.) – donate HIV positive blood....................................................................................................25
R. v. Browne (1997, Ont. C.A.) – DUTY, Criminal negligence causing death. the court defined “undertaking” in s. 217.........26
R. v. Peterson (2005, Ont. C.A.) – duty under s. 215. the duty to a person under your charge.................................................26
VOLUNTARINESS.......................................................................................................................................................27
BASIC IDEAS................................................................................................................................................................27
WHY INVOLUNTARY ACTIONS NOT CRIMINAL?..........................................................................................................27
R v. Lucki (1955, Saskatchewan Pol. Ct.).....................................................................................................................................27
R v. Wolfe (1975, Ont. C.A.) – cite for voluntariness issue.........................................................................................................28
R v. Swaby (2001, Ont. C.A.)........................................................................................................................................................28
R v. Ryan (1967) – NO PRECENDTIAL VALUE, NOT CANADIAN!!................................................................................................28
Kilbride v. Lake (1962).................................................................................................................................................................29
CAUSATION...............................................................................................................................................................29
Smithers v. R. (1978, SCC) – leading Canadian case; causation for homicide: outside de minimus range................................29
R. v. Harbottle (1993, SCC) – substantial cause test under s. 231(5) for first degree murder....................................................30
R. v. Nette (2001, SCC) – significant contributing cause (TEST currently used)..........................................................................30
TEST OF CAUSATION SO FAR......................................................................................................................................31
R. v. Talbot (2007, Ont. C.A.) –....................................................................................................................................................31
INTERVENING CAUSE (s. 224, 225, 226, Maybin)........................................................................................................31
R. v. Smith (1959, UK?) – TEST for intervening cause in UK........................................................................................................32
R. v. Rlaue (1975, UK?) – death that could have been prevented, thin skull rule, s. 224...........................................................32
The Queen v. Bingapore (1974-5, Australia)...............................................................................................................................32
R. v. Maybin (2012, SCC) – Leading Canadian case on intervening cause; TEST, “But For”.......................................................33

FAULT REQUIRMENT....................................................................................................................................33
INTRODUCTION.........................................................................................................................................................33
R. v. Hundle (1993, SCC) – Subjective meas rea v. objective mens rea......................................................................................34
R. v. Theroux (1993, SCC) – no need to prove precisely, can infer from the act or the circumstances.....................................34
R. v. Mulligan (1974, Ont. C.A.)...................................................................................................................................................34
R. v. Ortt (1968, Ont. C.A.)...........................................................................................................................................................34
R. v. Walle (2012, SCC)................................................................................................................................................................34
REGULATORY OFFENCES (FAULT FOR THESE OFFENCES)...........................................................................................34
Beaver v. R. (1957, SCC) – drug trafficking requires knowledge of the substance, default fault for criminal offences is
subjective mens rea....................................................................................................................................................................35
R v. City of Sault Ste. Marie (1978, SCC) – Leading case! Default fault for reg offence is strict liability....................................35
R v. Wholesale Travel Group (1991, SCC) – distinguish criminal offences and regulatory offences..........................................36
Charter Standards of Regulatory Offences.................................................................................................................................37
RE: BC Motor Vehicle Act Reference (1985) – strict liability is constitutional minimum fault requirement for any offence that
carries possibility of imprisonment.............................................................................................................................................37
What does due diligence require?..............................................................................................................................................38
R. v. Beauchamp (1953, Ont. C.A.) – TEST for careless driving fault requirement.....................................................................38
MURDER...................................................................................................................................................................38
 Simpson v. R. (1981, Ont. C.A.) – cite s. 229(a), this case interprets that section. Subjective mens rea...................................39
R. v. Edelenbos (2004, Ont. C.A.) – primary authority on what “likely” means for section 229(a)(ii)........................................39
CONSTRUCTIVE MURDER............................................................................................................................................40
Vaillancourt v. R. (1987, SCC) – at least death must have been objectively foreseeable for a charge of murder.....................40
R. v. Martineau (1990, SCC) – Leading Case on Subjective Mens Rea For Murder (Charter).....................................................41
First Degree vs. Second Degree...................................................................................................................................................42
R. v. Smith (1979, Sask. C.A.) – Leading case on “planed” and “deliberate” under s. 231(2)....................................................42
R. v. Nygaard and Schimmens (1989, SCC) – planned and deliberate infliction of bodily harm that is likely to cause death is
first degree murder.....................................................................................................................................................................43
R. v. Collins (1989, Ont. C.A.) – LEADING CASE, accused must know the victim is in the specific victim list.............................43
TEMPLATE FOR MURDER CASE...................................................................................................................................43
Charging Stages in 1st degree murder........................................................................................................................43
SUBJECTIVE MENS REA..............................................................................................................................................44
R. v. H (A.D) (2013, SCC) – common law presumption of subjective mens rea..........................................................................44
Intention/Knowledge (highest subjective mens rea needed for criminal law)..........................................................................45
R. v. Buzzanga and Durocher (1979, Ont. C.A.) – LEADING case on definition of intention.......................................................45
R. v. Boulanger (2006, SCC) – offence of breach of trust requires subjective mens rea............................................................46
Recklessness................................................................................................................................................................................46
R. v. Theroux – Fraud case!.........................................................................................................................................................46
Sansregret v. R. (1985, SCC) –leading case on definition of wilful blindness and recklessness.................................................47
R. v. Briscoe (2010, SCC)..............................................................................................................................................................47
R. v. Lagace (2003, Ont. C.A.)......................................................................................................................................................47
R. v. Blondin (1971. B.C. C.A.)......................................................................................................................................................47
OBJECTIVE FAULT......................................................................................................................................................47
O’Grady v. Sparling (1960, SCC)..................................................................................................................................................48
R. v. Tutton and Tutton (1989, SCC) – SMR vs. OMR on criminal negligence.............................................................................48
Waite v. R. (1989, SCC) – minimal SMR.......................................................................................................................................49
R. v. Anderson (1990, SCC) – marked and substantial departure...............................................................................................49
MARKED DEPARTURE TEST.........................................................................................................................................50
R. v. Hundle – marked departure test is for dangerous driving, take into account circumstances...........................................50
R v. Creighton – Leading case, unlawful act manslaughter, Negligence must be marked departure from standard of
reasonable person.......................................................................................................................................................................50
R v. Beatty (2008, SCC) – dangerous driving causing death, marked departure applies to all objective crimes.......................51
R v F.(J.) (2008, SCC) – Fault requirement for criminal negligence is “marked and substantial departure”..............................52
CRIMES BASED ON PREDICATE OFFENCES..................................................................................................................52
R. v. Creighton (1993, SCC) – mean rea for manslaughter.........................................................................................................53
Aggravated Assault......................................................................................................................................................................54

RAPE AND SEXUAL ASSAULT........................................................................................................................54

RAPE LAWS IN CONTEXT...........................................................................................................................................54
Rape and sexual assault..............................................................................................................................................................54
Rape myth:..................................................................................................................................................................................54
Historical rules specific to rape cases.........................................................................................................................................55
Definition of “Rape” (Old version Code s. 143)...........................................................................................................................55
Mental element...........................................................................................................................................................................55
CRIMES OF SEXUAL ASSAULT....................................................................................................................................56
Offences of Sexual Assault (s. 271, 272, 273).............................................................................................................................56
R. v. Chase – Leading case, Breast case, “sexual nature”...........................................................................................................56
Fact Pattern Problem in p. 612....................................................................................................................................................57
Consent in the Criminal Code......................................................................................................................................................57
Where consent is vitiated (could be from either statute or common law)................................................................................57
Mistaken Belief in Consent (subjective mens rea DEFENCE)......................................................................................................58
R. v. Ewanchuk – Elements of sexual assault..............................................................................................................................59
Limits on The Defence of Mistaken Belief in Consent................................................................................................................60
R. v. Cornejo................................................................................................................................................................................60
R. v. A. (J.) – advance consent for unconscious afterwards – POLICY?.......................................................................................61

MISTAKE......................................................................................................................................................63
 MISTAKE OF ACT.......................................................................................................................................................63
Mistake........................................................................................................................................................................................63
Mistake of Fact and Fault............................................................................................................................................................63
Mistakes as to the Nature of the Act..........................................................................................................................................63
R. v. Ladue – indecently interfering with a human body, thought more serious but less serious – probably not be defence. 64
R. v. Kundeus (1976, SCC) – thought less serious but actually more serious – may not a defence...........................................64

INCAPACITY..................................................................................................................................................65
AGE...........................................................................................................................................................................65
MENTAL DISORDER...................................................................................................................................................66
Cooper v. R. (1979, SCC) – LEADING CASE. TEST – Disease of the Mind, nature and quality of the act....................................67
Kjeldsen v. R. (1981, SCC)............................................................................................................................................................67
R. v. Abbey (1982, SCC) – does not need to appreciate the penal consequences of the act.....................................................68
R. v. Chaulk (1990, SCC) – LEADING CASE of what “wrong means” and the reverse onus........................................................68
R. v. Oommen (1994, SCC) (NOT mentioned in class).................................................................................................................68
AUTOMATISM...........................................................................................................................................................69
R. v. Rabey – internal cause and external cause.........................................................................................................................70
R. v. Parks – Sleepwalker case.....................................................................................................................................................71
How to analyse mental disorder automatism and sane automatism.........................................................................................72
R. v. Stone (1999) – LEADING CASE in CANADA. Distinguishing MDA & NMDA.........................................................................72
R. v. Luedecke (2008, Ont. CA) – protection of the public, continuing danger theory...............................................................73
R. v. Bouchard-Lebrun (2011, SCC).............................................................................................................................................74
INTOXICATION (s. 33.1).............................................................................................................................................76
R. v. Bernard (1988, SCC) – What specific intent and general intent mean...............................................................................76
R. v. Daviault (1994, SCC) – extreme drunkenness is defence for general intent offences; later removed by Parliament for
violent crimes, Charter Minimum...............................................................................................................................................77
Intoxication Summary.................................................................................................................................................................78
Parliament Enacts Bill C-72 in Reaction to Daviault Case...........................................................................................................79
R. v. Daley (2007, SCC) – 3 forms of intoxication, remember talking about unconstitutional...................................................80
R v Bouchard-Lebrun (2011, SCC) – Dividing line between mental disorder and intoxication...................................................81
Distinction between voluntary and involuntary.........................................................................................................................81

JUSTIFICATIONS AND EXCUSES.....................................................................................................................81

INTRODUCTION.........................................................................................................................................................81
Air of reality for defences............................................................................................................................................................81
R. v. Cinous (2002, SCC) – air of reality test – a question of law decided by the judge..............................................................82
DEFENCE OF PERSON (Codified as s. 34)....................................................................................................................82
R. v. Lavallee (1990, SCC) – not only reasonable man standard, but taking circumstances into account.................................84
R. v. Malott (1998, SCC)...............................................................................................................................................................85
NECESSITY (COMMON LAW DEFENCE)......................................................................................................................86
R.v. Dudley and Stephens (1984, UK) – is necessity a defence to murder?...............................................................................86
Perka v. R. (1984, SCC) – TEST or necessity.................................................................................................................................86
R. v. Latimer (2001, SCC) – leading case......................................................................................................................................88
DURESS (s. 17)...........................................................................................................................................................89
R v Paquette (1977, SCC) – s.17 duress defence only applies to person who commits offence, common law defence available
to parties to offence....................................................................................................................................................................89
R v Hibbert (1995, SCC) – common law duress defence requires ‘no safe avenue of escape’...................................................90
R v Ruzic (2001, SCC) – read out immediacy and presence requirements from s. 17 due to Charter.......................................90
R. v. Ryan (2013, SCC) – how to apply statutory vs. common law defence of duress................................................................90
Summary of Defences.................................................................................................................................................................92
PROVOCATION (s. 232).............................................................................................................................................92
R. v. Tran (2010, SCC) – two elements of provocation...............................................................................................................93
R. v. Hill (1985, SCC) – leading case.............................................................................................................................................93

Indigenous Perspectives on Criminal Justice.................................................................................................94

Solitary Confinement...................................................................................................................................98
 SOURCES OF CRIMINAL LAW

INTRODUCTION

 Criminal law is about offending actions and society decides that some acts are so bad that they need to
be punishable
 Trier of law vs. fact
o Trier of law
 Decides what the law is, explains it to the jury and then the trier of fact applies it. In a
jury case, it is the judge. In a judge case, it’s the judge
o Trier of fact
 Decides the facts and apply the law and come up with a verdict. In a jury case, it is the
jury. In a judge case, it is also the judge

R. v. Dudley and Stephens (1884, QB) – Introductory case (necessity)

 Facts: 4 people in a life boat, they run out of food after 7 days, they decided to eat one of the four,
Dudley did the killing, Stephens helped, all 3 ate, cabin boy did not consent. Jury is sympathetic, they
would have died probably. D&S are both charged with murder.
 Issue: Is it okay to kill someone to save your own life? Is necessity a defence for murder?
 Holding: No, necessity is not a reason for murder when you are starving and might die. p.927: does not
give you the right to take a life when the other is not threatening your life or doing something illegal
 Reasons:
o There is no duty to save your own life, sometimes you should sacrifice your life for others. One
life has no more value than another.
o Maritime tradition allows for cannibalism – but not in these facts of the case.
o Look at the link of morality to criminal activity. Judge talks about how it’s just really wrong to
kill a boy to eat him.
o In subsequent cases lawyers could argue more or less specific needs. Maybe sometimes necessity
is a case for murder.
 Necessity= some extreme emergency requires the act – peril is immediate

SOURCES OF CRIMINAL LAW

In hierarchy:
1. Constitution
2. Statutes
3. Common Law

COMMON LAW

R v Sedley (1663)
 Facts: Sedley was drunk and yelling and throwing bottles of urine – charged with misdemeanours
against the King’s peace. This wasn’t an offence before he did it, so the convict him under this catch-

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 all. Back in the day – it was open to judges to just convict people of whatever they thought was immoral
– Judges decided what was a moral offence. Historical starting point for common law

Frey v Fedoruk (1950, SCC) – NO more new common law offences

 Facts: Frey looked into mum’s window, Fedoruk chases him with a knife, detained him, police came,
arrested him with no warrant.
 Issue: Was the “peeping” an offence (no crime called peeping tom at the time)? If not an offence, then
falsely imprisoned.
 Supreme Court of Canada:
o Decided that peeping wasn’t an offence at the time and not established under common law.
o If something isn’t already a crime, then Parliament has to call it an offence, not the courts. No
more crimes to be decided by the judges.
o People need to know what are crimes beforehand not after
o Democracy, legislation, gov’t has to keep up with crimes.

Important Notice in Canada:

 In the 1955 revision of the Criminal Code, it largely abolished common law offences in s. 9.
 There are no common law offences in Canada. See s. 9 of the Criminal Code. But common law remains
essential to the criminal justice system. Many mental elements of crimes and defences are defined by the
common law. Some procedural rules, such as the presumption of innocence, are common law rules.

 There are no longer common law offences.

 All offences except contempt of court are codified in Criminal Code or other statutes.

Pros and cons of keeping common law offences? (Maybe policy questions in the final?) – to be filled in.

What parts of Canadian criminal law are found in the common law cases?
 NOT offences (these must be based in statute)
 Some defences exist only in the common law (e.g. necessity)
 Often, the fault element for an offence is found in the common law (where the statute is silent)
 Many other important criminal law principles are based on the common law

R v Henry (2005, SCC) - Some SCC obiter dicta should be authoritative

 Obiter Dicta – if more of what is said is binding, less room for interpretation.
 Some obiter dicta obviously intended to give guidance should be accepted as authoritative.

STATUTES

General Principles of Statute Interpretation

Modern principle of statutory interpretation:

1. In their context.
2. Grammatical and ordinary sense.
3. Harmoniously with the scheme of the Act.
4. Harmoniously with the objective of the Act.
5. Harmoniously with the intention of Parliament.
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R v Clark (2005) SCC - Statutory interpretation

Relevant Code Provision:

173. (1) Every one who wilfully does an indecent act
(a) in a public place in the presence of one or more persons, or
(b) in any place, with intent thereby to insult or offend any person, is guilty of an offence punishable on
summary conviction.

 Procedural History: charged under 173(1)(a) and acquitted under 173(1)(b) by the trial court. Court of
Appeal of BC confirms the trial decision. Now at SCC.
 Facts:
o Clark was convicted of indecent exposure for masturbating near the uncovered window of his
illuminated living room. Mrs. S saw him, was uncertain what was happening, but went to a
different window to look at him. She used a binoculars and telescope. She called the police and
from the bedroom, Clark could be seen from the abdomen up and was masturbating. These facts
were agreed upon by all parties.
o Public place (s. 150): any place to which the public have access as of right or by invitation,
express or implied.
 Issue:
o Was Clark’s living room a public place per the statute?
o Was the S family in Clark’s presence?
o Did he willfully do an indecent act if he did not know the S family was there?
 Holding:
o No. This is because access to a place means physical access and not just visual access.
 Reasoning:
o Legislative Context and Parliament’s Intention interpretations :
 In s. 174, it is clear that “public place” in s. 150 was not meant to cover private places
exposed to public view. Otherwise, s. 174 would be entirely superfluous.
 S. 150 applies equally to s. 174(1) and s. 173(1)(a). Therefore, public place in s. 173(1)
(a) does not include private places exposed to public view as well.
 Access in the everyday sense mostly means physical access.
o SCC only acquitted him based on the first grounds of appeal because it was not a public place so
therefore no crime. (did not elaborate on other grounds but as a law student, we should).

Bilingual Interpretation

 In Canada, all statute law is passed in both official languages: English and French
 Both versions are equally authoritative
 Usually both languages express the same meaning
 Where the meaning is unclear in one language but clear in the other, the interpretation common to both
languages is preferred

Strict Construction

R v Goulis (1981) – Interpretation more favourable to the accused should be adopted

 Rule: Where a criminal statute can be reasonably interpreted to mean two different things, then the
interpretation more favorable to the accused should be adopted.
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R v Pare (1987, SCC) - strict construction, single transaction

 Facts:
o Accused, 17, lured a boy,7, under a bridge, indecently assaulted him, boy said he would tell his
mother, accused threatened to kill him if he did, accused felt the boy would tell nevertheless,
held him down for two minutes then killed him by strangling and hitting him with an oil filter
o Accused is on trial for first degree murder under the Criminal Code s.231 (5) “murder is first
degree murder…. When the death is caused … while committing (number of offences) … an
indecent assault”
 Issue: What does the phrase “while committing” mean when committing indecent assault?
 Holding: Guilty of first degree murder.
 Defence Counsel:
o Should adopt the doctrine of strict construction of criminal statutes.
o “While committing” must be narrowly construed so as to elevate murder to first degree only
when the death and the underlying offence occur simultaneously.
 Wilson J.:
o It’s not a question of whether this doctrine applies to the case (says it is not a case of strict
construction because there are NO two interpretations), only one interpretation applies.
o Parliament did not intend to mean simultaneously when they had that statute written.
o It is hard to delineate what is the beginning and end of the indecent assault.
o SINGLE TRANSACTION: the murder was temporally and causally connected to the underlying
offence. It formed part of one continuous sequence of events. It was part of the same transaction.

Criminology (maybe policy question)

 The study of crime as a social phenomenon

o For example, the causes, nature, punishment or treatment of criminal behaviour
 Criminology has many findings relevant to how we organize criminal law and statutes:
o Crime is heterogeneous
o Its causes are complex
o Rates of reoffending are high, regardless of treatment or punishment
o Future dangerousness is difficult to predict

Punishment and Deterrence (maybe policy question)

 Deterrence means prevention by fear
 Criminal punishment can be directed at:
o Specific deterrence (of the specific offender)
o General deterrence (of others in the community)
 Deterrent effect of punishment might vary with:
o The nature of the offence
o Probability of being punished
o Severity of punishment
 Does imposing harsher sentences reduce crime?
 Generally, no

DIVISION OF POWERS

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  Constitution structures the division of powers. We have several documents that comprise our
constitution, two most important are Constitution Act, 1867 and Constitution Act, 1982.
 TWO big topics
o Federalism – the division of legislative powers in sections 91 and 92 of the Constitution Act,
1867.
o Canadian Charter of Rights and Freedoms – entrenched by the Constitution Act, 1982,
 Have to follow both the federal and provincial laws as a citizen
 Federal vs. Provincial
o Section 91 and 92 contain lists of matters that each government can legislate on (the matters are
called heads of power)
 If they legislate on something they have the power to legislate on it called intra vires
 If they legislate on something they do not have the power to legislate on it, called ultra
vires.
o Section 91 (27) says the federal government has power over criminal law (of both criminal
procedure and substantive law)
o There are also provincial heads of power that can give rise to offenses, such as their power over
property and civil rights (ex. highway traffic act), and in s. 92(15) it gives them the power to give
punishment over the laws of the province
 Provincial offences are known as regulatory offenses. (They are NOT called
criminal offenses!)
o Both can make jails: Provincial jails called jails (2 years or less served here), federal jails called
penitentiaries (2 years plus served here)
o Courts are legislated by both (maintenance of them)

CHARTER OF RIGHTS AND FREEDOMS

 The Constitution Act, 1982 provides:

52. (1) The Constitution of Canada is the supreme law of Canada, and any law that is inconsistent with the
provisions of the Constitution is, to the extent of the inconsistency, of no force or effect.
 The Canadian Charter of Rights and Freedoms is a constitutional bill of rights
o It limits the legislative power of Parliament and the provincial legislatures
 The constitution is a “living tree” requiring broad, purposive interpretation

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.

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.

 The law can be constitutionally invalid in two ways

o Ultra vires (federalism question)
o Contrary to the Constitution

Hunter v. Southan (1984, SCC) – purposive approach to the interpretation of the Charter

 About Section 8 of the Charter – the right to be secure against unreasonable search and seizure
 “The judiciary are the guardians of the constitution”
 Law has to have a purposive role
5
 o Broad purpose is to protect rights and look at each section and the purpose behind them
 This serves the purpose of the interest of privacy
 Therefore, has to be reasonable grounds for search and a judge has to sign off on a warrant
 The Charter is a purposive document. Its purpose is to guarantee and to protect, within the limits of
reason, the enjoyment of the rights and freedoms it enshrines. It intended to constrain governmental
actions inconsistent with those rights and freedoms; it is not in itself an authorization for governmental
action.

Section 7

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.

 Section 7 has great impact on substantive criminal law.

 Section 7 prevents governments from depriving persons of “life, liberty and security of the person”
unless they act “in accordance with the principles of fundamental justice”.
 What s. 7 asks:
o Whether the law which the accused is said to have violated is itself in accordance with the
principles of fundamental justice. If it is not the law will violate the Charter and is likely to be
struck down.
 In order to show a violation in s. 7:
o a deprivation of a right to either life, liberty, or security of the person, AND
o that the deprivation violates some principles of fundamental justice.
 What are the principles of fundamental justice?
o Fair trial rights
o Also substantive principles:
 The law must NOT:
 Too vague
 Overly broad
 Arbitrary
 Grossly disproportionate

 Too vague
o Unclear or imprecise (Sedley case)
o Can be contrary to section 7
o (Can also be criminally vague under section 1 that says it needs to be prescribed by law, but
prescribed means it has limits)
o Why cannot it be vague? POLICY behind this
 People need to know if what they are doing is criminal – fair notice
 People who are imposing the law need to know what is and is not illegal, so it is not up to
their discretion – want to have a rule of law not rules of people
 Overly broad
o Too wide or expansive, goes beyond what is acceptably defined as criminal
 Arbitrary
o Unfixed or dependent on someone’s discretion/whim rather than a principle
 Grossly disproportionate
o Provides for a punishment that is way too harsh for the circumstances

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Canadian Foundation for Children, Youth & The Law v. Canada (Attorney General) (2004, SCC) – the
Spanking case

 Facts:
o S. 43 of the Criminal Code:

Code s. 43: Every schoolteacher, parent or person standing in the place of a parent is justified in using force by
way of correction toward a pupil or child, as the case may be, who is under his care, if the force does not exceed
what is reasonable under the circumstances.”

o The CFCYL brought a challenge to that law, arguing that it violated the principle of fundamental
justice that a law cannot be vague.
 Issue: Whether
 Holding:
o The majority rejected the Charter challenge.
 McLachlin C.J.C.:
o Standard of Vagueness: A law must set an intelligible standard both for the citizens it governs
and the officials who must enforce it.
o Certainty is not required.
o Properly interpreted, the s. 43 is not too vague: Legislators can never foresee all the situations
that may arise, and if they did, could not practically set them all out. It is thus in the nature of our
legal system that areas of uncertainty exist and hat judges clarify and augment the law on a case-
by-case basis.
o It requires that force used against children by parents and teachers be:
 “reasonable under the circumstances” and
 “by way of correction”
o “by way of correction” means:
 Only “sober, reasoned uses of force” addressing behaviour and aimed at education or
discipline
 No force against children under two, or children incapable of learning from the discipline
o “reasonable under the circumstances” means:
 Generally, “only minor corrective force of a transitory or trifling nature”
 Uses of force that are not reasonable:
- Degrading, inhuman or harmful conduct
- Use of objects like belts
- Blows to the head
- Corporal punishment by teachers
- Corporal punishment of children under two or teens
- Severe punishments based on the gravity of the behaviour
 Dissenting (Arbour J.):
o Past cases show that s. 43 does not succeed in delineating the boundaries of a legal debate
o Reasonableness is an acceptable criterion in some criminal law contexts but here it has no clear
meaning
o To find the provision is not vague, the majority rewrites the statute
o Believes it is unconstitutional because it violates the security of the person, the child, and also
because it is vague

 What do you think? (Maybe policy questions)

o It is vague, have to go into so much research to even interpret it
7
 o Had to come up with something because of the broad implications by striking down the law
 Would it have broad implications? Debateable because many countries have banned
corporal punishments
o Do we need section 43 in the code?
 Psychological literature is fairly firm on the psychological effects of corporal
punishments
 Parenting is such a personal view and should there be this case that legislates this?
 Children are a vulnerable group and require more protection
 Trying to strike a balance between rights of parents and rights of children
 A blanket ban would be a clearer legislation
 What are the practical implications of the ban? How can teachers protect children if they
cannot touch them?

Bedford v. Canada (Attorney General) (2013, SCC) – Bawdy house case, TEST of s. 7

 Facts:
o Constitutional challenge to Canada’s prostitution laws under s. 7 of the Charter
o Three criminal offence provisions were challenged:
 Keeping a common bawdy house (s. 210)
 Living on the avails of prostitution (s. 212(1)(j))
 Communicating for the purpose of prostitution (s. 213(1)(c))
 Holding:
o The Court struck down all three laws under section 7
 SCC:
o The Court accepted that prostitution itself was not illegal, but that the laws had the effect of
“making a lawful activity more dangerous” for sex workers
o A law that is arbitrary, overbroad or grossly disproportionate is “dysfunctional in terms of its
own objective”
o Examine the connection between:
 the law’s objective and
 its negative impact on people’s s. 7 rights  
o The Court lays out legal tests:
 A law is arbitrary when it limits s. 7 rights in a way that bears no connection to its
objective
 A law is overbroad when some, but not all, of the limits it places on s. 7 rights bear
no connection to its objective
 A law is grossly disproportionate in extreme cases where its impact on s. 7 rights is
so serious that it’s totally out of sync with its objective: where the law has a
draconian impact entirely outside accepted norms in a free and democratic society
o In all cases, the court examines the connection between:
 The law’s objective and
 Its negative impact on people’s s. 7 rights.

Review – Policy

 Bawdy house/communicating/making money off prostitution

 Effect of the law on the security of the person –
 Don’t regulate nuisance at the cost of sex workers lives.

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  Moneymaking was seen as too broad – good to crack down on pimps, but what about being able to hire
drivers and security people?
 Objective about nuisance, doesn’t override the fact that sex workers were put in danger by having to go
into the dark.
 This was a way for court to strike down irrational legislation – judges in policy making – controversial
case- rationality – security of the person at risk for sex workers.

 New legislation – see notes after the case (p. 67) – C-36 - Act for exploited persons – sex work, just like
any work and shouldn’t be made more dangerous by legislation – (other view – prostitutes (loaded
word) inherently harmful to women and exploitative – would suggest higher level of regulation)
o Asymmetrical criminalization – crime to pay for sex, not a crime to take money for sex.
Criminalized making money – the pimping offence – attempt to limit this to punish pimps –
communicating provision now – criminalizes for communicating near kids (school, daycare etc.)
o Purchasing sex is now criminal – makes working in a bawdy house more complicated. Same
safety issues still exist – Harder to strike down now, not about nuisance, now it’s about
protecting against violence and exploitation
o No support system to back it up – Nordic Law (asymmetrical) but in Nordic countries social
services are much stronger. No harm reduction strategies in this.

