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Table of Contents
SOURCES OF CRIMINAL LAW...................................................................................................... 5
COMMON LAW.......................................................................................................................................................... 5
R. v. Dudley and Stephen................................................................................................................................... 5
R. v. Sedley (historical, court makes C/L offences).................................................................................6
Frey v. Fedoruk (notice principle, parliament makes offences).........................................................6
R. v. Henry (obiter v ratio)................................................................................................................................ 7
STATUTES................................................................................................................................................................... 8
R. v. Clark (strict construction)....................................................................................................................... 8
R. v. Goulis (strict construction, 2 possible meanings)..........................................................................8
R. v. Paré (strict construction only if there’s no reasonable interpretation).................................8
R. v. Mac (no strict construction, use French version)..........................................................................9
DIVISION OF POWERS............................................................................................................................................. 9
Reference Re Firearms Act............................................................................................................................... 9
CHARTER OF RIGHTS AND FREEDOMS...........................................................................................................10
Principles of Fundamental Justice (vagueness, arbitrariness, overbreadth,
disproportionate).............................................................................................................................................. 10
Hunter v Southam Inc (leading constitutional case)............................................................................11
Canadian Foundation for Children, Youth & The Law v. Canada (AG) (leading
constitutional case, vagueness) (spanking).............................................................................................. 11
Bedford v Canada (AG) (fundamental principles of justice, overbroad, vague,
disproportionate v. security of the person)............................................................................................... 12
R. v. Oakes (Oakes Test, standard to limit Charter right)..................................................................13
THE CRIMINAL PROCESS............................................................................................................ 14
PROCEDURAL OVERVIEW...................................................................................................................................14
PRESUMPTION OF INNOCENCE..........................................................................................................................15
Woolmington v. D.P.P. (presumption of innocence, burden on Crown; before s. 11(d)
Charter)................................................................................................................................................................. 16
R. v. Lifchus (proof beyond reasonable doubt charge)........................................................................16
R. v. STARR (reasonable doubt must be defined in instructions to jury).......................................17
R. v. S. (J.H.) (credibility and reasonable doubt)..................................................................................17
R. v. Oakes (reverse onus).............................................................................................................................. 18
CRIMINAL JUSTICE POLICY.................................................................................................................................. 19
Scope....................................................................................................................................................................... 19
R. v. Malmo-Levine (marijuana case, arbitrariness; what is a PFJ?)...........................................19
Victims Rights...................................................................................................................................................... 20
ADVERSARY SYSTEM............................................................................................................................................ 20
Steve Coughlan, “The ‘Adversary System’: Rhetoric Or Reality”.................................................21
Carrie Menkel-Meadow, Portia in a Different Voice: Speculation on a Women’s Lawyering
Process (1985)..................................................................................................................................................... 21
Madam Justice Bertha Wilson, Will Women Judges Really Make a Difference?.....................22
Aboriginal Peoples and Criminal Justice (Law Reform Commission of Canada, Report)....23
Rupert Ross, Dancing with a Ghost (Exploring Indian Reality)......................................................23
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R. v. R.D.S. (reprehensible bias, black judge and context of racism)..............................................24

THE ACT REQUIREMENT................................................................................................................. 25
Elements of an Offence.................................................................................................................................... 25
CONSENT MAKING ACT LAWFUL....................................................................................................................... 26
R. v. Jobidon (when consent is vitiated; consensual fight ending in death)..............................26
R. v. Moquin (bodily harm lower standard than serious bodily harm ).....................................27
CONSENT VITIATED BY FRAUD........................................................................................................................... 28
R. v. Cuerrier (when fraud vitiates consent)........................................................................................... 28
R. v. Mabior (what constitutes significant/serious risk of bodily harm; HIV).........................29
R. v. Hutchinson (consent to quality/condition of sex; condom holes).......................................30
OMISSIONS............................................................................................................................................................. 31
Legal Duties Found in Criminal Code....................................................................................................... 31
De minimis non curat lex............................................................................................................................... 31
Buch v. Amory Mortgage Co. (1898) – p. 249........................................................................................32
H.R.S. Ryan, Criminal Responsibility for Omissions (1967).............................................................32
O.W. Holmes, the Common Law (1963).................................................................................................... 32
Fagan v. Commissioner of Metropolitan Police (simultaneity of act and fault)....................32
R. v. Miller (duty to act arising from creation of dangerous chain of events).........................33
Moore v. R. (reciprocal duty, failure to disclose info to police).....................................................33
R. v. Thornton (duty arising from C/L).................................................................................................... 34
Thornton v. R. (SCC’s interpretation of duties imposed by s. 216 CC).........................................35
R. v. Browne (leading case on undertaking; drug OD)......................................................................36
R. v. Peterson (Leading Case on Duty for a Person Under Charge)..............................................37
VOLUNTARINESS................................................................................................................................................... 38
King (no actus reus without willing mind)............................................................................................. 38
Rabey v. R. (involuntary = acquittal)........................................................................................................ 38
R. v. Parks (defence of automatism).......................................................................................................... 39
R. v. Stone (test for automatism)................................................................................................................ 39
Examples not related to mental disorder............................................................................................... 39
R. v. Lucki (involuntary car accident, voluntariness as essential part of act requirement)
................................................................................................................................................................................... 39
R. v. Wolfe (reflex actions involuntary, no intent)...............................................................................39
R. v. Swaby (requisite knowledge to satisfy act element; in vehicle with unregistered gun)
................................................................................................................................................................................... 40
R. v. Ryan (involuntarily fired gun; created dangerous condition).............................................40
Kilbride v. Lake (involuntary omission; parking pass blew away)..............................................41
Voluntariness Summary................................................................................................................................. 41
CAUSATION............................................................................................................................................................. 42
Smithers v. R. (Smithers test; leading case on causation; fighter after hockey game,
murder)................................................................................................................................................................. 42
R. v. Harbottle [substantial cause test for s. 231(5)]..........................................................................43
R. v. Nette (Significant contributing cause test, updated Smithers Test)..................................44
R. v. Talbot (but for test)................................................................................................................................ 45
Intervening Cause Cases................................................................................................................................. 46
R. v. Smith (murder and intervening cause; dropped on way to hospital)...................................46
HOW WOULD WE DECIDE SMITH AND JORDAN IN CANADA?..........................................................................47
R. v. Blaue (intervening act/thin skull rule; blood transfusion and Jehova)...............................47
R. v. Maybin (Canadian case to site for intervening causes; fight brothers and bouncer)...47
Beaver v. R. (absolute liability, drug offense)(unknowingly sold heroine)..................................49
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THE FAULT REQUIREMENT....................................................................................................... 50

R. v. Hundal (test for negligence is objective)........................................................................................51
R. v. Théroux (test for subjective mens rea)............................................................................................. 51
R. v. Mulligan (cannot infer mens rea from act alone)......................................................................52
R. v. Ortt (mens rea can’t be presumed, burden on crown)...............................................................52
REGULATORY OFFENCES....................................................................................................................................53
Beaver v. R. (absolute liability, drug offense)(unknowingly sold heroine)..................................53
R. v. City of Sault Ste. (creation strict liability rule)(pollution).......................................................54
R. v. Wholesale Travel Group Inc. (regulatory v criminal offence)...............................................56
CONSTITUTIONALLY REQUIRED FAULT (CHARTER MINIMUM FOR REGULATORY OFFENCES).....57
Reference Re Section 94(2) of the Motor Vehicle Act (B.C) (constitutional minimum strict
liability for offences with imprisonment - s. 7).......................................................................................57
3 Types of Offences:.......................................................................................................................................... 58
Defence of Due Diligence Requirement:................................................................................................... 58
Regulatory Offence Types:............................................................................................................................. 59
CONSTITUTIONALLY REQUIRED FAULT (CHARTER MINIMUM FOR MURDER)...................................59
R. v. Beauchamp (def’n of due diligence for careless driving).........................................................59
Murder.................................................................................................................................................................... 60
Simpson v. R. [subjective mens rea required s. 229(a)(i/ii)].............................................................61
R. v. Edelenbos (def’n ‘likely’ under s. 229)........................................................................................... 61
CONSTRUCTIVE MURDER...................................................................................................................................62
Vaillancourt v. R. (striking down constructive murder; constitutional minimum fault
requirement murder, objective foreseeability)........................................................................................62
R. v. Martineau (threshold subjective foresight for murder, beyond objective foreseeability)
................................................................................................................................................................................... 64
Elevated murder  1st degree to 2nd degree............................................................................................ 65
R. v. Smith (1st degree planning and deliberation)................................................................................65
R. v. Nygaard and Schimmens (intention to cause bodily harm can be intention for murder)
................................................................................................................................................................................... 66
R. v. Collins (1st degree for killing police, crown must prove D knew identity).........................67
SUBJECTIVE MENS REA........................................................................................................................................ 67
R. v. A.D.H. (presumption of subjective mens rea; newborn abandoned in Walmart).........67
States of Mind..................................................................................................................................................... 68
R. v. Buzzange and Durocher (leading case on offence that requires knowledge or
intention).............................................................................................................................................................. 68
R. v. Théroux (test for fraud)........................................................................................................................ 69
R. v. Boulanger (breach of trust by public official).............................................................................70
Sansregret v. R. (leading case on definitions for recklessness and wilful blindness)...........70
R. v. Briscoe (defining wilful blindness as deliberate ignorance).................................................71
R. v. Blondin (wilful blindness drugs; knowledge of type but not kind).....................................71
OBJECTIVE FAULT................................................................................................................................................. 72
O’Grady v Sparling............................................................................................................................................ 72
R. v. Tutton and Tutton (arguments on subjective v objective standard on negligence;
commission/omission same fault)............................................................................................................. 72
Waite v. R. (reckless driving low standard, subjective v. objective still undecided).............73
R. v. Anderson (fault requirement undecided; higher risk of harm = more likely to
conclude reasonable person would foresee)..........................................................................................74
R. v. Hundal (marked (not substantial) departure test for dangerous driving)....................74
R. v. Creighton (marked departure test for unlawful act manslaughter?)...............................75
R. v. Beatty (dangerous driving test)........................................................................................................ 76
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R. v. JF (determines fault element for criminal negligence under s. 219).................................77

R. v. Creighton (Fault element for manslaughter: objective foresight; UAM has own fault
requirement)....................................................................................................................................................... 77
Aggravated Forms of Assault....................................................................................................................... 79
RAPE AND SEXUAL ASSAULT.......................................................................................................... 79
RAPE LAWS IN CONTEXT..................................................................................................................................... 79
Historical Rules Specific to Rape Cases.................................................................................................... 80
Alan Young “When Titans Clash”................................................................................................................ 80
Mistaken Belief of Consent............................................................................................................................ 80
DEFINITION OF THE CRIME OF RAPE................................................................................................................. 80
Pappajohn v. R. (real estate agent raped; leading case for mens rea on OLD offence of
rape; mistaken belief as subjective).......................................................................................................... 80
Sansregret v R (bf broke into ‘wealthy’ gf; mistaken belief freely given)..................................82
A. Manson, Annotation.................................................................................................................................... 83
1983, Sexual Assault Charge......................................................................................................................... 83
CRIMES OF SEXUAL ASSAULT.............................................................................................................................. 84
R. v. Chase (adult neighbour; leading case definition/test for sexual assault).......................84
p. 612 problem recommended..................................................................................................................... 86
R. v. Bulmer (prostitute hotel; air of reality idea - updated later)...............................................86
R. v. Osolin............................................................................................................................................................. 86
R. v. Davis (how to establish air of reality for mistaken belief defence)....................................86
Susan Estrich “Teaching Rape Law” essay............................................................................................. 87
Consent under S. 271(1)................................................................................................................................. 87
CONSENT AND MISTAKEN BELIEF...................................................................................................................... 88
R v Ewanchuk (van job interview; reasonable steps for MBIC; actus reus=Ps subjective
consent; mens rea = mistaken belief)........................................................................................................ 88
Limits on Defence of Mistaken Belief:....................................................................................................... 90
R v Cornejo (applying reasonable steps requirement, intro objective standard; co-worker
went in unlocked apt)...................................................................................................................................... 90
2. Subjective awareness of non-consent.................................................................................................. 91
p. 671 problem #1:............................................................................................................................................ 91
R v JA (asphyxiation/dildo; no pre-consent)..........................................................................................91
MISTAKE.............................................................................................................................................. 93
MISTAKE OF FACT................................................................................................................................................ 93
R v Hess; R v Nguyen (sex with underage; mistake of age defence if reasonable steps
taken; no absolute liab.)................................................................................................................................. 93
R v Tolson.............................................................................................................................................................. 95
R v Ladue (sex with dead body; no mistake of fact if it would make you guilty of more
serious offence).................................................................................................................................................. 95
R v Kundeus (thought selling mescaline; MR some illicit substance).........................................96
MISTAKE OF LAW................................................................................................................................................. 96
R v Esop (buggery from Bagdad; ignorance of law not an excuse).............................................97
R v Campbell and Mlynarchuk (exotic dancer; mistake of law not a defence).......................97
Distinguishing Mistakes of Facts and Mistakes of Law.....................................................................98
R v McDonald (registration for gun in AB not NS).............................................................................98
Exceptions  where mistake of law is a defence?..............................................................................98
Mistake of Law Conclusion............................................................................................................................ 99
R v Dorosh (colour of right).......................................................................................................................... 99
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INCAPACITY...................................................................................................................................... 100
AGE...................................................................................................................................................................... 100
MENTAL DISORDER........................................................................................................................................... 100
US v Freeman.................................................................................................................................................... 101
Cooper v R (strangled friend in psych ward; defence of mental disorder, appreciation
test)....................................................................................................................................................................... 101
Kjeldsen v R (psycho raped/murders; no remorse but still understand nature/quality of
the act)................................................................................................................................................................ 102
R v Abbey (cocaine airport; appreciate consequences doesn’t mean penal consequences)
................................................................................................................................................................................ 102
R v Chaulk (definition of “wrong”).......................................................................................................... 103
R v Ooman (thought friend would kill him; must have capacity to know act is wrong)..103
AUTOMATISM...................................................................................................................................................... 104
Rabey v R (dissociative state after reading letter; MDA vs non-MD A)...................................104
R v Parks (sleepwalker; burden).............................................................................................................. 105
R v Stone (leading SCC case on automatism, and distinguishing MD; stabs wife after
verbal abuse).................................................................................................................................................... 106
R v Luedecke (sexsomnia; sleepwalking as MD, policy; limited non-MD)..............................108
R v Bouchard-Lebrun (toxic psychosis from E; self-induced intox not MD)..........................110
Comparing Defences...................................................................................................................................... 111
INTOXICATION.................................................................................................................................................... 111
R v Bernard (SA/punched woman while drunk; CL intox)............................................................111
R v Daviault (sexually assaulted friend in wheelchair; Charter min intox defence)..........112
Bill C-72 (removed Daviault defence for violent general intent offences).............................113
R v Daley (3 levels intox)............................................................................................................................. 114
R v Bouchard-Lebrun (E psychosis; when s. 33.1 applies)............................................................115
R v Chaulk.......................................................................................................................................................... 116
JUSTIFICATIONS AND EXCUSES: DEFENCES............................................................................ 116
Air of Reality..................................................................................................................................................... 117
R v Cinous (air of reality test).................................................................................................................... 117
DEFENCE OF PERSON (SELF-DEFENCE)......................................................................................................... 118
R v Lavallee (battered woman; surrounding circumstances for self defence).....................119
R v Mallott (battered woman syndrome to understand what’s reasonable)........................120
NECESSITY........................................................................................................................................................... 120
Dudley v Stevens.............................................................................................................................................. 120
Perka v R (weed international waters; 1st necessity in Canada; excuse/justification)...120
R v Latimer (explained necessity test; objective/subjective test)..............................................122
DURESS................................................................................................................................................................ 123
R v Paquette (defence of duress CL or stat; forced to be getaway driver).............................123
R v Hibbert (modified objective standard)..........................................................................................124
Ruzic (fundamental justice, morally involuntary not criminally liable)................................124
R v Ryan (shot husband/gf;........................................................................................................................ 124
PROVOCATION.................................................................................................................................................... 125
R v Hill (sexual advance; personal characteristics for provocation)........................................126
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Sources of Criminal Law

Common Law
R. v. Dudley and Stephen
(1884) p. 925
Facts: Issue:
- At sea on life boat for 3 weeks with 1 - Is killing in order to preserve life under
turtle, turnips and rainwater. circumstance over starvation criminal?
- Cabin boy Richard Parker (16/17) - OR, Is necessity a defense for murder?
weakest, nearly unconscious. Decision:
- No expectation of rescue.
- Killed and ate Parker (without his Ratio:
consent), rescued 4 days later. Brooks This case holds that necessity isn’t a
objected to it prior, but still ate him. Jury defense to murder when the victim wasn’t
decided facts. threatening anyone or committing any
illegal acts?
Analysis:
- In extraordinary circumstances you are called to sacrifice your life
- Dangerous precedent, slippery slope
- Who is the judge of this necessity (ie// Parker had no input), dangerous legal excuse for
this self-serving murder
- Immoral, don’t want criminal law divorced from morality

R. v. Sedley (historical, court makes C/L offences)

(1663) p. 1
Facts: Issue:
- Drunk, naked, throwing things on people Can court convict of a crime that has not
from above yet been an offense recognized in the law
- Charged with a misdemeanour against the (ie// public nudity)?
King’s peace Decision: yes, convicted
Ratio:
Historically, c/l judges could create new
criminal offences. Today, only parliament
can.
Analysis:
 The charge wasn’t an offense in criminal law – historically judges would create offenses
when they believed that someone had engaged in reprehensible conduct
- “high time we punish this type of behaviour”

Frey v. Fedoruk (notice principle, parliament makes offences)

1950, SCC [p. 2]
Facts: Issue:
- Frey (P) was peeping at Fedoruk’s mom - Was Frey’s action be an offence even if
at house it’s not in the Code?
- Fedoruk (D) caught him, turned him over - If so, they were justified in imprisoning
 7

to police, Frey sued Fedoruk for the tort of him since they caught him committing an
false imprisonment offense
Decision: No conviction
Ratio:
- Only offenses established in the CC can
constitute criminal offenses, and only
Parliament has the right to declare
something a crime
- Notice principle
Analysis:
- Without a criminal code, people are unaware of what constitutes a criminal offense –
this is called the Notice Principle
- No new common law offences (new c/l defences okay though)

- What defenses to criminal offenses can still be found in common law?

 Defense of necessity
 Mental/fault element (ie// unknowingly using counterfeit money)
 Presumption of innocence (existed in common law before the charter)

R. v. Henry (obiter v ratio)

2005, SCC (p. 6)
Facts: Issue:
- discussion of obiter v ratio What is obiter and what is dicta?

Ratio:
The legal point of the case can be narrow
or broad, all obiter do not have the same
weight, what is binding is the ratio, which
is bound up by the facts, what is also
binding is any additional analysis that is
intended for guidance intended to be
binding, if something is written and it is
intended for guidance it is binding on a
future court
Analysis:
 Lord H – case is only authority for what it decides, if you take this to the extreme,
precedent is only binding in cases that are exactly alike
 The Sellar’s Principle – the SCC sometimes rules on a point of law even though that
point is not strictly necessary to dispose of the case, extreme view – if a majority says
it, it is binding in a future case

Justice Binney says neither of the extreme cases of these view are correct – he comes
down on a middle path, we want to distinguish cases, however we need to have a
certainty in the law, have general principles and an idea of where the cases will go
Terms to know:
 8

 Stare decisis – to stand by what is decided (idea that like cases should be treated
alike, binding)
 Ratio decidendi – the reasons for the decision (the point of principle the case
decides and can be applied to future case. Ie// SCC ratio will be binding on all
others in Canada)
 Obiter dictum – something said in passing (or something said by the way). This is
not binding or precedent setting

Statutes
R. v. Clark (strict construction)
2005, SCC (p. 11)
Facts: Issue:
- Clark seen masturbating in a well-lit room What is the definition of a “public place”
by his neighbours, Mr. and Mrs. S. under the statute?
- The charge referred to was one of public Decision:
indecency, required that the indecent act be Conviction overturned
committed in a public place Ratio:
STRICT CONSTRUCTION: Access to
place means physical access, not just visual
access (ordinary meaning of access means
coming into the space, judge used ordinary
meaning to decide physical access)
Analysis:
The legislation acknowledges the difference b/w a public and private place – access does
not mean simply looking through a window
Professor/Class:
Strict Construction:
- p. 17
- strict construction aka strict interpretation
- If two reasonable interpretations, finding most favourable to accused should be chosen
(R. v. Paré is principle for strict construction. Strict construction was not used in Paré
because there were not two reasonable interpretations)

R. v. Goulis (strict construction, 2 possible meanings)

1981, Ont. C.A. (p. 18)
Ratio:
(1) Where a word used in a statute has two accepted meanings, then either or both meanings may apply -
the court is first required to endeavour to determine the sense in which Parliament used the word from the
context in which it appears, if ambiguity still exists than the interpretation favourable to the defendant
should be adopted
(2) We have this interpretive rule b/c of (i) the extreme consequences of criminal law, we must err on the
side of freedom to limit state’s incursion into the private lives of individuals (ii) people need to be given
fair warning, difficult under ambiguous statute (iii)
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R. v. Paré (strict construction only if there’s no reasonable interpretation)

1987, SCC (p. 19)
Facts: Issue:
- 17 year old lured and sexually assaulted 7 - Does principle of strict construction apply
year old. After threating 7 year old to not (should words “while committing” be
tell parents, 17 year old killed him. interpreted so as to mean that the
underlying offence and the murder are
committed simultaneously)? Difference
between 1st and 2nd degree murder.
Decision:
1st degree, all part of single transaction
Ratio:
We only use the principle of strict
construction when there’s no reasonable
interpretation of the statute, but here there
is a reasonable interpretation of the single
transaction analysis
Analysis:
Wilson J:
- Law: “murder is first degree . . . when the death is caused . . . while committing” an
indecent assault (sexual)
- When liberties are at risk (ie.. jail) must be certain of meaning of law. Here, “while
committing” might be ambiguous. HOWEVER, doctrine of strict construction doesn’t
apply. In context, clear law doesn’t mean literally simultaneous actions. This was part of
a single transaction
- For strict construction to apply there must be TWO REASONABLE
INTERPRETATIONS OF THE STATUTE: In this case there is not. This occurred in a
single transaction.

R. v. Mac (no strict construction, use French version)

2001, SCC (p. 22)
Facts: Issue:
Man is adapted w/ possession of forger’s - How “adapted” be interpreted?
tools – intent to commit forgery w/ tools - Is he guilty of forgery?
adapted for forgery Decision:
Yes, guilty
Ratio:
Strict construction can only be used when
there is ambiguity
Analysis:
Court held there is no ambiguity b/c of the reading of the French version, so strict
construction could not be used

Division of Powers
- section 91-92 constitution
 10

Reference Re Firearms Act

2000, SCC (p. 33)
Facts: Issue:
- In 1995, Parliament amended the CC to Does Parliament have the constitutional authority to
enact the firearms law?
pass the Firearms Act, requiring the holders
Decision:
of all firearms to obtain licenses and Yes, Feds have authority, not
register their guns unconstitutional
- 1996, Province of Alberta challenged Ratio:
Parliament’s power to pass the law by a Primacy of federal criminal power to
reference to Alberta Court of Appeal, the enhance public safety, over provincial
Court of Appeal upheld Parliament’s power regulatory power for property/civil rights
to do so by vote of 3:2, Province of Alberta
appeals to the SCC
Analysis:
- Federal government argues – gun control law falls under its criminal law power, and
under its general power to legislate for the “Peace, Order, and Good Government” of
Canada
- Alberta – argues that law falls under its power over property and civil rights
- Law is directed at enhancing public safety by controlling access to firearms through
prohibitions and penalties, this brings it under federal criminal law power, law has
regulatory aspects but they are secondary to its primary criminal law purpose, intrusion of
the law into property and civil rights is not so excessive as to upset the balance of
federalism

Charter of Rights and Freedoms

There are two ways a law can be inconsistent w/ the Constitution

(1) The law can be ultra vires the Constitution
(2) The law can be contrary to the Charter

Charter of Rights and Freedoms – 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.

Interpreting the Charter

 We must take a “purposive” approach to interpretation of the Charter – a purposive interpretation
is aimed towards a certain goal – relating to the purpose of the law, we must ask what
goals/interests Parliament had when enacting the law
 To show a violation of S. 7 you must show two things
o Is there a deprivation of a right? (sending someone to jail, deprivation of right to liberty)
o Whether deprivation violates a principle of fundamental justice
 However s. 1 of the Charter has a limitation clause – even if s. 7 is violated, it may be a reasonable
limit prescribed by law and still valid to the Constitution as a whole
 11

Principles of Fundamental Justice (vagueness, arbitrariness, overbreadth, disproportionate)

 Cover primarily procedural principles such as fair trial rights, also a pre-trial right to silence, no
obligation to answer police questions
 Principles of fundamental justice state that criminal law must not be
o Vague – when scope of offense is unclear or imprecise
o Overbroad – too broad or expansive, it covers circumstances beyond what would be
considered criminal
o Arbitrary – depends on discretionary matters rather than principle, based on the whim of
a decision-maker

Hunter v Southam Inc (leading constitutional case)

1984, SCC (p.44)
Facts: Issue:
- Southam unlawfully searched Hunter Is there constitutional validity in a statute
- Any law inconsistent w/ the provisions of the authorizing search or seizure?
Charter is of no force or effect Decision:
- Act authorized seizure w/o warrant Constitutionally valid
Analysis:
Dickson J:
 Police must obtain search warrant unless not feasible
Ratio:
(1) With no warrant the search is prima facie unreasonable and onus is on police to prove
that it was reasonable
(2) A person authorizing a warrant must be capable of acting judicially and must be an
impartial authority, presented w/ sworn evidence, and must have reasonable and probable
grounds that there is relevant evidence at site of search

**A law is too vague when it cannot be prescribed by law

Canadian Foundation for Children, Youth & The Law v. Canada (AG) (leading
constitutional case, vagueness) (spanking)
2004, SCC (p. 47)
Facts: Issue:
- Canadian Foundation for Children ETC Is s. 43 unconstitutionally vague?
brought charter challenge on basis of Decision:
vagueness about “every schoolteacher, Law valid, not vague
parent or person standing in place . . . Ratio:
justified in using force by way of 1) Vagueness test – law is unconstitutionally vague
correction” (S. 43 CCC) if it does not provide an adequate basis for legal
debate and analysis, does not sufficiently delineate
any area of risk, or is not intelligible
(2) The law must require a risk zone for criminal
sanction lest it be unconstitutionally vague
Analysis:
McLachlin CHC (Gonthier, Iacobucci, Major, Bastarache, Lebel):
- REJECTED charter challenge b/c:
o Law is only unconstitutionally vague if it “does not provide an adequate
 12

basis for legal debate” and “analysis”; “does not sufficiently delineate any
area or risk” (this is the test that CJC MacLachlin applies); “is not
intelligible”
- S. 43 is objective, sets boundaries for what is criminal
- REASONABLENESS: not a workable standard, varies between people. However, law
does state sobered, reasoned uses of force to educate/discipline child (this rules out
assaults out of anger) (child must be over 2 and under teenager, people with certain
intellectual disabilities)
- Must consider factors such as: UN Convention on Rights of the Child. Social consensus
on corporal punishment (ie.. teachers can’t anymore). These provide implicit limitations
- Result is: minor corrective force of a transitory of trifling nature. Anything
degrading, inhumane or harmful unreasonable. Use of objects unreasonable. Corporal
punishment by teachers unreasonable. Under two or teens unreasonable. Cannot increase
severity of punishment depending on what child did.