Section 1

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.

 Charter rights are not absolute and can be limited by the government
 The burden of justifying the limit will fall to the government on a balance of probabilities.

R v. Oaks (1986, SCC) – OAKS TEST

 Facts:
o The police caught the accused, Oakes, with hashish oil and cash. They charged him with
possession for the purposes of trafficking under the Narcotic Control Act (NCA). He claimed
that the drugs were his own and that he was not planning to sell them. At that time, under s. 8 of
the NCA (rebuttal presumption), anyone found with illegal drugs was presumed to be trafficking.
Usually, the Crown must prove guilt beyond a reasonable doubt, but under the NCA it was up to
the accused to prove that he was not guilty. This is called a “reverse onus.”
o Oakes made a charter challenge, claiming that the reverse onus created by the presumption of
possession for purposes of trafficking violated the presumption of innocence guaranteed
under section 11(d) of the Charter. 
 Issue:
o Whether s. 8 of the NCA violated s. 11(d) of the Charter?
o If so, whether any violation of s. 11(d) could be saved under s. 1?

 The Oaks Test

o Pressing and substantial objective: First, the government must establish that the law has a goal
that is both “pressing and substantial.” In other words, is the law both important and necessary?
Governments are usually successful in this first step. In Oakes, the NCA’s limit on the accused’s
rights passed this step because the government argued that its goal in creating the law was to
9
 combat the public health and safety risk that is created with the selling of narcotics. The law was
found to be pressing and substantial;
o Proportionality test: the “means chosen” to pursue the objective must be “reasonable and
demonstrably justified”, balancing “the interests of society with those of individuals and groups”
 Rational connection – means chosen must be “rationally connected to the objective” –
not arbitrary or irrational
 Minimal impairment – the means chosen should impair the right “as little as possible”
in order to achieve the objective and is “within a range of reasonably supportable
alternatives.” In Oakes, the accused was immediately presumed guilty rather than
innocent, and therefore his section 11(d) right to be presumed innocent was almost
completely and unfairly impaired.
 Proportionality of effects – Even if the law satisfies the above steps, the limit may be
too high a price for the individual to pay in order to preserve the law. In Oakes, the law
failed at the minimal impairment stage, and so the court did not consider this final step.
Still, it established that in future challenges the law must strike a balance between the
negative effects of the law weighed against its beneficial purpose.

Relationship between Section 1 and Section 7

 It would be difficult to uphold a law under section 1 that violated section 7 because those are the
fundamental laws and rights, it has never happened in our history
 Section 7 is comparing laws purpose at face value to the negative effects of law on life, liberty and
security of the person
 Section 7 has no quantitative aspect, it is about individual rights, even if one persons’ right to life,
liberty and security is breached, section 7 is breached
 Section 1 is about an overarching public goal limiting charter rights
 Section 1 can have a quantitative aspect, we can see how many people are effected by the violation and
how many are protected by the public goal of the objective
 In Bedford case, says section 1 is not applicable because the goals were too unbalanced

THE CRIMINAL PROCESS

PROCEDURAL OVERVIEW

PROCEDURAL CLASSIFICATION OF OFFENCES

 Summary conviction (less serious) (judge only)

 Indictable offences (most serious) (judge or jury)
 Hybrid (dual) offences (crown can choose summary or indictment)
 (Also a fourth offence, regulatory offences, which will not be discussed here)

The basic idea is that the more serious the offence, and the more severe the potential punishment, the
fuller the procedural rights enjoyed by the accused.

OFFENCES TRIABLE ONLY ON INDICTMENT




10
 
SUMMARY CONVICTION OFFENCES



CROWN ELECTION OFFENCES




Classification of offences: Overview

Summary conviction Hybrid offences Indictable offences
offences (Crown elects)

Section 553 Other (most ) Section 469

indictable indictable offences indictable
offences (accused elects) offences

Trial by Provincial Court Trial by Superior Court Trial by Superior Court

Judge, no preliminary Judge alone, option for a judge and jury, option for
inquiry preliminary inquiry a preliminary inquiry

Increasingly serious offences, increasingly elaborate procedures

PRESUMPTION OF INNOCENCE

 Bedrock principle of our criminal justice system and now enshrined in S. 11(d) of the Charter, but
before that…

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Woolmington v. DPP (1935, UK) – classic authority that the Crown bears the burden of proof to overcome
presumption of innocence

 Fact
o Wife left her husband
o D killed his wife, but claims it was an accident (only wanted to scare her into coming back, gun
went off accidentally)
o Circumstantial evidence that supported prosecution’s version instead:
o Seemed to be fighting at the time according to witness
o Ran away after
o Sawed off shot gun barrels beforehand and disposed of the barrels and saw afterwards, fashioned
a holster under jacket  planning, suggestive of intent
o Made statements at arrest that de did it
o D convicted of murder. D appeals.
 Viscount Sankey:
o Trial judge’s charge to jury indicated that killing is presumed to be murder with malice unless
the accused can prove otherwise (burden of proof on the accused to prove it was not an
intentional killing), which is a wrong interpretation of the law
o Crown has to prove that the killing was intentional, has to prove all elements of the offence
o P.86 – “Throughout the web of the English Criminal Law one golden thread is always to be seen,
that it is the duty of the prosecution to prove the prisoner’s guilt…If, at the end of and on the
whole of the case, there is a reasonable doubt, created by the evidence given by either the
prosecution of the prisoner, as to whether the prisoner killed the deceased with a malicious
intention, the prosecution has not made out the case and the prisoner is entitled to an acquittal.
No matter what the charge or where the trial, the principle that the prosecution must prove the
guilt of the prisoner is part of the common law of England and no attempt to whittle it down can
be entertained.”

REASONABLE DOUBT

 Our system is skewed towards ensuring that an innocent is never convicted, even if those who are guilty
sometimes go free
 “it is better that ten guilty persons should be acquitted than that one innocent person should be
convicted.”
 The strongest protection we have to ensure this is the standard of proof  Crown must prove guilt
beyond a reasonable doubt
 Burden is on the prosecution, accused/defence doesn’t even have to submit evidence necessarily, just
has to cast doubt on prosecution’s evidence
 The judge has to explain the law to the jury and has to explain what proof beyond a reasonable doubt
means, but that’s actually a very tricky concept to explain…

R v Lifchus (1997, SCC) – leading case on how to explain ‘proof beyond a reasonable doubt’ to a jury

 Cory J (+5):
o Trial judge told the jury that the words “proof beyond a reasonable doubt” were ordinary words
that should be understood in their ordinary, natural, every day sense.

12
 o SCC found that the judge made an error in law in describing the words in that way b/c the phrase
actually has a special meaning in the legal system that may or may not accord with their ordinary
sense.
o The definition should include: based on reason and common sense, not based on sympathy
or prejudice, connected with the evidence or lack thereof, does not require proof to an
absolute certainty but more is required than that the accused is probably guilty
o Judges should not say: that these are ordinary words, that it’s the standard that people use to
make important life decisions, that it means proof to a moral certainty
o Court gives a model charge (p.90) that judges can use, but it’s not a magical spell and it doesn’t
have to be exactly the same every time

R v Starr (2000, SCC) – much closer to absolute certainty than probability

 Iacobucci J (+4):
o We tell juries that proof beyond a reasonable doubt means more than “probably guilty” and less
then “absolute certainty” (might think it’s anything btw 51 and 99%)
o If these standards were marked on a measure, proof beyond a reasonable doubt is much
closer to absolute certainty than proof based on a balance of probabilities
o Dufraimont thinks this explanation is helpful for juries so that they’re not watering down this
standard

R v JHS (2008, SCC) – proof beyond a reasonable doubt definition for credibility contest cases

 Binnie J (+6):
o Sexual abuse case, 15-yr-old accused her step-father and they were the only witnesses on each
side.
o Contest of credibility cases (common in sexual assault cases): If you have a witness on each side,
how can you get to proof beyond a reasonable doubt?
o The question is not who you believe more, the question is whether the Crown brought evidence
to prove guilt beyond a reasonable doubt
o WD charge is a 3-part explanation for how the jury should approach proof beyond reasonable
doubt in credibility contest cases:
 “First, if you believe evidence of the accused, you must acquit. Second, even if you do
not believe the evidence of the accused but you are left in reasonable doubt by it, you
must acquit. 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 accept, you are
convinced beyond a reasonable doubt by that evidence of the guilt of the accused.”
 Again, not a magic incantation and judges don’t have to say it exactly this way.
 Trial judge used different language, but SCC says it was fine and got the point across
o “You do not decide whether something happened simply by comparing one version of
events with another, or choosing one of them. You have to consider all the evidence and
decide whether you have been satisfied beyond a reasonable doubt that the events that
form the basis of the crime charged, in fact, took place.”
o Dufraimont thinks this explanation is actually way better than the WD charge, is more
clear/concise

R v Oakes (1986, SCC) – Reverse onus provision for drug trafficking violates presumption of innocence
under Charter

13
  Dickson CJ (+4):
o S. 11(d) of the Charter: “Any person charged with an offence has the right…to be presumed
innocent until proven guilty”
o Statutory provisions that put the burden of proof upon the accused are called reverse onus
provisions
o Accused convicted of possession for the purpose of trafficking drugs
o Crown proved only that Oakes possessed the drugs – s.8 of Narcotics Control Act reversed the
onus so that possession was assumed to be for trafficking unless the accused proved this wasn’t
true on a balance of probabilities.
 Issue – did this violate presumption of innocence under s. 11(d) of the Charter?
o Decision – SCC found that this reverse onus provision was a violation of the Charter and that s.8
of the Narcotics Act was unconstitutional.
o The stigma of being charged with a crime is great, so we place a high burden of proof on
the state to prove guilt beyond a reasonable doubt
o When you have a reverse onus provision it offends the presumption of innocence b/c they
are forced to prove their innocence rather than the state proving guilt
o Can be convicted despite the existence of a reasonable doubt – accused can bring evidence to
raise a doubt about guilt, but can’t actually prove it then he can be convicted, whereas if the onus
was on the Crown then his evidence only has to raise a doubt and that would be enough to acquit
him.

CRIMINAL JUSTICE POLICY

Victim’s Rights:

 The victim doesn’t have a special role in the adversarial system of criminal trial, isn’t one of the parties,
it’s between the state and the accused, they are ultimately just a witness
o Problematic because victims didn’t know what was going on with the case
o Often have very little power to influence the process, very little input into what occurs
 Victims experience – esp. in sexual assault trials – is very negative, cross examination can be very
grueling and humiliating – is this really an appropriate systemic response?
o Victims can often feel powerless and re-victimized – to correct this, there are rape shield laws
that try to protect victims from their sexual history being brought up. Also, maintaining
anonymity for children by using initials instead of full names.
 New victims’ rights legislation that passed in 2015 – guarantees victims certain rights, including the
right to have information about the particular case, to have their views considered, to be protected from
intimidation, and have their privacy and security considered by justice system officials etc.
 Victim impact statements – statements about what the impact has been of the offence on the life of the
victim and/or their family
o How much should the judge take it into account? Should it make any difference in sentencing? If
not, then why do we have them at all?
 Cathartic for victims, gives voice to the experience that victims have had, important to
recognize this

Scope of Criminal Law

 When is the state philosophically justified in making conduct into a crime? What’s the appropriate scope
of the criminal law?
14
  Harm Principle: The state is only justified in criminalizing conduct that causes harm to others
o John Stuart Mill – “The only purpose for which power can rightfully be exercised over any
member of a civilized community against his will is to prevent harm to others.”
o How far does the harm principle go? Does it mean that all conduct that harms others should be
criminalized?
 Mill’s definition is a limiting principle – conduct that is not harmful could not be
criminalized, but doesn’t say that all harmful conduct must be criminalized
 Scope of the criminal law should be as narrow as possible: it’s a sledge hammer and
should not be used for every social wrong in society b/c it takes away ppl’s liberty,
breaks down the family, is expensive  where possible, we should regulate undesired
behaviour in another way
 First (red) one is right, next two (blue) are wrong/violation of harm principle

R v Malmo-Levine (2003, SCC) – leading case on defining what a Principle of Fundamental Justice is for
purpose of s.7, harm principle not a Principle of Fundamental Justice

 Fact: Constitutional challenge to marijuana possession charge under Narcotics Act

 Issue: Is the harm principle a principle of fundamental justice? If so, does it make the marijuana
possession prohibition unconstitutional?
 Gonthier and Binnie JJ:
o Liberty interest is in play b/c anyone convicted of possession could be sentenced to jail time.
o If the harm principle is a POFJ, then the marijuana prohibition is contrary to s. 7 b/c smoking
marijuana doesn’t cause harm to others and you can only criminalize behaviour that causes harm
to others.
o Court rejects this argument.
o Harm principle means the behaviour needs to be a tangible harm to others’ rights and freedoms.
o Court defines what a principle of fundamental justice is:
 Has to be a legal principle
 Has to be some consensus about it as being fundamental to the fair operation of the legal
system
 Has to be sufficiently precise that it yields a manageable standard for judging violations
of the Charter
o Harm principle does not meet any of the 3 criteria above:
 Normative principle, not a legal one
 No consensus (ex. harm principle would suggest cannibalism can’t be a crime b/c doesn’t
harm anyone (already dead), but it is, so it shows that this principle is not fundamental to
our justice system)
 No clear preciseness
 Dufraimont: The crimes they used to argue there’s no consensus on this principle scrape the bottom of
the barrel, really random crimes that are almost never prosecuted – the majority of the crimes prosecuted
do follow the ham principle

ADVERSARY SYSTEM

 A trial is meant to find out what happened and resolve a conflict/dispute about these past facts where the
parties couldn’t otherwise come to a resolution
 3 features of the adversary system:
o Party control – the parties are really in charge of the proceedings and shaping the entire dispute
o Passive judge/jury – impartial, above the fray
15
 o Highly formalized rules – very complicated evidence and procedure rules complicated
 Proceeding like a contest under very specific rules, prosecution and defence trying their best to win and
the judge decides who wins – fairness is critical and an underlying concern to ensure this system works
 Advantages of this system?
o Truth seeking argument: Because they’re competing, both opposing sides are motivated to bring
forward all the relevant facts (like 2 flood lights), so a wider picture will be shown – puts the
parties’ self-interest to a truth finding purpose
o Having a passive judge keeps the judge impartial, so can make fairest decision
o Good for the parties’ sense of satisfaction with the process; they got their day in court and their
side was heard and argument made as strongly as possible, whether they won or not
 Disadvantages of this system?
o Imbalance of power btw crown and defense; trying to find the truth and assume there’s an
equality of competence, resources etc., but that’s not always the case
o Not motivated to bring forth all the facts, just the ones that place their case in the best light –
their version of the ‘truth’
o Win-lose situation – both parties can’t win, so someone is left feeling unsatisfied
o Judge can’t ask questions in order to remain partial, so can’t get at the truth
o Combat effect: Parties use the rules against each other strategically, and not in the service of the
ultimate objectives of the rules – creates incentive for lawyers not to seek truth, but to simply
advance their cause
o Can be very hostile to victims and excludes them largely from the proceedings

Steve Coughlan, “the ‘Adversary System’: Rhetoric or Reality”

 Thesis – on the whole, the role of criminal lawyers is made up of more non-adversarial functions than
adversarial functions
 The court forces the parties into an adversarial position because of the way it’s structured
 Why don’t we just have the meta system? Why have trials at all? It would be more efficient, less
expensive and cumbersome
o Argument against – the meta system can convince ppl they’re guilty and so ppl plea bargain
under false pretenses

Carrie Menkel-Meadow, Portia in a Different Voice: Speculation on a Women’s Lawyering Process

 Thesis – law system based on the male experience

 Will having more women involved with the system bring forward “feminine” values and change the
adversarial nature of the system?
 Because of how women are socialized differently, the advocacy role is ingrained in women, more
caring, take a wider perspective, ask more questions etc.
 Both ways of looking at the problem are legitimate, but we’ve seen the male way of looking at the
issue as somehow morally better, or more developed and that’s not necessarily the case
 Dufraimont: Fair to say that the legal system has moved towards the direction espoused in this article in
terms of alternative resolutions, mediations etc., so the binary way of deciding disputes (you win, you
lose) has been rejected

Madam Justice Bertha Wilson, Will Women Judges Really Make a Difference? – women & bias

 What is the value of diversity if the judge is meant to be impartial? They’re not advancing their own
interests anyway.
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  Will women judges make a difference if they’re meant to be impartial?
o Yes, will bring different perspective
o Will better keep the public trust if society is reflected on the bench – the more diversity you
have, the closer you get to a “universal” position/representative of real life
o Will get a better understanding of humanity as a whole by bringing in women
 Can still be impartial and unbiased even with your experiences and background
 Different views will lead to dissenting opinions, which are also important in the law
 Arguments around diversity and issues of bias inherently accept that the white man is the default and
somehow unbiased and that we have to look out for bias in particular in certain groups

Aboriginal Peoples and Criminal Justice – Law Reform Commission of Canada

 Overrepresented in the criminal justice system and reasons for this are many (ex. trauma from colonial
practices like residential schools)
 There are statutes that require judges to take into account these factors when deciding and sentencing
 Aboriginal ppls in general believe that the criminal justice system does more harm than good in
their communities
 Aboriginal ppls believe that criminal offending by them should be dealt with by them b/c they better
understand the circumstances etc. and their aims in terms of resolution would be very different and
in culturally appropriate ways
 Challenge that might come up with Aboriginal communities taking charge of criminal issues: it’s a
fundamental notion of our formal criminal justice system to treat similar offenders equally  under
Aboriginal system, laws would not be uniform or homogeneous, that wouldn’t even be the goal
 S. 35 of the Constitution Act of 1982 recognizes that Aboriginal ppls have a right to self-government 
can be used as a justification for them being able to also govern their own justice system

Rupert Ross, Dancing with a Ghost

 We need to recognize that aboriginal justice system is founded on different principles from ours, but
they’re just as valid
 Our goals are very different and our society is one of strangers, not to find harmony, but who will be the
victor.

R v RDS, 1997 SCC – judges’ remarks should not give rise to reasonable apprehension of bias

 Fact:
o RDS was a 15-yr-old black youth in Nova Scotia who was arrested by white police officer after
trying to intervene with another arrest – charged with assaulting police officer
o Police officer, other accused and RDS gave very different versions of what happened
o Judge Sparks was first black judge appointed in Nova Scotia and she believed the
accused’s version and acquitted the accused
o Judge Sparks made comments in the decision that were controversial and went to SCC to see if
her comments created a reasonable apprehension of bias (no need to actually prove bias, just
the apprehension of it, to keep pubic trust)
 Issue: Did the judge’s comments create a reasonable apprehension of bias? (If so, then acquittal would
be quashed and new trial ordered)
 Cory’s TEST: would a reasonably informed person aware of all the circumstances conclude that the
remarks give rise a reasonable apprehension of bias.
 Cory J (+1):
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 o Worrisome and close to the line. Nevertheless, did not give rise to a reasonable apprehension
of bias and remarks acceptable in context. She’s not deciding who she wants to believe, she’s
deciding on the evidence who she believes and states that up front. Her comments are also in
response to the Crown’s invalid assertion that the police officer should be believed just b/c he’s a
police officer (refuting the crown’s claim to this). Her comments were acceptable in context.
 Major J (+2):
o Remarks unacceptable, did create reasonable apprehension of bias. He thinks the comments
stereotyped police officers as racists and liars, and the judge shouldn’t have been insinuating
that based on her own personal life experience.
 L’Heureux-Dubé (+1):
o Remarks appropriate, did not create a reasonable apprehension of bias. Not accurate to say
there was no evidence to support that the police officer overreacted to the situation due to racism.
A judge’s life experience and knowledge of the social context is a positive for the judicial
system, and they can’t be expected to divorce themselves from that experience when
appointed to the bench. The judge did not actually find that it was an overreaction and in L’H-
D’s view this was an appropriate exercise of contextualized judging.
 Gonthier (+1):
o Remarks appropriate, no reasonable apprehension of bias.

THE ACT REQUIREMENT

INTRODUCTION

 The elements of the offence = those things that must be proven to convict
 In general, the Crown must prove all the elements of the offence beyond a reasonable doubt to support a
conviction

Elements of offences:

 External elements (actus reus)

o Act element (externally manifested act) NEEDED. – the act element is always in the provision
that creates the offence
o Circumstance elements (don’t have to be included) (ex. trespassing at night (night is
circumstances))
o Consequence elements (don’t have to be included) (ex. stab someone with the intent of murder,
but did not die, and person actually has to die for the offence of murder)
 Fault elements
o Mens rea (mental element, ex. intention), OR
o Negligence (no intention but did something dangerous)
 ALL criminal offences have at least: (actus non facit reum nisi mens sit rea: there is no guilty act
without a guilty mind)
o An act element, AND
o A fault element
 Ex. escaping from lawful custody?
o Act: escaping
o Circumstances: from lawful custody
 Why do we require an act element?
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 o We all have negative thoughts/intentions, we would all be in jail if act was not the basis =
unacceptably stretch criminal system by punishing for non-act related things
o Harder to prove what you are thinking without external manifestations

CONSENT MAKING AN ACT LAWFUL

 Some acts are only offences when done without consent

 Absence of consent is an element of the offence of assault
 Absence of consent has to be proved by the crown
 Defence of consent is a big issue in sexual assault cases.
o Narrowly, a “true” “defence” is a circumstance that justifies / excuses conduct when all
elements of the crime have been proven
o A defence of consent is not a “true defence”, instead it’s a way of negating unlawful act element
(ex. it’s not unlawful because there was consent). The act element is not met.
 Consent needs to be valid. If consent is invalid in the eyes of the law, it is said to be vitiated (ex.
Consent of children during sexual assault).

R. v. Jobidon (1991, SCC) – bar fight. LEADING CASE for consent limitations for assault
Page 205
Code: Assault
265 (1) A person commits an assault when
(a) without the consent of another person, he applies force intentionally to that other person, directly or
indirectly

Code: Common law principles continued

8 (3) Every rule and principle of the common law that renders any circumstance a justification or excuse for an
act or a defence to a charge continues in force and applies in respect of proceedings for an offence under this
Act or any other Act of Parliament except in so far as they are altered by or are inconsistent with this Act or any
other Act of Parliament.

Code: Consent to death

14 No person is entitled to consent to have death inflicted on them, and such consent does not affect the
criminal responsibility of any person who inflicts death on the person who gave consent.

 Facts:
o Victim and defendant got into a fist fight, victim died due to punches by Jobidon.
o Both consented to the fight, but J did not know he was killing him, nor did he know the victim
was unconscious.
o Code says nothing about the limitations on the rule of consent.
 Procedural History
o Trial: Acquitted. No unlawful act was found. There was a consent to a fair fist fight, so there was
no assault within the meaning of s. 265 of the Criminal Code and therefore no unlawful act.
o Ontario Court of Appeal: guilty. Consent to a fight in private or public is not a defence to a
charge of assault if actual bodily harm is intended.
o SCC: Guilty.
 Charge: Manslaughter
 Issue:

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 o Are there common law limits on the kinds of assaults for which consent can operate as a
defence?
 Ratio:
o Adults in a fist fight or brawl, if they intentionally cause serious injury and non-trivial harm,
consent is vitiated
o Cannot be broader than this, it only applies in fist fight between adults (can apply by analogy to
other cases but not directly)
o Bodily harm has to be both intended and caused – this was implied and a limitation on the
vitiation of consent
 Gonthier J.:
1 There were limits on consent in common law (s.8 continues to apply when not inconsistent, s8.3
preserves common law defences including consent (which are actually supposed to help accused,
but he wants to use it for benefit of crown and uses the broader definition of defence)  can still
look at common law for limits on consent
2 Policy based limits on defence of consent are fact specific and difficult to layout in advance (and
parliament cannot list all the ways consent can be vitiated) and easier to go case by case for these
limits on balancing individual autonomy and other interests – common law limits on consent are
good policy ***
 No social utility in fist fights and harmful, against public interest to have adults harming
each other and therefore erasing limits on consents would be regressive and seemingly
condone fist fights
 Morally unseemly for law to justify these actions
 Ex. do not apply to other things like for sporting events, there is consent for the actions
that are customary in the game that have social value (in MMA, is it social value or
capital value?), stunt man creating socially valuable products, surgeries, and where minor
harm is caused  obiter but still important and leading case for consent limitations even
in sporting events
 A distinction or a line was not drawn on social value, social utility still remains
ambiguous
3 Looked at English case law where common law limits consent in assaults
 Sopinka J.
o The majority is creating a common law offence. Making conduct an offence just under the
common law basis. (Prof says this is a good argument)
o Consent is a vital element in determining what conduct constitutes a crime.
o The language is clear, consent is a valid defence
o But you have to scrutinize the scope of the consent to an assault
o The more serious the assault, the more difficult it should be to establish consent.
o When someone is seriously injured, the victim clearly did not consent to be punched when he
was unconscious (and he assumed J knew he was unconscious, which was not stated in the facts)
o Agree with decision but for a different reason
o Does not believe in policy based decision but instead have to scrutinize the consent
 “Bodily harm” for this purpose is defined in s. 2 of the Code as “any hurt or injury to a person that
interferes with the health or comfort of the person and is more than merely transient or trifling in nature”

CONSENT VITIATED BY FRAUD

Assault
Code 265(3)

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For the purposes of this section, no consent is obtained where the complainant submits or does not resist by
reason of
(a) the application of force to the complainant or to a person other than the complainant;
(b) threats or fear of the application of force to the complainant or to a person other than the complainant;
(c) fraud; or
(d) the exercise of authority.

R. v. Moquin (2010, Man. CA) – What bodily harm means

 The accused and the complainant formed was called a “good snapshot of a classic abusive domestic
relationship.”
o As part of a greater assault, the accused pulled the complainant’s hair so hard as to pull some out,
leaving her with a sore scalp for a few days;
o As part of another greater assault, the accused grabbed the complainant by the throat, thereby
choking her hard enough to make it difficult for her to breathe and leaving her with a sore throat
and causing difficulties when swallowing for a few days;
o The accused squeezed the complainant’s hand so hard so as to bruising, soreness, and an
inability to bend it for a week or so; and
o The accused committed an assault leaving the complainant with bruised arms and a sore throat.
 The MBCA Decision - Under s. 2 of the Criminal Code, “‘bodily harm’ means any hurt or injury
that interferes with the health or comfort of the person and that is more than merely transient and
trifling in nature.”

R. v. Cuerrier (1998, SCC) – fraud, vitiated consent, failure to disclose HIV vitiates consent

 Facts:
o Cuerrier was HIV-positive. He had unprotected sexual intercourse with two partners without
disclosing that he was HIV-positive. The two complainants did consent to unprotected sexual
intercourse with the accused.
o Complainants said if they had known that he was HIV-positive they would NEVER have
engaged in unprotected intercourse with him.
o Complainants did not become HIV-positive
 Issue:
o Did the accused’s failure to disclose his HIV-positive status vitiate the consent of unprotected
sex from his partners?
 Cory J.: (MIDDLE GROUND)
o Fraud has 2 things: 1) deceiving and 2) depriving them
o TEST: Dishonesty that exposes a person to significant risk of serious bodily harm vitiates
consent, and the greater the risk the greater the duty to disclose
o Failure to disclose HIV status vitiates consents
 L’Heureux-Dube J.: (MOST BROAD)
o TEST: fraud vitiates consent where “the deceit deprived the complainant of the ability to
exercise his or her will in relation to his or her physical integrity with respect to the activity
in question.”
o ANY fraud that causes a person to consent, it is vitiated
o Problem: sometimes there is some dishonestly that may encourage to consent (ex. say they are
committed to long term relationship but not but says it to just have sex – does that vitiate
consent? Not good behaviour but does not merit sexual assault conviction)
 McLachlin J.: (MOST NARROW)
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 o Previous fraud still vitiates
o Have to recognize other cases but not criminalize trivial bad behaviour
o She wants to narrow it for HIV transmission
o TEST: when there is deception for a sexually transmitted disease giving rise to a serious
risk of infecting the partner
o Her’s is a much narrower approach and treats STDs are their own category

R. v. Mabior (2012, SCC) – Realistic possibility of HIV transmission – What constitutes “significant risk of
serious bodily harm”?

 Facts:
o Positive HIV but reduced the viral load to a low level.
o Non-disclosure of HIV when having sexual intercourse with nine complainants. Some occasions
the accuse do use condoms.
o Complainants testified that they would not have consented had they known of the HIV.
o TRIAL JUDGE: guilty when sex was unprotected. Not guilty when condom was used.
 Issue: Is the consent vitiated by the non-disclosure of the HIV?
 Cuerrier is still the leading case – What constitutes “significant risk” and “serious bodily harm”?
o More than any risk but less than high risk
 McLachlin C.J.C:
o In the context of non-disclosure of HIV+ status, consent will be vitiated by a “realistic possibility
of transmission of HIV” (para. 84)
o Realistic possibility of HIV Transmission. – if viral load is low and condom is used – low risk. –
Realistic possibility is negated.
o Where a condom was used and a low viral load, there is no realistic possibility of
transmission (risk of infection in vaginal intercourse is 1 in 1000, condom use brings it down
80% and low viral load brings it down 90%) – therefore no responsibility to disclose
o Therefore, where he used both a condom and had a low viral risk, he was acquitted from those
o Cuerrier requirement is not met.
 Policy Concerns:
o This is a very temporal decision because the drugs and research around HIV is changing and it is
becoming a more manageable disease
o This branch of the law creates a stigma for people with HIV and make you question whether the
law has gone in the right direction

R. v. Hutchinson (2014, SCC) – Consent vitiated buy fraud (holes in condoms)

 Facts:
o The accused had sex with his girlfriend, who insisted he use a condom to prevent pregnancy
o Unbeknownst to her, he had poked holes in the condom
o Girlfriend became pregnant.
o All judges agreed he was guilty of sexual assault and there was no effective consent but differed
as to why there was no effective consent.
 Issue:
o Why there was no effective consent?
 Minority: Because the complainant never consented at all to sex without an effective
condom? OR
 Majority: Because the complainant did consent but consent was vitiated by fraud?

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  Majority view:
o If the activity was just sexual intercourse, then she did but if the activity was sexual intercourse
with defective condom then she did not
o The majority took the broader view and said the activity was just intercourse
o It was fraud because there was dishonesty and the significant risk of serious bodily harm test
does not apply directly because that is for STDs
o There was a deception that deprived her of her choice to become pregnant or not
o Can apply by analogy can say to deprive a women of choice of having kids is a significant
health and physiological harms
o This was a serious deprivation of choice and does not equate to deprivation of smaller things,
such as sadness or financial loss, and smaller deprivations are not serious enough to warrant
vitiating consent

OMISSIONS

 General rule:
o The criminal law is to require an act on the part of the accused before criminal liability can
attach.
o Failure to act does not give rise to criminal liability
 Exception:
o An omission can ground criminal liability where there is a legal duty to act. (“Permitting”)
 Moral vs. Legal duties to act (Policy question?)
 Moral duty can sometimes be to help people in trouble – “good Samaritan”
o There is no legal duty to even act even if it would cause no risk or expense to the person (there is
no legal duty to even call the police when they see something)
 Should there be a general duty to rescue?
o Against duty to rescues?
 Opens an unlimited breadth of possibilities where you can be liable to because there are
so many people that are in need
 Once you become involved, you are on the hook to act so people should be free to not
become involved – libertarian focus
o For duty to rescue?
 In Quebec, there is a general duty to assist people in peril (rooted in civil law tradition)
(pg 251)
 But not helping people in trouble is not a criminal act, the moral duties are much broader than the legal
duties

Omission: actus reus when person found guilty of failing to perform legal duty (ex. Care for a child)

Fagan v. Commissioner of Metropolitan Police (1968, England) – omission v. assault

 Facts:
o Police tells Fagan to park his car somewhere, he drives and lands on police officer’s foot, the
police officer said he was on his foot, and Fagan tells him he can wait, and then police again says
to remove his car, and finally Fagan does
o Fagan is convicted of assault of police
 Issue:
o Whether the prosecution proved facts which in law amounted to an assault.
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  James J. (majority):
o A mere omission to act cannot be an assault, if all this is an omission then it is not assault
o In assault, the act and the fault have to occur at the same time
o Here, the argument was that it was not at the same time
 The act was driving on his foot (and assume it was an accident)
 Then it was the fault because he did not remove it
o Court says there was simultaneous because the act was continuous and started when he drove on
his foot and ended when he took it off
o Same as stepping on someone’s foot and staying there, and he used the car as a median
o It is good that the court recognizes the car as not its own thing, it is being controlled and an
extension of the person driving it
 Bridge J. (dissenting):
o For the dissent, the accused was not guilty because the act was complete before the faulty
intention was formed
 After that, there was only an omission to act

HOW DO LEGAL DUTIES ARISE? (STATUTES AND COMMON LAW)

 Recall that an omission can only ground criminal liability where there is a legal duty to act
 Some duties to act are found in statute (The Criminal Code imposes several important duties to act, for
example:
o Section 215 duties to provide the “necessaries of life” to one’s children, one’s spouse, and people
under one’s charge
o Section 216 duties of those undertaking medical or surgical treatments or doing other lawful acts
that may endanger life
o Section 217 duty to follow through on undertakings where an omission to act would be
dangerous to life
o Section 217.1 duty of those directing others’ work to take reasonable steps to ensure safety
 In addition, duties to act may be found in the common law

 When omission can ground criminal liability?

1. The offence is one that is capable of being done by omission
2. The accused was under a legal duty to act under one of:
 The Criminal Code
 Another statute, federal or provincial
 The common law

R. v. Miller (1983, House of Lords) – English case; legal duty arises from common law

 Facts:
o The accused lit a cigarette and fell to sleep
o He woke up to find the mattress on fire
o Did nothing and went to another room for sleep. House on fire.
 Charged with arson, but looks like omission because did not put out fire
 Lord Diplock: TWO ways court analyzes it
o Continuous act theory – one act that started when the fire was put and ended when he did
nothing (and fault is part of that act)
 Under this theory, NO liability for omission question comes up

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 o Legal duty analysis – by having started the fire (unintentional), he came under a legal duty to
put the fire out
 This analysis does have a liability for the omission to act by not putting the fire out
o Doesn’t matter which way you choose, but better to go with legal duty analysis since easier to
explain to jury

 RATIO: Where a person unwittingly sets in motion a chain of events that poses an obvious risk
and danger, a legal duty arises to counteract that chain of events

Moore v. R. (1979, SCC) – LEADING Canadian case of Omission

 Facts:
o Moore was charged with obstructing a police officer in the performance of his duty.
o Moore failed to stop at a red light
o When chased by a police officer, Moore refused to give his name when requested to do so by the
police constable.
 Spence J.:
o There is a provision in BC motors act to give information when asked by police, but in this case,
it is not a motor vehicle (so not statutory duty)
o But was under a legal duty to give his name. Here is why:
 Here the police saw him do the infraction of running the red light. The duty to give his
name arises because he was seen committing this infraction
 Reciprocal duty analysis: The police officer has a duty to enforce the law, by ticketing
Moore, and that gives Moore a reciprocal duty to give his name when he seeks it (pg.
260)
 This is limited by the fact that the police saw him actually running the red light (this
reciprocal duty ONLY applies to a case where the police saw him)
 Dickson J. (dissenting) (may be more convincing):
o Concern about the disproportionality by now committing such a serious offence after only doing
a petty traffic offence
o No statutory and common law duty to recognize themselves to the police in this case,
 And finds that the other judges invented this duty
o Short of arrest, people have no duty to help or answer police
o The fact that the police has a duty to identify the person does not create a duty on the other
person to identify themselves – the duties are independent of one another

 Professor’s Comments: (maybe policy questions?)

o Has the right to silence on his side but everyone in the case agrees that he could have been duty
had it said in the provincial BC motors act
o But this is problematic because criminal acts are federal but it is province specific issue where he
has to identify himself in BC – federalism issue
o Common law duties – looks like a common law offence when this omission is seen as a crime
(are common laws allowed to recognize duties and turn actions into offences when they are not
allowed to)

 RATIO: There can be criminal offence for omission when a duty is recognized in a statute, federal
or provincial, or in common law.

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R. v. Thornton (1991, Ont. C.A.) – donate HIV positive blood

 Facts:
o Gave blood to the Red Cross knowing he was HIV positive and did not disclose.
o Charged with common nuisance
o Donating blood looks like an act but it was a failure to disclose.
o Omission: the court is questioning if he is under a duty for not donating tainted blood
o It is not a crime to donate contaminated blood – there was no free-standing offense.
 Common nuisance (what he was charged with) is either:
o Commit an unlawful act (which needs to be an offence – donating tainted blood is not an
offence), OR
o Failed to discharge a legal duty
 Gallogan J. (Ont. C.A.)
o Common law duty, from tort liability: Duty to refrain from conduct that could cause injury to
another person and can be the basis for the discharging of legal duty in the common nuisance
o Can you have a common law duty in tort in criminal law? That means all tort laws are now
criminal laws
o Unclear if this common law duty from torts is a common law in criminal law ** can use this as a
possible source for argument because has not been overruled
 Lamer C.J. (SCC)
o Did not address whether the common law duty from torts applies here (did not refute it but did
not use it either) – it’s in limbo, available as an agreement but will not always succeed
o Instead, said his actions breached s. 216 where there is duty of care on those doing lawful acts
which endangers others’ lives
 Controversial judgements from Trial, Appeal and SCC, maybe policy question?

R. v. Browne (1997, Ont. C.A.) – DUTY, Criminal negligence causing death. the court defined
“undertaking” in s. 217

Codes: Duty of persons undertaking acts

217 Every one who undertakes to do an act is under a legal duty to do it if an omission to do the act is or may be
dangerous to life.

 Facts:
o Deceased swallowed a plastic bag of cocaine to avoid detection, but failed to vomit it up later on.
o The accused said he would take her to hospital. He called a cab but it took 10 minutes to arrive
and another 15 minutes to get her to hospital
o She died shortly after arrival at hospital.
 Charge: Criminal negligence causing death (s. 219, now s. 220?)
 Trial Judge:
o The undertaking required brown to have called ambulance and not taxi
 Abella J.A.: did not make an undertaking, no legal duty and not guilty of criminal negligence
o Some legal duties flow from legal duties between parties
o S. 217: the legal duty flows from the undertaking and not because of a pre-existing relationship
between brown and partner
o Define Undertaking: binding commitment, must be clearly made with binding intent
o Mere expression of words indicating willingness does not constitute an undertaking

26
 o Instead an undertaking requires a commitment (generally reliance will have been placed on
the commitment, person A has done something specifically in relying on person B on doing
something)
 She did not swallow the bags relying on Brown to save her had she overdosed
 Restrict definition of undertaking because unclear how you can make it, what would a
binding commitment look like? High standard of what an undertaking is
 Professor: Another way to look at it, he made an undertaking to take her to the hospital and he
did.

R. v. Peterson (2005, Ont. C.A.) – duty under s. 215. the duty to a person under your charge

Code: Duty of persons to provide necessaries

215 (1) Every one is under a legal duty
(c) to provide necessaries of life to a person under his charge if that person
(i) is unable, by reason of detention, age, illness, mental disorder or other cause, to withdraw himself from that
charge, and
(ii) is unable to provide himself with necessaries of life.

 Facts:
o Arnold (father) and Dennis (son) lived in separate apartments in same house, Arnold lived in
unhygienic conditions.
o Dennis locked his own apartment and did not call agencies to help
o Arnold is found collapsed in street, and committed in nursing home
o Dennis charged with failing to provide necessities of life
 Issue:
o Was Arnold under the charge of his adult son Dennis?
 Weiler J.A.:
o TEST of being under somebody’s charge:
Being under charge means having control by one party and dependency on the other party’s
o Some other factors to consider (non-exhaustive criteria):
relative positions of parties
their ability to understand their circumstances
Whether the accused explicitly assumed responsibility for the person
 Dennis was the person Arnold was returned to by the community when he went astray
 Family relationship also played into this
 Dennis controlled Arnold’s living conditions (locked him out of working toilet and
kitchen)
 Arnold was incapacitated by his dementia and
 Arnold was unable to discharge his charge from Dennis because of his age and illness
 Therefore, many indicators that Arnold was under Dennis’ charge
o Control and dependency create the relationship under charge 215(1)(c)
o Financial ability is a defense to failure to provide necessities of life
 Dissent in Peterson case:
o Legislation is required to deal with problems regarding care of elderly by their children,
shouldn’t be using criminal law

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 VOLUNTARINESS

BASIC IDEAS

 Basic principle: An act is only capable of constituting a criminal act when it is voluntary
o An involuntary act is no act at all – it does not even fulfill the act requirement
 An “absolute liability offence” is an offence that has no fault element
o To convict the accused of an absolute liability offence, the Crown only has to prove the act
element
o Because voluntariness is part of the act element, it is a requirement even for absolute liability
offences
 Voluntary act: has to be an act where there is will power to do the act, result of willing mind making a
choice
 When involuntary?
o Unconscious or no control over actions (no physical control over actions) (ex. Sleepwalking,
seizure, someone else physically maneuvering your hand/body, reflex, slip and fall)
o Conscious person can still do involuntary actions. Therefore, it is not an issue of consciousness.

WHY INVOLUNTARY ACTIONS NOT CRIMINAL?

 No element of choice
 No point in punishing them, no point having deterrence in place for this because not a choice
 Unjust (could not have done otherwise)

 H.L.A. Hart gives a useful definition of involuntary acts as “not subordinated to the agent’s conscious
plans of action: they do not occur as part of anything the agent takes himself to be doing.” (290)
 The law distinguishes lack of fault, for example lack of foresight of consequences, from true
involuntariness. For example, in most cases firing a gun is a voluntary act whether or not you think you
will hurt someone

R v. Lucki (1955, Saskatchewan Pol. Ct.)

 Driving between 10-15mph, made a right turn and car kept sliding on other side of road (black ice) and
hits car on other side
 Charged with inconveniencing other drivers by driving on other side
 Trial judge said it was not negligence, but an involuntary act (same as being hit from behind), therefore
not guilty
 Mistake in reasoning because says it negates mens rea, but fault element does not factor in because
if involuntary, means no actus rea

R v. Wolfe (1975, Ont. C.A.) – cite for voluntariness issue

 Owned a hotel, complainant told to stay out, complainant came in and Wolfe told him to leave, and he
does not, so Wolfe goes to call the police. While on the phone, complainant punches in him in the head,
Wolfe spins around and hits the complainant in the head with the telephone receiver and complainant
gets a gash in his head
 Charged with assault causing bodily harm
 Trial judge said it was a reflex action but still found him guilty

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  On appeal, said fact was he was a reflex, therefore involuntary therefore no actus reus and he was
acquitted

R v. Swaby (2001, Ont. C.A.)

 Driving a car, passenger, J, ran out of the car in a backyard, J was later found there with a gun
unregistered, J pled guilty to have the gun, Swaby testified that the gun was J’s and he did not know it
was there until being arrested.
 Swaby was charged with being occupant in a vehicle knowing there was an unregistered gun in
the car (act, being in car, mens rea, knowing there was a gun)
 Convicted at trial
 Did trial prove voluntary act?
 If he learned about the gun while driving in the car, but court of appeal said can’t be guilty if find out
during car ride, needs to be given some opportunity to deal with situation
 Therefore acts can be involuntary when actor had no choice in the matter – question of choice
becomes important (similar to innocent possession)
 Holding: voluntary conduct is a necessary aspect for criminal liability
 Dissenting:
o Swaby said he didn’t know about it till during trial, and J said he knew the whole time so there is
no evidence of the facts that there was a voluntariness problem

R v. Ryan (1967) – NO PRECENDTIAL VALUE, NOT CANADIAN!!

 Accused imaged himself as a hero, planned to rob someone and put it to good use, held up gas station
attendant, had a sawed off shotgun at his head, attendant made sudden movement and Ryan was startled
and finger twitched and shot and killed attendant
 Brought a defense of accident, did not intend to shoot the person
 Should jury had been instructed that shooting was involuntary
 Court says no it was not involuntary, jury should not have been instructed, conviction upheld
o Put a person in grave danger, complex set of actions that went on during this situation and
everything was voluntary, only question about voluntariness was pulling the trigger, and that is
not enough to raise the question of voluntariness
o PROF: but there was no intention but still made the situation dangerous
o In Canadian law, it would most likely be manslaughter or criminal negligence causing death

Kilbride v. Lake (1962)

 The accused was charged with having his car on the road without a current warrant of fitness
 When he parked, the warrant was there. When he returned, it was gone.
 Was he guilty even though he did not have anything to do with ticket not being there
 INVOLUNTARY OMMISSION CASE
 No voluntary act, therefore no conviction, had no choice in the matter (did not have a choice in the card
being gone)
 Mens rea does not matter in this case, no act so no criminal liability

CAUSATION

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  This is an issue when consequences matter (murder involves killing someone, arson involves causing
damage by fire/explosion, anything causing death/bodily harm)
 TWO kinds of causation, factual and legal (both need to be proven)
o Factual = physical or mechanical cause of death/arson
o Legal = legal responsibility for the outcome, was the act connected closely enough to
consequence such that it can be just to recognize that the act caused the consequence
 Causation in tort vs in criminal law
o Always need to be proven, in criminal only needs to be proven where cases causation is an
element of the crime (not common)
o Standard for legal causation in tort is objective, but for criminal law has special tests for
causation
 Depending on consequences of illegal act, penalties are stiffer (Policy question?)
o Is this just? Level of moral blameworthiness is same because did the same thing
o But law takes the view that consequences matter
 Code takes precedence over common law, so make sure to look is causation issues raised is in code!!

Smithers v. R. (1978, SCC) – leading Canadian case; causation for homicide: outside de minimus range

 Facts:
o Midget hockey game, got rough, racial slurs thrown to Smithers, after game, Smithers ran after
the guy, and punched him twice, then kicked him in stomach, accused fell to ground and soon
died (did not intend to murder him), victim choked on his own vomit, had malfunctioning
epiglottis
 Charged with unlawful act manslaughter (unlawful act is assault)
 Did kick cause the death? Or was the malfunctioning epiglottis cause the death?
 Issue1: distinction between expert and lay witnesses
o Defence said jury should only put expert witness on medical evidence, but SCC said jury can
consider all evidence and not limited to medical evidence in these cases
 Issue 2: distinguish between factual and legal causation
o Crown had proven factual causation
 Issue 3: what is the test for causation?
o Pg. 310: RATIO: is the act a contributing cause of death outside the de minimus range? (de
minimus means trivial things) – a very low standard for causation
o Kick was at least a contributing cause of death outside of de minimus range
o For manslaughter, if illegal act was contributing cause, then yes
o Does not have the main or only cause of death, contributing cause is a low standard
 Issue 4: medical concern
o Only thing that could broke the chain of causation was malfunctioning epiglottis
o But does not matter if that was also a cause of death
o Even if kick only caused the vomiting, it was still a contributing cause and the epiglottis caused
the choking (crown does not need to prove that kick caused both) but test is for contributing
cause
 Thin skull rule: the kick had enough to do with the choking that it caused the death.
 The evidence showed that the kick was at least a contributing cause of death, outside the de
minimis range, and that is all that the Crown was required to establish. “Thin skull” rule may
also apply in criminal matters as it does in civil matters.

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R. v. Harbottle (1993, SCC) – substantial cause test under s. 231(5) for first degree murder

Code: Hijacking, sexual assault or kidnapping

231 (5) Irrespective of whether a murder is planned and deliberate on the part of any person, murder is first
degree murder in respect of a person when the death is caused by that person while committing or attempting to
commit an offence under one of the following sections:
(a) section 76 (hijacking an aircraft);
(b) section 271 (sexual assault);
(c) section 272 (sexual assault with a weapon, threats to a third party or causing bodily harm);
(d) section 273 (aggravated sexual assault);
(e) section 279 (kidnapping and forcible confinement); or
(f) section 279.1 (hostage taking).

 Facts:
o The accused together with the companion confined a young woman. His companion sexually
assaulted her and discussed with the accused as to the killing.
o The accused held the victim’s legs while his companion strangled her.
 Charge: first degree murder
 Issue at SCC:
o Whether the accused’s participation was such that he could be found guilty of first degree
murder pursuant to s. 231 (5)
 Holding:
o The accused was found guilty.
 To cause death under s.231(5)
o Accused actions had to be a substantial and integral part of the death (pg. 314)
o Therefore: test for elevating murder from second to first under s.231(5) is actions have to
be an essential, substantial and integral part of killing (higher degree of participation)
o More onerous than other homicide offences – pg. 315 has list of things that need to be proven for
murder under s. 231(5)
o This substantial test does not apply to any first degree murder, only s.231(5)!!

R. v. Nette (2001, SCC) – significant contributing cause (TEST currently used)

 Facts:
o The accused conducted robbery in victim’s house and bound victim’s hands and feet. Some
clothing was wrapped around her head
o Victim died from asphyxiation.
 Charge: second degree murder, upheld by SCC
 Issue: Did robber cause her death?
 Arbour J.: (Significant contributing cause)
o Have to look at both factual and legal causation.
o Factual causation: question of cause of death in medical, mechanical and physical sense.
o Legal causation: question of whether someone should be held responsible in law
o Separate issues but dealt with them together (test covers both)
o Smithers test applies to all homicide cases, but rephrased in this case: significant contributing
cause test**GENERAL TEST FOR CAUSATION IN ALL CAUSATION CASES
o Harbottle requires a different test, higher threshold
 L’Heureux-Dubé J. (Dissenting):

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 o “a contributing cause of death, outside the de minimis range” and
o “significant contributing cause”
o In her view, these two phrases do not have the same meaning

TEST OF CAUSATION SO FAR

 Smithers = to be a cause, act would have to be a contributing cause outside de minimus range
 Nette = reworded that test to ask is criminal act was significant contributing cause **MAIN TEST
FOR CAUSATION IN CANADIAN LAW (FOR ALL CANADIAN CAUSATION CASES,
including homicide)
 Harbottle = substantial cause test that ONLY applies to first degree murders under 231(5)

R. v. Talbot (2007, Ont. C.A.) –

 Factual causation: ask the “but for” test (but for the criminal act, would the same harm still be there) to
see if there was causation (except when there was multiple perpetrators all contributing to the harm)
 Legal causation is a moral consequence, even if it was a “but for” act, was the accused actions close
enough to the consequences that he should be held responsible
 Believes Nette test covers both factual and legal causation

INTERVENING CAUSE (s. 224, 225, 226, Maybin)

When intervening cause not breaks the chain?

Code:
Homicide
222…(5) A person commits culpable homicide when he causes the death of a human being…
(c) by causing that human being, by threats or fear of violence or by deception, to do anything that causes his
death
Death that might have been prevented
224 Where a person, by an act or omission, does any thing that results in the death of a human being, he causes
the death of that human being notwithstanding that death from that cause might have been prevented by
resorting to proper means.
Death from treatment of injury
225 Where a person causes to a human being a bodily injury that is of itself of a dangerous nature and from
which death results, he causes the death of that human being notwithstanding that the immediate cause of death
is proper or improper treatment that is applied in good faith.
Acceleration of death
226 Where a person causes to a human being a bodily injury that results in death, he causes the death of that
human being notwithstanding that the effect of the bodily injury is only to accelerate his death from a disease or
disorder arising from some other cause.

When intervening cause breaks the chain?

R. v. Smith (1959, UK?) – TEST for intervening cause in UK

 Facts: There was a fight at a military base and Smith stabbed three people with a bayonet. He stabbed
one of the men (two wounds being found, one in the arm and the other in the back, but the back one was
unknown to anybody). When he was being carried to the hospital he was dropped twice. On top of this,
the medical staff gave bad treatment. The victim died. The doctor said that the victim would have had a
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 75% chance of survival if proper treatment had been given. Smith was charged and convicted of murder
at a court martial.
 Holding: Smith was guilty of homicide. Bad treatment was not an intervening cause.
 Ratio:
o In order to be an intervening cause, the subsequent causes have to be overwhelming
enough to make first cause merely part of the history
o Was the real reason the person died that he was dropped and got CPR? They are not so
overwhelming that they become the cause of death
o Court: causation requirement does not require the criminal act to be the only causal factor
o Alternate phrasing: If an initial cause remains a significant cause when the death occurs,
then it is still considered the cause of the outcome.
 How would it be decided in Canada (given the Canadian common laws and codes)?
o Smith: stabbing was a significant contributing cause (Nette test) and:
o Refer to code s. 225 where it says treatment acts that are improper do not break the causal link
o Another scenario: The code is always upheld over the Nette test because the Nette test is
common law --- ex. If the wounds had almost healed and then some really bad medical treatment
was given, you could argue that the stab wound was no longer a significant contributing cause
but the code would trump that and say it is an intervening act that did NOT break the chain of
causation because of s. 225

R. v. Rlaue (1975, UK?) – death that could have been prevented, thin skull rule, s. 224

 Facts: Victim was an 18-year-old devout Jehovah’s Witness. Defendant came into her house and asked
her to have sex. She declined. He stabbed her with a knife, inflicting four serious wounds, one of which
pierced her lung. She ran away, collapsed outside a neighbor’s house, and was taken to hospital.
Surgery was required, but she would need a blood transfusion. She was aware that without a
transfusion she would die, but refused because of her religious beliefs. She died.
 Holding: The stabbing did cause the death even if her refusal to get a blood transfusion was a cause of
her death, the stabbing was still also clearly a cause as well
 Reasoning:
o It has long been the policy of the law that those who use violence on other people must take their
victims as they find them. This in our judgment means the whole man, not just the physical
man…”
o Court says religious beliefs cannot be said to be unreasonable
o Court refers to thin skull rule and take the person as you find them, including their beliefs
 In Canada: apply s. 224 in the Code

Thin Skull Rule: The rule states that, in a tort case, the unexpected frailty of the injured person is not a
valid defense to the seriousness of any injured caused to them.

The Queen v. Bingapore (1974-5, Australia)

 Facts:
o The accused harmed the victim and the victim was sent to the hospital.
o Despite the warning not to leave hospital from the doctor, the victim left anyway.
o The victim returned later and died.
 Holding: The accused CAUSED the victim to die.
 Reasoning:
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 o The alleged intervening cause does not break the chin of causation. It is not a new cause, but one
that the victim lost a possible opportunity of avoiding death from a STILL OPERATING cause,
namely the violence inflicted by the appellant.
o The act of the appellant causing injuries from which the victim dies does not cease to be a
causative act because the victim thereafter acts to his detriment or because some third party is
negligent.
 Relevance in Canada: s. 224 in the Code

R. v. Maybin (2012, SCC) – Leading Canadian case on intervening cause; TEST, “But For”

 Facts:
o 3 accused: TM, MM (brothers) and BG (bouncer) charged w/ unlawful manslaughter s.222
o victim touched ball on pool table - T punched victim in head and face
o M assisted
o victim unconscious on pool table
o BG (bouncer) was told that victim started fight - BG punches the victim in head and carries him
outside
o victim taken to hospital (later dies in hospital) due to a “subarachnoid haemorrhage”
o Important to note - less than 1 minute elapsed from T’s first blow to BG’s blow
o Acquittal for the bouncer was upheld the whole way through.
 Holding: Maybin found guilty. Bouncer acquitted.
 TEST: whether the dangerous, unlawful acts of the accused a significant contributing cause of the
victim’s death?
 Factual causation (“but for” test)
o The brothers’ assault was either the direct medical cause of the death or it rendered the victim
vulnerable to the bouncer’s assault. But for their attack the death would not have occurred.
 Legal Causation (determine whether the accused should be held accountable for the consequences
– intervening causes go here)
TWO analytical aids:
o Reasonable Foreseeability: Was the intervening act reasonably foreseeable at the time of the
accused’s act?
o Independent Acts: Was the intervening act so independent of the accused’s act that it should be
regarded as the sole cause? Or were the acts so connected that they can’t be said to be
independent?

FAULT REQUIRMENT

INTRODUCTION

 Fault is about the accused’s level of moral blameworthiness.

o We don’t hold someone morally responsible if they don’t understand the consequence of their
actions.
 All criminal offences require a fault element (and an act element.)
 An act that looks the same might be a more serious offence given the fault level
o There’s fault in negligence and fault in someone’s bad intention
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  Different fault element for different crimes (ex. For possession, knowledge of drug is mens rea, in
homicide, required to foreseen consequences of your dangerous acts)
 Fault elements mirror the act elements (ex. Touching someone for assault, you need to know you are
touching someone)
 Subjective/objective
o Subjective mens rea might be required: the offender must actually hold the blameworthy mind
during the act (it is about what is in the accused’s mind)
 Mens rea applied to subjective
o Objective: ex. Negligence, and the question then becomes if they lived up to a certain standard
 Marked departure test.
o Depends on offence and can use both
o No fault element offence: absolute liability
R. v. Hundle (1993, SCC) – Subjective meas rea v. objective mens rea

 Subjective test asks what was in the mind of accused

 Test of negligence is an objective one: a marked departure from the standard of care of a
reasonable person.