Arbour J (dissent):
- well known in career as being advocate of human rights (done ICC HR tribunals, etc)
- In past, law has done a bad job of forming legal debate (many people have been
acquitted in past in horrible situations). It’s demonstrably vague because it hasn’t put
limits in past
- Children are vulnerable, integrity must be protected
- How can a vagueness challenge ever succeed if SCR rewrites and reinterprets the
legislation? (plaintiffs often don’t succeed as interpretation gives more specificity)

Bedford v Canada (AG) (fundamental principles of justice, overbroad, vague, disproportionate

v. security of the person)
2012, SCC (p. 56)
Facts:
- Applicants B, L, S challenged
constitutionality of s.210 (bawdy house),
s.212(1)(i) (living off avails) and 213(1)(c)
(communication) based on s. 7 (brought
application to Ontario Superior Court of
Justice)
Issue:
- Do the impugned laws fail to respect the
fundamental principles of justice
(overbroad, disproportionate or arbitrary)?
Decision:
Unanimous decision, all sections
unconstitutional. 1 Year suspended.
Ratio:
Arbitrary: a law is arbitrary if it limits
section 7 rights if it bares no connection to
the objective of the law
Overbroad: if it has no connections
between the effect of the law and its
objectives (no connection in some
applications of the law)
Disproportionate: where it’s impact on s.7
rights are totally out of synch (way too
harsh)
 13

Analysis:
- A grossly disproportionate, overbroad or arbitrary law that denies s. 7 (life, liberty,
security of the person) is a breach.

- Bawdy-house law - Grossly Disproportionate. Intent is to avoid public nuisance.

Balance of safety benefits from being indoors (safest form of sex work) compared with
cost of a public nuisance complaint are obvious. Cannot regulate nuisance at cost of
health/safety.
o Gov’t tried to argue purpose of law was to prevent prostitution.

- Living off avails - Overbroad

 Intent of law is to target pimps and exploitative relationships, captures
non-exploitative relationships – this has been judicially restricted (ie//
doesn’t apply to doctor or legitimate domestic partnership)
 Also, negative affect on safety is again disproportionate. Punishes all
living off avails without distinguishing, including security staff.

- Communicating for Purpose - Disproportionate – Intent of law to prevent nuisance (ie//

causes noise, traffic connection, interferes with passers by) communication is an essential
tool to decrease risk (predict risk and screen clients)
o Court rejected argument that it’s also meant to prevent related crimes (ie// drugs).
This is already covered by other criminal offenses.
Professor/Class:
- Usually in criminal law looking at liberty interest (when someone goes to jail), in this
case looking at security of the person

R. v. Oakes (Oakes Test, standard to limit Charter right)

1986, SCC (p. 68)
Facts: Issue:
 The accused was charged w/ unlawful - S. 8 of the Narcotics Control Act places a
possession of narcotics for the purposes reverse onus on the accused to prove they did
not have the intent to traffic – is this
of trafficking constitutional?
- Charged under s. 8 of the Narcotics - Can s. 8 of the NCA be saved by s. 1 of
Control Act the Charter?
Decision:
Unconstitutional, struck down
Ratio:
Oakes Test
Analysis:
- Party that wants to limit the charter right has the onus of proving that the limit is reasonable,
standard of proof is balance of probabilities
- Court rules that s. 8 of the NCA is a violation of s. 11(d) of the CC – the presumption of
innocence
- The rational connection test failed
 14

Oakes Test (standard to limit charter right) under S. 1:

(1) Two-step test to justify a limitation:
(i) Pressing and substantial objective. it must be "an objective related to
concerns which are pressing and substantial in a free and democratic society",
AND
(ii) Proportionality it must be shown "that the means chosen are reasonable and
demonstrably justified". This involves a form of the proportionality test (see
below)

Proportionality Test - First, the measures adopted must be carefully designed to

achieve the objective in question. They must not be arbitrary, unfair or based on irrational
considerations. In short, they must be rationally connected to the objective. Second, the
means, even if rationally connected to the objective in this first sense, should impair "as
little as possible" the right or freedom in question. Third, there must be a proportionality
between the effects of the measures which are responsible for limiting the Charter right or
freedom, and the objective which has been identified as of "sufficient importance".

The Criminal Process

Procedural Overview
- General Rule: the more serious the offence, the more elaborate the procedure afforded
(ie// prelim hearing, jury, etc)

S. 553 Code – Absolute jurisdiction of the provincial court judge

S. 469 – Every court of criminal jurisdiction has the right to try an indictable offence
other than…. (most serious ones: iee.. treason, piracy, murder, etc)
S. 343 - Robbery
 15

Presumption of Innocence
 16

Woolmington v. D.P.P. (presumption of innocence, burden on Crown; before s. 11(d) Charter)

1935, HL (p. 81)
Facts: Issue:
- Husband (D) shot wife. They were Is onus on defendant to prove the murder
separated, with a child and he wanted her was without malice?
back. D says he took gun to tell her he’d
kill himself if she didn’t take him back, Decision:
when he went to show gun it went off and Conviction quashed, new trial
shot her by accident. Ran away after this.
Sawed off the barrel, disposed of it, hit Ratio:
under jacket. Admitted, “I done it” to (1) The Crown must prove that the accused
police right after. P says he murdered her. killed the victim, and that the killing was
Trial judge said in every charge of murder intentional.
the killing must first be proved, and after (2) More generally, accused is presumed
that onus on defendant to prove innocent until prosecution proves all
accident/without malice. Appeal court elements of the offense beyond a
upheld decision. Current appeal to house of reasonable doubt.
lords
Analysis:
- Trial judge instructed jury that once prosecution proved the D killed the P, burden shifts
to D to prove it was not intentional.
- JUDGE: while prosecution must prove murder beyond a reasonable doubt, no such
burden on defendant to raise doubt of his guilt. Some older cases and textbooks may say
the above, but it’s wrong. Fact of killing, and fact killing was intentional, must be proved
by crown.
- Rex v. Davies if there’s reasonable doubt created by evidence from prosecution or D,
the accused is entitled to an acquittal.
- S. 4 Criminal Appeal Act, 1907 – must allow appeal if there was a miscarriage of
justice. In this case: cannot say jury would have come to the same conclusion if directed
properly.
Dufraimont:
- Presumption of innocence now enshrined in section 11d of Charter
- Open to accused to bring reasonable doubt, but not required. Accused not required to
bring forward any evidence.
- In jury case, judge must always explain presumption of innocence and that standard of
proof is beyond a reasonable doubt

R. v. Lifchus (proof beyond reasonable doubt charge)

1997, SCC (p. 88)
Facts: Issue:
- Accused charged with fraud - Can the jury give an accurate verdict
- When trial judge instructed jury regarding without the correct definition of “beyond a
“proof beyond a reasonable doubt” he said reasonable doubt”?
they were ordinary, everyday words and Decision:
could be understood in that sense. Re-trial
- D was convicted. D brought appeal, Ratio:
allowed by court of appeal. SCC dismissed Trial judge must instruct that reasonable
 17

Crown’s appeal. doubt is less than absolute certainty, yet

more than probable guilt.
Analysis:
-Cory J. (and 5 concurring)
- Beyond a reasonable doubt has specific meaning in the legal context, explanation for
jury required
- R. v. W. (D.) verdict doesn’t need to be disturbed if it’s clear the jury couldn’t have been
under any misapprehension about the correct burden. However, if there’s a reasonable
likelihood of misapprehension about standard of proof, verdict must be set aside and
new trial directed.

R. v. STARR (reasonable doubt must be defined in instructions to jury)

2000, SCC (p. 91)
Facts: Issue:
- Accused convicted on 2 counts of Does the jury require instruction on
st
1 degree murder. reasonable doubt in order to make a valid
- Trial judge explained presumption conclusion?
Decision:
of innocence and standard of no Verdict set aside, retrial
reasonable doubt, but didn’t define Ratio:
reasonable doubt. Must define reasonable doubt = much
closer to absolute certainty than proof on
balance of probabilities
Analysis:
Iacobucci J. (and 4 concurring): Same as Lifchus and also:
- Trial Judge must define reasonable doubt in his instructions to jury – the definition must state
that proof beyond a reasonable doubt lies much closer to absolute certainty than proof on balance
of probabilities.

R. v. S. (J.H.) (credibility and reasonable doubt)

2008, SCC (p. 92)
Facts:
- Stepfather (D) charged with sexually
assault step-daughter. She said it started at
age four, told her mother twice who didn’t
believe it, she went to police at age 15. D
said she falsely accused him because he
threated catholic school. Only two
witnesses were complainant and witness.
- Trial judge told jury they must consider
all evidence. Found guilty.
Issue:
- Did the jury receive sufficient instructions
regarding principles of reasonable doubt as
they apply to credibility?
Decision:
Appeal allowed, conviction restored
Ratio:
(1) When credibility is a central issue in a
jury trial, the judge must explain the
relationship between the assessment of
credibility of witnesses and the Crown’s
ultimate burden to prove the guilt of the
accused beyond a reasonable doubt.
(2) Applies Cory J’s rule test from Lifchus
– the Judge must warn the jury of the
 18

Crown’s burden of proof and state that

their decision should not be based on a
choice between competing versions of
events.
Analysis:
Binnie (for 7 justices):
- Applying rule to facts – (2) Binnie argues that the trial judge correctly applied Cory J’s rule
from Lifchus, as trial judge explained (i) any reasonable doubt must be resolved in favour of
accused, (ii) even if they did not accept all of the accused’s testimony, the could still accept some
of it, (iii) reminded jury they were not choosing between two version of events but must consider
all evidence when determining reasonable doubt
- By getting across all these points, the trial judge did not leave any realistic possibility of
misunderstanding, thus ensuring the jury would understand Rule (1) by making it clear
that the Crown had to prove that the event’s occurred, while the accused did not have to
prove the events did not occur

R. v. Oakes (reverse onus)

(AGAIN)
1986, SCC (p. 99)
Facts: Issue:
- Accused found with 8 vials of hash oil, he Is s. 8 of the Narcotics Control Act
is accused of possession and trafficking unconstitutional?
under s. 8 of NCA Decision:
Upheld conviction for trafficking, acquitted
- Under s. 8 of NCA, if the court finds the
on possession
accused in possession of a narcotic, he is Ratio:
presumed to be TRAFFICKING - S. 8 (Narcotics) inoperative due to
- Unless accused can establish contrary, he conflict with s. 11 d Charter. Crown
must be convicted of trafficking declined to adduce further evidence.
- OCA holds that this provision constitutes Acquitted on offense charged, guilty of
a “reverse onus”, thus is unconstitutional possession only.
because it violates core value of justice
- A provision which requires an accused to
system, presumption of innocence as disprove on a balance of probabilities the
outlined in s. 11(d) of the Charter existence of a presumed fact, which is an
Crown appeals to SCC important element of the offence in
question, violates presumption of
innocence in s. 11(d).
Analysis:
Dickson J (4 concurring):
- Presumption of innocence is crucial and long-standing in common-law. Protects liberty
and dignity (including social consequences) (Woolmington v. Director of Public
Prosecutions)
- Burden 100% on crown, no onus on D to prove an important element of the offence on
balance of probabilities (they tried to make him prove it wasn’t for trafficking)
- International Covenant on Civil and Political Rights, 1966. Canada acceded to
covenant and optional protocol requiring innocence until proven guilty, and burden of
 19

proof on state.

Defence strategies:
- Might tear down “reasonable doubt” in crowns case
- Might try to prove innocence (BUT NOT REQUIRED, JUST STRATEGIC)

Criminal Justice Policy

Scope
Ouimet Report and Our Criminal Law Reports (p. 100-111)
- scope of criminal law should be limited (expensive, takes away people’s liberty, other
social costs). Where possible, should regulate undesirable behaviour in other ways (ie//
public education program)

R. v. Malmo-Levine (marijuana case, arbitrariness; what is a PFJ?)

2003, SCC (p. 112)
Facts: Issue:
- Challenges the law making marijuana Are Canada’s marijuana possession laws
illegal as arbitrary unconstitutionally arbitrary under s. 7 of
the Charter?
Decision:
Law constitutional (parliament justified in
paternalistic laws)
Ratio:
- A law is arbitrary where it poses a limit
that bears no relation to or is inconsistent
w/ the objective that lies behind the
legislation
- What is a principle of fundamental
justice? Legal principle; societal consensus;
sufficiently precise
Analysis:
Gonthier and Binnie JJ:
- Appellants argued harm principle is a principle of fundamental justice (J.S. Mill) (only
purpose gov’t can exercise power is to prevent harm to others, and simple possession
doesn’t harm others)

- Courts says – what is a principle of fundamental justice? It must be:

1. legal principle
2. societal consensus that this principle if fundamental to the fair operation of the
legal system
3. sufficiently precise that it is a manageable standard
- Not a principle of fundamental justice
1. Harm principle better described as description of important state interest than a
legal principle
2. Disagreement among scholars even about of harm principle. Also, there’s crimes
in our code such an cannibalism which don’t cause harm to others (in class
 20

criticism: just because cannibalism is a crime, doesn’t been it’s constitutional)

3. Not sufficiently precise to be manageable. People could argue there is or isn’t
harm for just about every crime. Also, disagreement among scholars about harm
principle
- State justified in criminalizing non-harmful conduct (or harm to self), and forming
paternalistic laws ie// seatbelt and helmets
- Parliament may legislate on fundamental conception of morality

Victims Rights
- Rape Shield Laws – avoids ability of defence to bring up complainant’s sexual history
in the case
- Victim Services at court house now, keep victim up to date and offer referrals
- Bans on identifying Victims especially if it would give up the child victim (ie//
stepfather’s names in initials if sexually assaulted step-child)

- Victims Bill of Rights Act (2015)

- Difficult question of how far victim’s rights can go, and balance it with right to fair trial
(her example, a defendants right to counselling records of the victim)

- Victim Impact Statements – should victim impact statement count at all, shouldn’t
everyone be equal? Ie// murdered homeless man may have no family to write a victim
impact statement for him.
 Dufraimont says they’re cathartic and give voice to the experience the victim has
had. Recognizes their experience, even if it doesn’t have a direct impact on the
sentence passed.

Adversary System
- 3 basics features of adversary system (Steven Landsman, The Adversary System a
Description and Defence):
1. Party Control
 Crown lays charges, Crown and defense bring evidence, they choose witnesses
and questions, they can place issues beyond dispute, admissions, pleas (ie// I
admit I killed the victim, but it was self-defence). Judge stands back and referees.
2. A Passive Judge (and Jury)
 They are like an umpire (sit back and enforce the rules)
 Impartial, “above the fray”
3. Highly Formalized Rules
 Complicated rules of evidence and procedure, enforced by the judge

Benefits of the Adversary System:

1. Truth seeking system – adversary system puts party’s self-interest (bringing forth
evidence that supports their case) in a way that supports truth finding. The judge
being passive helps them be impartial (ie// if they were choosing witnesses, they
may have another interest in which side wins).
 21

2. Sense of having your voice heard – Even if I’m not successful, I could say I had
my day in court and my lawyer made my argument.

Challenges of Adversary System:

1. State side of criminal justice system is reasonably well funded, while legal aid is
not. An inherently unbalanced contest, with and imbalance of resources to put into
it.
2. Evidence brought forward is “curated” to serve your side, might not provide the
fullest picture of the information
3. Lawyers look to advance their own cause rather than the truth
4. Doesn’t serve equity seeking groups well (ie.. women, racialized people,
Indigenous peoples)
Steve Coughlan, “The ‘Adversary System’: Rhetoric Or Reality”
p. 131
- What’s role of a prosecutor? SCC says to lay before a jury what the Crown considers
evidence relevant to the alleged crime (not to secure conviction). Prosecutor plays a
public role, no adversarial
 2/3 of accused released on bail b/c of agreement btn Crown and defense, only
10% of time does defence get accused released through adversarial means
 for every conviction, approx. four charges are stayed/withdrawn without trial
 If prosecutor believes appropriate, YO may have alternative measures available
 Use consensus building and cooperation (ie// plea bargain)
- Role of criminal lawyers has more non-adversarial functions than adversarial.

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

Lawyering Process (1985)
p. 134
- Studies on human psychological experience have been centred on males, and law is
based on male values and behaviours
 Male: rational, objective, abstract, principled. Value hierarchical thinking based
on logic of reasoning from abstract, universal principles
 Women: Irrational, subjective, contextualized, personalized. Moral problems arise
from conflicting responsibilities (rather than competing rights), resolution a mode
of thinking that’s contextual and narrative rather than formal and abstract

- Example of Gilligan, taken from Kohlberg problem, dilemma: Heinz’s wife is dying of
cancer and needs a drug that local pharmacist sells for a price he can’t afford, should he
steal the drug?
 Jake’s response: relies on the “logic of justice”, must balance rights, life is worth
more than property so he should steal it (he scores higher on the test)
 Amy’s response: wants more facts, dig Heinz and druggist explore other options
(loan or credit), could they discuss it so druggist would see importance of wife’s
life? Amy seeks to keep the people engaged, negotiate, find the least harmful
resolution.
 22

 The female perspective (about right to self and others being equally important in
measuring both moral and legal decision-making) largely ignored

- Our system largely based on adversarial method

 Feminine perspective searches outside the system to find a way to solve the
problem and consider both parties; women will try to change rules to
preserve relationships
 Amy sees no reason to act as neutral arbitrator

- Female Ethic of Care:

 Demonstrated by female lawyer (Hilary) in Gilligan’s study – dilemma when
opponent fails to use document that would aid their case and harm hers
 Adversarial system made harm search for truth, and also expression of concern
for other side

- What form of legal system would Amy and Hilary create?

 Mediation and alternative dispute resolution (less harsh win/lose system)
 Including more of the interested parties in the process – and ethic of inclusion

- Women struggle with “macho ethic” in court room, and if they do adapt to it, they are
often perceived as not behaving properly
 Even if women could conform to this, is this the standard we want?
Madam Justice Bertha Wilson, Will Women Judges Really Make a Difference?
p. 139
- criticism of unreal concept of a neutral, unbiased, above politics judge. Justice Rosie
Abella doubts such impartiality is a realistic requirement.

- Some areas of law without a uniquely feminine experience (contracts, property,

corporations) because the principles and premises are so firmly entrenched
- Other areas where legal principles are not fundamentally sound (ie// sexual assault)

- Will appointment of more women make a difference?

 Suzanna Sherry – will serve an educational function to break stereotypes
 Diversity will improve public’s trust of judiciary and it’s ability to be fair,
impartial and representative
 Some say it may impact process of legal decision making itself
 Carol Gilligan – women think differently from men, especially when responding
to moral dilemmas (men see moral problems as coming from competing rights,
women see them coming from competing obligations
 Patricia Cain – wants lawyers who can tell their client’s story and help judges see
them as humans (remove separation)

- Humankind is dual, if we don’t recognize and represent that, we will always default to
the masculine
 23

Aboriginal Peoples and Criminal Justice (Law Reform Commission of Canada,

Report)
p. 143
- Criminal justice system is often negative for Indigenous Peoples (full of white people,
insensitive to their traditions, racist). Often have negative interactions with police, rather
than being a protecting force. Often little or no effort for interpretation in court. Efforts
that have occurred to involved the community in the administration of justice are often
seen as puny and insignificant. Elders view youth as victims of the system.

- Aboriginal Aspirations:
- have a vision of justice sensitive to customs, traditions and beliefs (adapted to modern
society), connected to self-governance and sovereignty (Constitution Act, 1985,
recognizes right to self-government – not open to non-Aboriginal people to say they can’t
control their criminal justice system). Desire for crim justice system designed, run and
populated by Indigenous people.
- Would incorporate respect for Elders and leaders and spirituality, pay homage to
humankind and nature
- Focus of collectivity, a holistic and integrative approach. Focus of mediation and
conciliation while still requiring responsibility on the part of the transgressor
- Ultimate goal of reconciliation, including reintegrating offender into the community
- Challenged civil and common law concepts, varies between communities. It would be a
plurality system, with local customary laws being binding.
- “Give us the keys. Let us control the system. We can hardly do worse that you have”

- s. 718.2(e) CCC – must consider solutions other than incarceration, particularly for
Aboriginal people.

Challenges to a separate justice system for Indigenous peoples: In our criminal justice
system, there’s a strong emphasis on treating offenders the same for the same crime. This
would not be the result with an Aboriginal justice system.
Rupert Ross, Dancing with a Ghost (Exploring Indian Reality)
p. 145
- Rupert Ross was a non-Indigneous assistant Crown attorney in Kenora, worked closely
with Ojibway and Cree peoples
- Witnessed things that surprised him (ie// sex assault victims not wanting to testify)
- Attended Whitedog conference
- At the conference they were asked to role-play informal mediation about a male youth
who broke into and vandalized a community store. In their role-play they:
 Charlie Fisher from Whitedog demonstrated a mediation that would have taken
place in traditional times: Boy, store owner, Elder each, Circle, counselled to rid
of bad feelings. Once spirits cleansed, pike ceremony
- A non-Indigenous person cannot measure an Indigenous person’s actions against the
colonial “norm” and deem them bad, we must recognized their actions are rooted in
different, highly developed, fundamental principles.
- Care is demonstrated by resorting harmony, through giving people absolute freedom
and putting damaging events behind us.
 24

- The Canadian justice system is steered by principles of deterrence and maintaining

separation from others, rather than promoting “cooperative coexistence” and
“interpersonal harmony”
- One Chief stated that the court system takes money and puts indigenous people in jail,
rather than seeking justice. The Canadian justice system needs to change in order for
Bands to view it as having appropriate processes and goals

R. v. R.D.S. (reprehensible bias, black judge and context of racism)

1997, SCC (p. 148)
Facts: Issue:
- R.D.S. (D) black 15 yo, charged after Did trial judge’s comments create a
white police officer arrested him for reasonable apprehension of bias? (Did
interfering with arrest of another youth Sparks rely on stereotype about white
- Was told to shut up or he’d be under police officers being biased, rather than
arrest evidence, to acquit youth?)
- Judge Sparks – trial judge – made Decision:
comments about context of white officers No reasonable apprehension of bias (but
having a racist bias words close to line, worrisome), acquittal
of youth upheld
Ratio:
- Conclusions of fact should never be based
on generalizations, they should always be
based on evidence from the case
(disagreement over appropriateness of
comments) (however in this case, didn’t
cause reasonable apprehension of bias)
- Test for reasonable apprehension of bias –
would a reasonable, informed person aware
of all the circumstances conclude that the
remarks gave rise to a reasonable
apprehension of bias
Analysis:
Cory J (Iacobucci J. concurring):
- Comments were worrisome and close to the line, but acceptable in context (no
reasonable apprehension).
L’Heureus-Dubé J. (McClachlin J. concurring):
- Evidence of overreaction and racial dynamics (ie// choke held both youth, when no real
risk to officer)
- Comments were acceptable, and there was no reasonable apprehension
- Acceptable for trial judge to use lived experience (positive for justice system, can’t
divorce self from life experience)– “contextualized judging” – brought in her knowledge
of the social contect in which the case took place
- Noting officers sometimes overreact to black youth, it was an appropriate excerise
- Judge did not in fact find police officer overreacted, she said he might have.
Gonthier J. (La Forest J Concurring):
- agrees with Dubé’s analysis of the trial judges comments (appropriate) no reasonable
apprehension
 25

Major J. (Lamer C.J. and Sopinka J concurring) (dissenting)

- no evidence officer acted on anti-black bias, trial judge stereotypes police officers and
liars and racist
- Life experience isn’t a substitute for evidence
- Remarks unacceptable, so reasonable apprehension of bias

The Act Requirement

Elements of an Offence
- Elements of an offence = those things that must be proven in order to convict
- In general, Crown must prove all elements of the offence beyond a reasonable doubt to
support conviction (not in reverse onus convictions saved under s. 1 Charter)
- Minimum for criminal offence = Act Element and Fault Element
- Act element ALWAYS in the code, FAULT ELEMENT often only in the common law
External Elements Fault Elements
Act element (actus reus, guilty act) Mental element (mens rea, guilty mind)
 Ie// death threat – speech act  Must prove accuse intended
element to come about (ie// for
murder must prove they intended
murder) // (to be guilty of
possessing cocaine, I must know
it’s coke)
Circumstance elements OR
 Ie// trespassing at night offense
(“loitering or prowling near
someone’s house at night) –
circumstances element is night (not
guilty if it’s day)
Consequence elements Negligence
 Ie// murder consequence must be  If I did something and should have
death (if person lives after I shoot known what might have happened,
them, consequence not there) that would be negligence

Example:
Escape and being at large without excuse
s. 145 (1) Everyone who
(a) escapes from lawful custody, OR
(b) is, before the expiration of a term of imprisonment to which he was sentenced, at
large in or out of Canada without lawful excuse, the proof which lies on him

Act Element: Escaped from prison

Circumstance: Lawful custody
Fault Element: intention to escape from custody
 26

Consent Making Act Lawful

- Consent is not a true defence. However, defence council uses it as argument that
crown has failed to prove non-consent beyond a reasonable doubt.