R. v. Theroux (1993, SCC) – no need to prove precisely, can infer from the act or the circumstances.

 Court was called on to discuss the fault requirement for the crime of fraud.
o Looking for guilty mind and purpose of the mens rea is to protect morally innocent
o Mens rea has nothing to do with accused system of values
 Asks whether the accused subjectively appreciated that certain consequences would flow
from his or her acts, not whether the accused believed the acts or their consequences to be
moral.
o No need to show precisely what thought was in the accused’s mind – the blameworthy state of
mind will often be inferred from the act itself, or from the circumstances.

R. v. Mulligan (1974, Ont. C.A.)

 He stabbed her multiple times and she died, did he intend to cause bodily harm or to murder her
 The evidence includes his acts and what he said (he told the police he did not mean to kill her) but court
said based on his acts, can infer he did mean to murder her because he stabbed her multiple times

R. v. Ortt (1968, Ont. C.A.)

 “Presumption” said by judge to jury, and that was wrong because it implies the person knows exactly
what the act would produce

R. v. Walle (2012, SCC)

 Talks about ways of telling juries how to understand intention

REGULATORY OFFENCES (FAULT FOR THESE OFFENCES)

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  Not true criminal offences, called quasi-criminal offences
 ALL valid provincially enacted offences are regulatory offences, some federal regulatory offences as
well
 Require a lower level of fault
 Before Sault Ste. Marie, there are only TWO choices: subjective mens rea or absolute liability.
o Subjective meas rea: prove what was in accused’s mind
o Absolute liability: the Crown only need to prove the act.

Beaver v. R. (1957, SCC) – drug trafficking requires knowledge of the substance, default fault for criminal
offences is subjective mens rea

 Facts:
o accused and brother possessed heroine, sold to undercover officer, accused said he thought it
contained sugar not heroine (have to assume jury believed him)
 Judges thought they had two options when looking at fault:
o Some offences require subjective mens rea (what was in accused’s mind)
o Absolute liability (no fault element required to be proven, only act)
 In this case, court was deciding which category this offence falls into
 Trial level
o Trial judge told jury does not matter if they believe his story or not, so for our analysis,
assume they believed him. Charged with possessing and selling heroine
o Trial judge told jury, if he actually possessed and sold it, he was guilty and it did not matter if he
thought it was sugar (Treated it as an absolute liability offence)
 Legislation (pg. 358) says anyone who possess drug is guilty
o Usually it is only the act element that is in the legislation. Fault element is added by common
law.
 Issue at SCC: is possession an absolute liability offence?
 Majority
o Possession of heroin is a mens rea offence, subjective mens rea is required
o 2 kinds of knowledge is required for possession
 Knowledge of possession
 Knowledge of what the substance is
o It is unjust not to have knowledge requirement for possession. It permits the conviction of
morally innocent people.
o Need to have fault (negative moral worth on action), wrong to hold people responsible where
they were morally innocent (person buys thinking baking soda, but it is heroin. But if absolute
liability, then guilty)
o RATIO: possession requires knowledge of the character of the forbidden substance.
 Also says that default fault level for criminal offenses is subjective mens rea
o Therefore conviction for possession quashed
o But did uphold the selling conviction (because in statute, applies to people selling things as
heroine (even if it was not heroine))
 Dissent
o Possession is absolute liability
o Because public welfare offence (regulatory offence, not true criminal offence)
o Majority says to this: more akin to criminal offence because criminally offences apply to actions
that are fundamentally wrong

36
 o Because no mens rea requirement in statute, did so to be firm for drug trade
o **Majority says to this: no mens rea in most criminal offences, therefore no merit in this
argument

R v. City of Sault Ste. Marie (1978, SCC) – Leading case! Default fault for reg offence is strict liability.

 First time courts said more choice in fault for regulatory offences other than subjective and absolute
 Facts: A landfill site was leaching pollutants into Cannon Creek. City of Sault Ste. Marie hired an
independent contractor (Cherokee Disposal) that did the actual disposal and they disposed of it
negligently. Lower courts were all over the place in terms of deciding what level of fault applied for this
offence
 City had outsourced landfill to another company (and they were convicted)
 Issue: was city also responsible for pollution, what was their level of fault?
 Defence:
o We hired someone else to do it, we are not guilty
 Dickson J:
o Says they are strict liability offences (in between absolute and subjective) and they are
default for regulatory offences
o In criminal offences, true crimes require subjective mens rea
o Regulatory offences don’t have same level as true crimes
o They are there to uphold public welfare
o Arguments in favour for absolute liability in regulatory offences
 Should be a high standard of care, will inspire people to take greater care
 This allows efficient enforcement, too much admin difficulty for crown to prove mens rea
in each of these cases
 Less social stigma and less penalty, therefore not worried about unjustly convicting
people
o Arguments against absolute liability in regulatory offences
 Counter argument to inspire greater care: not allowed to bring how much care they did
take in argument since does not matter
 Stigma and penalty could be high (imprisonment)
 Questions efficiency argument, do so in criminal proceedings so can do it here
 *punishes morally innocent*
o Does not mean all regulatory are subjective mens rea then, comes up with middle position: strict
liability
 Crown proves act beyond reasonable doubt
 Then a due diligence defence is open to the accused (to show that he was not negligent
and did diligence) on balance of probabilities
 Difference with absolute liability: Only difference is that accused can present defence of
due diligence, but crown still only needs to prove act
 Due diligence is that the accused must prove that he was not negligent and he took
reasonable care.
o Any regulatory offence will be an offence of strict liability UNLESS the legislature clearly
indicates that the offence is either
 An absolute liability offence, OR
 A subjective mens rea offence

So far:

37
  If it is a regulatory offence, then the default fault element is strict liability.
 If it is a criminal offence, then the default fault element is subjective mens rea.

R v. Wholesale Travel Group (1991, SCC) – distinguish criminal offences and regulatory offences

 Facts: A travel agency was charged with misleading advertising under a federal act. Offence allowed for
large fines and imprisonment up to five years, which might suggest that it is criminal offence.
 Issue: Is the offence a criminal offence or regulatory offence?
 Defence: Offence allowed for large fines and imprisonment (high penalties), therefore defence said
should be criminal offence
 Cory J.
o Features that distinguish between regulatory and criminal offences:
 Look at purpose of offence: Regulatory offences prohibit conduct that is NOT inherently
wrong (malum prohibita) but would impose dangers on society if left unregulated vs.
criminal law prohibits acts that are inherently wrong, abhorrent in themselves (malam in
se)
 Shift in emphasis: Criminal offences punishes individual for moral fault in past action,
whereas regulatory offences are worried about protecting public interest in the future by
making people live up to specific standards
 Punishment differs: Criminal acts usually include imprisonment, whereas regulatory
usually consist of fines and sometimes jail time
o Misleading advertising is a regulatory offense because:
 Not wrong in itself, part of overall regulatory scheme that clamps on anti-competitive
forces
 Stigma of misleading advertising not very high
o Why are regulatory offences treated differently?
 Licensing justification: For regulatory offences, you have to do something that makes
you opt into a scheme (criminal laws apply to people in general)
 Vulnerability justification: Regulatory regimes are there to protect vulnerable members of
society (ex. Protecting employees from employers)

Charter Standards of Regulatory Offences

Constitution Act, 1982

S.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.

 Due diligence defence for regulatory offences with a reverse onus became a minimum
constitutional standard of fault for ANY offence which threatens the liberty interest
(imprisonment).
 The principles of fundamental justice require a minimus level of fault to be proved for an accused to be
guilty of certain offences.
 In these cases the Charter sets constitutional minimum fault requirement.
 The BC Motor Vehicle Act Reference sets the Charter minimum for regulatory offences.
 Courts have looked at stigma and penalties
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  Common law default fault element but legislation can change it up or down, but the constitution lays out
a floor that it cannot go below

RE: BC Motor Vehicle Act Reference (1985) – strict liability is constitutional minimum fault requirement for
any offence that carries possibility of imprisonment.

 Government seeks advice on charter standards for regulatory offences, specifically s. 94(2) (pg. 388)
o Driving with a suspended license is an absolute liability offence
 Offence that is absolute liability but also carries mandatory penalty in jail for 7 days
 Issue: Is it consistent with the Charter?
 SCC:
o Not constitutional. Contrary to s.7 of the Charter
o Principles of fundamental justice is not just procedural but also substantive
o Although the principles of fundamental justice are not themselves right, they are qualifiers to the
rights of life, liberty and security of the person. The principles set parameters on those rights.
Whether one principle is fundamental justice depends on many factors and is not exhaustive. But
one of the principles of fundamental justice is innocent is must not be punished (see Beaver)
o Why absolute liability for offences with possible imprisonment unconstitutional?
 First, s.7 violation requires deprivation of life, liberty, and security of the person.
Obviously, imprisonment deprives liberty.
 Second, principles of fundamental justice require that innocent must not be punished.
Absolute liability violates this principle.
o Therefore, combining absolute liability and imprisonment, that law is contrary to section 7
o So, strict liability is the constitutionally minimum fault for any offence that carries
possibility of imprisonment
o And in this case, cannot be saved under s.1.
 Fault offences don’t have to be strict liability

What does due diligence require?

 Due diligence – taking reasonable care – means different things in different contexts, for example:
o Making only reasonable mistakes
o Taking reasonable safety precautions
 In Levis v. Tetreault, the SCC held that pure passivity is not due diligence

R. v. Beauchamp (1953, Ont. C.A.) – TEST for careless driving fault requirement

 Facts:
o Bus driver backed into car onto the parking position. Another car happened to park on that
position. The outside mirror was loose and of no use. The bus driver checked the inside mirror
and also the back window, but hit the car’s bumper, grille and fender.
o Careless driving was a regulatory offence with an express faulty requirement. So it is not a strict
liability offence.
 It is not strict liability, because the provision sets an objective fault requirement.
 Charged with careless driving in Ontario
 Mackay J.
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 o What this fault requirement means is that the accused must have breached the standard of care:
 In light of the circumstances of which the driver was aware or of which a reasonable
driver would have been aware, did the driver fail to drive with the care and attention of an
ordinary driver? (objective standard)
 AND, even if the driving does fall below the standard, it must amount to conduct that
breaches at duty to the public and is deserving of punishment
o Court finds that not everything that results in a collision is necessarily careless driving  in this
case, didn’t reach the level of breach of duty to the public or that was deserving of punishment
o This is an objective fault requirement that must be proven by the Crown beyond a
reasonable doubt.

MURDER

 Statutory provisions:
o Section 222
o Homicide = directly or indirectly causing death: divided into two categories

Culpable Homicide Non-culpable homicide

(ex. Without any fault,
accident that could not
Murder Manslaughter have been avoided)

Not an offence

Homicide =
causing human
death

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  Difference between murder and manslaughter is fault element
 Manslaughter is always there and murder can be downgraded to manslaughter
 Culpable homicide:
o Unlawful act murder
o Death by criminal negligence
o If not, it is non culpable homicide and is not an offence.
 Murder has a higher level of fault than manslaughter
 What makes a killing murder as oppose to manslaughter?
o Section 229 and 230 talk about this
o Section 229(a)*** (always cite for fault element for murder) THE DEFINITION OF
MURDER FOR CANADIAN LAW (MAIN ONE)
 2 intents for murder
 1) Meaning to cause death
 2) Meaning to cause bodily harm knowing that is likely to cause death and is reckless
about whether the person dies or not (“whether death ensues or not” is superfluous
and does not add or heighten the requirement in any way)
o Knowing adds the subjective mens rea
o Requires subjective mens rea – question of what the person means to do
 Question is not what he should have known
o In order to intend something – you act and are certain about it likely causing death
o Acting in a way that is likely to kill someone even if you did not want them to die is still intent

Simpson v. R. (1981, Ont. C.A.) – cite s. 229(a), this case interprets that section. Subjective mens rea

 Attempted murder case (victim survived so not murder case)

 Jury charge problem: described fault element as objective (ought to know it would cause death)
 S. 229 requires subjective mens rea, NOT objective mens rea.

R. v. Edelenbos (2004, Ont. C.A.) – primary authority on what “likely” means for section 229(a)(ii)

 Sexually assaulted and strangled victim while drunk and lacks intent for murder because he was drunk
and wanted to make her be quiet.
 Convicted of first degree murder by jury
 Admitted to killing her that way but did not have the intent (therefore the lowest conviction he could
have had was manslaughter since he did not deny that he caused her death)
 Judge gave unprecedented explanation of “likely” that caused the defence to appeal = said “could well
have caused death” and does not mean probable, ie 51% (might be too high)
 Appeal judge said that discussion did not prejudice the defence and therefore no new trial but should not
have been given
o Said people understand what likely generally means
o Thinks it’s confusing to give it a definition and the normal common sense definition suffices

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 o Definition of likely is the common sense definition (but did not define the common sense
definition)

CONSTRUCTIVE MURDER

 Other types of homicide that are deemed to be murder even though the section 229a intention is absent
 Used to be known as “felony murder”
o Example: armed robbery where someone gets killed and all participants in the robbery are guilty
of murder regardless of state of mind
o Questions: fairness of labelling a murder that the person did not know would cause death
 Also party liability issues, why is everyone guilty when only one person meant to kill
someone
 NOW ABOLISHED IN CANADIAN LAW – UNCONSTITUTIONAL (EVEN IF IN CODE –
(BECAUSE PARLIAMENT IS IN CHARGE OF COURT), STILL UNCONSTITUIONAL)
o Parliament should take it out of the code, just have not done it yet

Vaillancourt v. R. (1987, SCC) – at least death must have been objectively foreseeable for a charge of
murder

 Person who killed the person during the robbery fled, the accused did not know the gun was loaded and
tried to ensure it was not loaded
 Charged with second degree murder (under Section 230d – NOW TAKEN OUT)
o Explicitly disclaims no intent needed
o Homicide if murder is 1) when someone was doing one of the crimes listed AND 2) death ensues
because the person had a weapon
 HOLDING: Section 230d was struck down
 Lamer J.
o Concern of unfairness of labelling killings as murder when there is not that intent, murder carries
such a stigma and highest penalty that subjective mens rea has to be proven (**pg 429)
 But says that this is his view, it is obiter so not binding (he says this is farther than he
needs to go for this case)
o Says s230d does not require death to even be foreseeable and at the very least, death must be
foreseeable for it be murder = RATIO of this case
o Section 230(d) did not require even objective foreseeability of death, so it violated s. 7 of the
Charter.
o Cannot be saved under s.1 even though there’s a clear and pressing objective here (to not have
people carrying weapons while committing crimes), this goes too far and indiscriminately
punishes people for murder just because they’re carrying a weapon, even when it’s accidental.
o This case tells us: fault has to be at a minimum level to be convicted (fault = OBJECTIVE
mens rea)
o In order to determine level of fault, look at stigma and punishment of crime
o (but does not decide the fault requirement for murder that’s constitutionally required – that’s the
Martineau case)

R. v. Martineau (1990, SCC) – Leading Case on Subjective Mens Rea For Murder (Charter)

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 Companion shot two people who they robbed but accused did not seem to know his companion would
kill him.
 Convicted of murder under section 230a (not weapon but causing bodily harm in facilitating the crime is
enough for murder in this section)
 There is at least an argument that the objective foreseeability is met required by Vaillancourt. Because
by the term “he means to cause bodily harm”, it is reasonably foreseeable that death may occur.
 Court says unconstitutional
 Lamer J
o RATIO: the principles of fundamental justice under s. 7 require subjective foresight of
death for a murder conviction. (the provision clearly does not require that)
o Can’t murder someone is you do not foresee their death. Only killing a person intentionally
should be branded as murderers.
o Use stigma and penalty analysis – If we are going to subject them to very high stigma and
penalty, they should have very high moral blameworthiness (proportionality).
o Section 230a is unconstitutional under section 7 and cannot be saved under section 1 , because
parliament can find other less right impairing ways to try to deter people from inflicting bodily
harm while committing crimes.
o All of the section 230 are struck down.
 Heureux-Dube J (Dissent)
o Agrees with Vaillancourt that death requires objectively foreseeability.
o But she thinks section 230(a) does require objective foreseeability because
 Death has to flow from bodily harm while accused from dangerous crime
 Accused has to intend to cause bodily harm
 Therefore, any reasonable person would know death is foreseeable
 Therefore, section should be upheld because it meets constitutional requirement of death
be foreseeable
o Wrong to see mens rea as the sole determinant of offence because consequences matter
o Fundamental requirement requires objective foreseeability and that is all
o There are good policy arguments for upholding constructive murder provision
 Want to deter killing of people during committing these particular crimes (stats back her
up that this is a real problem), so we should give deference to Parliament trying to deter
this through stricter punishment
 Stigma is overemphasized
 They are worthy of stigma, already stigmatized by committing very serious
offence
 Stigma not really increased that much b/c only difference is btw murder or
manslaughter – are we really saying that labels are important constitutional
matters? Murder is a legal term and parliament gets to define it
 Thinks SCC going way too far
 Not legitimate reason for making Charter ruling
 Doesn’t think it rises to occasion of Charter violation
 Not the court’s place to overrule Parliament when there’s no actual constitutional
violation
o Thinks s. 230(a) should be upheld
o Martineau also made all section 230 unconstitutional because they all conflict with ratio in
this case (that murder requires subjective foreseeability of death)
 Section 229b

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 o Meaning to cause death or bodily harm knowing it is likely to cause death and is reckless about it
but by accident or mistake to another human being where he does not mean to cause that persons
death
o = transferred intent
 Section 229c (known as unlawful object murder) read down
o “ought to know” = this language is unconstitutional because allows for conviction without
subjective foreseeability of death
o This section could be read without those words and it works (=called reading down)
 Culpable homicide is murder where a person, for an unlawful object, does anything that he knows or
ought to know (reading down after R. v. Martineau ruling) is likely to cause death, and thereby causes
death to a human being, notwithstanding that he desires to effect his object without causing death or
bodily harm to any human
 OCA says this section can still be upheld by reading down the “ought to know”, SCC has not made a
ruling about it.

First Degree vs. Second Degree

 First degree more serious, automatic life sentence with this conviction with parole in 25 years
 Big difference is sentencing – in second degree, parole is decided by judge and can be between 10-25
years
 The conviction is murder, if it is first or second degree is sentencing procedural thing (first degree
murder is not actually a thing)
 If you have a murder, it is by default a second degree murder unless it fits into any of the aggravating
facts laid out in section 231

Where murder is elevated to first degree murder:

1) Planned and deliberate murder (s. 231 (2))

R. v. Smith (1979, Sask. C.A.) – Leading case on “planed” and “deliberate” under s. 231(2)

 Fact:
o Three friends went to an abandoned farm house, intoxicated with drugs and alcohol, started
shooting randomly, one of the friends left and then came back and saw them in a standoff.
Accused shot victims arm.
o Accused waited while victim asked to be taken to the hospital.
o Accused reloaded his gun, took a few minutes and then shot him multiple times
o Smith was convicted under first degree
 Issue:
o Was evidence sufficient to say it was planned and deliberate
 Cullinton J.: defines and says both planned and deliberated
o Planned = arranged beforehand or result of scheme or design previously formulated by accused
(doesn’t have to be complicated)
o Deliberate = considered and not impulsive
o Says it means something more than intentional (intention is required for all murder)

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 o Sudden impulse murder is not planned
o In this case, the killing was of a sudden impulse and not planned
 Class: how much time does it need to say it was planned?
o Can say between initial shot and when he killed him, he thought it through
o Prof: questionable, no specific amount of time that has to be applicable
 Shows test is difficult to apply
 Leading case on meaning of planned and deliberate (even though from Saskatchewan court of
appeal)
 SCC approved model jury instruction that is pulled from this case

R. v. Nygaard and Schimmens (1989, SCC) – planned and deliberate infliction of bodily harm that is likely to
cause death is first degree murder

 Both of them went to the victim’s house with a bat and beat him to death
 Murder under 229(a)(ii) and first degree 231(2)
 Defence: Can’t plan and deliberate murder if intention is not to cause death, but only bodily harm.
 Cory J.
o Defence is wrong
o Person can plan and deliberate to cause terrible bodily harm knowing that it’s likely to cause
death  can combine sections, qualifies as first degree murder
o Said no moral blameworthy difference in causing so much bodily harm that you know it might
kill them and planning to kill them therefore the defense does not stand

2) Murder of specified victims (s. 231 (4)) (ex. Police officer, prison guards and people working in prisons all
during their job)
 Does accused have to know that victim is one of these specified victims?
o Seems arbitrary about making it first degree based on occupation that the person does not know
o If doesn’t know, then does not work as a deterrent because person has no way of knowing
o On the other hand: murder is the same, the difference between 1st and 2nd is just about
sentencing but that comes later

R. v. Collins (1989, Ont. C.A.) – LEADING CASE, accused must know the victim is in the specific victim list

 Goodman J.: Accused must know that the victim is in the specified victim list

3) Murder while committing specified offences of unlawful domination (s. 231 (5))

TEMPLATE FOR MURDER CASE

Charging Stages in 1st degree murder
1. Start with Homicide s. 222
Using de mininus range in Smithers, we only get accused to manslaughter.

2. For murder, go to s. 229

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This only satisfies second degree murder
Life sentence

3. For first degree murder, go to s. 231

Must satisfy planning and deliberation s. 231(2)
OR s. 231(3) contracting a murder;
OR s. 231(4) murder peace officer
OR while committing s. 231(5) subsections a (hijacking plane), b (sexual assault), c (sexual assault with a
weapon), d (aggravated sexual assault), e (forcible confinement), f (hostage)
Life sentence (with parole only after 25 years)
231 (7) all murder that is not first degree is second degree murder
Punishment for all murder is life in prison, difference has to do with parole.

SUBJECTIVE MENS REA

Fault Ladder:
Motive Highest level of fault
Desire (not normally required to be proved at all)
Knowledge/Intention Subjective mens rea (knowledge and intention)
Recklessness *default for criminal offences
Wilful Blindness (any one of these can be used to satisfy the subjective
mens rea requirement)
(onus is on the crown to prove these)
Negligence Objective fault (measuring their fault against an standard)
Strict Liability (default for regulatory
offences) (crown needs to prove act,
defense can show due diligence)
Absolute Liability No fault at all

- An offence may require subjective mens rea by virtue of:

a. The charter – constitutionally required fault (ex. In murder, attempted murder, war crimes, crimes against
humanity and arguably theft (because in obiter in Vaillcourt) although its required in the statute)
o Important but very few crimes
o Also some crimes by charter that does not need subjective mens rea: Dangerous driving,
manslaughter, failure to provide necessities of life
b. Statute
o “intentially”, “willfully”, “knowingly”
o Many in the statutes
c. Common law
o all criminal offences, level of fault default is subjective mens rea (get this from Beaver)
o for regulatory offence, level of fault default is strict liability
o most under this

R. v. H (A.D) (2013, SCC) – common law presumption of subjective mens rea

 Fact:

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 o Mother did not know she was pregnant, gave birth in Walmart bathroom but child was blue and
she thought it was dead so she left child there, bystanders rescued it and it is safe now
o Mother charged with child abandonment
o Trial judge acquitted, she did not know it was alive so no subjective mens rea
 Cromwell J.
o There is a presumption of subjective fault element
o It doesn’t mean that every crime in Criminal Code requires SMR, there are objective fault crimes
o There are reasons to depart from SMR
o But, not so in this case
o Language of this section and context in the code (“expose” and “abandon”) suggest SMR
(abandon connotes you know you’re leaving with intention), denote some awareness of risk
 Moldaver J. (same decision, different reasoning)
o Requires an objective mens rea because needs to protect children, subjective fault will give too
many defences
o Says similar to failure to provide necessities of life which has objective mens rea
o But trial judge was right to acquit because her believing baby was dead was reasonable so she
would have met objective mens rea
 Therefore, whole court upheld acquittal but differed on if this required subjective or mens rea (majority
said subjective mens rea offence)

What specific states of mind that might constitute as subjective mens rea (intention, knowledge, recklessness
and willful blindness)

- Motive
o Not the same as intention (intention is part of mens rea)
o Motive = is why someone did it (but this does not have to be proven)
o But showing there was a motive can help show intention and also act (mens and actus rea)
o But parliament can frame offences to require motive (ex. In some terrorism legislation)
- Desire/Purpose
o Court says these words depend on context of where it is in the code
o Main meaning of purpose is intention in the code
Intention/Knowledge (highest subjective mens rea needed for criminal law)

o Intention in terms of result, knowledge in terms of knowing what you are doing
o Leading case for definition of intent:
R. v. Buzzanga and Durocher (1979, Ont. C.A.) – LEADING case on definition of intention

 Fact
o Some offences where knowledge and intention (the highest form of subjective mens rea) are
required (recklessness not suffice)
o Thought there was prejudice against the French in Anglo community
o Printed offensive flyer against French people, trying to expose bigots of community and generate
sympathy to build school
o Charged under 319 (2) – willful promotion of hatred
o Convicted at trial, then appealed to OCA
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  Martin J.
o Said no it was not willful promotion
o Willful promotion means intentional promotion of hatred
 Willful means different things in different places of code, for this offence, it means
intentional. Recklessness would not have sufficed
 Ratio (definition of intention): a person who 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.
o “with intent to” “means to” “in order to” – shows intention required as subjective means
rea
 Intention can have 2 meanings:
o Conscious purpose to bring about a consequence
o Subjective foresight that the prohibited consequence is substantially certain to occur

R. v. Boulanger (2006, SCC) – offence of breach of trust requires subjective mens rea

 The accused daughter got into an accident, he asked his subordinate to write a report that it was not her
fault (it was not her fault but the original report didn’t elaborate that) and gave it to insurance to save
money ($250)
 Charged with breach of trust (corruption offence, abuse of public office, usually to do with personal
benefit) (serious offence)
 McLachlin J.
o The accused must have acted with the intention to use their public office for a purpose other than
the public good, for example, for a dishonest, partial, corrupt or oppressive purpose.
o Mens rea can be inferred from the circumstances, especially if accused tried to conceal their
actions or if accused received significant benefit
 Can get some benefit but line is significant benefit
 Getting a benefit is important but not determinate of this mens rea for this crime
o In this case, he knew he would get a benefit but does not mean it’s an improper purpose
o But it was not a false report, there was no intention to mislead, no improper purpose – it was
partial but was not skewing facts
o Said it was an error of judgement but crown did not prove mens rea beyond reasonable doubt

Recklessness

 Recklessness is not the same as negligence

o Negligence is an objective standard
o Recklessness is an subjective standard
 Conduct of someone who sees the risk and takes it anyway despite the risk
o Not the same as intention, intention requires substantial certainty but recklessness is not about
certainty but just an idea that the risk will flow
o (from Sansregret v. R.: one who sees the risk and who takes the chance.)

R. v. Theroux – Fraud case!

 Fact:
o Accused ran construction company.

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 o Took deposits from buyers said it would be insured for condos, but it was not insured and he
knew that, but project went under and buyers lost their money
o He knew it was not insured but honestly thought the project would not go under
 SCC Mclaughlin:
o Actus reas for fraud requires deceit and deprivation (dishonest act is lying to buyers about
insurance) (deprivation is placing their money at risk)
o Mens rea is subjective awareness about the prohibited act which could cause the possible
consequences
o So level of subjective mens rea is recklessness (don’t need to have intention or desire) for this
fault
 Recklessness is knowledge of the consequences (and consequence is fraud)
o Another way to look at this: certain that their property at risk and therefore he had knowledge but
court says he was reckless as his mens rea

- Willful Blindness

 Wilful blindness is a common law concept

Sansregret v. R. (1985, SCC) –leading case on definition of wilful blindness and recklessness

 Wilful blindness
o The law presumes knowledge can be known and the person knows it can be obtained
o Not that fault lies in the failure to make inquires but it’s having a suspicion but going ahead in
spite of that (a deliberate suppression of suspicious)
o Tantamount to knowledge
o Arises where person becomes aware of a need of an inquiry but decline to inquire because
does not want to know the truth
 Ex. In possession cases or accessory to murder
o Why would someone want stay ignorant? Because the person knows that if they know, they can
plead ignorance and act like they did not know and won’t be held responsible

R. v. Briscoe (2010, SCC)

 Court adopts notion that wilful blindness is deliberate ignorance

R. v. Lagace (2003, Ont. C.A.)

 Can make inquires but that does not let them off the hook if they still have those suspicions after the
inquire. Because the don’t take all reasonable steps to determine the truth.

R. v. Blondin (1971. B.C. C.A.)

 Fact:
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 o Imported hashish in scuba tank
o But when found, said knew something sketchy was in the tank but he did not know it was
hashish and does not know what hashish is
o Trial judge said to jury – he was guilty if he knew it was hashish he was importing (because he
was charged with importing hashish – importing narcotics in schedule B for example)
 Crown said it would be enough to convict if he knew it was something sketchy
 Court of appeal said trial judge’s mens rea was too much narrow and crown too broad
o Said it would have been enough if he knew substance was a narcotic, not necessarily what kind.
o Jury should have been told that he can be guilty if
 Imported a substance into Canada that he knew to be a narcotic
 He had brought the substance into Canada illegally and had either been reckless about it
or was wilfully blind to what it was – can infer that he suspected that it might be a
narcotic.
o But no mens rea if all he knew it was something illegal, because he could have thought he was
importing something that had to have duty on them (ex. Scarfs for resale) since that is much less
serious
o RATIO: an accused can’t be convicted of smuggling drugs unless he knew it was drugs
 Class: there are levels of seriousness in drugs importing, if he was importing heroine but thought it was
MJ, he would be convicted of a much more serious charge without that mens rea

OBJECTIVE FAULT

 Crimes that do not require subjective mens rea

 Called crimes of objective fault or negligence crimes
 Ex. Careless use of firearm, treason
 Code indicators: Where objective fault is explicitly required, uses words like “reasonable”, “ought
to know”, “good reason”, “careless”
 ***(crimes of negligence = negligence crimes = objective fault crimes AND THEY ARE NOT THE
SAME AS criminal negligence (this is a type of objective fault crime – only two criminal negligence
crimes (in s 219), the others have multiple offences under them)
 Other offences have been judicially interpreted to require objective fault even if not explicitly stated
 Criminal Negligence (an offense under s219 and is a subset of crimes of objective fault/negligence
crimes)
o Criminal negligence is not a crime in itself, it has to cause something – ex. Criminal
negligence causing death (s 220) (max penalty – life imprisonment) (form of manslaughter, s
236) or criminal negligence causing bodily harm (s 221)
o Manslaughter sounds more serious so it was tougher to get convictions so now prosecuted under
Criminal Negligence Causing Death
o What level of fault does it require?

O’Grady v. Sparling (1960, SCC)

 SCC: Says subjective fault (a form of recklessness) but lower courts ignored that and continued SMR.

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R. v. Tutton and Tutton (1989, SCC) – SMR vs. OMR on criminal negligence

 Fact:
o Couple lost young son to diabetes, they were learned about how to control diabetes
o Belonged to faith healing religion
o Believed he was cured and stopped giving him insulin, took to hospital, he was saved and
doctors said don’t do this again or he will die
o They did it again and he died
 Charged with criminal negligence causing death, liability based on omission but also legal duty as
parents to child (under s215, duty of person to provide necessaries)
 What level of fault is required for criminal negligence?
 Court: no decision on other grounds
 Split on fault element: 3 judges who say objective and 3 who say subjective fault
 McIntyre J. (for 2 judges)
o Objective fault is required
o (everyone agrees: fault element is same regardless of omission or commission)
o Focuses on the word negligent in the statute and that means the opposite of thought directed
action
o It requires “a marked and significant departure of what can be expected of a reasonably
prudent person “
o Departure has to be MARKED and SIGNIFIGANT, not just a deviation like needed in
torts
o An unreasonable mistake or belief cannot be a defence, it is negligent and then negligently
acted on that belief (this test means very unreasonable)
o Reasonableness mistake could be a defence.
o Reasonableness of belief is of the jury to decide
o Beliefs that are reasonable: Welder who believes nothing flammable nearby, not criminal
negligent if that belief was reasonable
 Lamer J.
o Agrees with McIntyre that the test should be objective
o But thinks they need to consider special factors of accused when applying the objective standard
(ex. Education, mental development) – possibly need to give a “general allowance”
 Wilson J. (for 3 judges)
o Subjective requirement needed
o Believes it should be subjective
o Objective would make it an absolute liability offence (which requires no fault)
 Dufraimont: that’s wrong! To describe it as AL is inaccurate
o Section here is ambiguous as to fault, so we should stay with SMR presumption especially
because these are very serious offences
o Wanton or reckless disregard for lives of other person signifies more than gross negligence in
objective sense
o Test for subjective fault: some degree of awareness of the risk or wilful blindness will do
o She believed the subjective test is sufficient to protect public safety because:
 1) Mens rea requirement is low or minimal
 2) Objective character of the conduct remains relevant (failure to meet standard shows
they had the mens rea)
o Also talks about mistaken beliefs, disagrees with McIntyre
 Mistaken belief does not have to be reasonable to exonerate accused
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  Even while they hold the belief, look at whether accused may have entered any minimal
awareness of the risk that amounts to SMR
Did accused see the obvious and go ahead anyway?

Waite v. R. (1989, SCC) – minimal SMR

 Fact:
o Accused, who had been drinking and driving, turned off his lights and struck and killed four
young people taking part in hayride and injured a fifth
o Accused approached hayride at a high speed on the wrong side of the road
o Trial judge erred in his instructions to the jury saying that criminal negligence requires subjective
fault
o Found not guilty of causing death by criminal negligence, convicted of dangerous driving
o ONCA ordered new trials on criminal negligence counts
o Full court agrees that new trial required
 Wilson J.
o Trial judge’s instruction was in error as to the degree of mens rea required under s. 219 (believes
it should be a very low level of awareness, minimal SMR)
o Judge placed too high an onus on the Crown to prove elements of deliberation and willfulness
o Mental element in criminal negligence is a minimal intent of awareness of the prohibited risk or
wilful blindness to the risk – minimal SMR

R. v. Anderson (1990, SCC) – marked and substantial departure.

 Fact:
o Driver was impaired (intoxicated), ran a red light and killed someone and charged with criminal
negligence causing death
 Sopinka J:
o Trial judge found that there was no marked departure from reasonable standard of care – SCC
agreed
o The mere fact that you can point to some negligence doesn’t mean it was a marked and
substantial departure (think back to Waite – way worse!)
o Essentially means whichever test (objective or subjective) you apply wouldn’t be made out
o Can’t reason back from consequences – not negligent b/c someone died – start with the manner
of driving itself
o Acquittal was appropriate
 Ratio: A conviction for criminal negligence causing death requires that there has to be a marked
and substantial departure from the standard of care of a reasonable person

MARKED DEPARTURE TEST

R. v. Hundle – marked departure test is for dangerous driving, take into account circumstances.

 Cory J.
o Test for fault for dangerous driving – modified objective test (means consider other
factors)
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 o Concerned with whether driving was marked departure from reasonable person but
consider surrounding circumstances (including accused perception of facts)
 McLaughlin J (dissent)
o Just an objective test because you can always take relevant circumstances into account (never
applied in a vacuum), so there is no modification (Dufraimont thinks she’s exactly right)
o Can be based on purely objective test
o A welder’s circumstances can be decided on purely objective test
 This case shows that marked departure test not just for criminal negligence tests, applies more
broadly to other crimes of objective fault
 Criminal negligence causing death more serious, max penalty, but dangerous driving causing death max
penalty 14 years – can be charged with both OR one offence, and up to jury if marked and significant
departure (then criminal negligence and dangerous driving would both be convicted under, judge would
stay lesser offence) – similar conduct can result in either, or both offences

Then, how far the accused’s personal characteristics can be taken into account in applying objective fault
standard? The Creighton case answered this.

R v. Creighton – Leading case, unlawful act manslaughter, Negligence must be marked departure from
standard of reasonable person.

 Facts:
o Creighton was an experienced drug user, expertise in use of drugs
o Over 18-hour period, 3 people shared alcohol and cocaine at deceased’s apartment
o Deceased accepted injection of cocaine into forearm by accused
o She overdosed and companion wanted to call ambulance, but accused said no and intimidated the
companion into not calling an ambulance
o Instead they cleaned place of evidence, fingerprints etc. and left
o Victim died
o Creighton charged with unlawful act manslaughter (based on unlawful act of injecting cocaine
(unlawful act: drug trafficking))
 Issue
o Level of fault for unlawful act manslaughter? How much subjective aspects taken into account?
 Lamer J. (Dissent)
o Crown must prove that reasonable person would have foreseen risk of death during unlawful act
o And have to give this reasonable person the foresight that the accused would have, ie. It would
ratcheted up to reflect special training of accused or lowered to incorporate incapacities of
accused
o The test is still objective, but take personal factors into account.
o What human factors can be taken into context?
 Do not include self-induced intoxication
 CAN include: illiteracy, inexperience – ie. Traits that accused cannot controlled or
managed (ie. Cannot say medical illness that you can manage as a levelling down
reasonable person standard)
o In this case, accused was a drug user specialist
o Then ask why accused was not attuned to this risk? What incapacities did they have (then cannot
hold responsible)? Or did they not turn their mind to it (then just uncaring and held responsible)?
 McLaughlin – MAJORITY OPINION, LAW** IMPORTANT!
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 o Says Lamer’s view is more of a subjective test since you take into account personal factors
o Reasonable person is minimum standard
o Ordinary negligence is not enough, the negligence must constitute marked departure
o Therefore ratio: all objective fault crimes (unless otherwise stated) – the negligence has to
be a marked departure from the reasonable person standard
o Negligence must be marked departure from standard of reasonable person.
o How can persons personal factors factor in?
o Should not bring too many personal characteristics, or else they become subjective and
different people have different standards
 People who engage in risky behavior should be held to a minimum standard
 But limit (to make sure morally innocent not convicted) is if that person was incapable
of appreciating risks created by their acts (pg 525)
 Lamer has a wider definition of incapacities whereas McLaughlin has a narrower
definition (teen driver and 40-year driving have same test and level of reasonable person)

R v. Beatty (2008, SCC) – dangerous driving causing death, marked departure applies to all objective crimes

Dangerous operation of motor vehicles

s. 249(1) Every one commits an offence who operates

(a) a motor vehicle in a manner that is dangerous to the public, having regard to all the circumstances, including
the nature, condition and use of the place at which the motor vehicle is being operated and the amount of traffic
that at the time is or might reasonably be expected to be at that place.

Dangerous Driving: s.249(1)

 Fact:
o Accused was driving well, then for a moment drove in other lane, hit oncoming car, killed 3
people
o Charged with dangerous driving causing death
 Trial judge said few seconds of negligent driving, which is civilly negligible but not criminal negligent,
BC court of appeal said no
 SCC reinstated acquitted, not criminal liable
 Charron J.
o How does objective test apply?
o Marked departure? Yes, but very momentarily
o Even good drivers can suffer momentarily lapses, if every time we hold someone responsible, it
would be too much – have to have room for exculpatory defenses – saying it was a departure but
very momentarily
 Ex. Sudden and unexpected (if not, then should be able to manage it) issues can be an
exculpatory defence
 Mere fact that driving was dangerous is not enough to say it was the offence
 Elements of dangerous driving – separate actus rea and objective fault
o Actus reus: defined by language of code (s. 249)
 All dangerous driving is negligent, but not all negligent driving is dangerous.
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  Don’t look at consequences, we need to look at manner of driving – objectively
dangerous (if you are lucky enough not to hit anyone, doesn’t mean you weren’t driving
dangerously)
 In this case: actus rea was there, failed to control car
o Mens rea: Considering all evidence, including evidence about the accused’s actual state of
mind, if the conduct amounted to marked departure from the standard of care of a
reasonable driver.
 Need to look at all evidence to apply test
 Consider evidence of what was in the accused’s mind, consider their excuses
 Subjective mens rea (intention to create danger) will certainly constitutes a marked
departure from the standard expected of a reasonably prudent driver.
 Enough that accused’s conduct is a marked departure from the standard of a reasonable
person.
 In this case: no intention to create a danger, had momentary lapse of attention
 Notes from Prof:
o Applies to objective fault crimes (marked departure test always required)
o Momentarily lapse of attention can be seen as a defence for all dangerous driving going forward
o How long is a “momentary” lapse of judgement?

R v F.(J.) (2008, SCC) – Fault requirement for criminal negligence is “marked and substantial departure”

 Criminal negligence is an objective fault crime, lays down distinction between marked and substantial
departure and just marked departure
 3 degrees of objective fault for offences (p. 541):
o 1) Strict liability offence (for regulatory offences) is going to be simple negligence standard,
where due diligence defence would apply
o 2) All other OF crimes (except criminal negligence causing death): Marked departure from the
objective norm for the standard care of the reasonably person (dangerous driving, careless use of
the firearm, failing to provide necessities of life) – POFJ under s. 7 of Charter requires it, gross
negligence (Beatty)
o 3) Marked and substantial departure from the standard of care of the reasonable person,
only for criminal negligence under s. 219
 Requires even more negligent behavior (worse) than gross negligence

CRIMES BASED ON PREDICATE OFFENCES

 Predicate offence is also known as underlying offence. Main offence needs an underlying/predicate
offence of assault.
 Guilt for the predicate offence is an essential part of the main offence
 Manslaughter requires predicate offence – the predicate offence for unlawful act manslaughter is usually
assault.
 The predicate offence needs to be proven for the main offence to be proven
 Only covering unlawful act manslaughter and aggravated assault in this section!!
 Unlawful act manslaughter (s 222(5))

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R. v. Creighton (1993, SCC) – mean rea for manslaughter

 Predicate offence: drug trafficking, unlawful act manslaughter case.

 Charged with unlawful act manslaughter (not criminal negligence manslaughter) by way of drug
trafficking (unlawful act of injecting cocaine)
 Lamer J. (minority)
o Fault element of unlawful act manslaughter
o Does have a high stigma but not as high as murder, therefore can be objective fault requirement –
death has to objectively foreseeable (majority disagrees)
 McLaughlin (majority)
o Manslaughter has two requirements
 Conduct must cause death
 Has to have some level short of intention to kill
o Fault can lie in unlawful act or in the form of criminal negligence
o Fault element for unlawful act manslaughter has two parts
1. Fault element of predicate offence (usually assault), have to be guilty of the predicate offence
(act and fault element)
o Predicate offence has 3 elements
 Dangerous act
 Cannot be an absolute liability offence
 Has to be constitutionally valid
2. An additional fault requirement just for manslaughter
o Objective foreseeability of the risk of bodily harm which is neither trivial nor transitory in
the context of the dangerous act (foreseeability of the risk of death is not required)
o Therefore, low requirement (objective and only non-trivial body harm foreseen)
 ASK for this case: is it foreseeable that, at the time you inject the cocaine into the person’s arm,
some non-trivial or non-transitory bodily harm would happen?
 Does death need to be objectively foreseeable? Lamer said constitutional requirement
o Seriousness and stigma of manslaughter (gravity of offence)
 Manslaughter not such a grave or serious of an offence that it requires a higher fault
element of objective foreseeability of death
 Whole point of manslaughter is to be defined as NOT murder, hence less stigma
 Terrible consequence of death requires more than just a conviction of assault (b/c they
didn’t foresee death  by Lamer’s reasoning that’s what would happen)
 Punishment for manslaughter is flexible and can be low
 No minimum punishment for manslaughter
 Manslaughter strictly observes principle that intentional harm should be treated more
seriously than unintentional harms – no need to re-write manslaughter in code b/c it
already reflects this
o Symmetry between actus reas and mens rea (have to want the consequence of your actions to
have symmetry)?
 There doesn’t have to be perfect symmetry between the two elements, not
constitutionally required. All that is constitutionally required is degree of fault that is
proportionate to he gravity of the offence.
 Not a lot of different between objective foresight of death and foresight of non-trivial
bodily harm (especially taking thin skull rule, anything that cause non trivial bodily
harm can kill someone too)
 Not unjust to ask someone to take responsibility for all the consequences of their actions,
even if consequences is death
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  Degree of fault is proportionate to degree of offence is all that is required by constitution
 Manslaughter raises the question that someone died and in hindsight, would it have been objectively
foreseeable? Once someone is dead, it seems obvious they would have

Aggravated Assault

 Only required fault with assault, and then actual consequences of aggravating feature
 Should there be a fault with the aggravating feature?
 SCC in Godin:
o An assault that wounds, maims, disfigures or endangers life, (as an actus reus matter)
AND
o objective foreseeability of bodily harm (as fault element, drawn from Creighton)
 The foresight of the consequences (what make it aggravated) not required but objective foreseeability of
bodily harm is needed (similar to manslaughter)

RAPE AND SEXUAL ASSAULT

RAPE LAWS IN CONTEXT

Rape and sexual assault

 Rape used to be an offence of the code.

 1982 overhauled to “sexual assault”
 Circumstance element: act element of the offence. Lack of consent is an element that must be proved by
the Crown.
 Main issue of “consent”
 Rape requires sexual intercourse, penetration, while sexual assault is a broader one (sexual touching).
 A lot of debate (Policy?)
o Gender phenomenon: Victim tends to be females and children.
o Women are margined: high percentage. Indigenous people even more higher.
o More way to look at this problem

Rape myth:

 Stereotype: how the laws have moved beyond them?

 Who is the rapist? What is a victim supposed to be like? Most sexual assaults happen to people who
already know each other. Within families.
 Spousal rape: now protect spousal rape.
 Rapes are under-reported.
 Sexual history. Rape shield law.
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  Women were sexual properties of the males. Sexual property of the man has been damaged
 Most accused get convicted, but the rate is still higher than any other offences.
 Class questions:
o Sex worker: consent has to be made each case.
o Spousal sexual assault: mistaken consent. Consent is required for every sexual act.
o Intoxication: proof problem.

Historical rules specific to rape cases

 Prior sexual history of the complainant

 Doctrine of recent complaint
o Rape victims were expected to report the rape
 At the first available opportunity, and
 Spontaneously
 If she didn’t do that, say, only do it after two weeks. Blow to the credibility. Lie to the
reporting. (Prof: Problem. Most people don’t report.)
o Reporting late was a reason to doubt the truth of the report.
 Corroboration for women and child complainants.
o Testimony had to be corroborated by independent evidence implicating the accused.
o Testimony alone was not enough to convict the accused.
o Corroboration was very demanding. Very problematic.
 Above rules have all been changed.
Definition of “Rape” (Old version Code s. 143)

A male person commits rape when he has sexual intercourse with a female person who is not his wife,

(a) without her consent, or

(b) with her consent if the consent
(i) is extorted by threats or fear of bodily harm,
(ii) is obtained by personating her husband, or
(iii) is obtained by false and fraudulent representations as to the nature and quality of the act.
 Until 1983, not a criminal offence in Canada for raping the wife. By marrying someone, women have
given general consent.
 Defined by gender. Now anyone with any gender can commit sexual assault.
Mental element

 The Crown must prove non-consent – non-consent is a circumstance element – part of the act element
 Is there a corresponding mental element?
o Accused’s subjective awareness of non-consent
o Yes – this mental element is reflected in the defence of “mistaken belief in consent”
o Old rape: any person who mistakenly believe the female partner consented is not convicted. Now
narrower.

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 CRIMES OF SEXUAL ASSAULT

Offences of Sexual Assault (s. 271, 272, 273)

 The sexual assault provisions in the Code have a three-tier structure: (tier of assault as well. Same
three tier)
o Sexual assault: s. 271 (simple sexual assault, basic form)
o Sexual assault with a weapon, threats to a third party, or causing bodily harm: s. 272 (3
choices. Penalty goes higher as the tier goes up)
o Aggravated sexual assault: s. 273 (Most serious. Up to life imprisonment. 273 (1) Every one
commits an aggravated sexual assault who, in committing a sexual assault, wounds, maims,
disfigures or endangers the life of the complainant.)
 Basic Assault v. sexual assault: 5 years v. 10 years
o No requirement of the gender.
o Historical doctrines are limited.
o Sexual assault emphasises the violence element of it.
o Difference between assault of sexual assault: Chase case.

R. v. Chase – Leading case, Breast case, “sexual nature”

 Fact:
o Chase was neighbour of the complainant, a 15-year-old girl
o Entered home of complainant without invitation
o Chase grabbed the girl’s breasts, she resisted, he said things like “I know you want it”
o Girl and her brother were able to call a neighbour and he left
o Respondent charged with sexual assault – appeal court judge changed it to just assault because
sexual assault had to involve touching of the genitals
o Appealed to SCC
o Chase was an adult neighbour. “Breast case”.
 Sexual means genital organs from NB CA.
 McIntyre J.
o 3 forms of assault as defined in s. 265 the code
(1) Intentional application of force without consent (most common form of offence)
(2) Attempt to apply force is also assault (attempt to assault is also assault)
(3) Accosting someone with a weapon
o Sexual assault is an assault, so also fits into the s. 265 definitions
o What “sexual” means? Four interpretations.
 Breast was like beards. Secondary sexual characteristic. Not sexual. Must be genital
organs. (NB CA took this view)
 Intention to sexual intercourse.
 In sexual nature.
 Sexual indignity and integrity
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  SCC TEST: mixture of the third and the fourth: A sexual assault is an assault “committed in
circumstances of a sexual nature, such that the sexual integrity of the victim is violated”
 Don’t have to know your assault is sexual. It is a reasonable person nature. Objective nature.
o The sexual nature of the contact is determined objectively, on the standard of the reasonable
observer.
 Factors to be considered include:
o The body part touched (touching of the genital organ is definitely a good indicator or the sexual
part)
o The nature of the touching
o The surrounding situation or circumstances
o Accompanying words or gestures, including threats
o The intent or purpose behind the touching, including sexual gratification (only a factor. Not a
determinative thing.)
Fact Pattern Problem in p. 612

 Facts: father grabbed his three-year-old son’s testicles to show him how much it hurt. It was a
disciplinary response to the child having engaged in similar activity with others, including the accused.
 The father was found to have committed sexual assault.
 Prof: it is right. Sexual integrity violated, even though there is no intention for sexual gratification.
Sexual gratification is only a factor, not required.

Consent in the Criminal Code

 Lack of consent is an actus reus element – one of the act elements of assault.
 Definition of Code: s. 273.1(1): “the voluntary agreement of the complainant to engage in the sexual
activity in question”
 The definition applies only to all forms of sexual assault. No consent definition for non-sexual assaults.
For those assaults, you have to rely on the common law definition. (Jobidon?)
 It is subject to situations where consent is vitiated.

Where consent is vitiated (could be from either statute or common law)

 Two non-exhaustive lists in the Code of situations were consent is vitiated: s. 265(3) and s. 273.1(2):
there could be other situations where consent is vitiated, like the Jobidon case. These are the codified
vitiated consent.
 S. 265(3) applies to ALL assaults, sexual and non-sexual.

S. 265(3)… no consent is obtained where the complainant submits or does not resist by reason of

(a) The application of force to the complainant or to a person other than the complainant

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(b) Threats or fear of the application of force to the complainant or to a person other than the complainant;

(c) Fraud; or

(d)The exercise of authority.

 Fraud we have been talked about.

 Section 273.1(2) only applies to sexual assault:

273.1(2) No consent is obtained, for the purposes of sections 271, 272 and 273, where
(a) the agreement is expressed by the words or conduct of a person other than the complainant;(responding to
the U.S. case)
(b) the complainant is incapable of consenting to the activity;(unconscious, intoxicated cases)
(c) the accused induces the complainant to engage in the activity by abusing a position of trust, power or
authority;(teachers, coaches, doctors and lawyers, vitiated by exercise of autority)
(d) the complainant expresses, by words or conduct, a lack of agreement to engage in the activity; or
(e) the complainant, having consented to engage in sexual activity, expresses, by words or conduct, a lack of
agreement to continue to engage in the activity. (Withdrawal of consent. They want to stop. They are entitled to
stop at anytime)

273.1(3): Nothing in subsection (2) shall be construed as limiting the circumstances in which no consent is
obtained (there could be common law principles that may apply (Jobidon), or on public policy grounds.)

Mistaken Belief in Consent (subjective mens rea DEFENCE)

 Two Code provisions on mistaken belief in consent:

 Accused’s belief as to consent – it is a defence because it can negate means rea. S 265(4) to all assaults.

265(4) Where an accused alleges that he believed that the complainant consented to the conduct that is the
subject-matter of the charge, a judge, if satisfied that there is sufficient evidence and that, if believed by the
jury, the evidence would constitute a defence, shall instruct the jury, when reviewing all the evidence relating to
the determination of the honesty of the accused’s belief, to consider the presence or absence of reasonable
grounds for that belief.

 Subject: the judge.

 The provision shows the worry that the jury will accept the claim of the mistaken belief in consent when
there is no reasonable ground for that. Tell them to consider whether there is reasonable ground.
 Where belief in consent NOT a defence (only sexual assault)

273.2 It is not a defence to a charge under section 271, 272 or 273 that the accused believed that the
complainant consented to the activity that forms the subject-matter of the charge, where
(a) the accused’s belief arose from the accused’s
(i) self-induced intoxication, or
(ii) recklessness or wilful blindness; or (has subjective meas rea)

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(b) the accused did not take reasonable steps, in the circumstances known to the accused at the time, to ascertain
that the complainant was consenting. (more important. Point to prove something he did. what he did to
ascertain consent. Onus on the accused)

Code provisions on consent and mistaken belief in consent

Applies to all assaults Applies only to sexual assaults

Definition of consent None 273.1(1)
Where consent vitiated 265(3) 273.1(2)
Mistaken belief in consent 265(4) 273.2

R. v. Ewanchuk – Elements of sexual assault

 Fact:
o Complainant thought she was doing a job interview, thought she was locked in back of truck
o Accused repeatedly touched the complainant, she clearly said no each time
o He stopped each time, but he persisted shortly afterwards
o Trial judge acquitted accused because found he had a defence of implied consent because she hid
her fear. Appeal court upholds acquittal. Crown appealed to SCC.
 No sexual intercourse. But in sexual nature.
 Trial: no sexual assault. 17 years old of victim. Trial judge believes the story but says it is not a sexual
assault. Acquitted. She was trying to conceal her fear and everything goes normal. Her conduct is
indicating consent by acting calm. Judge says the Crown had not proven the absence of consent beyond
a reasonable doubt and acquitted the accused.
 CA: upheld the acquittal.
 SCC:
o This is a sexual assault. Undoubtedly sexual assault. Err of law for what is sexual assault.
 Elements of sexual assault:
 Actus reas – unwanted sexual touching
1. Touching
o Objective test.
o Sufficient if the Crown prove the actions were voluntary
2. The sexual nature of the contact
o Objective test.
o No need to prove the accused had any mens rea with respect to the sexual nature of his or her
behaviour. “Chase case”)
3. The absence of consent
o Subjective (of the complainant)
o Determined by complainant’s subjective internal state of mind towards the touching, at the time
it occurred.
o Not bound to accept what the complainant’s words
o Either consent in her mind OR no consent in her mind. No third option.

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 o Consent: complainant’s account of what was in her mind is not determinative. That is just
evidence. Look at the circumstances to judge whether she is lying or not. Her words and actions
also matter.
o “Implied consent”: if the trier of facts accepts the complainant’s testimony that she did not
consent, no matter what, the absence of consent is established.
o There is no defence of implied consent to sexual assault in Canadian law.
o “Fear”: we do not really need consent vitiated by fear, because non-consent has already been
proved. The complainant’s testimony is believed without reasonable doubt. The fear is the actual
reason for consent, there is no genuine consent.
 Mens rea: INTENTION to touch, knowing of, or being reckless of or wilfully blind to, a lack of
consent, either by words or by action, from the person being touched.
1. Intention to touch (usually pretty clear)
2. Subjective awareness of non-consent (possible defence of mistaken belief consent. Negate it.)
 Limitations for mistaken belief in consent (difficult to succeed this defence)
o Does not provide a defence to implied consent
o In mens rea, for honest but mistaken belief in consent, consent means that the complainant had
affirmatively communicated by words or conduct her agreement to engage in sexual activity with
the accused  so implied consent could come in for mens rea (just not actus reus)
o Silence, passivity, or ambiguous conduct does NOT constitute consent even if the accused
believes that
o Once someone has said no, there is NO consent until they indicate otherwise
 L’ Heureux-Dube J. (Concurring):
o No consent was given, complainant said no
o Attacks Court of Appeal judges’ comments and inflammatory language – tried to paint the
complainant as having loose morals, recreating sexual assault myths and stereotypes
o The accused knew there was no consent, didn’t even raise defence of mistaken belief in consent
and even if he had
 McLachlin J (concurring):
o Implied consent based on the myth that women are deemed to consent unless they physically
resisted
o Myths and stereotypes that came up in this case should be repudiated and should not form part of
Canadian law.
Limits on The Defence of Mistaken Belief in Consent

 Applies in a “situation of ambiguity” (R. v. Davis)

 Some limits are in the Code (s. 273.2 and s. 265(4)):
o No defence of mistaken belief without reasonable steps
o No defence of mistaken belief based on self-induced intoxication, recklessness, or wilful
blindness
o Juries must be instructed to consider reasonableness
 Additional limitations from Ewanchuk include:
o A mistaken belief in consent must be a belief that consent was expressed or communicated
o A belief that no means yes, or that silence, passivity or ambiguous conduct equals consent is no
defence
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 o Once the complainant says “no” the accused is on notice and must be sure consent is
communicated before proceeding

R. v. Cornejo

 She woke up and expressed no.