R. v. Jobidon (when consent is vitiated; consensual fight ending in death)

1991, SCC (p. 205)
- S. 222 of the Code - Unlawful act manslaughter Issue:
- S. 265(1)(a) Code - An assault occurs when, “without the
consent of another person, he applies force intentionally to that - Whether the absence of consent is a
other person, directly or indirectly” material element which must be proved by
- S. 8(3) Code - Common rules and principles continue to apply
unless they’re inconsistent with the code or other Act of Crown in all cases of assault, or whether
parliament there are common law limitations
Facts: restricting or negating the legal
- 2 men in bar fight, stopped by bar owner effectiveness of consent in certain cases?
- Went outside to continue in consensual - Can victim consent to this (if so, not
fight. unlawful act of manslaughter) or is it
- Jobidal (D) punched victim into hood of vitiated?
car, rendered unconscious, hit a further 4-6 Decision:
times (died of contusions) SCC upheld manslaughter
Ratio:
(1) Adults cannot consents to force causing
serious hurt or non-trivial bodily harm to
each other in the course of a fist fight or
brawl
(2) Non-trivial bodily harm is any hurt or
injury to the complainant that interferes
with the health or comfort of the
complainant and that is more than merely
transient or trifling in nature
Analysis:
Gonthier J (La Forest, L’Heureus-Dubé, Cory, and Iacobucci JJ)(majority):
 This is a case of unlawful act manslaughter – in order to be guilty of this, Crown must
prove that accused was guilty of an unlawful act
 Defense argues there is no unlawful act b/c assault requires non-consent, if there is no
assault there is no unlawful act, and thus accused cannot be convicted under unlawful
act of manslaughter
 Difficulty in this case – conflict between common law and statute – statute puts no
limits on requirement of Crown to prove non-consent, implying that consent is always
defense to charge of assault, however c/l places limits on defense of consent to
assault, but we cannot charge someone based on c/l
 J. Gonthier’s argument that consent should be limited rests on 3 pillars (i) there are limits on
statutes that are derived from the c/l where they are not inconsistent with the Code, we can
still look to c/l for guidance as to definition of consent (ii) case law reflects that the c/l puts
some limits on consent (iii) c/l limits on consent are good policy, it is a good idea to say c/l
places limits on kind of assault individuals can consent to
 Policy considerations support the respondent (Crown) – social uselessness of fist fights
 27

(consensual fights may lead to larger brawls and breaches of the peace)
Applying Rule (1) – how and to what extent is consent limited – this rule does not limit
consent entirely, leaves room for consent in sporting events, rules of the game, or medical
treatment/appropriate surgical interventions, the circumstances of the case were beyond
this standard and took place during a fist-fight/brawl, Jobidon’s sole objective was to
strike the deceased as hard as he physically could
Sopinka J. (Stevenson J. concurring):
- majority view creates a C/L offence
- no evidence s. 265 intended to outlaw consensual fighting, policy of s. 256 only
intended to make absence of consent a requirement
 Role of judge should be to evaluate consent to determine if it applied, more
serious offense = more serious establishment of consent
- AG’s Ref moulded CL with court’s view of best interest
- Cannot consent when unconscious, so still reaches same conclusion about upholding
conviction

R. v. Moquin (bodily harm lower standard than serious bodily harm )

2010, Man. C.A. (p. 218)
- S. 267 – bodily harm (hurt/injury that interferes Issue:
with health or comfort of complainant and is more What is meant by the phrase bodily harm?
than merely transient or trifling in nature)
- S.268 – aggravated assault (wounding, disfiguring,
Decision:
or endangering life of the complainant) HIGHEST N/A
Facts: Ratio:
Looks at the Dickson case in order to (1) To constitute “bodily harm”, an injury
determine what is meant by the phrase does not have to meet the standard of
“bodily harm” “interferes in a grave or substantial way
with the physical integrity or well-being of
the complainant”, that being the standard
for serious bodily harm, which is a higher
standard than bodily harm. It must interfere
w/ the comfort of the victim
Analysis:
Beard JA:
- Dixon (Esson J.A.) on bodily harm– interference with health not required, interference
with comfort enough. No connection between duration of injury and whether it’s trifling.
Transient relates to context, not simply time.
- McCraw (SCC) on serious bodily harm – hurt/injury that interferes in grave/substantial
way with integrity or well-being of complainant. Does not require proof as in aggravated
assault (s. 268) but more than bodily harm (s. 267)
- Situations that have met threshold of bodily harm:
 Serious bruising or abrasions

Consent Vitiated by Fraud

R. v. Cuerrier (when fraud vitiates consent)
1998, SCC (p. 221)
 28

- s. 265(3)(c) = no consent is obtained Issue:

where the complainant submits or does not - Did his non-disclosure of being HIV
resist by reason of fraud (and other reasons, positive vitiate the consent on the
ie// force) complainants?
- s. 268 = aggravated assault Decision:
Facts: Unanimous in allowing appeal and
- Accused charged with two counts ordering new trial
aggravated assault s. 268
- Had tested positive for HIV, instructed by Ratio:
nurse to use condoms and inform Fraud Deprivation Test:
prospective partners (1) The essential elements of fraud are
- Had unprotected sex with 2 complainants dishonesty, which can include non-
without informing disclosure of important acts, and
- Complainants wouldn’t have consented if deprivation or risk of deprivation
they knew he was HIV positive (they did Vitiate Consent Test:
not become positive) (2) Fraud should not vitiate consent unless
there is a significant risk of serious harm.
Analysis:
Cory J. (Major, Bastarache, Binnie JJ concurring):
Ratio: fraud can vitiate consent when it is dishonesty that exposes the person consenting
to a “significant risk of serious bodily harm”
- s. 265(3)(c) no limitations on word fraud. Two essential elements of fraud are (1)
dishonesty (which can include non-disclosure of important facts or lying) and deprivation
(complainant wouldn’t have consented if she knew) (or risk thereof)
Applying Fraud to s. 265
- Due to deadly consequences of not disclosing HIV, court should take a broad view of
fraud vitiating consent – significant risk of serious bodily harm is required though (higher
duty of disclosure because of potentially deadly consequences)
L’Heureux-Dubé J.:
- Ratio: fraud vitiates consent where the “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:
- interpretation of fraud (in sexual assault context) that requires “significant risk of bodily
harm” is unjustifiably restrictive
- Above colleagues overstated trivial conduct that could be convicted, all should be
decided on a case by case basis
- Whenever fraud is reason for consent, it should be vitiated (fraud when person doesn’t
get free will to make choice about consent if they had that information) (de minimus
principle could be applied, law doesn’t concern itself with trifles)
McLachlin J. (Gonthier J. concurring):
- Ratio: fraud vitiates consent in cases of “deception as to the presence of a sexually
transmitted disease giving rise to a serious risk or probability of infecting the
complainant”
- Current law doesn’t reflect values of Canadian society, this represents incremental law
change
- Speaks specifically about STIs, saying fraud vitiates consent when it deceives about
 29

STI.
Professor/Class:
In 1970’s consent only vitiated by fraud based on:
1) Nature/quality of act (ie// a doctor pretended he was going to do a medical procedure,
but it was actually a sexual act. If you are aware it is sexual, than it’s not fraud)
2) Identity of sexual partner
- Dubé’s judgement most consistent with overall direction of change in area of the law
related to sexual assault

R. v. Mabior (what constitutes significant/serious risk of bodily harm; HIV)

2012, SCC (p. 227)
- S. 265(c)(3) Issue:
- s. 273 aggravated sexual assault When do sexual relations with an HIV-
Facts: positive person pose a “significant risk of
- Accused charged with aggravated sexual bodily harm”?
assault in relation to 9 complainants Decision:
- Accused tested positive for HIV, received Court concluded convictions relating to
anti-retroviral drugs, which reduced viral three complainants (in which viral count
load to a low level low but not condom) should be restored.
- Engaged in sexual acts with 9 One, where condom used and viral count
complainants without telling them HIV low, no conviction
status (6 unprotected, 3 protected) Ratio:
- Complainants would not have consented - Person may be found guilty of aggravated
if aware of status sexual assault if he fails to disclose HIV-
positive status before intercourse and there
is a realistic possibility of HIV
transmission
THRESHHOLD of a realistic possibility
of HIV transmission, which could cause
serious bodily harm. Person with (1) low
viral load AND (2) condom use, it cannot
be called a realistic possibility of
transmission and there for not a risk for
serious bodily harm.
Analysis:
McLachlin C.J.C. (for the court):
- Cuerrier test– fraud under s. 265(3)(c) – a dishonest act and deprivation (denying
complainant knowledge which would have cause refusal)
 criticisms of Cuerrir test doesn’t draw a clear line between criminal and non-criminal
conduct (uncertainty) and breadth
- Fraud vitiating consent in sexual relations has 4 considerations:
1. Purposes of the criminal law – requires guilty act and mind
2. Common Law and statutory History – 3 periods. EARLY, fraud was deception as
to nature of sexual act or identity of perpetrator. CLARENCE, cannot be victim if
you consented to sexual activity. POST-CLARENCE values of equality,
autonomy, liberty, privacy and human dignity
 30

3. Charter Values – Charter values always relevant when interpreting disputed

provision in Code. View of respect for autonomy, equality, freedom. Sexual
assault denies victims dignity as a human being
4. The Experience of Other Common Law Jurisdictions:
 Common law jurisdictions criminalize sexual transmission (not risk) when HIV-
positive person aware of status and no informed consent as offence involving
bodily harm (not sexual offense)
 Risk of transmission, but not actual transmission, not criminalized in many
jurisdictions
- Possible solutions to Cuerrir problems
 Uncertainty:
o “Active Misrepresentation Approach” – only clear lie to clear question is
criminal (rejected)
o “Absolute Disclosure Approach” –(rejected)
o “Case-by-Case Approach” – (rejected)

Evolving Common Law Approach

- When to sexual relations with HIV-positive people pose a significant risk of serious
bodily harm? Realistic possibility of transmission is negated if a) accused’s viral load at
time was low, AND b) condom protection was used

R. v. Hutchinson (consent to quality/condition of sex; condom holes)

2014, SCC (p. 238)
s. 265(3) Issue:
S. 273 – Agg sexual assault All judges agreed he was guilty of sexual
Facts: assault, but how to get to this result? Two
- Complainant agreed to sexual activity options: 1) Has she consented at all?
with condom for conception, accused 2) Had complainant’s consent been vitiated
poked holes and she became pregnant by fraud?
- Had an abortion and suffered Decision:
complications New trial
- Charged with aggravated sexual assault Ratio:
- A person may not consent to a sexual act
if there is fraud in relation to quality or
condition of the physical act.
- Agreement to sexual activity in s. 273 is
different than consent to force in s. 265(3).
Can consent to sex, but if there’s serious
risk of bodily harm it’s vitiated
Analysis:
McLachlin C.J.C. and Cromwell J. (for the majority):
- Consent refers to the physical act to itself, and there’s consent if the complainant agrees
to that sexual activity.
- Majority of the court DOES NOT agree that the quality of the sexual act goes to
consent. This case turns on DEPRIVATION.
- Which approach to take depends on:
 31

1. Wording, scheme and object of the provisions of the Code –

2. Jurisprudence and Common Law - Ceurrier and Mabior – consent vitiated by
fraud when deception and deprivation, s, 273.1(1) (did not use Ceurrier test as not
applying the serious risk for bodily harm test, said that will only be used for
STI’s. Found something equally as serious/depriving)
3. Objectives of the Criminal Law – complainant determines “essential features” of
the sexual activity and it varies person to person, for complainant it was
contraception
Correction Approach:
- s. 273.1(1) – to refer simply to the physical sex act itself, complainant must agree to the
specific sex act or no consent
- Deceptions about conditions or qualities of the physical act may vitiate consent under s.
265(3)(c) if elements of fraud are met
- Dishonesty was evident and admitted
- Deprived of choice whether to become pregnant – s. 265(3)(c) risk of pregnancy equal
to “significant risk of serious bodily harm”, vitiating consent
Minority of SCC:
- Consent includes consent to how the activity takes place (including condom use)
- We’ve passed this. Now there is NO consent…???

Omissions
Legal Duties Found in Criminal Code
(p. 255)
There is a general c/l principle that criminal responsibility for omissions is limited to cases
where there is a legal responsibility, rather than a moral responsibility to act
S. 215 (1) Everyone is under a legal duty
(a) as a parent, foster parent, guardian or head of a family, to provide necessaries of life for a child under the age
of 16 years;
(b) to provide necessaries of life to their spouse or common-law partner; AND
(c) to provide necessaries of life to a person under his charge is that person
(i) is unable, by reason of detention, age, illness, mental disorder or other causes, to withdraw himself
from that charge, AND
(ii) is unable to provide himself with necessaries of life
S. 216 Everyone who undertakes to administer surgical or medical treatment to another person or do any other
lawful act that may endanger the life of another person is, except in cases of necessity, under a legal duty to have
and to use reasonable knowledge, skill and care in so doing.
S. 217 Everyone who undertakes to do an act is under a legal duty to do it if an omission to do the act is or may
be dangerous to life
S. 217(1) Every one who undertakes, or has the authority, to direct how another person does work or performs
a task is under a legal duty to take reasonable steps to prevent bodily harm to that person, or any other person,
arising from that work or task

De minimis non curat lex

The law does not concern itself with trifles
Buch v. Amory Mortgage Co. (1898) – p. 249
- Law doesn’t deal with purely moral obligations, such as being a good Samaritan. Person
who sees baby on railroad and could rescue it safely, not required. Someone not liable for
 32

a child’s injury, or indictable under the statute for its death. Common law takes position
we don’t have a legal duty to act even if it wouldn’t cause us any harm/trouble.
H.R.S. Ryan, Criminal Responsibility for Omissions (1967)
- One judges argument: - If you can do it with no expense (ie// time, physical, financial,
etc) to yourself, you have a duty to save someone else from harm.
- Other judge: Difficult if not impossible to define conditions and limitations of guilt
(scope). Omissions should be made illegal if it has caused and been intended to cause
harm or was known to be likely to cause harm or was on other grounds illegal. Any
further duty to act must be moral and not legal. It would be a heavy duty to place on
citizens, with so many people in need.
Dufraimont: Not totally unmanageable to define or limit scope, we define difficult things
all the time. Might be reasonable to go pick up the child on the tracks.
- Quebec Charter an penal code impose duty to offer assistance to a person in need. In
civil law traditions there is a general duty to rescue.
O.W. Holmes, the Common Law (1963)
- Once someone intermeddles they no longer have the freedom to withdraw at will

Fagan v. Commissioner of Metropolitan Police (simultaneity of act and fault)

1968, C.A. (p. 252)
Facts: Issue:
- Vincent Martel Fagan (D) accused of Was it an assault? Was act of Fagan
assaulting police constable David Morris complete and spent when the wheel rest on
(P) the officer’s foot, or is it regarded as
- Fagan reversed car, Morris told him to continuing until the wheel was removed?
drive forward. When Fagan stopped car too (Was there is simultaneity between the act
far, he asked Fagan to move forward and fault?)
- Drove forward onto Morris’ foot: Decision:
Morris: “get off my foot”; F: “fuck you, Conviction upheld, appeal dismissed
you can wait” Ratio:
- Engine stopped running, M: “get off my - To constitute offense of assault some
foot”; F: “okay man, okay” intentional act must have been performed: a
- Fagan slowly turned on ignition and mere omission to act cannot amount to an
reversed assault. (Assault cannot be done by
- Uncertain if Fagan turned off ignition to omission).
stop engine or if he turned it off after
engine had stopped running
- Court unable to discover whether it was
an accident or not, so had to conclude it
was an accident he got on the foot
Analysis:
Lord Parker C.J.:
- For assault, action and intention must be present
- Conduct was not mere omission, the battery became criminal when the intention was
formed, by failing to assist the officer with the intent a victim should offer. It was a
continuing act, the same as accidentally stepping on someone’s foot then leaving your
 33

weight on the foot. The act continued until he got off the foot, that’s how the act and fault
occurred together.
Bridge J. (dissent): unable to find assault. After the wheel rested on the foot, he did
nothing to constitute assault. Fagan’s fault was he omitted to manipulate the controls and
move the vehicle.

R. v. Miller (duty to act arising from creation of dangerous chain of events)

1983, HL
Facts: Issue:
- Accused went out, drank alcohol. Came Was there actus reus for the offence of
home to squat house, lying on mattress and arson when he accidentally started the fire
lit cigarette. Fell asleep, woke up to and failed to attempt to put it out?
mattress on fire, went to next room and Decision:
slept again. Said he had nothing to put it Arson conviction upheld
out so left it. Ratio:
- Seems like an omission (didn’t try to put Where someone unwittingly starts a chain
out fire, or call fire department). But, those reaction that presents an obvious danger (to
are acts. His act was done unknowingly property), a legal duty exists to address the
(did mean to light fire), but then knowingly chain of events
left the fire.
Analysis:
- One way to analyse: it was a continuing act, on which fault was super-imposed.
- Duty theory easier to explain to jury, so use second way to analyse:
 Miller started the fire, so he was liable to put it out. Liability for an omission
(legal duty imposed by c/l)
- In this case, duty would have been fulfilled by calling fire department.

- Unclear to what extent it’s binding in Canada, but since it’s a classic c/l case it probably
does hold

Moore v. R. (reciprocal duty, failure to disclose info to police)

1979, SCC (p. 258)
- S. 129(b) Issue:
Resists/wilfully obstructs police officer Did accused have a legal obligation to
Facts: disclose his name/address?
Richard Harvey Moore (D) proceeded Decision:
through a red light (provincial traffic Guilty of obstructing justice (case known
offence) on a ten-speed bicycle as being decided wrong)
- Constable Sutherland observed this, went Ratio:
to “ticket” Moore who rode on the DISSENT: A person isn’t guilty of the
sidewalk. Sutherland requested he pull over offence of obstructing a police officer
and stop, Moore demanded to be left alone merely by doing nothing, unless there’s a
and cursed legal duty to act. Omission is a criminal
- Refused to give his name and address liable only where a duty arises by statute
- Charged with obstructing a police officer or common law.
in performance of duty for failure to give (Although this is in dissent this statement
his name of law has widely been accepted as being
 34

an accurate statement of law in Canada)

Analysis:
Dickson J. (Estey J.) (dissenting): This is a very influential dissent
- Explicit statutory provisions may impose a duty upon a person to ID themselves to
police in certain situations, in this appeal though asking the court to impose such a duty
with no statute. Cannot impose a duty based on someone else’s duty.
- While he’s guilty of running red light, obstruction is a serious criminal offence, concern
that this is a big leap
- Common law rule you don’t have to assist police, unless you’re arrested or there’s a
legal duty (ie.. if he’d been in a vehicle)
Spence J. (Martland, Ritchie, Pigeon, Beetz J.J. concurring):
- Officer was under a duty (to enforce the law) and to attempt to ID the wrongdoer and
failure to do so constituted an obstruction
- Moore ran a red light, limited to when officer sees offence
- Reciprocal duty analysis
- Moore was not driving a motor vehicle, so could not be charged under the Motor
Vehicle Act
- This argument is widely recognized as problematic and wrong. This case is widely
viewed as being decided wrong

- No common law duty

o Rice v. Connolly (1966), based on common law individual has right to refuse
to answer questions posed by persons in authority
o Different from deliberately telling a false story (which could be charged)
o Ingleton v. Dibble (1972), refusal to act cannot be obstruction unless law
imposes obligation

- Implied or Reciprocal Duty

 Duty on constables to investigate, implied/reciprocal duty upon suspect to
respond with name/address, limited obligation only when officer witnesses
offence. Unsound in principle and unworkable in practice, one persons duty
doesn’t infer one on another
 Legislature deliberately imposed duty for motor-vehicles and not for others

R. v. Thornton (duty arising from C/L)

1991, Ont. C.A. (p. 266)
- s. 180(2) code – everyone who does an unlawful act or Issue:
fails to discharge a legal duty [omission] and thereby
endangers lives, safety or health of the public - Can legal duty arising from s. 180 arise
- s. 216 code – everyone to undertakes to administer from common law?
surgical or medical treatment to another person or to do - Was he under a legal duty to refrain from
any other act that may endanger the life of another person
is, except in cases of necessity, under a legal duty to have donating contaminated blood?
and to use reasonable knowledge, skill and care in doing Decision:
so. Guilty, maximum sentence not imposed
Facts: due to good record and not in category of
- Accused donated blood to Red Cross, worst offender.
aware he was HIV positive Ratio:
 35

- Red Cross detected contaminated blood, - Donation of blood classified as medical

set aside treatment, s. 216 imposes a duty of care on
- Accused with nuisance contrary to s. 180 those doing a lawful act which endangers
other’s lives
(1) The “legal duty” referred to in s. 180(2)
of the CC is a duty which is imposed by
statute OR which arises at common-law –
the c/l duty to refrain from conduct
where it is reasonably foreseeable that it
could cause serious harm is “legal duty”
under s. 180(2)
Analysis:
Galligan J.A. (Brooke/Doherty JJ. A. Concurring):
- not an unlawful act found in code, nor legal duty to refrain from donating contaminated
blood (this is reason why it’s being analyzed as an omission, because it’s not an unlawful
act)
- R. v. Coyne (1958) – duty imposed by law may arise from common law or statute
- Tort law authorities: Donoghue v. Stevenson (1932) – common law duty to refrain from
conduct which reasonably foreseeably could cause serious harm, “legal duty” within
meaning of s. 180(2) (AKA negligence duty of care)
- S. 216 – statutory duty not to harm others in a medical duty
- Donating blood for transfusion would fall within this
Professor/Class:
*** BE CAREFUL APPLYING THIS CASE, IT IS UNSETTLED SEEING AS
SCC HAD DIFFERENT FINDING
- Odd, mixes up criminal law and tort law

Thornton v. R. (SCC’s interpretation of duties imposed by s. 216 CC)

1993, SCC (p. 270)
Facts: Issue:
- Same as above Does the accused’s conduct amount to an
offense under the law?
Decision:
Appeal dismissed
Ratio:
(1) A wide measure of criminal
responsibility for omissions can be read
under s. 216
Analysis:
Lamer J:
Instead of looking at s. 180 the SCC looks at s. 216 (reads literally) and says that it
imposes upon the accused a duty of care in giving his blood to the Red Cross. The duty of
care was breached by endangering other people’s lives - by not disclosing that his blood
contained HIV antibodies. This common nuisance obviously endangered the life, safety
and health of the public.
 36

Note that issuing of c/l duties being a component of s. 180 is not addressed in this
case and therefore it still stands

R. v. Browne (leading case on undertaking; drug OD)

1997, SCC (p. 270)
- On exam, Brown wouldn’t exist without s. 217 (duty to follow through with
undertakings). On exam, start by telling what potential duty is under the code, then
continue to tell her about the cases
s. 217 Every one who undertakes to do an act is Issue:
under a legal duty to do it if an omission to do the Did the accused owe a duty of care to the
act is or may be dangerous to life.
s. 219 – criminal negligence
deceased? Did he fail to perform this duty?
Facts: Does the nature of their relationship impact
- Accused (Brown) and deceased (Audrey the duty owed?
Grenier) partners in drug dealing Decision:
- Deceased swallowed bag of crack cocaine Acquittal
to avoid detection. Unable to vomit it up Ratio:
later (1) The threshold definition of
- Accused found her shaking/sweating, said “undertaking” must be sufficiently high to
“I’m going to take you to the hospital”, justify serious penal consequences
called a cab (10 mins to arrive, 15 mins to (2) The mere expression of words
hospital). Brown and his brother helped indicating a willingness to do an act cannot
carry her to taxi trigger a legal duty. An “undertaking”
- Pronounced dead shortly after arrival requires something in the nature of a
- He was charged with criminal negligence commitment, generally, though not
causing death necessarily, upon which reliance can
reasonably be said to have been placed.
Nothing short of a binding commitment
can give rise to a legal duty.
Application:
Abella J.A. (Catzman/Labrosse JJ.A. concurring):
- Must be an undertaking established before legal duty is introduced
- Undertaking must be interpreted with high threshold (due to maximum life
imprisonment), nothing short of binding commitment gives rise to legal duty
- Legal duty didn’t flow from their relationship (partners in drug dealing don’t have a
legal duty)
- no binding undertaking – no evidence it was life threatening until when he called a taxi
- An undertaking needs to be something in the nature of a commitment, and might
include reliance (reliance = someone might not do something, because they’ve relied on
someone else to do it. Ie// Grenier in grave distress, if someone else was there and Brown
said he’d call the police, but didn’t, other person changed what they would have done and
gone to find help). NO RELIANCE here, she didn’t change her behaviour based on
reliance on him, since she was already overdosing and unable
- “I’ll take you” doesn’t constitute an undertaking
- No evidence calling 911 would have been faster or saved her life
- Since no 217 undertaking, no 219 charge
 37

R. v. Peterson (Leading Case on Duty for a Person Under Charge)

2005, SCC (p. 273)
S. 215 code:
1) every one is under legal duty
(c) to provide necessaries of life to a person under his charge if that person
(i) is unable, by any reason of detention, age, illness, mental disorder or other cause, to withdraw himself from that
charge
(ii) is unable to provide himself with necessaries of life

2) everyone commits an offence who, being under a legal duty within the meaning of subsection (1), fails without
lawful excuse, the proof of which lies upon him, to perform that duty, if
(b) with respect to a duty imposed by paragraph (1)(c), the failure to perform the duty endangers the life of the person
to whom the duty is owed or causes or is likely to cause the health of that person to be injured permanently

(3) Everyone who commits an offence under subsection (2) is guilty of

(a) and indictable offence and is liable to imprisonment for a term not exceeding two years; OR
(b) an offence punishable on summary conviction
Facts: Issue:
- S. 215(1)(c) of CC imposes legal duty, Was the father “under the charge” of the
failure to act under this legal duty is a son, making the son liable for failing to
criminal offense perform his duty to provide care under s.
215?
- Arnold (father) and Dennis (son) lived on
different floors of the same house Decision:
- Arnold had Alzheimer’s dementia, living Conviction upheld
in unhealthy conditions, forgot to eat,
bathe, incontinent Ratio:
- However, Arnold was also very energetic, (1) Liability can be imposed on an
he did odd jobs around the neighbourhood objective basis – marked departure from
reasonable SoC, objectively foreseeable
would go for walks
that failure to provide necessaries
- Dennis rarely gave Arnold food, would risk/endanger life/health
never call community agencies to help (2) Test to determine whether one is
Arnold under another’s charge – (i) is under it
- Finally, after an incident a police officer (control by one) (ii) is unable to withdraw
had Arnold committed to nursing home himself from that charge (dependence by
- Dennis charged under s. 215 other) (iii) is unable to provide
himself/herself w/ necessaries (food
shelter, care, medical attention, protection
from personal harm) of life
Analysis:
Weiler J.A. (Armstrong J.A. concurring):
- s. 215(1)(c) not limited to relationships of child/partner etc.
- Inability of victim to appreciate his/her need for necessaries and their unwillingness to
cooperate is not a defence for an accused charged with failure to provide
- Meaning of ‘under charge’ (amount of dependency and control): familial
relationship and awareness of father’s dependency; Dennis controlled his living
conditions, in an unsafe environment; Dennis had control over his personal care and was
entrusted to make decisions both legally and publicly (power of attorney, and public
acknowledged because neighbours would return Arnold to his house and he would take
 38

him in); Dennis made aware of community services but took no steps; Arnold was
incapable to withdraw himself from Dennis’ charge
- Linda’s evidence was not contradicting to evidence Dennis failed to provide necessities,
as she hadn’t been to house in 6 months
- Arnold had a mental disability that prevented him to exercise sound judgement and is
not a defence for Dennis
Borins J.A. (dissenting in part):
- Agrees with reasoning of majority, but says: contemporary legislation is required to
address parent/child role reversal, percentage of elderly growing rapidly. No such statute
to clearly refine what constitutes criminal neglect or penal neglect for elderly parents. US
has enacted laws regarding elder abuse and care
- “person under charge” language was develop decades ago, intended for children or
adults with developmental disabilities. Need language for elderly care.

Voluntariness
- Automatism – unconscious (or impaired consciousness), involuntary behaviour/act
 Defence entitles complete and unqualified acquittal
 Crown bears burden of proving voluntary act
 Subset of voluntariness requirement, rather than consciousness. Person doesn’t
need to literally be unconscious for it to be involuntary
 Leading cases: Rabey (disassociated state – no act is a criminal offence unless it is
done voluntarily), Parks (sleepwalking)
 Must be willing mind able to make a choice
 Defence of automatism  person in altered state of consciousness and the action
they’re doing looks like they’re doing it, but because of their altered state they’re
not actually in control (ie.. a sleepwalker makes a sandwich and it looks like
they’re conscious, but it’s actually their “sleeping mind” doing those acts)

- Basic principle = act only capable of being criminal if it’s done voluntarily
 If crown fails to prove act was voluntary, they have failed to prove act
requirement of offence
 Act requirement more important that moral blameworthiness or fault

King (no actus reus without willing mind)

[1962, SCC]
p. 287
Ratio: (1) There can be no actus reus unless it is the result of a willing mind at liberty to make
a definite choice or decision

Rabey v. R. (involuntary = acquittal)

[1980, SCC] p. 287
Ratio: (1) A defense that the act is involuntary entitles the accused to a complete and
unqualified acquittal

R. v. Parks (defence of automatism)

[1992, SCC] p. 288
 39

Ratio: Automatism is a defence to murder – subset of voluntariness requirement

which is part of actus reus

R. v. Stone (test for automatism)

[1999, SCC] p. 288
Facts: Stone berated by his wife in car, he blacked out and stabbed her 47 times, claimed
it was automatism
Issue: Should the defense of non-insane automatism have been left to the jury?
Decision: guilty
Ratio/test:
(1) Test for automatism – (i) Accused must establish a proper basis using expert evidence
for the defense of automatism on a balance of probabilities (this shifts onus but is saved
by s. 1 of Charter as voluntariness is presumed) and (ii) The judge must then decide
whether this is a disease of the mind, in which case a special verdict will be entered under
s. 16, and if not question must be posed to jury as to whether the accused acted
voluntarily

Examples not related to mental disorder

R. v. Lucki (involuntary car accident, voluntariness as essential part of act requirement)

1995, Sask. Pol. Ct. (p. 293)
Motor Vehicles Act Issue:
Facts: - Is the accused guilty of an offence
- D making right turn (driving slow) hit committed by an involuntary act?
black ice and slid into left lane - Is men rea required for this offence?
- Collided with another car Decision:
- Act was involuntary
Ratio:
Voluntariness is an essential component of
actus reus
Analysis:
- Act was involuntary and mens rea is required
Professor/Class:
Mistake in reasoning in this case: voluntariness requirement internal to act requirement,
should have said since act was involuntary, should have just said there was no act (mens
rea not relevant)

R. v. Wolfe (reflex actions involuntary, no intent)

1975, Oct. C.A. (p. 294)
Facts: Issue:
- Appellant called police on complainant Can someone be guilty of assault if act was
(who was in hotel he was banned from), a reflex?
complainant punched appellant Decision:
- Appellant, out of reflex, hit complainant No, appeal allowed and conviction set
on head with phone and caused injury aside
Ratio:
 40

Reflex actions are involuntary – intent is a

necessary ingredient in an assault causing
bodily harm, a reflex reaction negates
intent component of assault
Analysis:
- The appeal court ruled the actions were involuntary b/c it was a reflex to the punch,
there was no intent and thus the action was not voluntary (overrules trial court, since it
was a reflex there was not act)

R. v. Swaby (requisite knowledge to satisfy act element; in vehicle with unregistered gun)
2001, Ont. C.A. (p. 295)
- s. 91(3) Everyone who is an occupant of a motor Issue:
vehicle in which he knows there is a restricted Did the accused have the requisite
weapon is (. . . unless permit . . . ) guilty of . . .
knowledge to satisfy the act element?
Facts:
Decision:
- Police following car on confidential tip
Appeal allowed
- Car stopped J ran to kachyard, both men
Ratio:
arrested
(1) The Crown must prove (i) occupancy in
- Police found unregistered, restricted
the vehicle and (ii) accused’s knowledge of
handgun in backyard
the weapon
- Accused convicted of being occupant in
(2) Voluntariness requires reasonable
vehicle knowing of weapon (says he only
opportunity to make choice (ie// time to get
learned of gun after arrest, belonged to J)
out of car, kick Jay out, etc)
Analysis:
- Coincidence of occupancy and knowledge must be voluntary conduct
- Cannot be criminally liable immediately upon learning of gun. If driver acts must have
reasonable opportunity to get gun/self out of vehicle, otherwise there’s not voluntary act
Dissent:
- don’t think trial judge erred by answering jury’s questions with evidence they had.
Dufraimont agrees with dissent. On the evidence there was no concern that SWABY
didn’t know about the gun.

R. v. Ryan (involuntarily fired gun; created dangerous condition)

1967, Aus. H.C. (p. 297)
Facts: Issue:
- Accused robbed service station emulating Was D guilty of murder? Can he fulfill act
the plot in a book requirement if firing of gun was
- Tied attendant’s hands behind back, when involuntary?
attendant moved Ryan reflexively squeezed Decision:
trigger and gun accidentally discharged and Conviction upheld
killed attendant Ratio:
(1) If the consequences of one’s
(unintentional) actions are reasonable and
foreseeable, their actions are considered
voluntary (ratio not applicable in Canada)
Analysis:
- No requirement to consider if it was voluntary.
 41

- Result of chain of complex acts done by accused; he put himself in the situation of
having finger on a loaded gun levelled at someone’s head. All acts were voluntary (until
maybe reflex)
- Consequence was probable and foreseeable (Dufraimont does not think something
being “foreseeable” is the test for it to be voluntary)
Professor/Class:
** Use case as a “problem” not for specific analysis
- Dufraimont said even if it was a defective firearm that randomly went off (and Ryan
never squeezed trigger), acts leading up to it could still be seen as an act causing murder

Kilbride v. Lake (involuntary omission; parking pass blew away)

1962, NZ (. 299)
Facts: Issue:
- D parked car Can accused be shown to be responsible for
- Traffic offence notice for not having physical ingredient of offence?
“current warrant of fitness” displayed Decision:
- warrant was in place when he parked, Appeal allowed (on previous conviction)
disappeared without his knowledge Ratio:
Person cannot be criminally responsible
unless there is opportunity for choice
Analysis:
- Crown argues this is case of strict liability, mens rea not required
- Judge says: person cannot be guilty unless they commit overt act prohibited by the law
(so discussion of mens rea in this case is premature) (if involuntary, no fault element)
- cannot be criminally responsible for act/omission unless it’s done/omitted and there’s
possibility to amend it
- Physical ingredient not proved (no opinion on the mens rea)

Voluntariness Summary
 Part of actus reus than mens rea – involuntary conduct (volition) vs. mere lack
of knowledge of circumstances or foresight of consequences
 Involuntariness not involving mental disorder
o Out of Control: Driving on wrong side of road because slipped
(involuntary act)  (R. v. Lucki) (1995, SK)
o Reflexes: Owner of hotel punches man as reaction to assault (involuntary
act)  (R. v. Wolfe) (
o Reasonable Time to Act: In crimes that require “knowledge” of
something, the person must be given reasonable time to act accordingly to
discharge himself of the situation. (R. v. Swaby  driving in car with gun,
found out while driving)
o Requires Choice: Person cannot be criminally responsible for
act/omission unless there is opportunity for choice. (Kilbride v. Lake 
vehicle warrant blew away once parked)
 Exceptions (R v. Ryan)
 42

o Creating a Dangerous Situation: If the individual has put themselves in

a situation where the consequence is probable and foreseeable, this should
be sufficient for volition. (R. v. Ryan, AUS novel reader, shot shop
owner by “twitch”)

Causation
- Causation NOT an issue in all offences, but when it is: actus reus requires causing
certain consequences (ie.. all homicides, causing bodily harm, death by criminal
negligence, arson)
2 types of causation:
- Factual causation physical/mechanical cause of death
- Legal causation whether the illegal act is closely enough connected w/ the prohibited
consequence that we will recognize causation in the law, we can use the “but for” test to
determine legal causation

- Seriousness of consequences related to seriousness of offence (ie.. you fire a gun into
air [same action/level of danger] bullet hits and injures one person but hits and kills
another. Punish person more severely for the more serious consequence, ie.. murder, even
if action has same level of moral blameworthiness)

Smithers v. R. (Smithers test; leading case on causation; fighter after hockey game, murder)
1978, SCC (p. 306)
Facts: Smithers Test - action only has to be a
- Hockey game, deceased (Barrie Cobby, contributing cause of death outside the de
16) making racial insults to Smithers (D, minimis range
black) on opposite teams Issue:
- both ejected from the game - Was the kick a sufficient cause of death to
- D making threats to Cobby to fight after attract criminal liability?
game outside. Cobby refused - Was the jury properly instructed in having
- D followed and punched him, then kicked to find that the kick caused the death?
stomach area while doubled over from Decision:
punches Appeal dismissed, conviction upheld
- Fell to ground, stopped breathing and Ratio:
died (1) The “thin skull” rule applies – one must
- Autopsy, death due to aspiration of take their victim as they find them
foreign materials present from vomiting (2) An action only has to be an operating
(rare/unusually cause of death for sober clause outside the de minimis range in
person) order to be deemed the cause of a
prohibited result in criminal law – to cause
death in the criminal law in Canada
requires a contributing cause of death
outside the de minimis range
Analysis:
Dickson J.:
- Ignore what court has to say about foreseeability, as it changes in later cases
- Expert witnesses (medical experts said kick prob. caused vomiting and make aspiration
 43

of vomit more likely) and lay witnesses (bystanders say Cobby was immediately
distressed and died after kick)
- entitled to look at all evidence, expert and lay, and accept or reject any
- TEST:
1. Substantial expert and lay evidence proving kick was at least a contributing cause
of death (not only factor), outside the de minimis range.
- Standard for causation low
- So what is the significance of malfunctioning epiglottis – it is the only factor that can break
the chain of causation, sometimes we might say the chain is broken by an intervening act, but J.
Dickson says it doesn’t matter b/c there was also an illegal act which was outside the de
minimis range that contributed to the death (kick doesn’t need to be ONLY factor contributing
to death)
- Dickson says that the kick only had to cause the vomiting, which then caused death as a result of
malfunction of epiglottis – this is the application of the “thin skull rule”
- Death may have been unexpected and unforeseen – but that does not relieve appellant,
Crown argued successfully that the action was outside the de minimis range
- Person committing assault must take victim as he finds him (R. v. Blaue died because
wouldn’t accept blood transfusion on religious grounds ) (R. v. Nicholson “thin skulled
man”)
Professor/Class:
- Criminal law is harsh which is a function of the causation being low. This was a freak
incident; normal person would not have died. It is addressed in SENTENCING, will
likely have a lower sentence in such a case.

R. v. Harbottle [substantial cause test for s. 231(5)]

1993, SCC (p. 313)
s. 214(5) (1st degree murder. Now s. 231(5)): Substantial cause test for 1st degree
- Elevates crime from 2nd to 1st degree murder – Issue:
Cause must be higher than Smithers contributing
cause test
Was the accused’s participation (holding
- Must demonstrate substantial and high degree of down legs) such that he could be found
st
blame (above and beyond murder) to be 1 degree guilty of first degree murder pursuant to s.
Facts: 214(5)?
- D and companion confined young woman Decision:
(P) Conviction upheld
- Companion sexually assaulted P, D Ratio:
watched and discussed ways of killing her Substantial cause test  someone must
- D held down her legs while other participate in 1st degree murder in a
strangled her substantial and integral manner
Analysis:
Cory J.:
Substantial Cause Test (substantial and integral cause of death):
- crown must show substantial and high degree of blameworthiness, above and beyond
that of murder, must be established in order to convict an accused of first degree murder
(2) Substantial Cause Test – To cause death of person within meaning of s. 231(5) the
accused’s acts must be a substantial and integral cause of death. Usually involves
physical involvement.
- An accused may be found guilty of first degree murder pursuant to s. 231(5) if the
 44

Crown establishes that:

(i) the accused was guilty of the underlying crime of domination of attempting to commit that crime
(ii) the accused was guilty of the murder of the victim
(iii) the accused participated in the murder in such a manner that he was a substantial cause of the
death of the victim
(iv) there was no intervening act of another which resulted in the accused no longer being substantially
connected to the death of the victim; and
(v) the crimes of domination and murder were part of the same transaction; that is to say, the death was
caused while committing the offence of domination as part of the same series of events (from Paré)
- Substantial cause test only applies to s. 231(5)

R. v. Nette (Significant contributing cause test, updated Smithers Test)

2001, SCC (p. 316)
s. 231(5) – murder while committing the offence of Issue:
unlawful confinement - Did accused cause death of deceased?
Facts: - Was judge’s description of the threshold
- Accused robbed and entered house, bound for second degree murder to the jury
hands and feet and wrapped clothing sufficient?
around head of 95 yr old Decision:
- died of asphyxiation 24-48 hours later N/A
Ratio:
- Significant contributing cause test –
rephrased from Smithers (still meant to be
low test) for 2nd degree
- Jury chooses to charge with 1st or 2nd, no
explanation required
Analysis:
Arbour J. (Iaccobucci, Major, Binnie, and LeBel JJ. Concurring):
- Appellant submits trial judge incorrectly explained standard of causation for second degree
murder to the jury, when he used the “more than a trivial cause” test from Smithers
- Makes distinction b/w factual and legal causation – legal causation a question of when someone
can be held responsible for that death, we only want to punish people who are morally
blameworthy (can the person be held legally responsible for the consequences that occur).
- The Smithers test is valid and applicable, should be applied to all forms of homicide – should be
rephrased (w/o double negatives or Latin terms) – i.e. “significant contributing cause” rather than
using expressions such as “not insignificant”
L’Heureux Dube (dissent):
- Arbour did not rephrase but changed the Smithers test, saying that something is not
significant is not tantamount to saying it is significant (harder to prove)
- Shift from first degree to second degree murder – it is always up to jury to decide to
charge someone w/ first degree or second degree murder, they do not have to explain why

R. v. Talbot (but for test)

2007, Ont. C.A. (p. 324)
Facts: Issue:
- Altercation outside restaurant whether initial blow or subsequent kick
- Issue arose as to whether initial blow or caused death
subsequent kick was cause of death Decision:
 45

- In the course of determining that the issue N/A

was not necessary to decide the appeal the Ratio:
court reviewed the law on causation since But for test – would the victim have died
Nette but for the act of the accused?
Analysis:
BUT FOR TEST
(1) Factual Causation – If the victim would not have died but for the act of the accused,
that act is a factual cause of death
(2) Legal Causation – Even if but for cause, is it appropriate to hold accused responsible
for offence? Who among those who have factually caused a death should be held liable
for causing that death in the eyes of the criminal law (significant contributing cause test)
(3) If the Crown wants to prove something was the cause of death, they must prove
beyond a standard of reasonable doubt that it was a “significant contributing cause”

- But for cause could still be a legal cause, or could not be legal cause (not
determinative). ‘But for’ determines factual cause for some but NOT ALL cases

Harbottle (1993)
Smithers (1978)
Nette (2001) Substantial cause
Contributing only for first
cause outside the Significant
contributing cause degree murder s.
de minimis range
231(5)

Criminal Act   (intervening cause breaking chain of causation)   Consequence

Intervening Cause Cases
- Maven= first case in Canada on intervening cause. Developing area of the law,
inherently unclear (ambiguity and arguable cases)
- 4 statutory homicide rules where intervening causes are stated NOT to break the
chain of causation. Only way around these rules is successful charter challenge”
 Ss. 222(5)(c): Causing that human being by threats or fear of violence or deception, to do anything
that causes his death.
 46

 Ss. 224: Death Which Might have been prevented: “…notwithstanding that death from the
cause might have been prevented by resorting to proper means.”
 Ss. 225: Death from Treatment of Injury: Where a person causes bodily injury that is dangerous
in nature and from when death results…”notwithstanding that the immediate cause of death is
proper or improper treatment that is applied in good faith.”
 Ss. 226: Acceleration of Death: “…notwithstanding that the effect of the bodily injury is only to
accelerate his death from a disease or disorder arising from some other cause”.

R. v. Smith (murder and intervening cause; dropped on way to hospital)

1959, Germany (p. 329)
Facts: Issue:
 Accused soldier sharing barracks w/ Did the stabbing cause the death or did the
another regiment, fight broke out, three other events break the chain of causation?
members of this regiment were stabbed Decision:
Ruling for D, appeal dismissed
w/ a bayonet, one of them died
 Deceased rushed to hospital, dropped Ratio:
several times, not afforded proper care (1) If at the time of death the original
which may have saved his life (unaware wound is still an operating cause and a
of 1 wound, no transfusion) substantial cause (now signif contributing
 Appellant was convicted of this murder at cause), then the death can properly be said
to be the result of the wound, albeit that
a General Court Martial
some other cause of death is also operating
(2) Only if the second cause is so
overwhelming as to make the original
wound merely part of the history can it be
said that the death does not flow from that
wound
Analysis:
Lord Chief Justice
 Counsel for D argues that if something that happened which impeded the deceased recovering
(intervening cause), then death did not result from that wound
 Court does not accept that contention – applies Rule (1) and (2)
 Court says that for something to be a cause of death it does not have to be the only cause of
death
Professor/Class:
- Jordan Case – victim stabbed, then given too much IV fluid and given another
medication he was allergic to. Would have recovered, but not for the medical error.
Causal chain seemed to be broken (took days/weeks and wound mostly healed)

How would we decide Smith and Jordan in Canada?

 Smith
o s. 225 – even though other contributing causes (dropping on floor and bad
medical treatment), question is whether stab wound is still contributing to
death. Clearly is. Rightly decided under Canadian law.
 Jordan
 47

o Dufraimont unsure how it would be decided in Canada, could go either

way
o For: Good faith medical treatment, even though improper. S. 225 case, in
Canada would likely be decided original stabbing was still the cause.
o Against: s. 225 requires the bodily injury results from death, in this case it
didn’t result from the injury (it resulted from allergic reaction)
R. v. Blaue (intervening act/thin skull rule; blood transfusion and Jehova)
1975, Eng. C.A. (p. 332)
Facts: Issue:
- Victim Jehovah’s Witness  Was D guilty of manslaughter?
- D came to her house, demanded sex, she  Was chain of causation broken?
refused
- He stabbed her Decision:
- Rushed to hospital, required blood D guilty
transfusion
- She refused and wrote statement saying Ratio:
so (1) Those who use violence on other people
- Court assumed she would have survived, must take their victims as they find them. This
means the whole man, not the physical man.
had she accepted transfusion
Analysis:
Lawton L.J. (for the court):
 D argued that victim’s refusing of blood transfusion broke chain of causation b/w stabbing
and death
 Also argued that victim was acting unreasonably
 Court says, who is to say what is reasonable? They uphold the “thin skull rule” – the whole
man refers to fact that JW refusal to take blood transfusion is part of her whole person, just as
thin skull is part of the whole person, the accused takes the victim as they are
 Clearly dead from the stab wound
Professor/Class:
- Internal to causation question is moral blameworthiness element (if person looks
morally innocent, chain of causation may be broken)
- How would Blaue be decided in Canada?
 S. 224 – transfusion isn’t intervening cause. Stabbing resulted in death
“notwithstanding it might have been prevented if resorted to different means” –
doesn’t break chain

R. v. Maybin (Canadian case to site for intervening causes; fight brothers and bouncer)
2012, SCC p. 337
All charged with manslaughter TEST:
Significant Contributing Cause Test is the
Facts: only one
 Victim did something to offend Maybin  Court uses Independent Act Test
brothers in a pool hall and Reasonable Foreseeability Test
 They beat him up, bouncer comes over, as analytical tools
 48

asks who started the fight, the Maybin Issue:

brothers point to the victim Was there evidence to show that the
 Bouncer punches victim in the head “to Maybin brother’s assault was a significant
contributing cause?
prevent him from continuing to fight”
 Everyone points finger at other, don’t Decision:
know which injury came from who and Maintain bouncer’s acquittal, conviction
what caused the death for brothers.
Ratio:
(1) Apply the Nette Test – Was the act a
“significant contributing cause” of death
(2) Independent Act Test and Reasonable
Foreseeability Test should be used as
analytical tools in determining if the act
was as “significant contributing cause” of
death
(3) Independent Act Test – The accused
can be held responsible for what they did,
but if a third party does something
completely independent of the accused, it
should break the chain of causation to the
death, b/c there is a possibility that this
person’s act caused the death
Analysis:
- Trial judge acquitted all, saying couldn’t ID significant contributing cause
Karaktsanis J. (for the court):
 Bouncer was acquitted, cannot prove beyond a reasonable doubt that the bouncer did
anything to cause this death (b/c he may have been punching someone who would have died
anyway). Couldn’t find beyond reasonable doubt it was a “but for cause”
 Maybin brothers are the “but for cause” of death – either their punches alone caused him to
die, or even if they didn’t, their punches caused him to be lying unconscious on a pool table
where the bouncer punched him
 Court says that the general test is the significant contributing cause test, says there does not
have to be one cause of death, court also recognizes that the intervening act of the bouncer
causes problems
 Asking whether or not the intervening act was reasonably foreseeable can help us determine
if the original act was a contributing cause of death, and court also looks at Independent Act
Test and Reasonable Foreseeability Test, there is something special about intervening acts
that result from the volition of a 3rd party, the independent acts of another person can be as
unpredictable as a freakish physical accident
 Court says the act of the bouncer was not entirely independent, based on the findings of the
trial judge it was interrelated w/ acts of Maybin brothers so it does not break the chain of
causation (interrelated in time, place and fact, not independent)
o General nature of the intervening act and the risk of harm must be foreseeable for
the causation to be upheld (reasonably foreseeable others at bar might get
involved)
o Was intervening act itself a response to the acts of the accused? Court notes this
question is more likely to be helpful if there’s an intervening actor. Question of
 49

foreseeability more appropriate when dealing with natural phenomenon (ie..

person left unconscious on beach and taken away by water when the tide came
up)
Professor/Class:
On exam with intervening cause question, cite Maybin first (since only Canadian) –
also cite Smith or Blaue

Beaver v. R. (absolute liability, drug offense)(unknowingly sold heroine)

(1957) SCC (p. 357) (AGAIN with Regulatory offences)
Charge: Issue:
Accused charged with selling and - Is possession an absolute liability offense
possessing diacetylmorphine (heroine) or is mens rea required?

Facts: Decision:
- Max Beaver sold heroine to undercover - Appeal for possession charge allowed,
police officer. Thought it was actually appeal for sale dismissed (upheld sale
sugar milk conviction)
- Trial judge instructed jury that honest but
mistaken belief it was sugar milk is Ratio:
irrelevant to finding guilty of possession or “You can’t have possession without
selling (told not to consider whether he knowledge of the character of the forbidden
knew it was heroine or not). Found it was a substance”
ABSOLUTE LIABILITY OFFENCE, D (1) Two forms of knowledge required for a
appealed person to be guilty of possessing a
substance – (i) Knowledge that you are
possessing a substance and (ii) knowledge
of what that substance is
Analysis:
Cartwright J. (Rand and Locke JJ):
-considered relevant legislation (on drugs) and whether mens rea is a requirement of
the offence. Opium and Narcotic Drug Act (1952) looks like absolute liability offence
(because parliament doesn’t say mens rea it’s required, says person possessing drug
has committed offence). However, statute often only contains ACT element, and
FAULT ELEMENT often found in the c/l and read into the statute
- Court as majority accepts it’s not an absolute liability offence, but instead a
subjective mens rea offence. This requires 1) knowledge of possessing substance, and
2) know what substance is
- Parliament didn’t intend to create absolute liability, judge doesn’t want to impute this
intention to parliament.
- Due to penalty (possible deprivation of of life/liberty/security) court wants to
interpret statute to avoid imprisoning D, as they’re morally blameless. Essence of
crime is possession of forbidden substance, no possession without knowledge
- Problem with absolute liability is it permits conviction of morally innocent people,
principle of fundamental law in Canada is not convicting innocent people
- Argt’s for absolute liability offence:
 Public welfare offence (regulatory offence) so no fault requirement. Court rejects
 50

this since possession is criminal (not public welfare/regulatory) offence

- Other arg’t:
 If no mens rea requirement in statute, parliament intended absolute liability. Court
says that’s not enough, must be explicit in legislation (ie// this is an absolute
liability offence and there’e no fault requirement)
- Beaver guilty of selling (but not possession) – b/c the statute explicitly says that if
you are selling a substance and say it is a drug, you are guilty of selling that drug even
if the substance is benign
Fauteux J. (Abbott) Dissenting:
- purpose of act to guard society and danger to public health
- Underlying principle of Act is that possession of drugs is unlawful, any exception
(ie.. for doctors) are controlled and enforcement is vigilant and firm
- In plain, literal meaning there is absolute prohibition on drugs
Professor/Class:
- This was before Charter, so was open to parliament to make absolute liability offence
for heroine. However, cannot impute this since parliament wasn’t explicit in imposing
such absolute liability

- Today clear all drug offences require subjective mens rea

Independent Act Test – person in hospital because I stabbed them. In hospital airplane
falls out of the air, lands on him and kills him – this intervenes (not foreseeable). BUT, I
stab them and in hospital they contract SARS (maybe it’s foreseeable the person might
contract a further illness in the hospital)

The Fault Requirement

Actus non facit reum nisi mens sit rea  there is no guilty act without a guilty mind
- All criminal offences have an act element and a fault element
- To be guilty of murder, need to be able to subjectively see it will cause death. If you
cause death, but don’t subjectively see it would cause death (even if the reasonable
person would have) not guilty of murder

Key Distinction is subjective v objective fault element

 Most offences require subjective mens rea
 Objective mens rea (whether accused failed to measure up to the external standard
of the reasonable person)
R. v. Hundal (test for negligence is objective)
1993, SCC (p. 352)
Cause of Action: Procedural:
 Accused charged w/ dangerous driving  1993, SCC
 51

Facts: Issues:
 Accused was driving dangerously, court  What is the fault requirement for the crime of
tasked w/ determining the fault requirement dangerous driving?
Decision: N/A
for the crime of dangerous driving
 Ratio:
A truly subjective test seeks to determine
what was actually in mind of the
particular accused at the moment the
offense was committed
(2) The test for negligence is an
objective one, requiring a marked
departure from standard of care of a
reasonable person
Reasoning:
Cory J. (for the majority):
 “a truly subjective test seeks to determine what was actually in the mind of the particular
accused at the moment of the offence is alleged to have been committed”
 what is vital is that this accused given his personality, situation, and circumstances, actually
intended, knew or foresaw the consequence and/or circumstances as the case may be – the jury may
draw reasonable inferences about accused’s state of mind by looking at his actions or wards at time
of act or in witness box, objective test is not relevant criterion of liability
 The objective standard is required for negligence Rule (2) – measured against the reasonable person
standard, about what the accused “could”, “ought”, or “should” have foreseen – the bolded words
are clear markers of an objective fault requirement
accused at the moment of the offence is alleged to have been committed”
R. v. Théroux (test for subjective mens rea)
1993, SCC (p. 353)
Facts: Issues:
 Accused charged with fraud  What is the fault requirement for the crime of
fraud?
Holding:
 Irrelevant.
Ratio:
(1) The test for subjective mens rea is NOT
whether a reasonable person would have
foreseen the consequences of the prohibited
act (objective), but whether the accused
subjectively appreciated those consequences
at least as a possibility
 52

Reasoning: McLachlin J.
 Mens rea refers to the guilty mind, the wrongful intention of the accused – function in criminal law
is to protect the morally innocent – those who do not understand or intend the consequences of their
act
 Test mens rea is subjective, the court will look at the accused’s intention and the facts as the accused
believed them to be
 Important point – Crown need not show precisely what was in the accused’s mind at time of act –
subjective awareness of consequences of act can be inferred from the act itself, unless D has an
explanation which casts doubt on the inference
 Additionally – the law does not consider one’s belief system, they may have committed a criminal
act which they believed was right, however mens rea does not care if you didn’t think you were
committing a wrong, it only cares about whether or not you subjectively understood the
consequences of their act as a possibility

R. v. Mulligan (cannot infer mens rea from act alone)

1974, Ont. C.A. (p. 354)
Facts: Issues:
 Accused stabbed wife to death  Did the accused intend to cause the death of
 Charged with murder his wife or to cause bodily harm that was
likely to cause her death?
Holding:
 Yes, guilty of murder.
Ratio:
 The accused’s intention was a fact in
issue, and it fell to be determined by a
consideration of all the evidence,
including his acts, his utterances, and any
other circumstances that might shed light
on his state of mind
Reasoning:
 Mulligan argued that he did not mean to cause death or bodily harm that was likely to cause death
 Accused did not testify, but court applied Rule (1) – and based on inferences made based on all
surrounding evidence, the court held that the accused did “intend” to kill his wife, what a man does
is often the best indicator of what was in his mind

R. v. Ortt (mens rea can’t be presumed, burden on crown)

1968, Ont. C.A. (p. 355)
Cause of Action: Procedural:
 Accused charged w/ non-capital murder  Ont. CA, 1966
Facts:
 Grounds for conviction was that the charge Issues:
of the trial judge suggested there was an onus  Was the trial judge’s instruction to the jury
correct?
 53

on the accused to prove his incapacity to Decision:

have the specific intent necessary  Appeal dismissed (because other part of
charge made it clear crown had burden)
Ratio:
(1) The intention of the accused cannot be
presumed. The intention of the accused
should be inferred based on the relevant
evidence
Reasoning:
 Appeal dismissed on basis that charge as a whole made it clear that Crown had the onus of proof on
issue of intent
 However, court noted that it is an error in law to tell a jury that it is a presumption of law that a
person intends the natural consequences of his acts
 Word presumption creates difficulty – it may suggest an onus on the accused, shifts burden of proof
 Problem is with the word “presume”, which is different from inference – inference is a matter of
common sense, merely indicates that a certain conclusion may be drawn if warranted by evidence

Regulatory Offences
- not true criminal offences, generally less serious, in interest of public welfare (ie//
driving/fishing offences). Include all valid provincial offences, but also some federal
regulatory offences (ie.. fisheries)
Beaver v. R. (absolute liability, drug offense)(unknowingly sold heroine)
(1957) SCC (p. 357)
Charge: Issue:
Accused charged with selling and - Is possession an absolute liability offense
possessing diacetylmorphine (heroine) or is mens rea required?