 She affirmatively communicated consent by raising her pelvis.
 No verbal or body language further.
 He said he had mistaken belief of consent.
 Ont. CA: no basis for mistaken belief of consent according to these facts. No steps taken by the accused
to ascertain the consent.
 Defence: there is steps. Like the kissing… Court: these are minor assaults. Not steps to ascertain
consent.

R. v. A. (J.) – advance consent for unconscious afterwards – POLICY?

 Fact:
o In the course of sex, JA placed his hands around the throat of his long-term partner, and choked
her until she fell unconscious
o KD testified that she consented to JA choking her – erotic asphyxiation.
o She made complaint two months later that while she consented to choking, she did not consent to
sexual activity that occurred after that.
o Later recanted this allegation
 Issue (very narrow):
o Can a person consent in advance to sexual touching that then takes place when the person
is unconscious?
 Assume: she did consent in advance. The problem is whether she is able to consent in advance.
 By a majority, the SCC said NO.
 First argument: statutory interpretation argument. Both majority and dissent respond to statutory
interpretation. The parliament clearly did not anticipate the issue when making the law. Ambiguity in
the statute.
 Second argument: policy argument: what are the protective mechanism here? (important)
 McLachlin C.J. (5, Majority):
o Parliament defines consent in the Code as ongoing conscious consent – protects them from
exploitation and protects their ability to withdraw their consent (if unconscious, can’t withdraw
it)
o Actus reus consent is the subjective point of view of the complainant in her mind, whereas mens
rea involves knowing, being reckless or willfully blind to the fact that the complainant is not
consenting (Ewanchuk)
 Issue here is actus reus consent
o But can also look at legal principle that come up in the code with respect to mens rea since they
illuminate further parliament’s view of consent and overall approach to sexual assault

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  Concludes that Parliament viewed consent is conscious agreement of the complainant to
engage in every sexual act in a particular encounter.
o Looks at definition of consent in S. 273.1(1)
 Highlights “sexual activity in question”
 Shows that consent needed for each and every sexual act
 Rules out broad advance consent
o S. 273.1(2)(b) – No consent is obtained where the complainant is incapable of consenting to the
activity
 Consent is the conscious consent of an operating mind
o Refers to 3 provisions from the code that refer to the mens rea of mistaken belief in consent
o S. 273.1(2)(d) – No consent where lack of agreement to engage in the activity
 This is about mens rea, because it’s about what is expressed by words or conduct (not
what’s in the complainant’s mind which goes to actus reus)
 Effect is that the accused cannot claim to have misunderstood if she said no
 Expresses lack of agreement to engage in a particular activity, so can’t give broad
consent to sweep of activities in advance
o S. 273.1(2)(e) – Lack of consent to continue to engage in the activity (withdrawal of consent)
 About mens rea of the accused, accused can’t ignore withdrawal of consent  parliament
wanted to make sure the person could always revoke consent and is not free to do so if
unconscious
o S. 273.2(b) – mistaken belief in consent is not a defence where accused did not take reasonable
steps to ascertain that complainant was consenting
 Can’t take reasonable steps with an unconscious person b/c not ascertainable
o Parliament meant consent to mean a conscious mind capable of consenting to each new act
and capable of withdrawing consent at any time
o If the accused fails to perform the sexual acts precisely as the complainant would have wanted,
by neglecting to wear a condom for instance, the unconscious party will be unintentionally
violated.
o POLICY: Have to be worried about vulnerability of unconscious people and being left
open to abuse
o POLICY: On balance, seems that criminal law needs to prevent exploitation
 Prof:
o Protect the vulnerable people.
o People should be able to withdraw at any time.
 Fish J.(2, Dissent)
o Majority has the issue all wrong
o Question is whether a conscious person can freely and voluntarily consent in advance to agreed
sexual activity that will occur while one is rendered unconscious  he thinks yes
o Nothing in the Code suggests that Parliament created an exception to unconscious sexual
activity. Goes over same provisions as McLachlin, but reads them differently:
o Voluntary agreement in s. 273.1(1)
 Doesn’t say anything about timing, so doesn’t exclude advance consent
o S. 273.1(2)(b) – No consent is obtained where incapable of consenting
 Does not exclude obtaining advance consent from a conscious person that carries through
a brief period of unconsciousness
o S. 273.1(2)(e) – consent that’s revoked
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  Does not suggest that consent cannot be given in advance
 Consent can be revoked before or after unconsciousness
 Wording of the section actually (“having consented”) suggests that consent can happen at
some earlier point and is operative until revoked
o S. 273.2(b) Reasonable steps requirement
 Doesn’t exclude idea of advance consent either, but the person must take reasonable steps
that consent is actually given at the time it’s given, in this case in advance
o Effect of majority decision is complainant’s actual consent considered not acceptable in law
o POLICY: Sexual autonomy argument: If the purpose of our progressive sexual assault laws is to
champion everyone’s sexual autonomy, then shouldn’t we allow people to choose to participate
in this type of sexual behaviour if this is what they want to do. If we’re putting rules on that,
seems regressive and criminalizes certain kinds of sexual behaviour. The right of women to
make decisions about their bodies, and whether to engage in sexual activity, was better respected
by allowing advance consent than by forbidding it.
o Court has no place in the bedroom of consenting adults
o POLICY: Floodgates argument and absurd result – Kissing a partner while they are asleep
considered to be sexual assault
 Class: Policy consideration discussion.
 Maybe policy questions: sexual autonomy vs. protection of vulnerable people
Policy question in the exam: state the arguments of the courts and provide other commentary of your
own.

MISTAKE

MISTAKE OF ACT

Mistake

 Mistake belief of consent is only one form of mistake of facts.

 Beaver case (subjective meas rea)
 It negates the fault element (what’s in the accused’s mind? Cannot blame innocent person)
 Mistake of fact must be distinguished from mistakes of law
o Mistake of fact is a defence where it negates mens rea, but
o Mistake of law is generally not a defence (very rare cases when it is a defence: told by the
officials of the fault law)
o Mistake of law: Section 19 of the Criminal Code provides:
 “Ignorance of the law by a person who commits an offence is not an excuse for
committing that offence”

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Mistake of Fact and Fault

Fault element Where mistake of fact is a defence

Subjective mens rea Any honest mistake
Objective fault Only an honest and reasonable mistake
Due diligence defence Only an honest and reasonable mistake, with an
onus on the accused to show reasonableness
Absolute liability No mistake is a defence

If the parliament takes away the mistake of fact defence, it is absolute liability. (p. 699. Charter problem)

Mistakes as to the Nature of the Act

 If you think it is sugar, but it is actually heroin, it is a defence. (The law is clear here, Beaver)
 This issue is talking about the accused has mistake about the nature of the offence (think it would be
different offence)

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

… no offence … a more serious offence … a less serious offence
(most difficult problem)
Mistake is definitely a Mistake is probably not a Mistake may not be a defence
defence defence
R. v. Tolson, R. v. Ladue (leading case in R. v. Kundeus
R. v. Beaver this category

R. v. Ladue – indecently interfering with a human body, thought more serious but less serious – probably not
be defence

 The accused do not know the women is dead and attempted to copulate with the body.
 He didn’t know the woman was dead (mistake of fact). He was intoxicated.
 Charged with indecently interfering with a human body.
 Issue: is mistaken of fact a defence?
 Davey JA.
o Seems like a valid defence on the face of it
o Language of the offence does not seem to require knowledge that the body is dead as a specific
ingredient of the offence b/c in most cases that would be clear, so just interfering with a body
that was in fact dead would be enough to establish criminal intention or mens rea.
o In the unlikely event that he really didn’t know, the catch is he can’t argue MOF because if he
thought she was alive, then he would be guilty of a more serious offence – rape, so can’t argue
that he was acting innocently.

R. v. Kundeus (1976, SCC) – thought less serious but actually more serious – may not a defence

 Fact:
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 o Kundeus sold drugs to undercover police officer
o Thought he was selling a drug called mescaline, but it was actually LSD (police officer thought
this too)
o Charged for selling LSD, which was a restricted drug, so more serious offence than selling
mescaline
o Thought it was a less serious offence, but actually it is a more serious offence.
 De Grandpré J: (Dufraimont: Not a well-reasoned judgment)
o Believing he was selling mescaline was enough to meet the mens rea required for selling LSD
o Referred to Blondin case (scuba tank hashish) – mens rea requirement for importing a narcotic
fulfilled as long as he knew that it was a narcotic
o So as long as you know you’re selling a drug, it’s enough to establish mens rea to be guilty of
selling the drug you actually sell
o Reasons why this would be a good decision: (POLICY CONSIDERATIONS)
 Hard line crackdown on selling drugs of any kind – can’t get away with it just because
you thought it was a different drug
 Opening floodgates if you allow a defence in this area
 Recognizing this defence may create the wrong incentive for drug dealers
 We just aren’t going to listen to your complaint b/c you weren’t morally innocent – you
knew you were selling drugs
 Laskin CJC (Dissent):
o Shouldn’t be guilty of selling drug LSD when he thought it was mescaline – different on the
scale of prohibition and regulation
o Basic principle of criminal law is that the accused has to have both the mens rea and actus reus
of the specific crime they are charged with
o Mens rea for a different offence won’t due – mens rea for actual offence is what the Crown needs
to prove
o With this reasoning, seems to imply that Ladue was wrongly decided as well – mens rea and
actus rea need to line up
 Dufraimont:
o Connect this to other possession cases we’ve done:
 Beaver – No possession without knowledge of substance
 Blondin – As long as he knew it was a drug in the tank
o This case is pre-Charter – so you could make an argument today that mens rea is so out of
proportion with the punishment as to be unconstitutional

INCAPACITY

 Criminal law is about punishing people for their morally blameworthy acts. It would be unjust to punish
people if they were not fully responsible for their actions. (People lack the capacity)
 Incapacity issue arises from FOUR sources:
o Age
o Mental disorder
o Automatism
o Intoxication
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 AGE

S. 13 Child under twelve

No person shall be convicted of an offence in respect of an act or omission on his part while that person was
under the age of twelve years.

 BEFORE 1982: Doli incapax presumption: Until 1982, the age of absolute exemption was seven. For
children over seven and under 14, they were likewise exempt unless the prosecutor could show that the
child was “competent to know the nature and consequence of his conduct and to appreciate that it was
wrong.” – repealed.
 Age is measured at the time of offence.
 Youth Criminal Justice Act: 12-17 years.
 These rules, procedures and sentencing is very different from adult offenders
 But substantive rules of criminal code still apply to children (ex. possession, mistake of fact, all these
issues are still treated the same)
 In exam, no need to remark on differences

MENTAL DISORDER

Defence of mental disorder

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

Presumption

(2) Every person is presumed not to suffer from a mental disorder so as to be exempt from criminal
responsibility by virtue of subsection (1), until the contrary is proved on the balance of probabilities.

Burden of proof (reverse onus)

(3) The burden of proof that an accused was suffering from a mental disorder so as to be exempt from criminal
responsibility is on the party that raises the issue.

 Mental disorder is a statutory DEFENCE in the Criminal Code.

 Not criminally responsible if (TWO requirements)
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 o Act committed or omission made while accused suffering from a mental disorder
o That rendered the accused incapable of
a. Appreciating nature and quality of the act or omission, OR
b. Knowing it was wrong
 How do we integrate psychiatric and criminal law understandings of mental illness?
o Psychiatric: there is a spectrum of mental capacity (DSM V is the newest edition of the
diagnostic manual for mental disorders)
o Even if you have a mental disorder in DSM V, does not mean law will see it as a mental disorder
o Law is informed by psychiatry but also seeks to maintain its independence – mere existence of a
mental disorder does not mean they can use the defence of mental disorder
 Psychopathy (anti-social personality disorder)
o Cannot let psychopaths be acquitted when it appears equally plausible that they are just prone to
bad behaviour
 2 times mental disorders can be used
o When mental disorder was during the act (focus of this course)
o When person is being brought to trial, someone who is not fit to be tried cannot be tried (separate
from question of whether they are criminal responsible during the time of the act)
 In the past, person is acquitted on grounds of insanity
o And if this was the basis of acquittal, sent to psychiatric facility who decides when they can be
released (seen as unconstitutional, changed)
 Now, it is not criminal responsible on account of mental disorder (NCR)
o New provisions are very similar to old provisions, but no automatic commitment to psychiatric
facility
o If this was the determined to be NCR, have three choices by judge:
 Discharged absolutely
 Discharged provisionally
 Sent to a psychiatric facility (still the norm though)
o (more sensitive to accused)
o Absolute discharge should be ordered unless the person poses significant threat to public safety,
but generally sent to psychiatric facility
o Defence of NCR generally not sought. Defence lawyers try to have them plead guilty so they
have a lesser sentence

INCAPABLE OF APPRECIATING THE NATURE AND QUALITY OF THE ACT

Cooper v. R. (1979, SCC) – LEADING CASE. TEST – Disease of the Mind, nature and quality of the act

 Facts:
o The accused charged with murder for strangling a woman at the physch ward. He remembers
getting angry and grabbing her by the neck. Then lost consciousness and when woke up found
her dead. He was intoxicated.
 Dickson J.
o What is disease of the mind?
 Not well defined in medicine or law, working concept
 Legal concept that is informed by psychiatry
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  TEST:
o What disease of the mind means is a question of law for the judge, not for experts
1. Disease of the mind embraces any illness, disorder or abnormal condition which
impairs the human mind and it’s functioning,
2. Excluding, however, normal self-induced states caused by alcohol or drugs, as well as
transitory mental states such as hysteria or concussion.
o Whether the accused was suffering from the condition is a question of fact for the jury
o The disease must be of such intensity as to render the accused incapable of appreciating the
nature and quality of the violent act or of knowing that it is wrong.
o Question is normally whether they appreciated the nature and quality of the act
 Appreciate means more than just to know. It needs a deeper understanding.
 A capacity to apprehend the nature of the act, and its consequences (NOT just
understanding of physical act).
 “To appreciate means to have capacity to apprehend nature of the act and its
consequences”
 In this case, trial judge erred in treating psychiatric history as only medical question. The psychiatric
history should also be raised as a legal question as well
 Clear evidence to suggest that accused had evidence of mental disorder during criminal act and real
issue is whether that disease rendered him incapable of appreciating the act or knowing it was wrong.
o “He was unable to appreciate its nature and quality, in the sense of being aware that it could lead
to or result in her death.”

Kjeldsen v. R. (1981, SCC)

 The accused has the disease of mind, but still the court finds him not exempt from liability.
 Court: The exemption does not apply to someone who has the necessary understanding of the nature,
character and consequences of the act, but merely lacks appropriate feelings for the victim or lacks
feelings of remorse or guilt for what he has done, even though such lack of feeling stems from “disease
of mind”.

R. v. Abbey (1982, SCC) – does not need to appreciate the penal consequences of the act

 Accused imported cocaine knowingly and admittedly

 Had a delusional belief that no harm would come to him regardless of what he said, clearly had mental
impairment
 Trial judge acquitted on basis of failing to grasp penal consequences of act. SCC: trial erred.
 SCC:
o Punishment is not an element of the crime itself.
o Understanding consequences does not include penal consequences, consequences in this case is
consequences of act itself (understanding the penal consequences does not go to the mens rea of
the offence)
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  Accused must have appreciation of consequence that come from actus reus (ex. if you kill someone,
have to appreciate the fact that the person will die), punishment is not part of actus reus
 In determining appreciation of nature and quality, not concerned with the penal consequences of
the act.

INCAPABLE OF KNOW IT WAS WRONG

R. v. Chaulk (1990, SCC) – LEADING CASE of what “wrong means” and the reverse onus

 Lamer J. (Majority)
o Wrong means more than just legally wrong
o “wrong means morally wrong in the circumstances according to the moral standards of
society” --- LEADING UNDERSTANDING OF WHAT WRONG MEANS
 Reverse onus of s. 16 defence: accused have to prove the mental disorder defence on the balance of
probabilities. This is saved by s. 1 of the Charter.
 (ex. Vincent Lee’s beheading of greyhound passenger because he thought he was a demon. In general he
can appreciate killing someone is wrong, but in that circumstance he did not think it was morally wrong
to kill a demon. Therefore, he got the NCR defence)
 McLaughlin J. (Dissent) (POLICY? DICCUSSION SUGGESTED BY PROF)
o If the person can appreciate it is either legally or morally wrong, should not get NCR defence
o Narrower interpretation
o For non-mental disorder people, criminal does NOT give them the defence if they do not know
what they are doing is wrong. Why give mentally disordered people such an allowance?
o Does not think should give extra allowance for moral appreciation for people with mental illness,
when would not do that for non-mentally ill people
R. v. Oommen (1994, SCC) (NOT mentioned in class)

 Thought his friend was going to kill him because had delusions, and so he killed her
 Trial judge found him guilty because said, in general, knew right from wrong.
 SCC:
o Ordered a new trial
o The inquiry is to focus NOT on general capacity to know right from wrong, but rather on
the ability to know that a particular act was wrong in the circumstances.
o ASK: In the circumstances, 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?

Controversy as to the s. 16 defence: (POLICY question?)

 People say we should put whoever tends to kill other people into jail and there should not be such a
defence.

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  For judges and lawyers, NCR is not so controversial. It is a basic defence.

Procedural: brought forward by the defence. MD not a popular defence. Crown can only raise the issue only
when he is found guilty. The judge is also allowed to bring about any issue, including mental disorder.

Mental disorder is not necessarily an actus reus thing or else mens rea thing. It just works on its own. You just
apply the criteria and assess the result. Sometimes, like Cooper, it can go to mens rea.

AUTOMATISM

 Automatism: Accused is acting unconsciously or involuntarily, where a person physically acts without
conscious control of what one is doing.
o Example: sleepwalking.
o People has to be completely unconscious. Not remember what happened.
o Involuntary: we apply the rules of automatism separately because it is a complicated issue that
should be separated from the voluntariness issue, although it is indeed a voluntariness issue. We
cannot simply apply the simple voluntariness rule.
o Looks like normal behaviour. Driving cars, having sex, etc.
 Mental disorder Automatism (MDA) and Non-Mental Disorder Automatism (NMDA, sane automatism,
smaller than MDA. physical blow of a head) MDA is a much larger category.
o Mental disorder is not necessarily automatism. Like Vincent Lee case, he is conscious of what he
is doing, but he has delusionary understanding that the person is a demon.
 MDA -> NCR (Not criminally responsible)
 NMDA -> acquittal
 The issue often is whether it is MDA or NMDA, because NMDA leads to full acquittal, and MDA leads
to NCR, which the Crown prefers because at least the accused will be detained in a psychiatric facility.
 Automatism is a very rare defence.
 “Remember does not necessarily equate automatism”: this happens a lot. A lot of people claim that.
 A small number of people actually don’t remember, which is amnesia. This doesn’t mean that this is
automatism. He can still be conscious when conducting the act. Be skeptical.
 Stages:
o Is the accused in a state of automatism? A question of fact. (see above)
o If it is automatism, is it NMDA or MDA? (Key issue. LOTS of discussion, because it is
question of law.)
 In all the cases, the defence lawyers are arguing for sane automatism, because non-mental
disorder automatism could lead to psychiatric detention.
R. v. Rabey – internal cause and external cause.

 Rabey: “Automatism is a term used to describe unconscious, involuntary behaviour, the state of a person
who, though capable of action is not conscious of what he is doing. It means an unconscious involuntary
act where the mind does not go with what is being done.”
 Facts:
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 o 20 year-old university student, infatuated with a friend, who liked another student. Ms. X wrote a
letter and was accidentally seen by Rabey and it said Rabey is “a nothing”. And one day he took
a rock from geological lab, and they hung out and he asked what she thought of him, she said
just a friend. He hit her with a rock twice and then she fell and he strangled her and then dragged
her under the stairs
o After that, he ran into other students and professors, and was acting weird and incoherent and
bewildered
o Later he claimed he could remember very little of what happened. He is claiming amnesia.
o Friend was not killed, she recovered – he was charged with wounding offence.
o He was admitted to psychiatric hospital, he was not found to have mental disorder but they said
he might have been in dissociative state (do acts without being conscious of doing them, cause of
this was the powerful emotional shock of finding out that he was just a friend – this was a
psychological blow)
o From now on, this type of automatism was “psychological blow automatism”
o Defence lawyer: he was normal, dissociative state was unlikely to reoccur, not a mental
disorder. Therefore, he should be classified as NMDA.
o Crown: accused was in an extreme state of rage and not a dissociative state (which is not
automatism) and memory problems occurred afterwards (repressed memories)
o It is important to know if the memory is gone after the accident or in the accident. If it is
after the accident, it is not automatism.
o Trial judge acquitted him on basis of NMDA
o Court of appeal said MDA and ordered a new trial
 Ritchie J.
o There are two questions: (Basically decide between mental disorder automatism or NMDA)
o Q1 – Was it automatism?
 Trial judge found it as a fact that he was in a state of automatism (question of fact
for the jury)
o Q2 – Was it caused by a disease of the mind? (i.e. was it MDA or NMDA?) (question of law
for the judge)
 Ruled that dissociative state must have been caused by MD
 In this case, the first question has been established by the jury and is not a problem
for SCC. The jury decides that he is indeed in a dissociative state. But for the exam,
you have to established the two questions.
 Holding: Rabey’s dissociative state must have been caused by mental disorder.
o Remember, even if the psychiatrist decides it is not mental disorder, it is the judge to
decide. We not automatically decide what the psychiatrist says.
 Rabey tell us how to differentiate MDA and NMDA:
o Automatism from an internal cause = mental disorder automatism
o Automatism from an external cause = non-mental disorder automatism (same automatism)
o We are no longer asking whether or not it is actually mental disorder. It is not normal for one
person to go automatism. We are asking what CAUSED the automatism. Is it an internal cause or
an external cause?
 Apply to this case: it is not external cause, because it is “the ordinary stresses and disappointments of
life,” and it does not constitute an external cause.

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  Sane automatism can only arise from a “psychological blow” in cases of “extraordinary external events
that might reasonably be presumed to affect the average normal person” (ex. Seeing a loved murdered.)

R. v. Parks – Sleepwalker case

 Facts:
o Parks killed his mother in law, injured father in law, while sleepwalking.
o Sleep-deprived. Slept on couch, woke up, drove across 401 to in law house and killed mother in
law. Father in law recovered.
o He went to the police, saying killed two people. Destressed. Holding a knife and cut his own
finger to the bone. (Prof: from here, it is obvious that he is in a state of automatism. Clear in an
altered psychological state. He has a history of sleepwalking and had good relationship with his
in laws.)
o No evidence shows he is having mental disorder.
o Defence brought in five experts who all said he was sleepwalking and that his acts were not
voluntary and sleepwalking is not a disease of the mind and violence during sleepwalking is very
rare (therefore likely it would reoccur is very close to ZERO) and no treatment for sleepwalking,
crown brought no expert evidence
o Jury acquitted him on basis of NMDA.
o Crown appealed (trial judge should have only left MDA with jury, not NMDA)
o OCA, SCC both upheld his acquittal
 Issue: Is sleepwalking a sane automatism or mental disorder automatism? (The jury has decided
he is already in a state of automatism. So, we are answering the second question.)
 SCC (Lamer J.):
o Two reasons:
 Sleepwalking is sane automatism, primarily because there were a number of experts
testified in this case and they all agreed that Parks is not mentally disordered.
(Problematic: because whether it is mental disorder is a question of law)
 Common laws have established that sleepwalking has always been a textbook example of
NMDA.
 La Forest J. (Prof think right)
o This is NMDA, but he reasons in a different way.
o Mental disorder automatism is a question of law and should not be solely determined by
psychiatric evidence.
o TWO approaches to the question:
1. The internal cause theory (Rabey: internally caused = mental disorder automatism)
 Internal cause is the DOMINANT theory, but only an analytical tool and NOT an
overarching test.
2. The continuing danger theory (the person poses continuing danger to the public = mental
disorder automatism)
 In this case, there is actually no continuing danger, because sleeping walking violence is
extremely rare.

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 o These two approaches both reflect concerns about recurrence and public safety. But we also look
at some wider policy concerns:
o POLICY concerns: BUT NOT TOO WORRIED. But in this case these concerns are not
considered. It is not easy to feign sleepwalking (with a personal sleepwalking history)
 Floodgates concerns: if we allow someone, who killed his mother in law, to walk out the
court room with full acquittal, there will be a large number of people bringing about
automatism as a defence.
 Automatism is easy to feign

How to analyse mental disorder automatism and sane automatism

When analysing automatism, consider these analytical factors:

1. The internal cause theory (Rabey case, internal cause vs. external cause)
2. The continuing danger theory
3. Policy concern: floodgates concerns
4. Policy concern: Automatism is easy to feign

R. v. Stone (1999) – LEADING CASE in CANADA. Distinguishing MDA & NMDA

 Facts:
o Dysfunctional marital relationship, according to accused the wife said horrible things to him
o Tirade of abuse, felt whooshing sensation wash over him
o Lost awareness, contact with reality
o When he came back to himself, realized he had stabbed her 47 times. He conceal body, fled to
Mexico, but later came back and surrendered himself (unlike Parks)
o Admitted he stabbed her, but wanted defence of NMDA claiming he lost consciousness when he
snapped under his wife’s verbal abuse – claim of psychological blow automatism
o Trial judge found evidentiary basis for automatism, but only MDA defence was available to him
o Accused was found guilty of manslaughter (jury accepted his provocation defence)
 Holding: this is san automatism (NMDA)
 Binnie J (Dissent)
o There was evidence supporting the conclusion that the accused was unconscious throughout the
attack.
o All experts agreed he did NOT suffer from mental disorder, he was sane, and facts showed he
could have had automatism
o Thinks should have put credence to experts, and therefore should have also presented NMDA to
jury as well
o Crown has onus of proving voluntariness and that being the case, crown should have proved
beyond reasonable doubt that he did not have automatism
o Mental disorder has to be shown to exist, not just an internal psychological blow
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  Bastarache J. (Majority)
o Reverse Onus for all automatisms: the burden of proof in an automatism case is on the defence
to prove automatism on a balance of probabilities to the trier of fact. Two reasons follow.
 Reason One: Actual legitimate automatism is very rare. The accused has to prove it.
 Reason Two: related to defence of extreme intoxication that comes to automatism (this
requires reversed onus). Harmonized with this. Another reversed onus is s. 16 of the
Code (mental disorder). This is a code reversed onus. MDA has the reverse onus. No
reason why NMDA does not have the reverse onus.
 Prof: this is very rare. The court doesn’t have to do this because it offends the Charter.
o There are two questions in an automatism case:
1. Is automatism properly in issue? (evidentiary foundation decided by the jury. Reverse onus
on the defence)
 There are at least two things required: 1. A claim of involuntariness. 2. Expert evidence.
 There are factors that support the claim of automatism:
 Severity of stimulus
- More severe, more likely to be automatism
 Corroborating evidence of bystanders
- Whether there are any witnesses.
 Corroborating evidence of experts
- Medical history or automatism like states
 Motive of crime?
- If evidence of motive present, then more likely to be feigning automatism
 Is trigger of automatism also the victim?
- May indicate the person is angry and then tries to kill her.
 **but Fontaine case said these can be applied but not determinant
 PROF: jury has to determine if there is automatism or not, so this helps give guidance to
determine this first question
2. If so, is it mental disorder or sane automatism? (question of law for the judge)
 A holistic approach to decide by the judge. (Park)
 The internal cause theory (Rabey case, internal cause vs. external cause)
 The continuing danger theory
 Policy concern: floodgates concerns
 Policy concern: Automatism is easy to feign
 BUT, Start from the presumption that automatism is mental disorder automatism.
 The defence has to prove it is not mental disorder automatism. The defence has to
show, for example, some clear external event.
 In this sense, the category of sane automatism is going smaller and smaller.
o Application: no extraordinary external event to trigger the automatistic violence here, like Rabey.
o A fundamental question of the Judge: Whether society requires protection from the
accused and, consequently, whether the accused should be subject to evaluation under the
mental disorder regime. (P. 826)

R. v. Luedecke (2008, Ont. CA) – protection of the public, continuing danger theory

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 Fact:
o Accused and complaint were strangers in a party. Both fell asleep and she woke up finding the
accused was having sex with her. She stopped him but find him dazed. He went home and found
wearing the condom. He heard about someone complaining sexual assault.
o He was diagnosed with sexsomnia, a disorder where people have sex in their sleep. He had
history having sex with his girlfriends when sleeping. He was not surprised with the sexual
assault as a result.
o Expert testified that this would increase due to lack of sleep hygiene, like alcohol etc., but it is
NOT a disease of the mind and it can be controlled through sleep hygiene (get good sleep). Not
mentally disordered.
o Accused stated that a day earlier he consumed magic mushrooms, had a lot to drink at the party
o Trial judge acquitted accused based on NMDA, Crown appealed saying it should have been
MDA
 This similar to Park (sleepwalker case), where the accused gets full acquittal. But Stone changed the rule
of Park and it is now the rule that the default rule is MDA.
 Ontario CA:
o Stone changed the law. If Park was decided today, Park would get MDA defence.
o Automatism arises when there is some violence involved. It is reasonable for some concern
that there should be some protection of the public when people tend to commit violence.
(continuing danger theory: reoccurrence of the dangerous behaviour) – taking that into
consideration, the accused’s behaviour is likely to reoccur.
 Therefore, MDA is the only defence for him.
o We should scrutinize the mental health of people who harm others in the state of automatism.
o Court mentions the broad definition of mental disorder in Cooper: so broad that will include
most automatism.
o Continuing danger theory: in the Rabey case, it is about the likelihood of the reoccurrence of
the violence. But in Stone and Luedecke, it is not about that. It is the likelihood of the triggers
that lead to the automatism (in this case, it is the likelihood that Luedecke will continue to drink
alcohol and be sleep deprived.)
 This actually makes the Crown easier to establish. Just prove those triggers.
o The accused’s sexsomnia defence was properly classified as mental disorder automatism
o In light of Stone, Doherty JA outlines “a comprehensive response to automatism claims”
 Pre-verdict, focus on social defence: where there is a risk of recurrence, that will almost
always lead to an NCR verdict (do the public require protection?)
 Post-verdict, focus on the “individualized assessment” of the individual’s dangerousness.
(the institution will assess during the detention. If not dangerous, will be released.)
 Prof: actually, the psychiatrist gets to decide the result. Even the accused gets a NCR verdict and has
psychiatric detention, if the review board decides that he is not a dangerous person, he will nonetheless
be released.
 Excerpt from judgement: After Stone, many argue that successful claims of non-mental disorder
automatism will be limited to those very rare “one off” cases in which an accused suffers a single
incident of automatism, and where the accused can point to some specific external event that
precipitated that event, can demonstrate that the event is unlikely to reoccur, and finally, can show that
the event could have produced a dissociative state in an otherwise “normal” person.