Facts: Decision:
- Max Beaver sold heroine to undercover - Appeal for possession charge allowed,
police officer. Thought it was actually appeal for sale dismissed (upheld sale
sugar milk conviction)
- Trial judge instructed jury that honest but
mistaken belief it was sugar milk is Ratio:
irrelevant to finding guilty of possession or “You can’t have possession without
selling (told not to consider whether he knowledge of the character of the forbidden
knew it was heroine or not). Found it was a substance”
ABSOLUTE LIABILITY OFFENCE, D (1) Two forms of knowledge required for a
appealed person to be guilty of possessing a
substance – (i) Knowledge that you are
possessing a substance and (ii) knowledge
of what that substance is
Analysis:
Cartwright J. (Rand and Locke JJ):
-considered relevant legislation (on drugs) and whether mens rea is a requirement of
the offence. Opium and Narcotic Drug Act (1952) looks like absolute liability offence
 54

(because parliament doesn’t say mens rea it’s required, says person possessing drug
has committed offence). However, statute often only contains ACT element, and
FAULT ELEMENT often found in the c/l and read into the statute
- Court as majority accepts it’s not an absolute liability offence, but instead a
subjective mens rea offence. This requires 1) knowledge of possessing substance, and
2) know what substance is
- Parliament didn’t intend to create absolute liability, judge doesn’t want to impute this
intention to parliament.
- Due to penalty (possible deprivation of of life/liberty/security) court wants to
interpret statute to avoid imprisoning D, as they’re morally blameless. Essence of
crime is possession of forbidden substance, no possession without knowledge
- Problem with absolute liability is it permits conviction of morally innocent people,
principle of fundamental law in Canada is not convicting innocent people
- Argt’s for absolute liability offence:
 Public welfare offence (regulatory offence) so no fault requirement. Court rejects
this since possession is criminal (not public welfare/regulatory) offence
- Other arg’t:
 If no mens rea requirement in statute, parliament intended absolute liability. Court
says that’s not enough, must be explicit in legislation (ie// this is an absolute
liability offence and there’e no fault requirement)
- Beaver guilty of selling (but not possession) – b/c the statute explicitly says that if
you are selling a substance and say it is a drug, you are guilty of selling that drug even
if the substance is benign
Fauteux J. (Abbott) Dissenting:
- purpose of act to guard society and danger to public health
- Underlying principle of Act is that possession of drugs is unlawful, any exception
(ie.. for doctors) are controlled and enforcement is vigilant and firm
- In plain, literal meaning there is absolute prohibition on drugs
Professor/Class:
- This was before Charter, so was open to parliament to make absolute liability offence
for heroine. However, cannot impute this since parliament wasn’t explicit in imposing
such absolute liability

- Today clear all drug offences require subjective mens rea

R. v. City of Sault Ste. (creation strict liability rule)(pollution)

(1978) SCC p. 364
Facts: Issue:
- City of Sault Ste. Marie charged with - What is requirement for level of fault for
pollution (caused pollution to be pollution offence?
discharged into water of creek) - What level of fault is applicable to
- Contracted Cherokee Disposal whose regulatory offences?
method of disposal led to pollution
- Offence found to be one of STRICT Decision:
LIABILITY Appeal allowed
 55

Ratio:
Regulatory offences will be strict liability
on default unless parliament explicitly
indicated otherwise in statute (as absolute
liability or subjective mens rea)
(1) Introduction of Strict Liability Rule –

- Strict liability default for regulatory

offences
- Not up to Crown to prove negligence, but
open to D to bring up defence of reasonable
care
Analysis:
Dickson J:
- This is offence that is not truly criminal, but prohibited in public interest (criminal
would generally require mens rea)
- Court found that public welfare offenses are not absolute liability nor are they mens rea
offenses, instead they are strict liability offenses (middle ground)
- Regulatory offences governed by different principles than criminal law
- Pro Absolute Liability for regulatory offences:
 High standard of care required for protection of social interests. More likely to
meet standard if absolute (no excuses or loopholes)
 Administrative efficiency (requiring Crown to prove fault makes regulatory
offence trials more complicated)
 Stigma and Penalty argument –low stigma and penalties associated w/ regulatory
offenses compared criminal offenses, even though absolute liability may convict the
morally innocent it is acceptable when penalty and stigma is low
- Anti Absolute Liability (stronger) for regulatory:
 Still stigma, still worried about convicting people who are morally innocent. Also, there
is the cost of having to defend for the person charged and convicted (should give people
chance to show they weren’t negligent)
 There is no empirical proof for the high standard of care or administrative efficiency
arguments – may even make people cynical, as if they are charged w/ polluting they
won’t be able to bring any evidence that suggests they did not mean to pollute (no
evidence people will take higher precautions when no defence)
 Even if it was more administratively efficient, not a reason for injustice
- Tendency in past to only see two options: 1) full mens rea, or 2) absolute liability. Instead,
introduce strict liability for public welfare offense
 Strict liability – the Crown must positively prove the act element (same as absolute
liability), but once the Crown has proven the unlawful act beyond r/d the accused has the
right to show on a balance of probabilities that he was not negligent or that he did not
intend the act
 The defense of due diligence – what does this actually mean? Depends on the case, what
a person might do to not be negligent depends on the case
 Default rule applies in this case – it is a strict liability offense, new trial ordered
Professor/Class:
- within 3 years of Charter, allowance of due diligence defence for regulatory offences
with a reverse onus because a constitutional standard of fault for any offence which
 56

threatens liberty
- Generally by default, regulatory offences are strict liability offences
- Reverse onus for burden of proof – this is fair because it’s easier for accused to
show that they weren’t being negligent (ie// easier for city to show they were duly
diligent and not negligent in garbage dumb, than crown to prove they were
negligent)
- Before this case (1978) words strict and absolute liability used interchangeably
- traffic tickets treated as absolute liability

R. v. Wholesale Travel Group Inc. (regulatory v criminal offence)

(1991) SCC p. 373
Facts: Issue:
- Travel Agency charged with misleading Was this a regulatory of criminal offence?
advertising, s. 60(2) of the FEDERAL What principles do we use to distinguish
Competition Act the two?
- Penalty large fine up to $25,000 or jail up
to 2 years Decision:
Ratio:
- False advertising is regulatory offence,
default strict liability
- (1) Strict Liability Rule – Must only
prove actus reus, can raise defense of
“reasonable care” (objective standard) on a
balance of probabilities
Analysis:
Cory J. (L’Heureaux-Dubé):
- Difference between criminal and regulatory:
 criminal offences prohibit inherently wrong, abhorrent conduct, whereas
 regulatory offences prohibited, not because inherently wrong, but because
unregulated activity would result in dangerous conditions being imposed on
public (vulnerable) or broad segments of society (ie// not inherently wrong to
drive on left side of road, but here it would cause danger)
 Harshness of penalty
 Regulatory offences directed at consequences of conduct (not conduct itself)
 Regulatory measures are primary mechanisms for gov’t to implement Public
Policy objectives, this appeal puts govt’s ability to do so at stake (criminal more
individualized, moral blameworthiness, etc)

- Justification for Differential Treatment (regulatory v. criminal charges)

 Licencing Justification: Those who choose to participate in regulated activities
have placed themselves in responsible relationship with public, and must accept
consequences. The more serious/dangerous the regulated activity, the more
serious the responsibility will be.
 Vulnerability Justification: Regulatory legislation essential for complex industrial
society, legit role in protecting vulnerable. Legislation meant to protect
vulnerable, not used by powerful – if we require too high a fault requirement for
 57

regulatory offences, this would roll back the protection there for vulnerable
people.

- Court found this to be a regulatory statute because:

 This Competition Act aimed at regulating economy/business and preserving free
market (not concerned with real crimes)
 D argued conviction on false advertising carries stigma of dishonesty, would
damage business. Court DISASGREES, offence focuses on harmful consequences
(not dishonesty) (since strict liability, public won’t perceive you as badly, not
admitting fault just negligence) (Dufraimont doesn’t find this argument
persuasive, pubic doesn’t know fault element and would form stigma)
 Misleading advertising used to be in Criminal Code but was moved to this act,
might imply parliament’s intention to make it regulatory
 Seriousness of punishment.

Constitutionally Required Fault (charter minimum for regulatory offences)

- Basic fairness (s.7) requires minimum level of fault to be proved for accused to be
guilty of certain offences
Reference Re Section 94(2) of the Motor Vehicle Act (B.C) (constitutional minimum strict
liability for offences with imprisonment - s. 7)
(1985) p. 388
Facts: Issue:
- Lieutenant-Governor of BC bring - Is the characterization of this offence as
reference case to C.A.: one of absolute liability constitutional?
“Is s. 94(2) of the Motor Vehicle Act, - Does it violate s. 7 of the Charter? If so, is
R.S.B.C. 1979, as amended by the Motor it justifiable (to get rid of bad drivers)?
Vehicle Amendment Act, 1982, consistent
with the Canadian Charter of Rights and Decision:
Freedoms? S. 94(2) of the Act is inconsistent

s. 94(2) Ratio:
Subsection (1) creates an absolute liability - Charter minimum for offences with
offence on which guilt is established by possibility of imprisonment = strict liability
proof of driving, whether or not the - Combination of absolute liability and
defendant knew of the prohibition or possibility of imprisonment is contrary to s.
suspension 7
- punishment was automatic imprisonment - Exceptional circumstance required in
order to override s. 7 right in favour of
administrative expediency.
Analysis:
Lamer J (Dickson CJC, Beetz, Chouinard, Le Dain):
- Lamer identifies principle of fundamental justice “innocent must not be punished”
- Absolute liability offences with possibility of imprisonment penalty violate s. 7
(potential to deprive life, liberty and security). Can only be salvaged by s.1, deprivation
of liberty/fundamental justice is justifiable.
- Only in exceptional circumstances can liberty be sacrificed for administrative
 58

expediency (ie.. natural disaster, war)

- Crown didn’t prove justifiability of overriding s. 7 to rid roads of bad drivers

- Discussion over meaning of “principles of fundamental justice” (Charter was new) are
qualifiers to right to life/liberty/security  both procedural and substantive
 Lamer said politicians can’t be relied on for definition (ie.. even Jean Chretien
thought it was only procedural principles)
 Depends on it’s nature, source, rationale and place in the legal system
Professor/Class:
- R. v. Pontes – SCC reconsidered constitutionally of s. 94, held it was constitutional
since there was no longer a risk of imprisonment

3 Types of Offences:
1. True Crimes (require mens rea):
- these offences consist of some positive state of mind such as intent knowledge, or recklessness
- must be proven by prosecution as inference from nature of act committed or additional evidence
- mere negligence will not suffice, it is a subjective standard
-offences which are criminal in the true sense, the mens rea is presumed
- OR public welfare offences which contain express words of mens rea ie. “willfully”, “knowingly” ...
2. Strict Liability: - this is now a constitutional standard - entrenched
- the doing of the act, prima facie, imports the offence and prosecution need not prove mens rea
- liability can be avoided if acc. can prove on a balance of probabilities that he acted with due diligence
and was doing it under a mistake of fact [or law, officially induced]
- due diligence is an objective test in that the acc. took all reasonable steps to avoid the particular event
– reverse onus
- defence of mistake of fact in strict liability offences must be REASONABLE!
- public welfare offences are prima facie strict liability
3. Absolute Liability
- no defence for acc. to show he was free of fault
- prosecution need only prove actus reas of accused
-offences which the leg. had made it clear that guilt would follow proof of the act (no mental element
req’d)
Consider:
1. the over - all regulatory pattern adopted by the leg.
2. the subject matter
3. The importance of the penalty
4. the precision of the lang.

Defence of Due Diligence Requirement:

- note p. 394-5 Lévis (Ville) c. Tétreault (2006)
- Vehicle registration required and continued driving. They said they were waiting for
letter in mail.
- Court: this was NOT due diligence, waiting passively is not due diligence
 59

Regulatory Offence Types:

Regulatory
Offences

Express Fault Strict Liability

Requirement Crown proves act. Absolute Liability
Crown must prove act Accused must prove Crown Proves Act
and fault due diligence

Constitutionally Required Fault (charter minimum for murder)

R. v. Beauchamp (def’n of due diligence for careless driving)

(1953) (Ont. CA) (p. 412
Facts: Issue:
- Accused convicted of careless driving Did the driver drive carelessly?
- Bus driver drove from garage onto empty
road. Went to back into garage again, Decision:
checked inside mirror, looked through back Not guilty, didn’t amount to careless
window driving
- Outside mirror loose and vibrating, no use
- Backed into car Ratio:
S. 29(1) Highway Traffic Act - Not everything that results in collision is
- must be proved beyond r/d that accused necessarily careless driving
drove in prohibited manner, “without due
care and attention or unreasonable - Careless driving has an express fault
consideration for others” requirement (not default strict liability)
- Accused must have breached SoC (driver
failed to drive with care/attention of
reasonable driver)
- Must breach DoC to public and be
deserving of punishment
Analysis:
MacKay JA:
- Legal SoC that of reasonable man in the circumstances (ie// weather, visability)
- Even if conduct falls below SoC, must breach duty to public and be deserving of
 60

punishment
- Not all errors of judgement are in breach of DoC to public
Professor/Class:
- ie.. of regulatory offence with express fault requirement (so not default strict liability)

Murder
- S 222-230

- 1st and 2nd degree murder fixed at life imprisonment. Distinction based on parole
eligibility (1st degree ineligible for parole until 25 years) (2nd degree ineligible for parole
between 10-25 years, judge to decide).
 S. 231 lays out elevating factors that upgrade murder from 2nd -1st degree

Criminal Code S. 222:

Homicide = causing
human death

culpable homicide =
causing death by
non-culpable
unlawful act, by
homicide
criminal negligence,
etc.

murder manslaighter not an offence

Figure 1 Criminal Code s. 222:

- Culpable homicide = actus reus

- Charge = murder/manslaughter
- When intent for murder can’t be shown, often can downgrade to manslaughter
- Defining characteristic of murder = higher level of fault

- Murder  must first meet all requirements of murder, then after discuss whether it’s 1st
or 2nd degree

Intentional Murder: Criminal Code s. 229(a) (subjective mens rea offence)

229 culpable homicide is murder
(a) whether the person who causes the death of a human being
(1) means to cause his death, or
 61

(ii) means to cause him bodily harm that he knows is likely to cause his death, and is
reckless whether death ensures or not
- “means to” and “knows” are the subjective mens rea words

Transferred intent: Criminal Code s. 229(b)

229 Culpable homicide is murder
(b) where a person, meaning to cause death to a human being or meaning to cause him
bodily harm that he knows is likely to cause his death, and being reckless whether death
ensues or not, by accident or mistake causes death to another human being,
notwithstanding that he does not mean to cause death or bodily harm to that human being

Simpson v. R. [subjective mens rea required s. 229(a)(i/ii)]

(1981) (Ont. C.A.) p. 414
On exam, wouldn’t site Simpson as proof that 229a is subjective without also citing
actual S. 229(a)
Charge: intentional murder, 1st degree [now Issue: Did the judge err in instructing the
s. 229(a)(i) and (ii)] jury? If so, did the error potentially lead to
st
s. 212 – culpable homicide is murder (1 a substantial wrong or miscarriage of
degree) justice?
(a) whether the person who causes the
death of a human being Decision:
(i) means to cause his death, or New trial
(ii) means to cause him bodily harm that he
knows is likely to cause death and is Ratio:
reckless whether death ensues or not Subjective standard must be applied for s.
Facts: 229(a) (i) and (ii)
- Judge explains s. 229(a) to the jury but he
makes a mistake
- Correct version – one must know it is
likely to cause death, but the judge says
“bodily harm that he knew or ought to have
known is likely to cause death”
Analysis:
Martin J.A.:
- ought to know is a serious error, it imposes liability on an objective basis (the
reasonable person would know) rather than subjective (what the D actually knows).
Made worse because judge repeated it.
- Reasonable jury instructed properly might have found different facts on whether D
knew he was likely to kill her (no curative proviso)

R. v. Edelenbos (def’n ‘likely’ under s. 229)

(2004) (SCC) p. 216
Charge: 1st degree murder s. 229 Issue:
Facts: Did the judge err when explaining the word
- D sexually assaulted and strangled victim likely? If so, did it potentially lead to a
 62

to death, admitted he did it while drunk (D substantial wrong or miscarriage of justice?

admitted to manslaughter)
- His defence was he lacked intention for Decision: Appeal dismissed, decision
murder - he put his hands on her neck to upheld
stop from screaming, no intention to kill.
Said he was drunk and no aware this would Ratio:
cause death. Definition of likely under s. 229 – the
phrase is meant to convey the notion of a
- Problem with judge’s (unprecedented) “substantial or real chance” as distinct from
charge to the jury - gave long (non- a mere possibility
standard) definition of “likely” (said it
means more than possibility, substantial or
real chance)

- D found guilty of 1st degree murder. D

appealed on grounds trial judge erred in
defining word “likely” to jury
Analysis:
Lang J.A.:
- Definition of likely wasn’t required in this case, and was potentially confusing. Jury was
able to apply ordinary meaning of likely.
 Judges should avoid entering different shades of meaning, it would be inefficient
to define every word from statute
- If judge chose to explain meaning, should have allowed lawyers to argue meaning (test
through adversary system)

- While judge did err, did not lead to wrong/miscarriage

 Judge’s action didn’t prejudice the defence
 If anything, “likely” was a higher threshhold for Crown to meet and would benefit
accused. It was a small part of a long charge, and the relevant stature was given to
jury in writing, while the judge’s words were not in writing, they were only left
w/ an impression of what he said.

Constructive Murder
- Almost all have found to be unconstitutional in Canada (only 1 has been repealed
though, the rest still in code although can’t be applied since SCC found unconstitutional)
- Same rule as Felony Murder rule (like used to exist in England, and in some US states)
s. 229(c) and s. 230
- means “something in the eyes of the law deems to be”. Something you wouldn’t
ordinarily think if as murder (doesn’t have fault intention of 229a), but law defines it as
murder
- Can still be guilty of you didn’t know and couldn’t be expected to know potential of
death
Vaillancourt v. R. (striking down constructive murder; constitutional minimum fault
requirement murder, objective foreseeability)
(1987) (SCC) p. 421
 63

Charge 2nd Degree murder: s. 213(d) [NOW Test:

s. 230(d) and repealed] and s. 21(2) - For conviction of murder: was death
- person causes death . . . while objectively foreseeable?
committing/attempting certain specified
offences [302 (robbery)] with a weapon, Issue:
whether or not the person means to cause Is s. 230(d) constitutionally valid, alone
death or know death is likely to be caused and with s. 21(2)?
- s. 21(2) – where 2 ppl intend unlawful
act/assist each other, responsible for Decision:
probable consequences Ruling for D, S. 213(d) unconstitutional
Facts:
- D convicted 2nd degree, appealed and was Ratio:
dismissed - constitutional minimum fault
- D challenged constitutional validity s. requirement for the offense of murder:
230(d) alone and in combination with s. minimum threshold of objective
21(2) w/ s.7/11(d) of Charter
foreseeability (obiter: but also says there
- D and accomplice planned armed robbery are some serious crimes that require
of pool hall, agreed to bring knives. subjective mens rea)
Accomplice showed up with gun. D
insisted it be unloaded, thought it was
unloaded because accomplice gave him
three bullets from gun
- Accomplice shot and killed someone (he
escaped never to be found)

- At trial level it was accepted that D

thought there was not a loaded gun, so not
a question at appeal level
Analysis:
Lamer (Dickson CJC and Wilson):
- Vaillancourt – for some crimes, a fault element reflecting the nature of the crime will be
constitutionally required. These offences are set apart by: 1) their penalties and 2) stigma
that attaches
- In provision, no requirement of subjective foresight/objective foreseeability of
likelihood of death. No subjective mens rea requirement because offender had/used a
weapon (this is obiter)
- S. 7 REASON: if conviction has either attached stigma or available penalties that will result in
loss of life/liberty/security, parliament must respect principle of fundamental justice (principle:
required proof objective foreseeability)
- S. 1 REASON: no sufficient reason to override constitutional rights/freedoms. If parliament
wishes to deter they can punish use/carrying of a weapon. Further, cannot deter someone from
causing death if they didn’t foresee the death
- Lamer J says (in obiter) he thinks murder should always require subjective foresight of death,
but Vaillancourt holds only that s. 7 and the principles of fundamental justice require at least that
death must have been objectively foreseeable before a person can be convicted of murder. Section
213(d) didn’t even require objective foreseeability of death, so violated s. 7
 64

- In this case, wasn’t objectively foreseeable because D thought gun was unloaded
Professor/Class:
- fault requirement is function of penalty/stigma associated with offence

R. v. Martineau (threshold subjective foresight for murder, beyond objective foreseeability)

(1990) SCC p. 431
s. 213 (a) and (d) (now s. 230a/d unconstitutional) Issue:
- murder if: 1) homicide occurs while accused is
committing/attempting to commit specified offence
(ie// robbery, arson, SA, kidnapping, forcible
Decision:
confinement, B&E; 2) death ensues from bodily s. 213a unconstitutional
harm intentionally caused for intention of
committing the offence of facilitating flight Ratio:
Facts: - constitutional minimum, principles of
- Accused (armed with pellet gun) and fundamental justice under s. 7: murder
companion (armed with rifle) planned requires subject foresight of death for
break and enter murder conviction
- Ended up breaking into trailer, robbing
and tying up the 2 occupants
- Companion shot/killed them with rifle
- Companion shot him because they saw
his face (but D was wearing mask, so of no
benefit to him)

- D challenged constitutionality of s. 213(a)

(AKA 230a)
Analysis:
Lamer CJC (Dickson CJC, Wilson, Gonthier, Cory):
- Vaillancourt minimum threshold of objective foreseeability of death for murder.
- NEW: principles of fundamental justice (s.7 Charter) require further proof of subjective
foresight of death to underlie murder conviction
- Murder requires moral blameworthiness of offender (principle of proportional punishment for moral
blameworthiness), only for those who intentionally cause death (inflict harm they know likely to cause
death)
- Murder is worst charge in the law, only those who kill intentionally should be branded
as murderers
- S. 230 eliminates requirement for proof of subjective foresight of death, infringes S.
7/11(d) Charter
- Judgement casts further fatal doubt on constitutionality of 230 (“ought to know is likely
to cause death”)
- Not saved under s. 1 – Parliament can find less right infringing ways to prevent
- death needs to be in mind of person to be called murder
L’Heaureux-Dubé (dissenting) (Dufraimont likes this dissent, points out a different way
to view the problem):
- Objective foreseeability as laid out in this section is sufficient. This is met in this case
(Valliancourt)
- Test of objective foreseeability of death for murder doesn’t offend principles of
fundamental justice
 65

- Significant policy considerations for upholding existing legislation

- Legislation explicitly includes objective foreseeability for death, which is sufficient
- Gravity of offence is not simply matter of mens rea
- Policy: parliament entitled to carve out certain killings and designate as most serious
(deterrence). They must consider things other than moral blameworthiness
- Parliament labeled a crime murder and attached penalties. Murder is legal concept for
parliament to define.
- Concentration on social stigma overemphasized and misplaced compassion (labels
aren’t of constitutional importance)
Professor/Class:
- Lamer foreshadowed he would get to subjective foresight in last case
- Under s. 231(5) – 1st degree during certain offences (Harbottle, Paré)
 1st need to be guilty of fault in 229(a), then proceed to 231(5). ALL MURDER
PROVISIONS REQUIRE SUBJECTIVE FORESIGHT OF DEATH
- Canada has stronger regime of constitutional requirements than other common wealth
countries

Under Martineau:
- all parts of s. 230 are unconstitutional
- s. 229(c) is unconstitutional as least in part [unlawful object murder, objective
foreseeability bit]
Elevated murder  1st degree to 2nd degree
- First degree murder includes:
 Planned/deliberate murder s. 231(2)
 Murder of a specified victims (on-duty police, prison workers, etc) s. 231(4)
 Murder “while committing” specified offence of illegal domination (high jacking,
sexual assault, kidnapping, hostage taking, etc) s. 231(5)
R. v. Smith (1st degree planning and deliberation)
(1979) (Sask. C.A.) p. 450
S. 214(2) [now s. 231(2)] Issue:
“murder is first degree when it is planned Was there evidence of planning and
and deliberate” deliberation that would put this murder into
the category of first degree murder?
Facts:
- Massier (D) and victim were friends. Decision:
Them and another friend (witness) would Verdict of 1st degree set aside, 2nd degree
go hunting/party together substituted
- On day of offence had guns to hunt, drank
and took valium, drove to country and Ratio:
broke into abandoned farmhouse For murder under s. 231(2) must be both
- Shooting up windows of house for fun planned and deliberate – deliberate means
- D and victim began arguing and pointing considered and not impulsive, and planning
guns at each other (witnessed by 3rd friend), means arranged beforehand or the result of
D shot and badly injured victim’s left a scheme or design previously formulated
elbow. Victim yelling he was bleeding to or designed by the accused
 66

death and should be taken to hospital

- D went to car (1-3mins) (3rd witness
started asking what he was going to do, D
told him to shut up), reloaded gun, shot
victim from behind (long range) as he ran
away. Then walked up to where he was
sitting and shot at close range.

- Jury found guilty of 1st degree, appeal

Analysis:
Culliton CJS:
- Importance of “deliberate” (More v. The Queen, 1963) considered and not impulsive
(more than simply intentional)
- Planned = arranged beforehand, result of scheme/design previously formulated (need
not be complicated plan)
- Planning occurs after intent is formed
- Antithesis of planned/deliberate is impulse (aka 2nd degree)
- THIS CASE: no evidence of consideration/planning of the murder until the stand off.
Result of sudden impulse
- Judge erred in law by instructing jury there was evidence for verdict of 1st degree
Professor/Class:
- s. 231(2) is main category of 1st degree (planned/deliberate)
- should have been open to jury (if properly instructed) to find 1st degree

R. v. Nygaard and Schimmens (intention to cause bodily harm can be intention for murder)
(1989) SCC (p. 455)
s. 212(a)(ii) (now 231(2)) and s. 229(a)(ii) Issue:
Facts: Is the accused guilty of first degree murder
- D sold item to victim, cheque bounced under s. 231(2) even though his plan was to
- D told victim they could expect trouble if deliberately cause grievous bodily harm to
the matter wasn’t cleared up the victim, not to murder him?
- D and 2 accomplices went to victim’s
hotel, attached with baseball bat and broke Decision: Yes, guilty
arm
- Asked who signed the cheque, told it was Ratio:
the deceased. Killed them with baseball bat A murder can still be planned and
deliberate even if it is a murder where the
accused meant to cause bodily harm
knowing it was likely to cause death
Analysis:
Cory J:
- This case is about the relationship b/w s. 229(a)(2) and s. 231(2) – there was some doubt in this
case over whether accused meant to cause death, or he just wanted to cause bodily harm
- s. 231(2) requires mens rea to cause bodily harm accused knows is likely to cause death
(intention to cause death not required, just required that accused was reckless whether
death ensued)
 67

- Accused planned/deliberated to continue the attack

R. v. Collins (1st degree for killing police, crown must prove D knew identity)
(1989)(Ont. C.A.) p. 458
Facts: Issue:
- Accused charged w/ first degree murder Should the automatic first degree murder
of police officer under s. 231(4)(a) charge for killing a police officer apply
Murder is 1st degree murder when the victim is: when accused is not aware of his/her
(a) a peace office, police constable, sheriff, deputy identity?
sheriff, sherrif’s officer ot other person employed
for the preservation and maintenance of the public
peace, acting in the course of his duties Decision: Conviction upheld

Ratio: The onus is on the Crown to prove

beyond a reasonable doubt that the accused
knew the victim was a police officer
Analysis:
Goodman J.A.:
- Classification of 1st degree for murder of person engaged in preservation, prevention of
infringement and enforcement of the law BECAUSE: more severe punishment for higher
moral culpability, deterrent
- Crown must prove D had knowledge of identity
- Could be interpreted that Crown need not prove D had knowledge of identity, but since
this interpretation would contravene s. 7 of the charter, choose above approach

Subjective Mens Rea

R. v. A.D.H. (presumption of subjective mens rea; newborn abandoned in Walmart)
2013, SCC (p. 464)
S. 218 everyone who unlawfully abandons or Issue:
exposes a child who is under the age of ten years, so What is the fault requirement that applies
that its life is or is likely to be endangered or its
health is or is likely to be permanently injured:
to this offence? Objective or subjective
Facts: MR?
- Woman didn’t know she was pregnant, Decision:
gave birth in Walmart bathroom Acquitted
- Came out blue and looked dead, she left Ratio:
- Patrons saw baby move (looked dead) and Requirement of subjective mens rea
rescued (presumption of subjective mens rea in
- Charged with child abandonment order to not punish morally innocent)
Analysis:
- Trial judge acquitted because no subjective mens rea (she thought baby was dead)
Cromwell (4 concurring)
- C/L presumption that all true criminal offences require subjective mens rea applies to
this case
- Doesn’t mean all criminal offences have subjective mens rea requirement, but the
presumption gives expression to value that morally innocent not be punished
 68

- Nothing in context of s. 218 to displace presumption of subjective mens rea. If anything,

language of code suggests subjective MR (mens rea)
Moldaver (1 concurring):
- DISSENTING ON THE LEGAL SIDE (said objective fault requirement)
- This offence is child protection legislation, imposes a societal minimum standard of
conduct
- Idea to protect children from danger a reasonable person would see. As such, subjective
mens rea would be a defence (ie.. accused’s age, mental ability)
- parallel with failing to provide necessaries of life (objective fault) and this legislation
should work the same way
- HOWEVER, trial judge concluded it was reasonable for accused to conclude blue,
unmoving child is dead. For that reason, should be acquitted
Professor/Class:
Absolute liability offences have NO fault requirement
- subjective or objective fault requirement are a fault requirement (so not
unconstitutional as not absolute liability)

States of Mind

R. v. Buzzange and Durocher (leading case on offence that requires knowledge or intention)
1979, Ont. C.A (p. 474)
Facts: Issue:
- Accused were Franco-Ontarian activists, Did Ds promote hatred against the French
they printed a flier against Franco- wilfully?
Ontarians in order to whip up controversy,
said that it was satire Decision:
- wanted to paint the people who were Acquitted
opposed to French school as bigoted
- Charged with wilful promotion of hatred Ratio:
[now. S. 319(2)] (1) Definition of Intent – A person who
everyone who by communicating foresees that a consequence is certain or
statements other than in private substantially certain to result from an act
conversation and wilfully promote hatred which he does in order to achieve some
against an identified group. other purpose, intends that consequence
(2) Wilful promotion of hatred requires
promotion of hatred intentionally, it does
not include recklessness – Recklessness
refers to taking a deliberate and
unjustifiable risk (seeing the risk and taking
it anyway)
Analysis:
Martin J.A.: (Canada’s best criminal judge)
- Wilful promotion of hatred requires intentional promotion of hatred; does not include
recklessness
- Normally, either intention or recklessness is good enough, but for this offence interpret
wilfully as requiring intention and not just recklessness
 69

- This higher level of intention strikes balance of freedom of expression, but be

interpreted narrowly
- What does intention actually mean (p.480)?
 Actor’s conscious purpose to bring about a consequence OR foresight that the
consequence is substantially certain to occur
 “As a general rule, 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”
- D’s intention was to create controversy, furor and uproar (create sympathy). This does
not mean they intended to promote hatred.

R. v. Théroux (test for fraud)

1993, SCC (p. 484)
s. 380(1)(a)
Facts:
- Accused ran construction company and
built homes
- Took deposits told them their deposits
would be insured
- They weren’t insured, company insolvent,
project not completed and buyers lost their
money
- His defence: Honestly believed project
would go ahead and depositor’s money
wouldn’t be lost so can’t be guilty of fraud
Issue:
Does honest belief negate mens rea for
fraud?
Decision:
No, conviction upheld
Ratio:
(1) The actus reus of fraud will be
established by proof of (i) the prohibited
act, be it an act of falsehood or some other
fraudulent means; and (ii) deprivation
caused by the prohibited act, which may
consist in actual loss or the placing of the
victim’s pecuniary interests at risk (“other
fraudulent means” are determined by what
a reasonable person would consider to be a
dishonest act, deceit or falsehood
determined by objective facts)
(2) The mens rea of fraud is established
by proof of (i) subjective knowledge of the
prohibited act; and (ii) subjective
knowledge that the prohibited act could
have as a consequence the deprivation of
another (which deprivation may consist in
knowledge that that victim’s pecuniary
interest are put at risk)
(3) Where the conduct and knowledge
established by these definitions is
established, the accused is guilty whether
he actually intended the prohibited
consequences or was reckless as to whether
they would occur – recklessness refers to
knowledge of the likelihood of prohibited
consequences
 70

Analysis:
McLachlin J:
- actus reus for fraud requires deceit/dishonesty (aka lying to depositors) and requires a
deprivation (depriving someone of something that should be theirs or placing their
property at risk)
- Mens rea doesn’t require desire to steal, it merely requires subjective awareness of the
risk that the prohibited consequences will flow or recklessness as to those consequence
(knowledge of likelihood)
- He knew he was placing their property at risk the second he took the deposits because
he put their property at risk (even if the houses had been built)
Professor/Class:
- risk is higher level awareness, recklessness is lower level of requirement

R. v. Boulanger (breach of trust by public official)

2006, SCC (p. 486)
Facts: Issue:
- Daughter in car accident What is the mens rea for breach of trust
- Official asked them to write offence?
supplementary report saying it was not her Decision:
fault, so she wouldn’t have to pay
deductible Ratio:
- She wasn’t at fault Mens rea for breach of trust requires
- Charged with breach of trust (AKA intention to use office for purpose other
corruption) than the public good (purposes that are
dishonest, partial, corrupt or dishonest)
Actus reus–marked departure from the
reasonable course of action a public official
should have taken
Analysis:
McLachlin:
- Mens rea for breach of trust requires intention to use office for purpose other than the
public good
- Fact that person gained personal benefit is not necessarily a breach of trust
- D knew he would benefit from filing of the report, but it was an accurate report and
there was no intention to mislead the insurance company
- D’s conduct was an error of judgement (ethically questionable) but doesn’t rise to level
of breach of trust

Sansregret v. R. (leading case on definitions for recklessness and wilful blindness)

1985, SCC (p. 490)
Analysis:
- Recklessness is a subjective standard  conduct of one who sees the risk and takes
the chance [is not the same as civil negligence (failure to meet objective standard of
care)]
- Wilful Blindness – tantamount to knowledge. Where an accused is aware of the
need for inquiry and deliberately fails to enquire to preserve ignorance. Only applies
 71

when it can be said accused actually knew. Subjective state of mind (supressing a
suspicion)
- Difference Between Recklessness and Wilful Blindness – culpability in recklessness
is justified by consciousness of the risk and by proceeding in the face of it, while in wilful
blindness it is justified by the accused’s fault in deliberately failing to inquire when he
knows there is reason for inquiry

- People who are wilfully blind deliberately ignorant, supressing a suspicion to cheat
the justice system (ie.. ‘if I don’t ask, I can’t get charged’)

R. v. Briscoe (defining wilful blindness as deliberate ignorance)

2010, SCC (p. 493)
Facts: Issue:
- Accused drove two teenage girls to a Did the accused aid in the first degree
secluded location where they were raped murder?
and killed by others
Decision:
N/A
Ratio:
Wilful blindness is not simply failure to
make inquiry, but deliberate ignorance
Analysis:
(1) Willful blindness is of narrow scope and involves no departure from the subjective
focus on the workings of the accused’s mind (equivalent to knowledge) – while a mere
failure to inquire may be evidence of recklessness (for example where it is marked
departure from conduct of a reasonable person), wilful blindness is NOT simply a failure
to inquire, but DELIBERATE IGNORANCE
- Can still be wilfully blind after making an inquiry if accused remains suspicious and
fails to make further inquiries
Professor/Class:
- fault lies in having suspicions, not simply in ‘failure to make inquiries’.

R. v. Blondin (wilful blindness drugs; knowledge of type but not kind)

1971, B.C. C.A. (p. 496)
Facts: Issue:
 Blondin imported 23 pounds of hashish What mens rea is required to be guilty of
into Canada inside a scuba tank, customs importing hasish?
officials found it Decision:
Appeal allowed, new trial (overturning
- Blondin told police he knew something
acquittal from trial)
illegal was in the tank, but that he did not
Ratio:
know what it was
(1) There is in law no possession w/o
knowledge of the character of the forbidden
substance; the specific substance need
NOT be known, however its type MUST
be
 72

Analysis:
- Trial judge told jury accused had to know it was hashish, Crown argued on appeal that it would
be enough that Blondin knew he was importing something illegal
- Court says trial judge was wrong to say that he could only be convicted if he knew it was
hashish (too demanding a mens rea) – it would be enough for accused to suspect substance was a
narcotic, which is what jury should have been told
Problem w/ Crown’s contention is that bringing in some illegal things is worse than
bringing in others – for example it is illegal to bring in cigarettes, but this is not as bad as
hashish

Objective Fault
O’Grady v Sparling
1960, SCC (p. 500)
Ratio: (1) Criminal negligence is a form of negligence that connotes advertence, this
shows a minimally subjective standard of fault is required

R. v. Tutton and Tutton (arguments on subjective v objective standard on negligence;

commission/omission same fault)
1989, SCC (p. 501)
Facts: Issue:
- Tuttons (D) lost son What’s the fault element for criminal
- Had diabetes, took diabetes education and negligence?
knew how to control with insulin
- Belonged to religious sectthat belonged to Decision:
faith healing 3/3 split decision
- Believe he’d been cured by prayer and
stopped insulin, he became very sick and Ratio:
went to hospital. Told Tutton’s he’ll die if - Undecided
they take him off again - Agreed between all: no difference in fault
- Ms. Tutton had another “vision” and took because of commission/omission
him off, he died

- Charged with criminal negligence causing

death, convicted by jury
Analysis:
ALL AGREE: No difference in fault requirement whether done by omission (as this case)
or commission
McIntyre (Dubé concurring):
- Says it’s an objective standard of thought
- Act intended to prohibit mindless action
- Negligence is opposite of thinking things through, so not possible to have subjective
mens rea
- Must look at conduct of accused (showing wanton/reckless disregard)
- Unreasonable mistakes are not a defence. Reasonable mistake would be a defence (ie//
welder in a confined space, asked owner if there’s anything flammable who says no, there
 73

is and it explodes and kills someone)

- TEST: that of reasonableness and proof of conduct that shows a marked and significant
departure from the SoC expected of a reasonable person in the circumstances (need to do
something way unreasonable)
Lamer: (led court on recognizing subjective standard for murder)
- Objective standard must take into account factors of the accused (ie.. age, mental
development, education)
Wilson:
- Should be subjective, she says that objective fault would be absolute liability
(Dufraimont says this is wrong, pre-Beaver, not how the law works now)
- Section is ambiguous to fault element, and as such court should stick to subjective mens
rea for such a serious offence (Duf agrees it’s ambiguous) (court used a broader
interpretive exercise to find objective fault)
- Wanton/reckless disregard means gross negligence, requires some degree of awareness
of risk (recklessness) or even wilful blindness  any level of awareness will be accepted,
but must have at least some subjective mens rea
- If conduct is far aware from the SoC of the reasonable driver that is evidence of the
person’s subjective awareness of risk
- Mistaken beliefs need not be reasonable to be a defence (some people in capable of
meeting reasonable person standard). Worried about making people criminally liable just
because they don’t meet standard
 Must still consider whether they perceived there was a potential risk (ie// these
parents) which would satisfy subjective mens rea.
Professor/Class:
- Even though no ratio/resolution, best case to find all the arguments for subjective versus
objective level of fault in criminal negligence

Waite v. R. (reckless driving low standard, subjective v. objective still undecided)

1989, SCC (p. 512)
Facts: Issue:
- Accused drinking and driving What is the level of mens rea required?
- Saw hayride on other side of road, sped
past the hayride with no lights to impress Decision:
friend, 50-90mph - Convicted on dangerous driving
- Didn’t see the 5 people walking beside
(because no lights on), killed 4 and injured Ratio:
1 Where there are allegations of criminal
- Trial judge explained fault element as negligence  marked and substantial
subjective. Crown appealed, new trial departure (modified in F(J)) from the
ordered because wrong to say criminal conduct expected of a reasonable man in
negligence says ‘deliberate and wilful the same circumstances
assumption of risk’.
- Still undecided on standard for criminal
- Charged with criminal negligence causing negligence
death and criminal negligence causing
bodily harm
 74

(separate from murder/assault charges)

Analysis:
Wilson:
- Dangerous driving – this is an objective standard, hands down guilty verdict
- Criminal negligence requires subjective mens rea, but only a minimal level and it’s too
high a standard to say D deliberately and wilfully assumed the risk
- Simply requires recklessness/wilful blindness
Professor/Class:
Point of this case is to underline that even for the subjective branch of the court, the
standard of fault for criminal negligence is a very low, minimal subjective mens rea
Marked and departure test

R. v. Anderson (fault requirement undecided; higher risk of harm = more likely to conclude
reasonable person would foresee)
1990, SCC (p. 514)
Facts: Issue:
- Accused drinking and driving, legally Was the accused’s conduct a marked
intoxicated (not wasted) ran red light departure from the standard of care
- Hit other car and killed some people expected of a reasonable, prudent person?
Decision:
- Trial judge found crown hadn’t proved Upholds trial judge decision, not criminally
marked departure from standard of care of negligent
reasonable driver, no negligence Ratio:
As the risk of harm increases, the more
acceptable it is to conclude that a
reasonable person would foresee the
consequences & the easier it is to conclude
that the accused must have foreseen the
consequences
- still no decision on subjective v objective
standard
Analysis:
Sopinka:
- Marked Departure test: central question is whether accused’s conduct constituted a
marked departure from SoC of a reasonable person. Can generally more or less assume
the accused appreciated the risk in what they’re doing (necessary for objective or
subjective test)
- The riskier the behaviour is, the easier it is to conclude that a reasonable person would
have appreciated the risk, and that the accused appreciated the risk (we can assume they
had some subjective awareness of the risk)
- Trial judge found this was not a marked departure from standard of care - Sopinka J.
agreed w/ this judgement

R. v. Hundal (marked (not substantial) departure test for dangerous driving)

Note, p. 518
Ratio: Marked departure test for dangerous driving (not marked and substantial
departure)
 75

Cory (majority):
- dangerous driving should be judged on a modified objective test
- part of context is accused’s perception of facts (welder example)
- Corned over situations where there’s an innocent explanation (ie// driver having
a heart attack)
McLachlin (2 concurring):
- Takes issue with Cory J’s test as a being called a modified objective test. Says it’s
just an objective test, as it’s always allowed to consider circumstances. Objective test
is never applied in a vacuum
- Example of driver having a heart attack would not meet the actus reus Consent is
vitiated when there is an intentional application (involuntary act)
- Dufraimont:
 Can only be convicted once (criminal negligence causing death or dangerous
driving causing death); if jury finds person guilty of both judge stays the
lesser crime and convicts on the more serious

R. v. Creighton (marked departure test for unlawful act manslaughter?)

1993, SCC (p. 520)
SEE CREIGHTON AGAIN BELOW Issue:
Facts: - What is the fault requirement for unlawful act
- D was experienced drug user manslaughter?
- With deceased’s consent, D injected her - Can we look to the personal factors of the
with coke accused when deciding if they are guilty of
- She OD’s, companion wanted to call unlawful act manslaughter?
ambulance, accused said no and Decision:
intimidated companion to not call, cleaned
place of fingerprints and left Ratio:
- Companion later returned to call (1) The standard of a marked departure
ambulance, deceased already dead from the conduct of a reasonable person is
required by all objective fault/negligence
- Charged with drug trafficking (drug crimes
trafficking was injecting her with the drug) (2) The law cannot hold a person
criminally responsible if they were
incapable of recognizing the potential
harmful consequences of their acts
(incapacity) – the standard is to be
particularized in application by the nature
of the activity and the circumstances
surrounding the accused’s failure to take
the requisite care
Analysis:
McLachlan (majority):
- CJC Lamer’s approach would be a subjective standard. Whole point of objective test is
to set up minimal standard that applies to everyone, including personal factors would
undermine this
- Adopts marked departure test – objective fault crimes are valid. However, for
 76

negligence to be a criminal offence there must be a market departure from the reasonable
SoC on basis that law doesn’t lightly brand a criminal
- People who participate in risky activities should be held to a minimal standard of care,
however morally innocent shouldn’t be punished
 This places some limitation. Law cannot hold someone criminally responsible if
they were incapable of seeing the risk (very high standard)
- 2nd last paragraph pg 525 – short of incapacity, personal factors that make it difficult to
meet the standard (ie.. a new driver) don’t absolve you from needing to meet that
standard
- Don’t apply objective fault in a vacuum, still consider the circumstances (welder
example)
Lamer CJ (dissent) (3 concurring):
- Use an objective test, but take into account personal characteristics
- D is experienced drug user (has seen overdose before), this should be taken into account
and set a higher standard of conduct than the reasonable person. He would also lower the
standard (based on personal factors) if person lacked knowledge, experience training
- When applying objective reasonable person standard must ask “what accused capable of
living up to the standard?” (age, education, illiterate person who can’t read a chemical
label etc).
- Things that don’t count to lower standard of care: intoxication (they chose this); person
driving with cataracts (shouldn’t have been driving in first place)
Professor/Class:
- Incapacitated person is someone who cannot do it at all, not someone who could
potentially do it but it was really hard

R. v. Beatty (dangerous driving test)

2008, SCC (p. 528)
s. 249(4) – Dangerous operation of a motor Issue:
vehicle while street racing Was his conduct a marked departure of
Facts: reasonable care?
- accused driving pickup truck down single Decision:
lane highway, no mechanical issue, drove
into oncoming traffic and killed three Ratio:
- Was driving normally and safely prior, no (1) Dangerous Driving Test – (i) requires
recollection of what happened proof of a marked departure from the
- Had been working in the sun all day, standard of care of a reasonably prudent
possible he passed out from heat stroke driver, (ii) the person must be driving in a
(but not sure) manner dangerous to the public (we must
look at the manner of driving, and not its
consequences)
Analysis:
Charron J (4 concurring):
- Dangerous driving is an objective fault crime, requires marked departure
- Driving done with little conscious thought, doesn’t make sense to require subjective
standard
- Net of criminal liability would be too wide if liable every time we breach SoC
 77

- exculpatory defences must be taken into account in modified objective test (ie.. sudden
heart attack)

- 2 elements of dangerous driving:

 Actus reus – based on language of offence under the code. Viewed objectively,
was accused in fact driving in a dangerous manner? Yes (not all negligent driving
is dangerous, yet all dangerous driving is negligent)
 Mens Rea: Marked departure (subjective mens rea would show driving is a
marked departure, although it’s not required)
- Must only look at manner in which accused was driving. Fact that he hit/killed someone
does not denote dangerous driving.
- No deliberate intention to create danger, was a momentary lapse of attention (could
happen to anyone) and would be harsh to find someone guilty of dangerous driving in
that context
Professor/Class:
- Reasoning applies to objective fault crimes generally (especially when imprisonment an
option); creates new idea as momentary lapse of attention does not denote a marked
departure

R. v. JF (determines fault element for criminal negligence under s. 219)

2008, SCC (p. 540)
S. 219 – criminal negligence Issue:
Facts:
- failing to provide necessaries of life to a Decision:
child
Ratio:
“Marked and substantial departure” from
the required level of care is required for
conviction of criminal negligence.
Analysis:
- For regulatory offences that involve strict liability defence is due diligence. Reverse
onus, defence must show accused was not negligent on balance of probabilities (not
simply not ‘grossly negligent’ but actually ‘not negligent’)
Professor/Class:
- Highest fault element is for criminal negligence causing death – marked and substantial
departure
- Medium is – marked departure (objective fault crimes)
- Lowest is strict liability – due diligence onus of D

R. v. Creighton (Fault element for manslaughter: objective foresight; UAM has own fault
requirement)
1993, SCC (p. 551)
s. 222(5) Issue:
Facts: What is the fault requirement for unlawful
- injected cocaine into someone he was act manslaughter?
doing drugs with Decision:
- She died Ruling for crown
 78

- Predicate offence was drug trafficking Ratio:

- Court defined drug trafficking as actually
injecting her with the drugs
Fault requirement for unlawful act
manslaughter: In the case of manslaughter
by unlawful act, the reasonable foresight
need merely be of the risk of bodily harm
which is neither trivial nor transitory
(does NOT require reasonable foresight of
death)
- DO NOT NEED MARKED
DEPARTURE TEST FOR UNLAWFUL
ACT MANSLAUGHTER, IT HAS IT’S
OWN FAULT REQUIREMENT

(1) The fault element of the predicate

offence (usually assault, here drug
trafficking) which must:
 Involve a dangerous act,
 NOT be an absolute liability
offence, and
 Be itself constitutionally valid, and
(2) The additional fault requirement for
manslaughter (p.554): “objective
foreseeability of the risk of bodily harm
which is neither trivial nor transitory in the
context of a dangerous act” (low test,
reasonable person standard)
Analysis:
McLachlin (4 concurring):
- manslaughter residual category for crimes that don’t live up to murder/infanticide
- Wide variety of circumstances, requires: 1) conduct that caused death and 2) fault short
of intent to kill
- S. 222 – fault may lie in unlawful act causing death (unlawful act causing death ) OR
criminal negligence
- Fault requirement see RATIO
- Is this constitutionally valid?
 Manslaughter codification of common law that’s existed for 100s of years
 Manslaughter not so serious/grave that objective foreseeability is constitutionally
required: 1) stigma (lack of stigma, everyone appreciates less serious than murder.
Some stigma is appropriate); 2) Public would be shocked if killer was only
convicted of agg. assault ; 3) penalty can be low (no minimum sentence unless
firearm)
 In this case fault element doesn’t reflect act element perfectly; she says it’s
general rule they do, but this isn’t a constitutional requirement. What is
REQUIRED: proportional level of fault related to gravity of defence. Plus, if we
accept thin skull rule, there’s not difference
Lamer CJC (3 concurring) DISSENT:
 79

- high stigma involved in manslaughter conviction, however not as bad as murder (well
known throughout society)
- From Charter POV, doesn’t need to be subjective mens rea crim. Can be objective fault
- Can only be guilty of manslaughter if death as consequence of action was objectively
foreseeable, Charter requires this
Professor/Class:
- In order to be guilty of unlawful act manslaughter, need to be guilty of some predicate
offence that’s an unlawful act that causes death (usually assault)
- Last year unlawful act manslaughter on exam, students meant to say “assault” was the
predicate offence. However, lots of students said it was “assault causing bodily harm” or
“agg. Assault”, you would NEVER do that – crown only needs to prove assault, don’t
want to up your burden
- Crimes based on predicate offence: she just applies this to unlawful act manslaughter
- Most manslaughter cases (ie.. fights) it is fair to say reasonable person could
foresee risk of non-trivial harm. Essentially case that you’re always guilty of
manslaughter if you commit assault/predicate offence because standard is low
 Might not meet fault element is you very lightly slap someone (and no reasonable
person would foresee risk of non-trivial harm) and they suffer brain amorism.

Aggravated Forms of Assault

p. 564
s. 268(1) Everyone who commits an aggravated assault who wounds, maims,
disfigures or endangers the life of the complainant
 Under R. v. Godin, SCC 1994, aggravated assault requires:
o An assault that wounds, maims, disfigures or endangers life, AND
o Objective foreseeability of bodily harm (drawn from Creighton)
o No good reasoning behind this decision. Duf says maybe the SCC
wanted to come somewhere in the middle for the fault element
 Assault causing bodily harm is controversial
o Some provinces only require an assault that actually causes bodily
harm (with no fault element related to the harm)
o Others (including Ontario) say that harm must be reasonable
foreseeable
o SCC hasn’t dealt with this issue, so still up to courts of appeal

Rape and Sexual Assault

Rape Laws in Context
- Sexual offences were overhauled in 1982
- Rape myths law tries to address:
 Law has reflected misinformation/stereotypes held about sexual assault
o ‘Sexual assault/abuse are uncommon’ culture of disbelief of claims,
seen as lies
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o ‘Rape is generally perpetrated by strangers’

o ‘Rape by spouse/acquaintance is less traumatic’
o Victim blaming ‘good women don’t get raped’
o ‘Rape was theft of sexual property. Offence was against the
husband/father because she was less valuable than a marriageable
daughter or pure wife’

Historical Rules Specific to Rape Cases

- Prior sexual history of the complainant (removed from the code) was routinely
admitted and said to be relevant to:
 Did she consent?
 Was she a credible (believable) witness?
- Now we have ‘rape shield laws’ to prevent bringing such ‘evidence’ into the case
- Doctrine of recent complainant (removed from the code)
 Rape victims were expected to report the rape:
o At the first available opportunity, and
o Spontaneously (won’t need to be drawn out)
 Reporting late was a reason to doubt the truth of the report
- Corroboration for women and child complainants (removed from the code)
 Their testimony in a rape case had to be corroborated by independent
evidence implicating the accused

Alan Young “When Titans Clash”

p. 580
- Class of stories. Job of defence lawyer to explore reasons to raise reasonable doubt
about truth of complaint
- To the extent sexual assault (SA) trials focus on information of the complainant,
two possible views of this trend:
– 1) Extension of belief that women are unworthy of belief
– 2) Only way of trying this is questioning complainant

Mistaken Belief of Consent

- We know the Crown must prove non-consent
- Non-consent is a circumstantial element – part of the act element

- Is there a corresponding mental element?