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

 Fact: (temporary toxic psychosis caused by self-induced drug intoxication)

o Accused took ecstasy, went into drug-induced psychosis
o Got into religious fervor, beat someone for wearing cross upside down
o Then another person tried to intervene, accused throws him down stairs, stomps on head
rendering the stranger permanently disabled
o Accused found guilty on basis that self-induced intoxication is not a defence, appeals
o In MDA or NMDA cases, Crown wants MDA, accused wants NMDA
o Exact opposite in intoxication cases, where Accused wants MDA, and Crown wants
intoxication, because intoxication is not a defence to violent crimes.
 SCC:
o This will generally be covered by the “exclusion from Cooper” (“excluding however, self-
induced states caused by alcohol or drugs, as well as transitory mental states such as hysteria or
concussion”)
 Mental disorder definition is broad but specifically excludes this scenario of self-induced
intoxication.
o Use the holistic approach from Stone to decide whether this is mental disorder or just
intoxication.
 The same holistic approach as Stone, Park. (internal cause, continuing danger…)
 But the context is different in this case, because the accused wants mental disorder
instead of self-induced intoxication.
o Internal cause and external cause (mental disorder: internal cause)
 It is the external cause (the drug) that makes him go psychosis. There is nothing internal
to his psychological makeup that lead him to psychosis.
 Any normal person would go psychosis when taking the drug.
 Therefore, it is not mental disorder.
o Continuing danger theory (mental disorder: continuing danger that cannot be controlled)
 In order for this factor to make sense, it must mean that the accused is a continuing
danger because of something internal to the accused that the accused cannot control, like
sleepwalking or sexsomnia.
 If he is only a danger if he takes the drug, it is not a continuing danger. Rather, it is only
an external cause.
o Both of the two factors decide he is clear intoxication, instead of mental disorder. This
affirms the Cooper definition of mental disorder.
o Excerpt from decision: 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.
 What about people who do have a major mental illness and also take drug that make them go psychosis?
o The court is does not answer that (because courts says “exclusively”)

Moral blameworthy in people if they are self-induced. That’s why it is not a defence.

But, there is no clear test for involuntary intoxication. (self-induced does not apply) (Policy question?)

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  In these cases, Prof says we would apply general criminal law rules we have already learned. In
involuntary intoxication where the person goes to a state of automatism, it should be non-mental
disorder automatism. It is an external cause (like a tree branch falling on your head) that caused the
state of automatism. It is a one-off thing and don’t present a continuing danger to the public.
 If the alcohol only harms the mind, not full automatism, we can argue that it does not meet the mens rea
(subjective meas rea).

INTOXICATION (s. 33.1)

 Distinction between voluntary and involuntary intoxication

 Special rules apply when person knowingly drank to point of drunkenness (i.e. voluntary intoxication)
 Voluntary intoxication: voluntarily consume a substance knowing that it will reasonably cause
impairment
 Reason why law treats it differently because of moral fault that you voluntarily caused harm by causing
your own incapacity
 If case of involuntary intoxication, then use ordinary rules of criminal liability
o Did they actually have the mens rea?
o Could also be relevant to automatism

R. v. Bernard (1988, SCC) – What specific intent and general intent mean

 Fact:
o Accused forced woman to have sex with him, punched her in the face
o Accused was drunk, but able to walk and talk, put records of record player
o Accused says his drunkenness caused him to attack the complainant, once he realized what he
was doing, he got off
o Trial judge told jury intoxication is not a defence, so he was convicted, and he appeals
 McIntyre (+1):
o Distinction between specific and general intent offences
o General intent: only intent involved relates solely to the performance of the act without
ulterior intent or purpose
 Ex. Assault, only intent to apply force
 Ex. Manslaughter (too drunk to form intent to kill, couldn’t foresee that death would
result)
 Ex. Breaking and entering
 Ex. sexual assault
o Specific intent: intent to perform actus reus combined with intent or purpose that goes
beyond performing that basic act
 Ex. assault with intent to resist arrest
 Ex. murder (intent to kill)
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  Ex. breaking and entering with intent to commit an indictable offence (theft)
o For specific intent offences, intoxication operates as defence because it causes the person to
be unable to form the specific intent (ex. guilty of the manslaughter, but not murder b/c
couldn’t form the intent to kill)
 Specific intent offences require more complicated mental processes, while general
require less complicated
 Specific intent offences are usually more serious and have greater penalties as well
o For general intent offences, intoxication is never a defence
 The intent for general intent offences is usually pretty low, and normally we can prove
mens rea by inference form the act
 If you can’t prove that the drunk person actually intended to do the assault, you can
“substitute mens rea” and prove fault through the fact that they intended to get drunk (and
there’s fault in that) – other people have policy concern about this though…
 Crown still has to prove mens rea, and defence can still argue that accused didn’t have
the mens rea, but accused just can’t rely on drunkenness to show they didn’t have mens
rea
o Justice McIntyre thinks it’s good policy to deny drunkenness defence for crime
o Rejects Charter arguments
 Wilson J (+1):
o Agrees with McIntyre on the first question, for specific intent offences intoxication can be a
defence
o For general intent offences, intoxication is usually not a defence
 But can be a defence in cases of extreme intoxication (where it’s akin to insanity or
involuntariness)
 This is the law in Canada
 Wants to keep common law defence, but makes it more flexible
 Required because of the Charter, otherwise we would be convicting people who aren’t
morally blameworthy
o In this case, accused was not extremely intoxicated
 Dickson CJC (+2, dissenting)
o Let’s get rid of distinction between specific and general intent offences: Just say that mens rea
has to be proved in every case, and intoxication is one factor taken into account in determining
mens rea
o If we are going to privilege policy over legal principles, that’s something Parliament should do
o Don’t have to be worried about floodgates – that everyone will be acquitted for drunkenness
 Doesn’t actually provide defence most of the time – “A drunken intent is still an intent”
 Also judges and juries not quick to accept defence
 3 different views, no clear majority
 It’s usually the one in the middle that represents the law – Justice Wilson in this case

R. v. Daviault (1994, SCC) – extreme drunkenness is defence for general intent offences; later removed by
Parliament for violent crimes, Charter Minimum

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 Fact:
o Accused went to acquaintances’ house, had 7 or 8 beers, brought large bottle of brandy
o Accused threw her on bed and sexually assaulted her, then got dressed and went home to bed
o Didn’t remember anything
o Expert testified that his blood alcohol level was very high and would have caused death or coma
in a normal person
o Expert said Daviault might have suffered from amnesia automatism – alcoholic blackout where
acts are involuntary and have no memory of them afterwards
o Expert evidence went uncontested because Crown didn’t bring own expert to counter this
o Mere fact that Daviault said he doesn’t remember is separate from voluntariness – had to not
know what you were doing at the time to be in automatism state
o Trial judge acquitted here b/c of rule from Bernard – accused was extremely intoxicated, so had
a reasonable doubt about whether he could form the intent of the offence
 Cory J (+3):
o Upholds distinction between specific and general intent offences
o Explicitly adopts reasons of Justice Wilson from Bernard – Her reasons become the law in
Daviault
 Intoxication can be a defence to general intent where intoxication is so extreme
o The reason we can’t go with Justice McIntyre is that it violates the Charter and allows a
person to be convicted even though the Crown has not proven mens rea for the offence (required
by presumption of innocence) – just intending to become drunk is not the same as intending to
sexually assault someone
o Dufraimont: sometimes Cory goes too far
 Cory says there is no rational link between intoxication and crime
 Dufraimont: There is a rational link, it’s a fact
 But yes, just being intoxicated isn’t a crime
o “Substitute mens rea” is a drastic violation of s. 7 and 11(d) of Charter and can’t be saved
under s. 1, no pressing objective/need to violate the Charter here, and no rational link btw
drunkenness and violence
o Charter minimum
 Requires at least giving defence of intoxication for general intent offences where the
accused was intoxicated to the point of automatism  known as defence of “extreme
intoxication”
 Reverses burden of proof, and it’s acceptable to put burden on accused
 Accused has to show extreme intoxication based on a balance of probabilities
 Similar to defence of automatism and defence of MD
o We don’t have to be worried about requiring this Charter minimum b/c drunk defences will still
be rare and still only applies to general intent offences where drunkenness is extreme
o Floodgates argument not convincing b/c in jurisdictions where drunkenness defence is allowed,
it’s still rarely successful
o Dealt with this as negating mens rea of the offence, but all analysis would apply if you
discussed this in terms of actus reus too b/c if the person is drunk to the point of automatism,
then there’s no voluntariness and actually no act  that’s why we have to have this defence
so that Crown has to prove both actus reus and mens rea where there’s a doubt about these things
 Sopinka J (+2, dissent): *Dufraimont likes the dissent’s view

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 o There is blameworthiness here and mens rea broadly speaking is supposed to reflect moral
responsibility, and people who get themselves so drunk that they do violence to other people are
morally responsible for that  perverse result to use doctrine of mens rea to say someone is not
responsible in that situation
o Everyone accepts intoxication is a defence for specific intent offences, which is taken into
consideration in sentencing and person can be punished for lesser offences

Intoxication Summary

 Special rules apply to voluntary intoxication

 Voluntary intoxication CAN be a defence to specific intent offences
 Whether there is or should be defence for general intent offence is more controversial
 Daviault case (1994)
o Charter requires defence of extreme intoxication for general intent offences
 Public reaction to Daviault case was negative
o It was going too far in giving intoxicated defence
o Someone like Daviault could do something violent and still have a defence
o So Parliament enacted Bill C-72 which removes Daviault defence for violent crimes, but there
was a Charter minimum, so is it unconstitutional? **Potential Policy Question!!

Parliament Enacts Bill C-72 in Reaction to Daviault Case

 Purpose of C-72 was to remove Daviault defence of extreme intoxication for violent offences
 In Preamble
o Parliament sees an association between intoxication and violence
o Parliament doubts that it’s possible to be drunk to the point of involuntariness (based on expert
evidence, no such thing as alcoholic automatism – Dufraimont: but doesn’t mean there’s no such
thing as automatism from a drug perhaps)
o Parliament is very concerned about intoxicated violence and those subjected to such violence,
and worried that people will use self-induced intoxication as an excuse (floodgate concern)
o Parliament shares with Canadians the moral view that people while in a state of intoxication do
violence to others are blameworthy in relation to their harmful conduct and should be held
criminally accountable for it
o Intuitive attractiveness to the idea that if you get so drunk and commit violence, that’s on you,
but of course there could be Charter issues with it
 S. 33.1(3) of the Code
o This section says Daviault offence only removed for violent offences – interference with, or
threat of interference with the bodily integrity of another person
 S. 33.1(1)
o We are talking about general intent offences, does not change the law with respect to specific
intent offences (ex. murder)
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  S. 33.1(2)
o Criminal fault imposed by reason of intoxication
 Is s. 33.1 of the Code constitutional?
o Contrary to the Charter minimum that the SCC said was required in Daviault
o Contrary to s. 11(d) and s. 7
o So, only way to say it is constitutional is to justify it under s. 1.
 Can it be saved under s. 1 of the Charter?
o Is it a “reasonable limit prescribed by law that can be demonstrably justified in a free and
democratic society” under s. 1?
o Use Oakes TEST for reasonable limits under s.1:
 Is the object of the law a pressing and substantial objective?
 Proportionality test
(a) Rational connection (btw law and pressing and substantial objective)
(b) Minimal impairment (law should be minimally impairing on rights)
(c) Proportionality of effects (balance bad effects on rights against good effects for social
objective being pursued)
o Pressing and substantial objective
 Objective is that we need to protect the physical integrity of vulnerable groups (women
and children are specifically mentioned in preamble), only applies to violent offences so
it’s about protecting their right to have the benefit of the law in protecting their physical
integrity, and violators shouldn’t have the excuse of their own voluntary intoxication to
protect them from causing harm to these groups
 Legislation meets this objective
o Minimal impairment of constitutional rights
 Taking away this defence only for violent offences, so it’s somewhat limited, doesn’t
apply to all offenders, though violent offences is still a broad category
 Maybe we’re not meeting the right that the accused has to a minimal level of actus reus
and fault, but part of why it’s justified to limit the s. 7 right here is that there is still some
form of morally blameworthiness associated with a self-induced intoxication that goes
to this extreme level where you become a danger to others (Justice Sopinka’s dissent in
Daviault)
 “Intoxicated automatism” is not supported by scientific evidence, not even possible, so
makes violation of s. 7 less problematic b/c it’s really theoretical
 **On an exam – if you have a defence of extreme intoxication to a general intent offence of violence –
Daviault held that there is a defence of extreme intoxication, but s. 33.1 removes that for violent
offences, but it might be unconstitutional, but it might be saved under s. 1 – and make a point about
each!

R. v. Daley (2007, SCC) – 3 forms of intoxication, remember talking about unconstitutional

 Daley does 2 things

(1) Clarifies when talking about specific intent offences, ultimate question is whether person had actual
intent or not (not about capacity to form intent)
o If intoxication prevented them from forming actual intent, then it is a defence
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 (2) Think of intoxication on 3 levels
(1) Mild intoxication – no defence
 Induces relaxation of inhibitions, increase in socially unacceptable behaviour
 NOT a defence, just look at fault required for the offence
(2) Advanced intoxication – to specific intent offences
 It’s a high level of intoxication, perhaps enough that they lacked the specific intent
 Gives defence for specific intent offences, but depends on facts
 Issue is still whether there was ACTUAL INTENT – open to be a defence, might be
seen as impairment of foresight of consequences that might raise a reasonable doubt, but
defence will depend on the facts of the case (ex. shoot someone, might still think they’ll
foresee the death b/c it’s so obvious…if they just kick someone in the head, might be
harder to foresee death if very intoxicated  look at plausibility of argument)
(3) Extreme intoxication akin to automatism (Daviault defence) – non-violence
 Defence to specific intent offences AND general intent offences (non-violent re. s. 33.1)
 Negates voluntariness and is complete defence (can’t be guilty of any offence)
 BUT limited by s.33.1 to be a defence only for non-violent offences, violent offenders
would still be guilty  BUT there’s a Charter issue with that (which hasn’t been decided
yet, so need to raise it if it applies to the facts)

R v Bouchard-Lebrun (2011, SCC) – Dividing line between mental disorder and intoxication

 Also didn’t bring up Charter issue

 Daviault defence still exists but limited to non-violent offences re. s. 33.1

Distinction between voluntary and involuntary

 Under Chaulk (2007, NS CA)  Intoxication is considered voluntary if the accused consumed a
substance that a reasonable person would know is intoxicating
 Should we have reasonable person standard?
 Problems with moral blameworthiness issue, they perhaps would know that it’s a beer, but someone puts
ecstasy in it so it’s worse than you thought it would be – seems unfair

JUSTIFICATIONS AND EXCUSES

INTRODUCTION

 Some defences negate the act or fault elements of offences, for example: (not true defence)
o Automatism negates the voluntary act

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 o Mistake of fact can negate the fault element
 Other defences operate even where all the elements of the offence are made out. (true defence)
 True defences: defences can operate even when actus reus and mens rea are proven. All the elements of
the offence have been met.
 Sources of defences:
o Statute (s. 34, self defence, for example)
o Common law (s. 8(3) common law can be defence.)
 Self defence and provocation are statutory defences
 Necessity is a common law defence.
 These are true defences. Only come into play when the actus reus and mens rea have been
established.
o Defence of person: self defence
o Necessity: unavoidable to break the law in order to preserve their or someone’s life. It is a
broader defence. It catches all other defences. Apply other narrower ones before go to this one.
o Duress: under pressure form a threat from another person. The threat must be of bodily harm.
o Provocation

Air of reality for defences

 Where there is a basis in the evidence for the defence.

 Happened in two stages:
o First, evidentiary foundation that raised the defence: convincing the judge. The accused has the
burden of proof (evidential burden). The accused has all the burden for all defences.
 Whether the defence should succeed. This is the trier of fact that is decided by the jury.
o Second, persuasive burden
 The crown has to prove the persuasive burden. The crown has to prove this is NOT a
defence beyond a reasonable doubt.
 Reverse Onus defences: automatism, mental disorder

R. v. Cinous (2002, SCC) – air of reality test – a question of law decided by the judge

 Principle: a defence should be put to a jury if and only if there is an evidential foundation for it.
 The existence of air of reality test is for the concern that allowing a defence to go to the jury in the
absence of an evidential foundation. This would invite verdicts not supported by the evidence and would
only confuse the jury.
 Basic requirement:
o First, a trial judge must put to the jury all defences that arise on the facts, whether or not they
have been specifically raised by an accused. Where there is an air of reality to a defence, it
should go to the jury.
o Second, a trial judge has a positive duty to keep from the jury defences lacking an evidential
foundation. A defence that lacks an air of reality should be kept from the jury.
 Air of reality is test is merely evidential burden.
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 o The test is concerned only with whether or not a putative defence should be “put in play” (this is
consistent with the presumption of innocence guaranteed by s. 11(d) of the Charter.)
o The question for the trial judge is whether the evidence discloses a real issue to be decided by the
jury, and not how the jury should ultimately decide the issue.
 Whether or not there is an air of reality to a defence is a question of law, subject to appellate review.
 The air of reality test applies to ALL defences.
 The accused has the evidential burden.
 Trial judge has to consider totality of evidence and assume accused evidence as true (even if there is
conflicting evidence).
 Trial judge does not decide whether or not the defence is successful (that is for trier of fact by the
jury)

 One question: why we want the judge to make the preliminary decision of the defence?
o It is confusing to tell the jury about the defence issues. Make sure they are focusing on the real
issues of the case.
o Keep the proceeding focused. Not spend time on illegitimate issues.
o If not an issue, then the crown will not spend a lot of work to disprove it.

DEFENCE OF PERSON (Codified as s. 34)

 This is a statutory defence.

 Usually self defence, but not limiting to defending yourself. You could also be justified if you want to
protect some others. They are under the same principle and the same section of the Code.
 Defence of person is rightful action, not wrongful action that are excusable.
 Set in section 34 of the Code. (since 2013)
 A test of reasonableness

Defence — use or threat of force

34 (1) A person is not guilty of an offence if (3 requirements)

(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 (defence purpose)

(c) the act committed is reasonable in the circumstances. (most of the work is here. Should not be excessive)

Factors (paly into the reasonableness factor, not exhausted)

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(2) In determining whether the act committed is reasonable in the circumstances, the court shall consider the
relevant circumstances of the person, the other parties and the act, including, but not limited to, the following
factors:

(a) the nature of the force or threat;

(b) the extent to which the use of force was imminent and whether there were other means available to respond
to the potential use of force; (imminent: Lavallee. This is a not restrictive requirement. Factors are considered.
Other means: like running away or calling the police. Retreat: not always required, depends on the
circumstance. Law is clear that if you are in your own home, you do NOT have to retreat.)

(c) the person’s role in the incident; (are you person who started the fight? Initial aggressive rule.)

(d) whether any party to the incident used or threatened to use a weapon; (guns, knives, threats are higher)

(e) the size, age, gender and physical capabilities of the parties to the incident; (same age, proportional. A man
against an elderly woman, that would be different. The elderly women could use more force. Reference to this
part of the code when you are dealing with the situation.)

(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; (Lavallee. Whole relationship. Prior relationship)

(f.1) any history of interaction or communication between the parties to the incident;

(g) the nature and proportionality of the person’s response to the use or threat of force; and

(h) whether the act committed was in response to a use or threat of force that the person knew was lawful.
(overlap with (3))

No defence (special specific situation)

(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

 The overall test is objective. HOWEVER, it involves subjective factors, personal factors and
factors of circumstances. What the person actually thought is also relevant, even if they are
actually wrong.
 The extent of the injuries did not determine whether the force used was necessary in the circumstances.
The approach was usually seen as partly subjective and partly objective.
 The law is flexible about the proportionality. (Example: defend yourself with a gun against a person
who has a knife.)
o In such a case, you might not have a knife, but you only have a gun. You are not required to be
stabbed if someone approached you with a knife. It is a loose requirement. You are allowed to be
creative to do whatever you think is reasonable do defend yourself (reasonable and proportional).
 The self defence is a fact-based thing. Sometimes the person who is being attacked have limited way to
defend their selves. It depends on the circumstances. (the Michael Brian case. The former Attorney
General in Ontario).
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  The question of reasonableness is a question of fact. The jury decide whether it applies or not.
 Whether to retreat: (idea that killing or injury is the last resort, and can be used only if other
reasonable options are not available.)
o It is based on the circumstances.
o Old law explicitly imposed an obligation to retreat on an initial aggressor.
o This is no duty to retreat from your home.
 S. 34 not only applies to classic self defence. Necessity defence might also be applied here. (break the
door to evade the attack. Drive though the red light to defend myself. OVERLAP between these
defences.)
 Why is this standard an objective one then?
o For other cases (especially police shootings) you need to have some limits; your sense of threat
and ability to use force has to be bounded by reasonableness in order to protect the public
o PROF: this is the best way to balance protecting the public but also the person accused.
 Special scenario: police shooting (s 34)
o The police perceives threat, but in fact there is not threat. This happens in U.S. a lot where the
police shoot a black man because the police perceives threat.
o Is it self-defence? Not as subjective as other self defence cases. May apply more objective
standard to protect the public.

R. v. Lavallee (1990, SCC) – not only reasonable man standard, but taking circumstances into account

 Not a that controversial case.

 Facts:
o The woman has been battered for a long period. The battered women killed her common law
partner, had people over and he said he would get her later so as he was leaving the room, shot
him in the back of the head.
o The deceased said, “either you kill me or I’ll get you”
 Issue: Whether it is reasonable use of self defence force.
o How to you interpret imminent requirement? In this case, it is future threat.
 Holding: acquittal.
 SCC:
o Was her fear about being attacked and her response of this fear reasonable under the
circumstances?
o The need for expert evidence on the effects of abusive relationships in order to properly
understand the CONTEXT in which an accused woman killed her partner. The expert evidence is
necessary in order to understand the reasonableness of a battered woman’s perceptions, which in
this case was the accused’s perceptions that she HAD TO act with deadly force in order to
preserve herself from death or grievous bodily harm.
o If apply the imminent requirement, it means that she has to wait until she was being abused, and
she might not have been able to save herself in that case.

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 o Imminent requirement does not apply well to battered women. We have to think about whether
imminence is reasonable.
o We have to look at the psychological evidence.
 Battered women syndrome is not a defence itself, it just shows their perception of the
situation and why they thought their actions were reasonable (subjective factors).
 The self defence test is overall objective, but the decision shows that how much subjective factors
the court may take into account. The court is not only looking at the “reasonable man” standard,
but also is taking into account the surrounding circumstances. The reasonableness standard
should involve the circumstances.
 We must make a judgement that is embedded in the context. It is arguably reasonable for her to
proceed when it is the only option for her.

R. v. Malott (1998, SCC)

 Facts:
o Accuse is charged with murder
o Accused had common law relationship with the deceased. The deceased abused the accused.
o On a day to a medical center, the accused took a pistol and shot the deceased to death. She then
went to the decease’s girlfriend’s home and shot her and stabbed her with a knife.
 Procedural:
o At trial, the accused testified that she had suffered from battered woman syndrome.
o The jury found her guilty of second degree murder for the deceased and attempted murder for the
girlfriend. Appeal affirmed the convictions. There was no air of reality to the defence of self-
defence as it related to the charge of attempt murder.
o For the deceased, the jury was instructed that her perception of the accused developed against the
background of her abuse, was required to be assessed in determining if her actions were
reasonable self-defence.
o The accused appealed to SCC.
 Holding: SCC unanimously dismissed the appeal on the basis that the trial judge’s charge to the
jury was adequate.
 L’ Heureux-Dube J. (McLachlin J. concurring):
o The evidence of “battered woman syndrome”
o Both those influenced by the gender and her individual experience are relevant to the legal
inquiry.
o This means we have to look at the whole context of a woman’s experience.
o Avoid a too rigid and restrictive approach to the admissibility and legal value of evidence of a
battered woman’s experiences.
o Women who do not perfectly fit themselves within the stereotype of a “battered woman” are still
entitled to have their claims of self-defence fairly adjudicated. And they are still entitled to have
their experiences as battered women inform the analysis.
o The legal inquiry into self-defence must focus on the reasonableness of her actions in the context
of her personal experiences, and her experiences as a woman, not on her status as a battered
woman and her entitlement to claim that she is suffering from “battered woman syndrome”.
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 o There are other factors, such as a fear of losing custody of her children, that indicate her
lack of an alternative to the use of deadly force to preserve herself from death or grievous
bodily harm.
o All the evidence should be presented in such a way as to focus on the reasonableness of the
woman’s actions, without relying on old or new stereotypes about battered women.

NECESSITY (COMMON LAW DEFENCE)

R.v. Dudley and Stephens (1984, UK) – is necessity a defence to murder?

 Lord Coleridge: Killing the boy was murder unless the killing can be justified by some well-recognized
excuse admitted by the law
 No such excuse in this case, unless “necessity” is justification
 Not correct to say that there is any absolute or unqualified necessity to preserve one’s life (Birkenhead
case)
 If this were allowed, it would mean the man who profits from the act gets to decide the necessity that
will justify him in taking another’s life to save his own  would set a dangerous precedent
 Necessity is not a defence to murder when the victim was not a direct threat to the perpetrator’s life or
committing illegal acts.

Perka v. R. (1984, SCC) – TEST or necessity

 Fact:
o Appellants were drug smugglers, going from Columbia to Alaska
o Ship gets into trouble
o Came ashore on a remote island and unloaded 33 tons of marijuana
o Defence was one of necessity, only came here because they were forced to
o Appellants claim they did not intend to import into Canada or leave cargo in Canada, came to
make repairs then leave
o Jury believed this, acquitted them
 Dickson J.
o It’s a common law defence, it’s not in the Code
o What kind of situations does it apply in?
 Emergencies, and especially preservation of life in emergencies
 Example: Mother stealing food to feed her starving children; someone speeding to the
hospital because someone in back of car with medical emergency
o Refers to Morgentaler case
 Necessity defence wasn’t available to him
 There could be a defence, but it would be limited
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  Has to be an urgent situation of clear and imminent danger where compliance with the
law is demonstrably impossible  Sets high standard to meet
o Two ways of conceptualizing necessity defence:
o *this distinction doesn’t seem to matter in the law anymore, perhaps more philosophically
(1) Justification – Dickson J rejects this
 Justified to break the law, the “right” thing to do in the circumstances
 “Choice of evils” concept is too subjective, cost-benefit analysis involved that would put
a kind of value on complying or not complying with the law and it could lead to anarchy
(2) Excuse – Dickson J accepts this
 Was wrong, but excusable in an emergency to break the law if law would impose an
intolerable burden on the excused
 Based on a “realistic assessment of human weakness”
 Law can’t hold a person to strict obedience of the law where the instinct to break the law
which is so strong that no one could withstand it
 Situations of “moral involuntariness” – 2 reasons why we don’t punish morally
involuntary act would be:
 It’s unjust to punish them if person could not act otherwise, and
 Situations where breaking the law was realistically unavoidable so it’s
pointless to punish them
o Defence of necessity must be strictly limited, only covers acts that are truly morally
involuntary
 Did actor have any real choice?
 If yes, defence does not apply
 If no, then it can apply
o TEST: Three requirements for defence of necessity
(1) There has to be an urgent situation of imminent peril
 Has to be happening right now
 Must be so urgent that normal human instincts cry out for action
(2) No reasonable legal alternative
 If there is a legal way out, then there is a reasonable legal alternative
 *very important, high standard
(3) Degree of proportionality
 between the harm that’s inflicted by breaking the law and the harm that’s avoided by
breaking the law
o Crown wanted fourth requirement of illegality (got yourself into the problem by doing something
illegal, so shouldn’t have the defence), but Dickson said no  even if someone is doing
something illegal, necessity defence could still be available.
 If the necessitous situation was clearly foreseeable as part of doing something illegal,
then it would probably take away defence of necessity
o Onus of proof – Accused has evidentiary burden to bring up this defence (establish air of
reality), Crown has persuasive burden to disprove defence of necessity beyond a reasonable
doubt
o Here, there was an air of reality to it, but trial judge didn’t explain law adequately, so new trial
ordered, appeal dismissed
 Dufraimont:

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 o POLICY: Defence of necessity seems to be more accepted in situations of one-off emergencies
than in situations of ongoing issues (poverty, squatter example)  sense that if necessity was
recognized for ongoing issues it would create anarchy because people could just decide not to
follow law, affects people’s property rights

R. v. Latimer (2001, SCC) – leading case

 Fact:
o Latimer killed disabled daughter
o She was in pain, had seizures, needed repeated surgeries
o Doctors wanted to do more surgery, which Latimer perceived as mutilation
o Decided to kill her out of mercy, through exhaust of truck
o Had 2 trials, was convicted both times, was convicted of second degree murder
o Jury upset when he was automatically sentenced to life and over 10 to 25-year parole ineligibly
requirement, wanted him to get less time
 By the court:
o Latimer used defence of necessity
o Test from Perka (but provide more detail):
(1) Imminent peril requirement
 Not enough to foresee peril, has to be on verge of transpiring and virtually certain to
occur
(2) No reasonable legal alternative
 Realistically assess options
(3) Proportionality of harm
 A lot of more difficult cases to assess this
 Not required that harm avoided has to outweigh harm inflicted, at minimum they have to
be equivalent
o Judged on objective or subjective standard?
 For first 2 requirements, use modified objective test – look at it objectively, but take
into account situations and characteristics of the accused
 Accused must have honestly believed on reasonable grounds that he or she was in
imminent peril with no legal way out
 3rd requirement is purely objective, look at community standards
o Need air of reality to all 3 requirements:
 Here, there was no air of reality to any of them, fails on all 3
 No imminent peril or danger, perception was not reasonable
 Had other legal options, feeding tube to get pain meds better etc.
 For proportionality to be appropriate, harm avoided has to be comparable to death – here
it was completely disproportionate
 This was a manageable medical condition, unfortunate as it was

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 DURESS (s. 17)

Compulsion by threats

17 A person who commits an offence under compulsion by threats of immediate death or bodily harm from a
person who is present when the offence is committed is excused for committing the offence if the person
believes that the threats will be carried out and if the person is not a party to a conspiracy or association
whereby the person is subject to compulsion, but this section does not apply where the offence that is
committed is high treason or treason, murder, piracy, attempted murder, sexual assault, sexual assault with a
weapon, threats to a third party or causing bodily harm, aggravated sexual assault, forcible abduction, hostage
taking, robbery, assault with a weapon or causing bodily harm, aggravated assault, unlawfully causing bodily
harm, arson or an offence under sections 280 to 283 (abduction and detention of young persons).

 Covers situations where accused commits crime under pressure of threat from another person
o Person puts gun to your head and orders you to commit crime
 Was a defence at common law, but now found under s. 17 of the Code – limited defence and included
strict requirements
 Requirements for defence of duress under s. 17:
(1) Threat of death or bodily harm
o Has to be threat to a person, accused or 3rd party
o Threat to property is not enough
(2) Immediacy (read out by Ruzic)
o threat of immediate death or bodily harm
(3) Requirement of presence (read out by Ruzic)
o Threatener has to be present when the offence is committed
(4) Belief
o Accused has to believe that the threat will be carried out
(5) Accused not party to a conspiracy
(6) Exclusion of various offences
o Murder, sexual assault, robbery etc.

R v Paquette (1977, SCC) – s.17 duress defence only applies to person who commits offence, common law
defence available to parties to offence

 Facts:
o Robbery case
o Innocent bystander shot to death
o Paquette was the driver, not one of the robbers
o Tried to refuse to drive them, but one of them put a gun to his head
 Issue: Did accused have a duress defence to the murder charge?
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 o Robbery and murder, which are both excluded, so on face of it looks like he can’t have it 
seems harsh
 Ratio: S. 17 defence of duress only applies to the person who actually commits the offence listed in the
section (principle); Common law defence of duress still available to people who are accused as parties
(which doesn’t exclude any offences)
 Tells us: the defence of duress can be both a statutory defence under s. 17, which applies to principals
OR a common law defence that is available to OTHER parties.
 So, he got to go back to the common law defence, which was actually more generous
 Moral blameworthiness seems less for parties to offence, so seems reasonable that they should still have
access to common law defence that is broader

R v Hibbert (1995, SCC) – common law duress defence requires ‘no safe avenue of escape’

 Hibbert was an aider and abettor, so has access to common law defence of duress
 Conceptualized as an excuse based defence based on moral involuntariness (lack of any real choice)
 Court adds another common law requirement for defence of duress
o No safe avenue of escape
o Judged on modified objective standard (takes into account accused’s personal
characteristics)

R v Ruzic (2001, SCC) – read out immediacy and presence requirements from s. 17 due to Charter

 Case where woman imported heroin into Canada under threats from someone in Serbia that they were
going to kill her mother
 She was principal offender, so s. 17 applies
 Under s. 7 of the Charter, there is a principle of fundamental justice that only morally voluntary
conduct can attract criminal liability
 S. 17 duress defence violates s. 7 of the Charter because the immediacy and presence requirements
remove the defence for some morally involuntary acts
 So, the immediacy and presence requirements were read out of s. 17

R. v. Ryan (2013, SCC) – how to apply statutory vs. common law defence of duress

 Fact:
o Accused was woman abused by her husband
o Husband had threated her and her daughter’s life repeatedly
o Went to police, but they didn’t protect her
o Thought killing him was the only way to be safe
o Tried to hire hitman over several months; last hitman she hired was a police officer
o NS Court accepted defence of duress

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 LeBel and Cromwell JJ:
o This looks more like self-defence, but at the time it looked like second hand self-defence was not
available under the law, so tried to fill gap in law with duress defence
o Does not have duress claim here
 Defence of duress is available when person commits an offence under compulsion of a
threat for the purpose of committing the offence
 Person threatening you has to want you to commit the offence
o What is statutory defence of duress? – applies to principal offender
 There are 4 requirements that remain from s. 17 post-Ruzic
 Threat of death or bodily harm to the accused or a third party
 Belief – accused must actually and reasonably believe the threat would be carried
out on modified objective standard
 Accused not party to conspiracy
 Exclusion of certain offences: murder, sexual assault, robbery, etc.
 Plus 3 common law requirements that ensure moral involuntariness:
 No safe avenue of escape – on ‘modified objective standard’
 Close temporal connection
- Can be seen as replacement of immediacy requirement (water down
version), but not as high a bar
 Proportionality – harm threatened at least equal to harm inflicted by accused, and
accused must show normal resistance to the threat – also on ‘modified objective
standard’. Similar to necessity but the necessity is a purely objective test.
o What is common law defence of duress? (it has all the same requirements as the statutory
defence except one: Exclusion of certain offences.) – applies only to other parties
 Threat of death or bodily harm to the accused or a third party
 Belief – accused must actually and reasonably believe the threat would be carried out on
modified objective standard
 Accused not party to conspiracy
 No safe avenue of escape – on ‘modified objective standard’
 Close temporal connection – on modified objective standard
 Proportionality – on ‘modified objective standard’
o There are 2 differences that remain between statutory and common law defences of duress:
 Who it applies to – statutory defence only applies ONLY to principal offender, while
the common law ONLY applies to other parties
 The statutory defence excludes a number of offences (doesn’t apply to murder etc.), and
it’s unclear whether any offences are excluded from the common law defence
 The statutory exclusions may also be unconstitutional under s. 7 of Charter, if
they remove the defence in situations of moral involuntariness.
 Recall Ruzic holds that under s. 7 of the Charter, there is a principle of
fundamental justice that only morally voluntary conduct can attract criminal
liability.
o On exam, if fact pattern raises duress by principal offenders, you cannot just say it is
excluded from s. 17 and does not apply. You still want to raise the issue and say it is
unconstitutional. “The exclusion itself might be unconstitutional”. We have a person here
who has morally involuntary conduct and subject to criminal liability, which violates the

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 principle of fundamental justice under s. 7 that requires only morally voluntary conduct
can attract criminal liability.
o Under a fact pattern of someone under duress to commit murder, and he is the principal
offender of the murder, meaning only statutory defence of duress can apply but murder is
excluded. You might say, after talking about the issue of “defence of duress”,
“notwithstanding all of that, the exclusion itself is unconstitutional and should be read out,
just like the immediacy and presence requirement were read out in the Rezic case”

Summary of Defences

 True defences apply in distinct fact situations:

o Necessity: emergency situations where breaking the law is realistically unavoidable, usually to
preserve life (residual defence that are not covered by the other two)
o Duress: the accused commits the offence under pressure from a threat made for the purpose of
compelling the accused to commit the offence
o Defence of person: defending oneself or someone else against aggression – typically, meeting or
repelling force with force
 There are some cases that are clearly just one of them, but there are others where multiple defences
could fit
 Necessity has functioned like a residual category in terms of emergencies, after self-defence and
duress (no one coming at you, no one forcing you to do something). When it is clearly defence of
person or duress, you don’t use necessity.
 Line between self-defence and necessity
o New s. 34 for defence of person seems to allow you to commit offence to get away from force or
threat of force  seems to subsume defence of necessity (Dufraimont thinks it’s likely this will
happen if a case ever comes to SCC b/c we want ppl to have any option to get away rather than
killing the other person)
o In overlap situations in the exam, you need to raise both issues.
 Line between self-defence and duress
o There is a statutory defence for both, so both are available
o Dufraimont reads Ryan as trying very hard to make the line clear between these two – if
someone is threatening you to get you to do something, treat it as duress
o *BUT if you get this on exam, you have to address both as being viable options

PROVOCATION (s. 232)

 EXAM: When doing the exam, you don’t have to discuss the details of the offence that provoked
the offence. “Punching somebody on the face is an assault. It is non-consensual and intentional
touching. Assault is an indictable offence that carries the penalty of 5 years.”
 ONLY a partial (excuse) defence and ONLY a defence to murder

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 o Don’t get acquitted, just reduces liability to manslaughter, even though they satisfy the actus reus
rand mens rea of offence
 Remember: Voluntary intoxication at an advanced level is also a partial defence to murder that
reduce murder to manslaughter. (defence of advanced intoxication)
 S. 232 of the Code:
(1) Provocation allows an accused to commit murder in heat of passion caused by provocation and only
be convicted of manslaughter
(2) Only counts if: (restrictive version)
o (1) Victim committed an indictable offence of 5 or more years of punishment against you (even
it is the maximum year will suffice) (assault will be an example)
o (2) Would deprive ordinary person of self-control (Hill)
o (3) Accused acted on it suddenly and before passion cooled
 Old statutory provision said that what used to count as provocation had to be wrongful act or insult to
deprive person of self-control
o Parliament decided to limit this in 2015 change
 2 elements of defence of provocation (still true) – what counts as provocation
(1) Objective element
o Had to be provoking conduct sufficient to deprive ordinary person of self-control
o The accused acted on the provocation on the sudden and before there was time for their passion
to cool.
(2) Subjective element
o Accused had to actually lose control

R. v. Tran (2010, SCC) – two elements of provocation

 The defence of provocation has two elements

o Objective element: there was provoking conduct (which now must be an offence) sufficient to
deprive an ordinary person of self-control (objective test)
o Subjective element: the accused was actually provoked, lost control and acted while out of
control.

R. v. Hill (1985, SCC) – leading case

 Fact:
o Hill was a 16-year-old boy who stabbed to death someone (adult man) from Big Brother
o Hill said victim made sexual in advance, which provoked him
o Charged with first degree murder
o Jury convicted him of second degree murder, did not accept provocation defence
 Dickson C.J.C.:

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o Question becomes to what extent do we factor accused’s personal characteristics into the
“ordinary person” for purposes of this defence? (should or should not?)
 Ordinary person of hill’s age and sex?
o Should not: Could argue that we don’t want to consider personal characteristics because it’s an
objective standard, bringing in personal characteristics would make it subjective
o Should: But sometimes the whole case wouldn’t make sense if personal characteristics are not
taken into account – ex. what if provocation was racial insult?
 It would be ridiculous to not consider if the person was of the group that was being
racially slurred because they would obviously be more provoked than someone who was
not.
o Definition: Ordinary person is person of ordinary temperament and self-control (some
personable characteristics are not taken into account)
 (EXCLUDE) Not prone to fighting, excitable etc.
 (EXCLUDE) Person with a short fuse is a personal characteristic we wouldn’t want to
take into account
 (INCLUDE) Will take into account that are relevant to the provocation (racial
background, etc.)
o Court says personal characteristics that are relevant to provocation will be considered.
There is no such as “sexless” or “ageless” kind of thing. You can take into account the age
and sex of the accused.

o POLICY CONSIDERATIONS
o Court acknowledges that the basis of this defence is that all people can lose their cool and lose
control that could lead them to do violent acts
 For: Should we really have this defence? Mitigating their murder conviction on basis of
anger. A recognition of the inflexibility of the criminal regime that associates with
murder. Even though they are still blameworthy, they are not as blameworthy as others.
Should have some flexibility of the sentencing to avoid automatic life imprisonment.
 Against: the whole point of criminal is to punish morally blameworthy people and losing
self-control to kill others are within the penal regime.
o To put this in perspective, look at provocation cases historically:
(1) Gay panic cases
 Gay sexual advance leads male accused to kill male who made advance
 Highly problematic because it seems like we are giving people an excuse based on their
homophobia  troubling if it was just some words, perhaps more understandable if there
was an actual sexual assault
(2) Adultery cases (off the table now, adultery not an offence)
 Man comes home to find woman cheating, kills one or both of them
 Claims provocation
 No longer covered under provocation b/c adultery is not a criminal offence
(3) Excessive self-defence cases
 Usually defending someone else and actually kills someone, but goes too far, maybe they
were trying to leave, weren’t actually coming at you with force
 However, if the person was committing an indictable offence, then provocation may be a
defence

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 o Defence of provocation has always been controversial because of discriminatory basis of why
people lost control
 Parliament tried to constrain law to avoid giving valid provocation defence to people
acting on discriminatory basis
o Also, still only a PARTIAL defence, so just mitigates the harshness of murder provisions that
provide for an automatic life imprisonment

Indigenous Perspectives on Criminal Justice

Indigenous overrepresentation in the criminal justice system

It is difficult not to concur with Ovide Mercredi’s assertion that the root causes of Aboriginal over-
representation in the criminal justice system can be found in the poverty and marginalization of Aboriginal
people. The Canadian justice system is, at its heart, a system of individual responsibility, where sanctions are
levelled at specific individuals for specific actions which can be demonstrated, in a court of law, to have taken
place, but it is also clear that there are social roots to criminal behaviour. It is extremely difficult not to conclude
that there exists a significant relationship between social inequality and criminal behaviour.

To the extent that poverty does play a causative role in crime, it is not at all clear exactly how the causation
process operates. To begin with, the majority of poor persons, of whatever race or circumstance, are not
criminals. Further, the incidence of crime does not coincide consistently with income or employment levels.
However, we cannot ignore the fact that Aboriginal people occupy the bottom rung on Canada’s socio-
economic ladder and simultaneously are vastly over-represented in our prisons. Our survey of inmates, for
example, reveals that only 30% of Aboriginal respondents were employed full time prior to their most recent
arrests.

A variety of international studies point to the link between poverty and criminal behaviour. A British study
concluded that working-class boys were twice as likely to become delinquents if they came from low-income
families.19 A Danish study that examined the lives of people born in Copenhagen between 1941 and 1952
discovered that those children who had grown up in low-income families and lived in slum areas had a rate of
imprisonment that was four times higher than all children born in the city during that period.20 Similar
American studies have concluded that youths from lower socio-economic backgrounds are more likely to
commit more, and more serious, crimes than youths from more privileged backgrounds.21

Some theories argue that it is not simply having few material things that plays a causative role, it is a question
of being poor compared to others in the society; i.e., a sense of being hindered from attaining what others in
society are able to attain. This point has particular relevance to Aboriginal people, given the unjust and
repressive treatment they have received at the hands of the Canadian government. A recent study found that
inequality was a better predictor of homicides than was poverty alone. This was true of economic inequality and
even more true of racial inequality. This study concluded that:

[W]hat most predictably generates violent crime is not the simple absence of material goods, but rather the
deeper attitudes of hopelessness and alienation produced by inequalities that are perceived as unjust.... Violence
results “not so much from lack of advantage as from being taken advantage of.”22

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One criminologist gives the example of Third World countries with low crime rates, and suggests that this can
be explained by "a strong and encompassing community life that offers meaningful work and family roles in the
midst of material deprivation."23 A study in rural India found that strong family relationships are important
deterrents to interpersonal violence "because they provide a fundamental sense of belonging to a larger
supportive community and because they provide the setting in which informal social sanctions against
aggression and crime can operate effectively."24

Hyde and LaPrairie conducted a study of crime on 25 Indian reserves in Quebec. The study used four categories
of Indian communities. It found that the communities that assimilated the least, that were the most remote and
had the lowest incomes, had the least crime (below the national average), while the communities that were
closest to urban centres and that had the greatest integration, the highest incomes and formal education, had the
highest rates of property crime and the second highest rates of violent crime among the four community
types.25

Aboriginal crime does not fit easily into any one of these various theories, perhaps because it appears to fit
easily into all of them. From our review of the information available to us, including the nature of the crimes
committed by Aboriginal people, and after hearing the hundreds of submissions presented to us in the course of
our hearings, we believe that the relatively higher rates of crime among Aboriginal people are a result of the
despair, dependency, anger, frustration and sense of injustice prevalent in Aboriginal communities, stemming
from the cultural and community breakdown that has occurred over the past century. TOP

In Manitoba, Aboriginal people undoubtedly are the poorest of the poor. Low incomes, unemployment, poor
health care, inadequate levels of education, crowded and substandard housing conditions—all are characteristic
of Aboriginal life in Canada. It is crucial to recognize that the social condition of Aboriginal people is a direct
result of the discriminatory and repressive policies that successive European and Canadian governments have
directed towards Aboriginal people. The assault on Aboriginal self-government and culture that we outlined in
the previous chapter served to impoverish and subordinate Aboriginal people. The overview of Aboriginal
socio-economic conditions that we present now should be seen as the adverse impact of the European
civilization of North America. TOP

Poverty

An analysis of the 1986 census data provides a disturbing overview of the depth of Aboriginal poverty. The
reported average income of persons with "total Aboriginal origins" in Manitoba is $10,672, compared to the
average income of $16,796 for the province as a whole. There were 21.8% of status Indians who reported no
income, compared to 11.5% of the total Manitoba population.26

Aboriginal people experience poverty more frequently than do non-Aboriginal people. According to a study
conducted by Winnipeg’s Social Planning Council, more than one-half of Aboriginal households exist below
the poverty line, compared to about 20% of non-Aboriginal households.27

This is part of a disturbing trend. Between 1981 and 1986, every Aboriginal group experienced an increase in
the proportion of the population relying on government transfer payments as the major source of income.28

Unemployment

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Unemployment rates are notoriously subject to wide interpretation because the statistics only count as
"unemployed" those persons actively searching for work. If a person is not looking for work, and this could be
for any number of reasons, including the obvious one for many reserve residents that there are simply no jobs to
be had, then the person is not considered "unemployed" in official statistics.

Even with this underestimation of the true level of employment, the Indian unemployment rate is four times the
non-Indian rate. According to the 1986 census, the labour force participation rate for Indians on reserves (those
employed or included in unemployment statistics) averaged 53%, compared to 66.6% for non-Indian persons.
The unemployment rate for Manitoba’s Indian population was 26.3%, compared to 7.6% for the total provincial
population.29 We believe that the actual rate of unemployment among Aboriginal people in some communities
is two to three times higher than that.

While the statistics reveal there is a positive relationship between employment and education, the employment
benefits of an education are far less evident for Indian persons. According to 1981 figures, those Indians with
high school education had unemployment rates three times higher than non-Indian persons with high school
education. Non-Indian persons without high school had much lower unemployment rates than Indians without
high school education. 30

Age, Birth and Families

Indian people have a much different age distribution than the general population in Manitoba. In 1971, 51% of
the Indian population were under 15 years of age. For 1991, this is estimated to have declined to 38%. The
corresponding 1991 figure for non-Indian people was 22%.31 Because there continues to be a high number of
Aboriginal youth entering their child-bearing years, it is expected the Aboriginal birth rate will continue to
remain higher than the provincial rate for some time.32

Indian families are more likely to be single-parent families, especially off-reserve, where 36% are single-parent
families, compared to the provincial and reserve average, both at 18%.33

One important factor to take into account when considering over-representation is that young people are
represented disproportionately in crime in all cultures. Thus, at least some of the Aboriginal over-representation
is simply a reflection of the different age structure in their population.

Health and Death

The Indian death rate for persons between 25 and 44 years of age is five times higher than the non-Indian rate.
For Indian men, the average age at death is 25 years younger than for non-Indian men. For Indian women, it is
28 years younger.34

Infant mortality rates also are higher, as are dietary problems.35 The suicide rate for Indian persons is more than
double the non-Indian rate.36

Housing

In 1981 on-reserve residents in Manitoba lived in the most crowded housing conditions in Canada.37 This was
the situation before the passage of Bill C-31, which reinstated thousands of Indians to their status, a proportion
of whom have returned to their reserves. In addition, there has been a decade of high birth rates since then. The
average Aboriginal household has twice as many people as non-Indian households.38

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Indian housing is of inferior condition. Their homes are three times more likely to be in need of major repair.
Only 40% of Indian homes have central heating, compared to 82% for non-Indian homes. Only 44% of Indian
dwellings on-reserve, and 34% of Manitoba’s total Indian population, have indoor plumbing. This is well below
the national average for Indian homes of 82%, and the non-Indian average of 94%.39

Indian people rent accommodations and change residences more frequently than non-Indian people. This is
especially true for off-reserve Indian people. Non-Indian families were two and a half times more likely than
off-reserve Indian households to live at their present address for six years or more (48% vs. 18%). Seven of 10
non-Indian households lived at their present address for three years or more, compared to only 35% of off-
reserve Indian households.40

Education

According to the 1986 census, 34.2% of Manitoba’s Indian population over the age of 15 had less than grade
nine education, compared to 18.2% of the total provincial population.41

Aboriginal education has suffered from a long history of being primarily a tool of cultural assimilation.
Aboriginal students, particularly on-reserve, are being instructed in a second language. Only recently has
Aboriginal education attempted to prepare Aboriginal students for skilled employment or post-secondary
education.

Even today, Aboriginal education is culturally biased. The materials and subjects used for teaching are largely
designed for and by non-Aboriginal persons, with little or no regard for the cultures, histories and realities of
Aboriginal life. Although residential schools have disappeared, it is still the case in many reserves that children
must leave the community to attend high school, resulting in the absence of family support and parental
involvement in the education system. TOP

Solitary Confinement

Solitary confinement is a form of imprisonment in which an inmate is isolated from any human contact, often
with the exception of members of prison staff, for 22–24 hours a day, with a sentence ranging from days to
decades.[1] It is mostly employed as a form of punishment beyond incarceration for a prisoner, usually for
violations of prison regulations. However, it is also used as an additional measure of protection for vulnerable
inmates. In the case of prisoners at high risk of suicide, it can be used to prevent access to items that could allow
the prisoner to self-harm.

Solitary confinement is colloquially referred to in American English as "the hotbox", "the hole", "AdSeg"
(administrative segregation), the "SHU" (pronounced "shoe"), an acronym for "Special Housing Unit" or
"Security Housing Unit", or "the pound"; in British English as "the block", "The Segregation Unit", or "the
cooler".[2][3] It has also been called prison "'segregation' and 'restrictive housing.'"[1][4]

Solitary confinement receives severe criticism for having detrimental psychological effects[5] and constituting
torture.[6] According to a 2017 review study, "a robust scientific literature has established the negative
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psychological effects of solitary confinement", leading to "an emerging consensus among correctional as well as
professional, mental health, legal, and human rights organizations to drastically limit the use solitary
confinement."[7]

Historical Controversy

Research surrounding the possible psychological and physiological effects of solitary confinement dates back to
the 1830s. When the new prison discipline of separate confinement was introduced at the Eastern State
Penitentiary in Philadelphia in 1829, commentators attributed the high rates of mental breakdown to the system
of isolating prisoners in their cells. Charles Dickens, who visited the Philadelphia Penitentiary during his travels
to America, described the "slow and daily tampering with the mysteries of the brain to be immeasurably worse
than any torture of the body".[8] Prison records from the Denmark institute in 1870 to 1920 indicate that staff
noticed inmates were exhibiting signs of mental illnesses while in isolation, revealing that the persistent
problem has been around for decades.[9]

The first comment by the Supreme Court of the United States about solitary confinement's effect on prisoner
mental status was made in 1890 (In re Medley 134 U.S. 160).[5] In it the court found that the use of solitary
confinement produced reduced mental and physical capabilities.[5] The use of solitary confinement in prisons
was first introduced to regulate unruly prisoners and keep them away from the rest of the prison society (Haney,
Craig; Lynch, Mona). However, solitary confinement has been linked to several developments of mental
disorders, one of which being Ganser syndrome. A man developed Ganser syndrome after being held in solitary
confinement for a long term sentence; however, that development is seen as rare and is unlikely in most cases.

The effects of solitary confinement on mental health are undeniable. According to the Journal of the American
Academy of Psychiatry online, solitary confinement can cause an array of mental disorders, as well as provoke
an already existing mental disorder in a prisoner, causing more trauma and symptoms. Solitary confinement is a
form of imprisonment practiced worldwide, but no positive effects of the punishment have been proven (Jaapl).
Nonetheless, penal confinement involving solitude has been described as having a beneficent effect on
anthrophobes.[citation needed]

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