- Accused’s subjective awareness of non-consent
- Yes – this mental element is reflected in the defence of “mistaken belief in
consent”

Definition of the Crime of Rape

Pappajohn v. R. (real estate agent raped; leading case for mens rea on OLD offence of rape; mistaken
belief as subjective)
1980, SCC (p. 583)
- Charged/convicted of rape by jury Issue:
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Facts: Should the jury have been told: that if

- Man (D) selling home and complainant accused honestly thought victim was
(P) real estate agent consenting, he is no guilty?
- Had long lunch and consumed alcohol Decision:
- Went to his house to discuss sale Ruling for P, conviction upheld
- Agree on story at lunch and drive to Ratio:
house - Before defences are explained to the jury,
- Disagree once at house there must be an evidentiary foundation for
- He said: had sexual intercourse multiple them. When the defence is a real issue on
times, consensual the evidence, it must be explained to jury.
- She said: he raped her multiple times
- They both agree at 7:30 pm ran out of - Mistaken belief in consent must be
house naked, hands tied behind back honest, does not need to be reasonably
- Went to nearby house, helped called held. Negates mens rea and leads to full
police acquittal.
- No signs of struggle, clothes folded
- She had a few scratches, physically
uninjured
Analysis:
- All agree that there is a defence of ‘mistaken belief in consent’ and it negates mens rea
of rape and leads to acquittal
McIntyre (3 concurring):
- Agree with Dickson CJC explanation of mens rea required for rape
- Rule that judge isn’t supposed to put defences to jury unless there’s an evidentiary
foundation from the facts. Mistaken belief in consent was not raised in the facts, so didn’t
need to tell jury
- In her story, she is screaming/protesting/etc. In his story he says she’s right into it and
going along, no evidence presented that she was objecting but it was unclear to him.
Nothing suggestive of a mistake on the facts
- If defence of mistaken belief in consent was to be explained in this case, it would be
required in every case
- When would the mistaken belief require explanation?
 Plummer – he raped woman after she was threatened by another man. To
Plummer it seemed like she was going along with it, he didn’t know she was
threatened
 Morgan – man brought friends to house and invited to have sex with wife. Told
them if she resists it’s a ‘sham’. HoL recognized mistaken belief in consent
defence in this case
 Under current Canadian law, this defence would NOT be available for either of
the above examples
Dickson (1 concurring):
- Defence of mistaken belief negates mens rea. Actus reus and mens rea should mirror
one another
- Believes it’s hard to draw line between consensual and non-consensual intercourse
- Mens rea required for rape: subjective
- Mistaken belief in consent DOES NOT have to be a reasonable belief (STILL TRUE
 82

TODAY)
 If mistaken belief was only a defence if reasonable, it would be an objective fault
offence. Sex assault cannot be objective fault
- Majority’s worry that mistaken belief would lead to floodgate and too many people
would be easily acquitted. DICKSON thinks mistaken belief always needs an evidentiary
foundation and jury/judge could see this. Jury won’t believe a person actually made a
mistake, unless a reasonable person would make that mistake
- Dickson believes there was evidence to put mistaken belief defence to jury:
complainant’s necklace/car keys in living room, folded/hung clothes (without damage),
there 3 hours and didn’t leave when accused undressed, minimal physical injuries (a few
scratches)
Professor/Class:
- Beginning of mistaken belief cases. Facts that would raise mistaken belief in consent
has changed over time and since this case.
- Defence of mistaken belief in consent very rarely works and is very rarely even
explained to jury

Sansregret v R (bf broke into ‘wealthy’ gf; mistaken belief freely given)
1985, SCC (p. 596)
Rape, B&E, unlawful confinement Issue:
- Trial court found not guilty of rape, court Was such an unreasonably held mistaken
of appeal upheld rape conviction so belief of consent a defence?
automatically allowed appeal to SCC Decision:
Facts: Upheld conviction of rape
- P and D were live in partners Ratio:
- P asked D to move out and he did Mistaken belief must be freely given, and
- Incident 1: he broke into P’s home at not procured by threats
4:30am, raging and armed with a file. She
was frightened, calmed him down and held - Still holds that unreasonably held
out hope of reconciliation. Had sex to calm mistaken belief in consent can be a defence
him. Reported rape to police, accused’s
probation officer asked her not to proceed
with charges (he’d get him a job) so she
didn’t. Disagreement over whether D knew
she went to police
- Incident 2: Broke in again mid October.
Broke in, violence, threatened with butcher
knife. Tore out phone cord when he found
her on phone. Made her strip naked and
stand in door way, while repairing window
so police wouldn’t see. Struck her on
mouth, rammed knife into wall. Talked him
down, held out hope of reconciliation.
Submitted to sex to keep him calm and
prevent him from killing her
Analysis:
 83

- Already found guilty of B and E and unlawful confinement

- Trial judge found not guilty of rape because, although no reasonable person would have
mistaken belief in consent here the actual D did. The complainant believed that D
believed she was consenting (she calmed and convinced him). Accepted defence of
mistaken belief.
- Trial judge was challenging SCC on ratio that mistaken belief in consent need not be
reasonable. Based on how SCC explained law, trial judge had to acquit
McIntyre J:
- Old rape law said consent didn’t exist if extorted by fear/threats
- Mistaken belief must be freely given, and not procured by threats
- Still holds that unreasonable mistaken belief in consent can be a defence
- D knew that P reported rape to police the first time. Wilful blindness and reckless
- Trial judge found D was wilfully blind, McIntyre relies on this to uphold rape
conviction. Wilful blindness is subjective mens rea and tantamount to knowledge. As
such, he knew about her lack of consent. Not open to trial judge to find mistaken belief in
consent.
Professor/Class:

A. Manson, Annotation
- Re Sansegret: SCC messed up mens rea principles. Trial judge found as a fact D
honestly held a mistaken belief. As such, cannot be found to be wilfully blind.
- Wilful blindness/suspicion cannot be reconciled with mistaken belief.

1983, Sexual Assault Charge

S. 265(4) – acknowledgement of mistaken belief in consent defence
- 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.
 Someone say this codifies the mistaken belief in consent. Dufraimont says it does not. It tells us what the judge must do if
the mistaken belief exists. It is, however, an acknowledgment of the defence
 Brought in based on concerns about unreasonable mistaken beliefs – judge must instruct jury to be worried about the
reasonableness. Does NOT require mistaken beliefs to be reasonable
271 Everyone who commits a sexual assault is guilty of
 (a) an indictable offence and is liable to imprisonment for a term of not more than 10 years or, if the complainant is
under the age of 16 years, to imprisonment for a term of not more than 14 years and to a minimum punishment of
imprisonment for a term of one year; or
 (b) an offence punishable on summary conviction and is liable to imprisonment for a term of not more than 18
months or, if the complainant is under the age of 16 years, to imprisonment for a term of not more than two years less
a day and to a minimum punishment of imprisonment for a term of six months.
 Also called sexual assault simpliciter (common)
272 (1) Every person commits an offence who, in committing a sexual assault,
o (a) carries, uses or threatens to use a weapon or an imitation of a weapon;
o (b) threatens to cause bodily harm to a person other than the complainant;
o (c) causes bodily harm to the complainant; or
o (d) is a party to the offence with any other person.
 Marginal note:Punishment
(2) Every person who commits an offence under subsection (1) is guilty of an indictable offence and liable
o (a) if a restricted firearm or prohibited firearm is used in the commission of the offence or if any firearm is
used in the commission of the offence and the offence is committed for the benefit of, at the direction of,
or in association with, a criminal organization, to imprisonment for a term not exceeding 14 years and to a
minimum punishment of imprisonment for a term of
 (i) in the case of a first offence, five years, and
 (ii) in the case of a second or subsequent offence, seven years;
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o (a.1) in any other case where a firearm is used in the commission of the offence, to imprisonment for a
term not exceeding 14 years and to a minimum punishment of imprisonment for a term of four years; and
o (b) in any other case, to imprisonment for a term not exceeding fourteen years.
 Marginal note:Subsequent offences
(3) In determining, for the purpose of paragraph (2)(a), whether a convicted person has committed a second or subsequent
offence, if the person was earlier convicted of any of the following offences, that offence is to be considered as an earlier
offence:
o (a) an offence under this section;
o (b) an offence under subsection 85(1) or (2) or section 244 or 244.2; or
o (c) an offence under section 220, 236, 239 or 273, subsection 279(1) or section 279.1, 344 or 346 if a
firearm was used in the commission of the offence.
However, an earlier offence shall not be taken into account if 10 years have elapsed between the day on which the person
was convicted of the earlier offence and the day on which the person was convicted of the offence for which sentence is
being imposed, not taking into account any time in custody.
 Marginal note:Sequence of convictions only
(4) For the purposes of subsection (3), the only question to be considered is the sequence of convictions and no
consideration shall be given to the sequence of commission of offences or whether any offence occurred before or after any
conviction.
Like assault causing bodily harm
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.
(2) Every person who commits an aggravated sexual assault is guilty of an indictable offence and liable
o (a) if a restricted firearm or prohibited firearm is used in the commission of the offence or if any firearm is
used in the commission of the offence and the offence is committed for the benefit of, at the direction of,
or in association with, a criminal organization, to imprisonment for life and to a minimum punishment of
imprisonment for a term of
 (i) in the case of a first offence, five years, and
 (ii) in the case of a second or subsequent offence, seven years;
o (a.1) in any other case where a firearm is used in the commission of the offence, to imprisonment for life
and to a minimum punishment of imprisonment for a term of four years; and
o (a.2) if the complainant is under the age of 16 years, to imprisonment for life and to a minimum
punishment of imprisonment for a term of five years; and
o (b) in any other case, to imprisonment for life.
 Marginal note:Subsequent offences
(3) In determining, for the purpose of paragraph (2)(a), whether a convicted person has committed a second or subsequent
offence, if the person was earlier convicted of any of the following offences, that offence is to be considered as an earlier
offence:
o (a) an offence under this section;
o (b) an offence under subsection 85(1) or (2) or section 244 or 244.2; or
o (c) an offence under section 220, 236, 239 or 272, subsection 279(1) or section 279.1, 344 or 346 if a
firearm was used in the commission of the offence.
However, an earlier offence shall not be taken into account if 10 years have elapsed between the day on which the person
was convicted of the earlier offence and the day on which the person was convicted of the offence for which sentence is
being imposed, not taking into account any time in custody.
 Marginal note:Sequence of convictions only
(4) For the purposes of subsection (3), the only question to be considered is the sequence of convictions and no
consideration shall be given to the sequence of commission of offences or whether any offence occurred before or after any
conviction.

Crimes of Sexual Assault

R. v. Chase (adult neighbour; leading case definition/test for sexual assault)
1987, SCC (p. 607)
Facts: Issue:
- D adult neighbour of P (15) What makes assault a sexual assault? Does
- P was playing with brother, D went into it require touching of genitals?
house uninvited Decision:
- D touched her, grabbed breasts, attempted
to touch genitals but she blocked him. He Ratio:
said ‘I know you want it’ Def’n SA:
(1) A sexual assault is an assault committed
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- Trial court substituted conviction of in circumstances of a sexual nature, such

common assault since he had not touched that the sexual integrity of the victim is
genitals violated
(2) Test for determining whether conduct
has requisite sexual nature (objective) –
Viewed in light of all the circumstances, is
the sexual or carnal context of the assault
visible to a reasonable observer?
(3) Factors to consider – the part of the
body touched, the nature of contact, the
situation in which it occurred, the words
and gestures accompanying the act, and all
other circumstances surrounding conduct
may be relevant, including threats which
may or may not be accompanied by force,
is relevant, ADDITIONALLY the
accused’s intent or purpose as well as his
motive, if such motive is sexual
gratification, may also be factors in
considering whether the conduct is sexual
(4) Sexual assault is an offense requiring
general intent only
Analysis:
McIntyre:
- Assault part: Sexual assault is an assault as defined in criminal code, just a subset.
Assault in code s. 265, 3 forms: (i) intentional application of force directly/indirectly
without consent; (ii) attempt/threaten by act or gesture to apply force and have present
ability to do so; (iii) openly wear/carry weapon/imitation weapon
- Sexual part: must have ‘added sexual component’. What does this mean?
 Could be based on D’s intent for sexual gratification: SCC rejects this, could have
bizarre consequences (ie// person with foot fetish touching feet charged with
sexual assault)
 Assault in circumstances that are sexual, and is an affront to sexual dignity and
integrity of P is violated: SCC accepts this. This is objective test from point o
view of reasonable observer
- Factors to be considered:
 Part of body touched (Chase touched P’s breasts)
 Nature of the contact
 Words/gestures that go along with it (D said ‘I know you want it’)
 Intent/purpose of the actor, including any motive of sexual gratification (just one
factor, but not required. Could have sexual assault without intention, or could
have common assault with sexual intention)
Professor/Class:
 86

p. 612 problem recommended

R. v. Bulmer (prostitute hotel; air of reality idea - updated later)

1987, SCC (p. 613)
Facts: Issue:
- Prostitute (P) consented to sex with D1 How do we get an evidentiary foundation
- Got to hotel and D2 and D3 were there for a defence in mistaken belief in consent?
- She refused Decision:
- They left hotel and came back to D ½ convicted,
negotiate price for all 3 Ratio:
- P says she had sex without payment to Air of Reality Test: whether in all the
protect herself circumstances there is any “air of reality”
- Ds say they agreed on price of 20$ each to the defence of mistaken belief of
and she accepted consent, before putting it to the jury

- Still holds mistaken belief need not be

reasonable, if held must be acquitted
Analysis:
McIntyre:
- Mere assertion of mistaken belief by accused does not create err or reality. Judge not
required to put mistaken belief defence to jury unless there’s evidentiary foundation.
- Question: whether in all the circumstances there is any “air of reality” to the defence of
mistaken belief
Lamer:
- If accused testifies that P consented or that they thought P consented at the time, that is
enough evidence to put defence to the jury

R. v. Osolin
1993, SCC (p. 617 NOTES)
- ‘Air of reality’ can be raised by accused’s testimony. Still need some evidence
beyond mere assertion of mistaken belief.

R. v. Davis (how to establish air of reality for mistaken belief defence)

1999, SCC (p. 618)
Facts: Issue:
- N/A N/A
Decision:
N/A
Ratio:
- Must be situation of ambiguity in order
to ground defence of mistaken belief in
consent
- When putting mistaken belief in consent
to the jury, the trial judge must consider the
totality of the evidence and NOT attempt
to weigh it – the judge should not conduct a
substantive evaluation of the merits of the
 87

defense
Analysis:
Lamer (6 concurring):
- Mistaken belief negates mens rea of sexual assault
- “Air of reality” evidentiary basis required for mistaken belief defence:
2. Complainant did not consent
3. Accused honestly though complainant did consent
- Judge must considered totality of evidence
- Air of reality can arise even when D doesn’t state mistaken belief in consent.
Conversely, D raising defence does not necessarily raise air of reality (ie// when two
opposite stories where D says she consented and P says she didn’t)
- Must raise situation of ambiguity in order to ground defence of mistaken belief in
consent
 Evidence can come from accused, complainant, or other
Professor/Class:

Susan Estrich “Teaching Rape Law” essay

p. 621
- Controversial matter of credibility in SA cases. Often the only way to defend
accused to break down credibility of complainant. Controversy in what
evidence/trial tactics should be allowed
- Should we allow psychiatric history of complainant to be admitted? Creates idea
that woman with psychiatric history is ‘unrape-able’, will never be believed by
the court
- What about accused’s previous sexual conduct?

Consent under S. 271(1)

p. 649
- Non-consent is one of the act elements of sexual assault
- On test, always go to code first. Provisions define what consent means for sexual
assault, and instances where it’s vitiated
- See. 265(1) and s. 273.1(2) for when consent is vitiated
273.1(1) Subject to subsection (2) and subsection 265(1), “consent” means, for the
purpose of sections 271, 272, 273, the voluntary agreement of the complainant to
engage in the sexual activity in question
 No consent is found in 273.1(2) or 265(3) (consent vitiated by fraud)
(2) No consent is obtained, for the purpose of subsections 271, 272, 273 where:
a) The agreement is expressed by the words or conduct of a person other than
the complainant
b) Complainant incapable of consenting
c) Accused induces engagement by abusing position of power
d) Complainant expresses lack of agreement
e) Complainant expresses lack of agreement to continue to engage
(3) Non-consent not limited to those in 273.1(2)
 88

Consent and Mistaken Belief

- Code Provisions re: mistaken belief in consent [s. 265(3) and s. 273.2]
s. 265(4)
s. 273.2 – not a defence to s. 271/272/273 that accused believed the complainant
consented, where
(a) accused’s belief arose from the accused’s
(i) self-induced intoxication, or
(ii) recklessness or wilful blindness; or
(b) the accused did not take reasonable steps, in the circumstances known to the
accused at the time, to ascertain that the complainant was consenting

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 (van job interview; reasonable steps for MBIC; actus reus=Ps subjective consent; mens
rea = mistaken belief)
1999, SCC (p. 651)
Facts:
- Accused (much older) offered P (17) job,
brought her to his van for interview (closed
the door). She thought she was locked in,
became afraid.
- He asked for a massage, she did. Gave her
massage, reached for her breasts and she
said no
- Accused initiated sexual touching, each
time complainant said no. He stopped each
time, but would start again with even more
intimate contact. Kept telling her not to be
afraid.
- Eventually was dry humping her, pulled
out his penis and she said no
- Gave her $100 at end
Issue: Is implied consent a valid defence?
Decision:
Accused convicted
Ratio:
Actus Reus SA:
(i) touching
(ii) touching of a sexual nature
(iii) absence of consent (based on
complainant’s subjective consent. Consent
can be vitiated by fear)
Mens Rea SA:
(i) an intention to touch, AND
(ii) knowing of, or being reckless or
wilfully blind to a lack of consent on the
part of the person touched
Basis for Mistaken Belief in Consent:
D must believe P communicated (by
words or conduct) consent. Belief P
wanted touching, but didn’t express it is
NOT A DEFENCE.

(2) Five limits imposed by the Courts on

mens rea – (i) For the purposes of the
honest but mistaken belief in consent
defense, consent is different from consent
in the case of the actus reus and means that
 89

the complainant affirmatively

communicated by words or conduct
agreement to the sexual activity, (ii)
Consent in relation to the mens rea of the
accused is limited by both the c/l and the
provisions of s. 273.1(2) and 273.2 of the
Code (iii) ie.. a belief that silence,
passivity, or ambiguous conduct constitutes
consent is a mistake of law and provides no
defense (iv) An accused cannot rely upon
his purported belief that the complainant’s
expressed lack of agreement to sexual
conduct in fact constituted an invitation to
more persistent or aggressive conduct (v)
Continuing sexual contact after some has
said “no” is, at a minimum, reckless
conduct which is not excusable

(3) Once a complainant has expressed a

lack of agreement to the sexual activity the
accused should be very sure to obtain a
clear consent before proceeding w/ further
sexual contact
Analysis:
- Trial judge accepted Ps evidence, but didn’t amount to sexual assault. While P was
subjectively not giving consent, she concealed her fear. As such, fear irrelevant and
consent was implied. Court of Appeal upheld acquittal and defence of “implied consent”.
Went to SCC because strong dissent at C.A.
SCC
Major (5 concurring) majority:
- 3 components: 1) touching; 2) toughing of sexual nature (objective determination;
accused doesn’t need mens rea in terms of sexual nature of touching); 3) absence of
consent
- Consent = subjective, matter of complainant’s subjective state of mind (must be
voluntary agreement)

- Actus Reus of SA: Non-consent based on P subjectively consenting. It cannot be

implied (if she didn’t consent in her mind that’s it; should be no discussion of ‘consenting
by behaviour)
 Consent is vitiated by fear, although not relevant here because she has made clear
she did not consent at all (fear is subjective, not held up to reasonableness
standard)
- Mens Rea of SA: Two components:
 1) Intention to touch (usually is intentional);
 2) subjective awareness of non-consent (accused needs to know, or be reckless or
wilfully blind to fact victim was consenting)
 90

- D must believe P communicated (by words or conduct) consent. Belief P wanted

touching, but didn’t express it is NOT A DEFENCE.

 C/l limitation to mistaken belief in consent – accused must believe that the complainant
expressed consent – this expression can be by words or conduct, accused must have thought
that the complainant said “yes” by words or actions
 Applying rules to facts – woman said no several times, the trial judge should not have found
that consent was implied, there was no air of reality of consent, there is no defense to this
sexual assault, and court imposed conviction
L’Hereux Dubé (1 concurring) concurring:
- trial judge trying to paint complainant as someone of questionable moral character,
PROBLEMATIC
- C.A. concept that P should have fought way out, D was “just hormonal”
- Major concerns over stereotypical reasoning, not acceptable
McLachlin (concurring):
- agreed with above
- Myths/stereotypes should be repudiated and not part of Canadian law
Professor/Class:
- Usually in court actus reus of consent is what is argued and the issue. Mens rea belief of
mistaken belief in consent is difficult defence and rarely comes up.

Limits on Defence of Mistaken Belief:

- Air of reality requires “situation of ambiguity” (Davis)
- Some limits in the code (s. 273.2; s. 265(4)):
 No defence of mistaken belief with reasonable steps
 No defence of mistaken belief based on self-induced intox, reckless, wilful blind
 Juries must be instructed to consider reasonableness
- Additional limitations of Ewanchuck:
 Mistaken belief must be belief consent was expressed/communicated
 A belief that no means yes, or silence, passivity or ambiguous conduct equals
consent is no defence
 Once the complainant said “no” the accused is on notice and must be sure consent in
communicated before proceeding

R v Cornejo (applying reasonable steps requirement, intro objective standard; co-worker went in
unlocked apt)
2003, SCC (p. 666)
Facts: Issue:
- Co-workers, at work event earlier didn’t
talk. Both drunk Decision:
- Called her asking to come over, she said Ruling for victim
“mm-mmm” Ratio:
- Accused came over in the middle of the - Introduces objective standard to MBIC
night; he knew victim was not interested in - Must take reasonable steps for MBIC to
him. Victim is very drunk. Kissing her be available:
forhead, stroking her hair, her eyes are  Subjective aspect (circumstances)
closed. He says that her “shifting of the  Objective (reasonable steps)
pelvis” while asleep as he took off
 91

pants/panties gave an air of reality to
MBIC
- Tried to have sex, she eventually woke up
and said no
(1) Reasonable Steps Test – The accused’s
obligation to take reasonable steps is
ONLY based on what he subjectively
knows at the time. On the other hand, s.
273.2(b) requires the accused to act as a
reasonable person would in the
circumstances by taking reasonable steps to
ascertain whether the complainant was
consenting

Analysis:
- Trial judge found “air of reality” to defence of mistaken belief, presented defence to
jury and they acquitted him
Abella (2 concurring):
- Raising pelvis while asleep, knowing she had no interest in him, gave no air of reality in
mistaken belief in consent
- Required accused to take reasonable steps, he took none so defence of mistaken belief
in consent not available
- MBIC both subjective (circumstances accused knew about) and objective (steps
reasonable person would take to ascertain consent)
Professor/Class:
- Subjective mens rea is not based solely on what the C says, can look to facts and still
say there was subjective consent
Actus Reus
1. Touching
2. of a sexual nature
3. absence of consent
Mens Rea:
1. Intention to touch

2. Subjective awareness of non-consent

p. 671 problem #1:

- Defence:
 Though consent was communicated by opening buttons on blouse
 Took reasonable steps – had convo about being open to touching, started
with mild (hugging then touching then kissing)
- Crown:
 If there was evidence she made it known she was not happy with the kiss
 Saying she is “affectionate” meant it wasn’t sexual

R v JA (asphyxiation/dildo; no pre-consent)
2011,
Facts: Issue:
- Accused and complainant engaged in Can someone consent in advance to sexual
consensual asphyxiation touching that would take place when she
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- She went unconscious, woke up to him was going to be unconscious? (This is

penetrating her anally with dildo about actus reus consent)
- Proceeded to have vaginal intercourse Decision:
after Cannot consent, ruling for C
- C went to police to claim sexual assault a Ratio:
couple months later, said she did not (1) Consent is the conscious agreement of
consent the complainant to engage in every sexual
- Recanted at trial. Said she did consent to act in a particular encounter – this means
sexual touching when unconscious (said there must be ongoing consent throughout
she went to report because A threatened to every sexual act (must be conscious)
get sole custody of their kid) (2) A complainant cannot validly consent
- Trial judge accepted she did consent, but to sexual activity in the future – implied
no actual evidence of consent/non-consent consent has no application
at the trial
- At SCC, must accept that she did pre-
consent
Analysis:
McLachlin (5 concurring) Majority:
Issues: whether consent requires C to be conscious through sexual activity.
- C must be conscious throughout sexual activity to be taken as consenting
- Parliament has defend consent as ongoing, conscious consent. Belief it protects
individuals of exploitation, and prevents people from being unable to retract consent later
on
- Issue here is actus reus consent (cannot subjectively be consenting whilst unconscious)
- Para 31  looking at all SA provisions together, parliament views consent as conscious
agreement
 S. 273.1(1) – ‘in sexual activity in question’ – must be for each and every activity,
rules out broad/advanced consent
 S. 273.1(2)
 (b) – interpret consent as “conscious consent of the operating mind”
 Actus reus consent from Ewanchuck – what was in C’s mind
 (d) mens rea – what is express between the parties (this limits defence of
mistaken belief in consent, because not open to accused to say he believed
consent when she says no)
 (e) mens rea – indication parliament wanted to make consent revocable
 s. 273.2(b)  reasonable steps to ascertain consent cannot be taken if person is
unconscious
POLICY:
Fish (2 consurring) DISSENT:
- Majority says C’s consent not acceptable in law
- Question is whether a conscious person can consent in advance during a brief period of
unconsciousness? Yes
- Though not brought up in this case, acknowledgement that consent could be vitiated by
bodily harm for policy reasons (possible asphyxiation could be)
- S. 273.1(1) – doesn’t say when consent must take place, doesn’t exclude advanced
consent
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- S. 273.1(2)
 (b) – no one argued obtaining consent from unconscious person, just carrying
consent through brief period of unconsciousness
 (e) suggests that consent can occur earlier and be carried forward (‘having
consented’)
- Advanced consent is a reasonable step
- Limit his holding – relating to asphyxiation

Policy Discussion in Class (Both Sides):

- issue of being able to revoke consent and protecting vulnerable groups
- Criminalizing certain sexuality (ie.. BDSM)
Professor/Class:
- Seen to be test case for the reasonableness of our SA offences in general. Does it turn
people into sexual assaulters?

Mistake
Mistake of Fact
- Also see mistaken belief of consent (mistake of fact) under SA
- Pappajohn  still authority on mistake of fact
 Negates fault element (mens rea) for an offence

Fault Level of Offence Where mistake of fact is a defence

Subjective mens rea Any honest mistake

Objective Fault Only an honest and reasonable mistake

Due diligence defence Only an honest and reasonable mistake, with an onus on
the accused to show reasonableness

Absolute Liability No mistake is a defence

- Absolute liability where imprisonment is an option raises Charter problems

R v Hess; R v Nguyen (sex with underage; mistake of age defence if reasonable steps taken; no
absolute liab.)
1990, SCC (p. 700)
- Old offence of stat rape, no longer in Issue:
Code (repealed 1988) - Can mistake of age be excluded in the
- Was s. 146(1) criminalized male having statute?
sexual intercourse with female who’s not - What is the legal effect of the accused’s
his wife and under age 14, whether or not mistake of age?
he believes she is 14+ or not. Possibility of Decision:
life imprisonment Court reads down provision, excludes the
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 Absolute liability offence and
prison option
Facts:
- H and N both charged with sexual
intercourse with females under age 14.
Two different cases, appeal heard together
- Brought Charter challenge on s. 7
(possibility of imprisonment with not fault
requirement/absolute liability)
 Should be allowed to bring mistake
of age defence
- Brought s. 15 Charter challenge (equality
provision) because only males could be
guilty of the offence, and could only be an
offence against a female
phrase that removes mistake of age defense
Ratio:
Read the Provision Down- Accused must
take reasonable steps to ascertain age of
complainant – after they have done so the
mistake of fact defense becomes available
- Due diligence (some fault element) as a
minimum requirement when
imprisonment is available

Analysis:
Wilson (4 concurring):
- s. 146 rules out subjective mens rea. However, true criminal offence requires mens rea
- Person must know nature of the act they’re doing, subjective awareness of C’s age
- Mentally Innocent – a person who thought mentally they were doing an act that would
be innocent in law (girl over 14) and they are thus morally innocent
- Charter requires at least defence of due diligence if imprisonment allowed
- On s. 7, law is unconstitutional. Is it saved by s. 1?
 Crown: deterrence (if mistake of age available, people will think they can get
away with it). Absolute liability puts men on warning, know there’s no loophole,
strongest protection for young girls
 Court: can’t reasonably conclude men would be aware of this obscure area of the
criminal code, and it won’t have impact on their behaviour; no evidence that this
form of regulation had a better deterrent effect; person who takes all reasonable
steps and still makes a mistake is not morally blameworthy. This would be
unfair, using innocent people as a means to an end
 Crown: moral innocence can be taken into account in sentencing
 Court: This implicitly accepts it’s unjust to punish at all, and puts to judge to
correct moral innocence. This should be dealt with at trial stage
 For s. 1, must show (ii) minimally impairing; (iii) proportional
 - After these people were charged, parliament adopted law that allowed
mistake of age. SO, there is a more minimal way to impair (as in the new law) so
this fails the Oakes Test.
McLachlin (2 consurring) DISSENT:
- Agrees with majority that offence offends s. 7 of Charter, and also offends S. 15.
Believes s. 1 saves it
- Defence is reasonable limit on s. 7/15, saved under s. 1
- Justified because:
 some deterrent effect, puts men on notice and there is a cultural awareness of law
in this area (ie// “jail bait”)
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 Leaves open possibility a girl could lie, not uncommon in juvenile prostitution
 Proportionality – balance of protecting young girls is more important than rights
of person charged, it is proportional
 Impairment – parliament’s new offence doesn’t mean it’s a better way to meet the
objective, might simply mean they reduced that objective (protecting young girls
from early intercourse)
 Other free societies (ie.. USA) allow this limitation
Professor/Class:

R v Tolson
1889, UK (p. 712)
- Allows defence only if on accused’s view they were innocent of any offence

Mistake as to the nature of the offence:

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

… no offence … a more serious offence … a less serious offence

Mistake is definitely a Mistaken is probably not a Mistake may not be a
defence defence defence
Tolson, Beaver (authority Ladue Kundeus
mens rea for possession)

Remember: Blondin

R v Ladue (sex with dead body; no mistake of fact if it would make you guilty of more serious offence)
1965, Yukon (p. 713)
Indecently interfering with a human body Issue:
(dead) Does the mistake of fact defence apply?
Facts: Decision:
- D attempted to have sex with a dead No, convicted
woman Ratio:
- Said he didn’t know she was dead, very Suggests: If your mistake of fact will make
intoxicated. As such, didn’t have mens rea you more guilty than the offense you are
for indecently interfering with a human charged w/ you cannot use this as a defense
body - Intention to commit a crime (although not
- Does not argue he had consent, admitted the precise crime charged) will form the
it would have been sexual assault if she mens rea
was alive (more serious offence)
Analysis:
Court:
Court says this is not a defense to the charge b/c if accused actually believed that he
would be guilty of a worse offense, rape
Professor/Class:
- Proper charge would have been attempted rape (he had the mens rea). Would need to
establish he actually knew she was alive though
 96

R v Kundeus (thought selling mescaline; MR some illicit substance)

1976, SCC (p. 714)
Facts: Issue:
- D thought he was selling mescaline to - Is he guilty of selling LSD?
undercover cop - Does he have the mens rea for LSD?
- When cop analyzed at the lab it was LSD What’s the mens rea required for that?
- Charged with trafficking in LSD (which Decision:
at the time was a more serious offence then Guilty of trafficking LSD
trafficking in mescaline) Ratio:
Offenses w/ respect to narcotics simply
require mens rea that you are trafficking
some sort of illicit substance
Analysis:
Grandpré (6 concurring):
- Poor judgement, must take bottom line of case to apply
- Believing he was selling illegal drug (mescaline) was enough for mens rea of selling
LSD. Comitted the actus reus by actually selling it.
 Blondin, mens rea for importing a narcotic is fulfilled as long as he knew it was
narcotic (despite not knowing which narcotic)
Laskin (1 concurring) DISSENT:
- Mescaline much less serious (mescaline could be sold with prescription)
- Mistake should be a defence where on the facts accused believed them to be, he would
be accused of a lesser offence.
- Basic criminal law principle they need actus reus and mens rea of crime they’re
charged with. Mens rea for another offence, whether more or less serious, won’t do
Professor/Class:
*** This was a pre-Charter decision, now there might be argument about it being
constitutionally disproportionate
- Class discussion  arguments to defend majority judgement:
 Deterrence, could end up getting charged with more serious drug
 Drugs are often laced, no one ever knows what they have. Feature of illegal drug
tarde.
 Not worried about punishing morally innocent, they admit to trying to sell drugs

Mistake of Law
- S. 19 Code – “Ignorance of the law by a person who commits an offence is not an
excuse for committing an offence”

P. 722
Arguments: Mistake of Law Should be an Excuse
 Impossible to know every law, impacts moral weight
 Honest mistakes sympathetic
 Shouldn’t gov’t put in place mechanisms to teach people about the law?
 Does it create inequality among marginalized groups?
Arguments: Mistake of Law Should Not be an Excuse
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 Everyone should be treated similarly, I shouldn’t be open to more charges

because I know about the law
 Would encourage ignorance of the law, wouldn’t intentionally not learn
about the law
 Inefficient to prove in every case

- Public policy sacrifices the individual to the general good. Take a hard line on it not
being an excuse.

R v Esop (buggery from Bagdad; ignorance of law not an excuse)

1836, UK (p. 724)
Facts: Issue:
- D from Bagdad, accused of buggery (anal Should cultural defence be a defence?
intercourse) on ship while in English Decision:
waters Not a defence (however, not convicted for
- D’s lawyer argued he didn’t know, not an reasons related to issues of evidence)
offence in Bagdad (even though it’s an Ratio:
offence in England) Ignorance of the law is not an excuse
Analysis:
- English law, English ship, English law applied
Professor/Class:

R v Campbell and Mlynarchuk (exotic dancer; mistake of law not a defence)

1972, CarswellAlta (p. 724)
Facts: Issue:
- Exotic dancer (D) charged with unlawful Does her mistake of law exculpate her
immoral performance (naked go-go here? Is it a defence?
dancing before an audience) Decision:
- Trial judge in a case called Johnston said No. Convicted, sentenced to absolute
“bottomless dancing is ok” discharge though because of sympathy in
 However, appeal court overturned the unique circumstances
this, mistake of law Ratio:
- Manager where D worked told her about - Mistake of law is not an admissible
trial court’s decision, court said it was legal defence
- Mistake of law to rely on any judgement
other than ultimate court of appeal
Analysis:
Kerans:
- There was no mistake of fact, it was a mistake of law by relying on trial judge’s reasons
 Mistake of law was relying on trial judge’s incorrect statement of the law, and
misunderstanding significance of his decision
 Mistake of law to rely on any judgement other than ultimate court of appeal
 Mistake of law could be a defence if malicious intention is required (ie.. wilful
obstruction of police officer)
- She had mens rea (intent) to dance
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- For efficient/effective justice system, cannot permit mistake of law as defence

- Have sympathy for accused in sentencing, gave absolute discharge
Professor/Class:
Timeline:
1. Trial decision in Johnston – bottomless dancing
2. Campbell dances relying on trial decision
3. Appeal in Johnston allowed – bottomless dancing an offence
4. Our case – Kerans DCJ convicts Campbell despite her mistake of law

Distinguishing Mistakes of Facts and Mistakes of Law

 Must be able to distinguish the two because:
o Mistake of fact is a defence whether it negates mens rea
o Mistake of law if generally not a defence

R v McDonald (registration for gun in AB not NS)

2014, SCC (p. 734)
Actus reus = possessing the Issue:
loaded/restricted firearm without Does Crown need to prove that he was
license/registration certificate aware he was unauthorized?
Facts: Decision:
- D charged with loaded, restricted firearm No, this would make mistake of law a
in a place where he wasn’t authorized to defence and it’s not
have it (had license for AB, but not NS) Ratio:
- Took gun to his condo in Halifax, Mistake of law not a defence: simply
assumed he could have it there too require mens rea to commit the act (not
- D said Crown must prove that D knew his required to know the act you intend was
possession was unauthorized illegal)
Analysis:
- Presumption this is a mens rea offence. Simply requires he knew he had the gun and
intention to possess it where he did (did not require he know his possession was
unauthorized, as this would require mens rea of the law)
Professor/Class:

Exceptions  where mistake of law is a defence?

1. Colour of right for property offences
a. Statutory exceptions to mistake of law defence: certain property
offences where “colour of right” is included
b. Idea that if you’re under some mistaken view where you think you
have a legal claim to something, that could be a defence (ie.. in theft
defence could say ‘I thought I had a legal claim to take that thing’)
2. Officially induced error of law – if you make error of law after seeking
advice from an official (Lévis (Ville) c. Tétreault)
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Mistake of Law Conclusion

- one exception to rule that mistake of law isn’t defence is statutory defence of
“colour of right” which applies to certain property offences
- Ie.. s. 322(1)

R v Dorosh (colour of right)

2005, SK (p. 737)
s. 322 Issue:
Facts: Did Dorosh have colour of right for this
- Dorosh had deal w/ another, he never theft?
ended up paying full purchase price b/c Decision:
other party failed on their end of the Yes, new trial
Ratio:
bargain
- Definition of colour of right = Honest
- Dorosh thought deal was dead, went to belief in possessory/proprietary right to
get his trailer back (which he had traded to deal with the property (could be mistake of
other party), he took the trailer back fact or mistake of law)
- Dorosh sold trailer to 3rd party, was - (1) Colour of Right can arise from a
charged w/ theft mistake of fact (a belief in state of facts
- charged D with theft that accused had possessory interest or
belief in facts that would excuse the act)
whereas a mistake of civil law can also
give rise to colour of right IF the accused
thought the law was such that he would
have a right to take his trailer back
Analysis:
Bayda CJS:
- Must be:
1. Fraudulent intent
2. No colour of right
3. Intent to deny owner of property
- Trial judge incorrectly analysied colour of right, thought it was strictly a matter of
mistake of fact (and not for mistake of law). This is only one form of colour of right
Two types of colour of right:
1. Mistake of fact - (ie// I take the wrong umbrella when I leave the party, gives me
colour of right and I wouldn’t be guilty of theft).
2. Mistake of law – you have honest belief on the facts that you have a right to deal
with the property you have a legal mistake, and that is a colour of right issues.
Max:
 In either of the cases described in Rule (1) there can be a colour of right – in either case,
colour of right involves a mistake giving rise to belief that person taking thing has a
possessory right to take the property in question – theft must be w/o this belief, Crown must
prove mens rea
Colour of right can have basis in both mistake of fact and law – trial judge should have
considered whether accused had honest belief that he could take trailer, EVEN if claim
was unfounded in law and fact
Professor/Class:
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Incapacity
- Incapacity can arise from various sources (age, mental disorder, automatism,
intoxication), making the individual less morally blameworthy

Age
- Prior to 1982, child 7-13 capable of appreciating nature/consequences of conduct
could be found criminally responsible
- 1982 Criminal Code, s. 13 no child can be convicted under 12yo
- YCJA applies to youth 12-17
- R v B (D) 2008, SCC  principle of fundamental justice that young people have less
moral blameworthiness/culpability than adults. Constitutionalized a presumption of
lower sentences for YOs.

- Sentencing for YOs has become tougher which “tough on crime” mentality

Mental Disorder
- Defence of “mental disorder” historically known as defence of “insanity” (“not
criminally responsible on account of mental disorder”)
- Criminal law concerned with “badness” and “moral blameworthiness”. Creates
problem of which actions/thinking can be attributed to mental illness and which are
attributable to wrong moral choices. Legal question is simplified.
- Collision of law and psychiatry. Law doesn’t hand over questions of “mental
disorder” to psychiatric witnesses. The law holds to itself what is a legal excuse.
- DSM-5 (2013). Many mental disorders do not provide a defence, ie.. depression.
 Psychopathy, sociopathy, anti social personality disorder not a defence in and of
itself. Otherwise, lots of criminals who don’t feel guilty wouldn’t be punishable
When is mental disorder defence applicable?
1) If disordered at the time of the act; defence to the actual act
2) May not be fit to stand trial (cannot be tried if they’re not there mentally, due to
mental disorder)

- Swain found automatic, unreviewable detention without a hearing was contrary to

the Charter. Today, can get complete discharge, OR psychiatric detention that is
reviewable.
 Accused often choose not to pose defence of mental disorder, as they would
prefer short regular sentence rather than indefinite psychiatric detention
 Ethical dilemma for lawyer  following their client’s instruction, but also
complicit in a wrongful conviction

- See section 16 CC, accused is not criminally responsible by reason of mental

disorder if:
 The accused committed the act “while suffering fro a mental disorder”
 That rendered the person incapable of
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a) Appreciating the nature and quality of the act, OR

b) Knowing that it was wrong
- s. 2 “mental disorder” = “a disease of the mind”

- S. 16 = reverse onus provision. D can bring it up.

- Alternatively, AFTER the accused has been found guilty the Crown can bring up
mental disorder issue if there’s an evidentiary basis (for public safety). Cannot bring
it up before though, in case D wants to bring other defence for full acquittal

- Where mental disorder might not be NCR defence, can be taken into account as
factor in the mens rea analysis, even if it doesn’t raise to level of s. 16 defence

US v Freeman
1966, USA (p. 764)
Facts: suffered delusions of persecution, planned to kill UK PM
Decision: not guilt by reason of insanity
- turning point for modern approach do dealing with MD in criminal law

Cooper v R (strangled friend in psych ward; defence of mental disorder, appreciation test)
1979, SCC (p. 769)
s. 16 – defence of mental disorder
Facts:
- D with history of psychiatric problems
- Strangled friend to death
- Evidence of disordered thinking made it
possible he didn’t understand consequence - What does disease of the mind mean, and is
of strangulation could be death
- D did NOT plead defence of insanity.
Trial judge put the defence to the jury
(briefly and inadequately) based on
evidence in the trial
Issue:
- Was a more adequate discussion of
defence of mental disorder required?
- Was there an evidentiary basis to put
defence to the jury?
any particular type of disorder a disease of the
mind? (question of law for judge)
- Was accused suffering from the disease of
the mind? (jury decides)
Decision:
- New trial, mental disorder defence needed
to be properly put to a new jury
Ratio:
(1) “Disease of the mind” under s. 16 –
any illness disorder or abnormal condition
that impairs the human mind of its
functioning (EXCLUDING self-induced
states or transitory states)
(2) Appreciation Test – The pivotal issue
is whether the disease of the mind rendered
the accused incapable of appreciating the
nature and quality of the act, its
consequences, or of knowing the act is
wrong (more than knowledge of physical
quality of the act)
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Analysis:
Dickson (4 concurring)
- “disease of the mind” not well defined in the law or psychiatry. It is a working, legal
concept that determines when defence of mental disorder might be open to accused.
Question of law, for judge to decide. Jury decides whether accused actually suffered
from mental disorder.
- p. 771 – definition of “disease of the mind” = any illness, disorder or abnormal
conditions which impairs the human mind and its functioning, excluding self-induced
states (drugs/alcohol) and transitory states (concussion). For defence, disease must be of
such intensity to render accused incapable of appreciating nature/quality of the
violent act
- In the trial, psychiatrist said accused didn’t suffer from disease of the mind. Dickson
said disease of the mind is a legal question, not left to the psychiatrist to answer. Based
on his history and personality disorder, he did have a disease of the mind. Question is
whether this disease met threshold of impairment of appreciation of quality of act, or
knowing it’s wrong
Professor/Class:

What do consequences mean?

Kjeldsen v R (psycho raped/murders; no remorse but still understand nature/quality of the act)
1981, SCC (p. 778)
Facts: Issue:
- D was psychopath, had disease of the Is psychopathy a disease of the mind under
mind s. 16?
- Had done various violent acts, without Decision:
guilty Yes, but accused guilty b/c they knew
- Accused randomly raped and murdered a nature and quality of act
person Ratio:
Mental disorder not a defense where person
simply lacks appropriate feelings of
remorse or guilt, BUT STILL understands
the nature and quality of the act
Analysis:
- Court accepted psychopathy as a “disease of the mind” under s. 16 – however this does not
automatically lead to NCR, requires satisfaction of two step test
- Accused was incapable of having normal feelings about raping and murdering someone, so the
argument was the was incapable of appreciating the consequences of his actions
- However, SCC says this is not a ground of defense – mental disorder not a defense
where person simply lacks appropriate feelings of remorse or guilt, but still understands
the nature and quality of the act
Professor/Class:

R v Abbey (cocaine airport; appreciate consequences doesn’t mean penal consequences)

1982, SCC (p. 779)
Facts: Issue:
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- Accused had disillusion belief rooted in Did the accused’s failure to understand the
mental disorder in his own invincibility consequences of his act satisfy the
(couldn’t be punished) appreciation test?
- attempted to walk through customs w/ a Decision:
bag of cocaine, openly admitted it was No, found guilty
Ratio:
The inability of the accused to appreciate
the penal consequences of the act does
NOT amount to an inability to appreciate
the nature and consequences of the act, nor
does it amount to an inability to appreciate
that the act was wrong
Analysis:
- consequences = you’ll go to jail. Do you need to appreciate penal consequences of the
act?
Dickson:
- understanding nature/consequences doesn’t mean the penal consequences. Appreciate
consequences that are part of the actus reus
Professor/Class:

R v Chaulk (definition of “wrong”)

1990, SCC (p. 782)
Facts: Issue:
- no facts What is the meaning of “knowing conduct
is wrong”
Ratio:
“Wrong” means morally wrong under the
circumstances according to the moral
standards of society
Analysis:
Lamer (5 concurring):
- Possible person is aware it’s ordinarily wrong to commit a crime, but by reason of
mental disorder, they believe it would be “right” according to ordinary morals of his
society in this context (ie.. delusional)
McLachlin (3 concurring):
- doesn’t matter if accused knows it’s legally/morally wrong, simply requires accused
knows in some sense it was “wrong”
- Difficulty of making judgements of what’s “morally wrong”

R v Ooman (thought friend would kill him; must have capacity to know act is wrong)
1994, SCC (p. 784 notes)
Facts: Issue:
- D killed friend Does the person have the capacity to know
- Psychotic, thought there was contract out this particular act was wrong in these
on his life, and his friend was going to kill circumstances?
him, so he killed her Ratio:
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- person who lacks capacity to know that

the act he is committing is wrong is exempt
from criminal responsibility
Analysis:
- SCC unanimously confirmed under s. 16 a person who lacks capacity to know that the
act he is committing is wrong is exempt from criminal responsibility
Professor/Class:

Automatism
- no conscious control over actions of body; involuntary, doesn’t fulfill actus reus
- altered psychological state that makes actions involuntary, even though they look
like there are in control. Not just a matter of reflex, while my mind is still conscious
- If mental disorder is cause of state of automatism, defence is mental disorder
automatism (MDA)

- 3 possible defence:
1. Automatism (least common)
2. Mental Disorder (most common)
3. Mental Disorder Automatism (aka insane automatism) (somewhat common)

- Important distinction between sane automatism (complete acquittal) vs MDA

(likely to get NCR verdict, remanded to psychiatric detention). Defence likely to
argue sane automatism, crown likely to argue MDA

Rabey v R (dissociative state after reading letter; MDA vs non-MD A)

1980, SCC (P. 791)
Facts: Issue:
rd
- 20 yo 3 year uni (D) student infatuated Was the dissociative state a disease of the
with his friend Ms. X (thought of him as mind?
friend) Decision:
- She wrote letter to other friend expressing MDA
sexual interest in someone else, calling D a Ratio:
nothing - MDA defence = internal cause, source
- He found letter, read in psychological or emotional makeup of
- ran into Ms. X by chance, asked what she accused, or some organic makeup. If
thought of Gord. She said “just friend”. ordinary stresses and strains of life it is
Asked what she thought of her, “just friend indicative of an underlying cause
too”
- Hit in head with rock, straddled and - Non-MD Automatism defence =
strangled external cause, transient disturbances of
- Dragged lifeless body under stairs consciousness.
(actually was alive)
- After attack, people who saw him said he Automatism = unconscious, involuntary
was pale, glassy-eyed, bewildered behaviour, the state of a person who,
 105

- Said he remembered little of what though capable of action, is not conscious

happened. Mentally in good order of what he is doing. Unconscious
otherwise involuntary act, where the mind does not
- Defence Psych: said given D’s amnesia, go w/ what is being done
likely he was in dissociative state (do acts
while unconscious); caused by powerful
emotional shock and triggered by her
calling him a friend (psychological blow
automatism). Possible he blocked it out
afterwards. Occurrence, not mental
disorder.
- Crown psych: extreme state of rage
(conscious)
- At trial acquittal, sane automatism
Analysis:
Ritchie (3 concurring):
- Automatism = at the relevant time person in a state where, though capable of action, not
conscious of what they’re doing
- Rabey’s state must have been caused by mental disorder (even though psych said no
mental disorder) because it is mentally disordered to fall in dissociative state for no
reason. Internal cause, because court could find no external cause
- Infatuation caused abnormal condition. Lack of severity of psychological blow is why is
was considered mental disorder (reasonable person wouldn’t lash out like that)
 Normal stresses/disappointments of life
- The psychological blow he received was to normal (normal person wouldn’t have
reacted), so his reaction was mentally disordered
- MDA = internal cause, source in psychological or emotional makeup of accused, or
some organic makeup
- Non-MD Automatism = external cause, transient disturbances of consciousness. Ie..
seeing someone killed in front of you (even reasonable/normal person would go into
dissociative state, external cause)
Professor/Class:
- Rabey’s case strong because of all of the people who saw him after in seemingly altered
state
- Disease of mind = question of law for trial judge (Cooper)
- Non-MDA, ie.. his on head by tree branch and go into dissociative state; get drug at
dentist and messes you up

R v Parks (sleepwalker; burden)

1992, SCC (p. 801)
Facts: Issue:
- D killed mother in law and injured father Correct in finding non-mental disorder?
in law Decision:
- Sleep problems, had lost job
- Sleeping walking (experts agreed) and Ratio:
drove to parents-in-law (1) Accused must bring evidentiary
 106

-Went to police, said killed 2 people, foundation to show state of automatism

holding knife by blade (2) Judge must decide whether this is a
- Acquitted at trial (non-MD A) case of mental disorder automatism or
sane automatism (distinguishing b/w the
two requires looking at evidence, but also
public policy considerations of protection
and the likelihood of recurrence)
(3) Automatism occupies a unique place –
Although spoken of as a defense, it is
conceptually a subset of the voluntariness
requirement, which in turn is part of the
actus reus component of liability
Analysis:
Lamer (for the court):
- sleepwalking is classic example of sane automatism, accepted in CL
- psychs said sleepwalking common, not disease of the mind. No reported cases of
repeated violence during sleepwalking (little risk of reoffending)
- Treatment = good sleep hygiene
- Given evidence of non-insane, trial judge correct in putting defence of non-insane
automatism to jury
La Foret:
- cannot simply accept evidence of psych for mental disorder, since it’s a legal question
- Where defence of sane automatism is laid:
1. Accused must lay evidentiary foundation to show mental state that lead to
automatism (air of reality for claim of automatism)
2. Judge must decide whether condition alleged (sleepwalking) is sane or MD
automatism (not decided by psych), policy Q
2 Main Policy theories:
1. Internal cause  comes from psychological/emotional makeup (most popular,
used in Rabey). This alone is not enough, simply an analytical aid.
2. Continuing Danger Theory  any condition likely to present recurring danger is a
mental disorder. If someone is a continuing danger, sufficient to find MD.
However, fact there is not a continuing danger is not sufficient to rule out MD

Other Policy Considerations:

(not convincing)
1. Easy to feign
2. Open floodgates to ridiculous defences that are without merit
Professor/Class:
- This has since changed, now presumption of MD automatism (overruled by Stone).
Today Parks would get an MD defence

R v Stone (leading SCC case on automatism, and distinguishing MD; stabs wife after verbal abuse)
1999, SCC (p. 817)
Facts: Issue:
- Husband (D) in car with wife. Said things Should sane automatism defence have been
 107

like she called police to report false abuse
- Felt “whooshing sensation” wash over,
lost reality, came to and was holding wife
- Stabbed wife fatally 47X
- Cleaned, hid body, fled to Mexico
- returned to Canada and self-report to PO
- claimed: psychological blow
automatism, lost consciousness
- Trial judge found evidentiary foundation
for automatism defence. Held only MDA
available (sane not avail).
out to the jury?
Decision:
Despite that MD automatism should have
been put to jury, trial judge reached correct
result (manslaughter)
Ratio:
- Automatism is reverse onus defence:
Accused bears burden of proving
automatism on a balance of probabilities
- Presumptive Rule of MD automatism

- Defence must bring expert evidence

confirming assertion of automatism, laying
evidentiary foundation to put defence to
jury
Analysis:
Bastarache (4 concurring):
- Why is it justified for defence counsel to have burden of proof for automatism defence
on balance of probabilities (see p. 821)
 Risk of feigning the defence. If D simply had to raise “reasonable doubt” it would
be easy
 All knowledge rests with the accused. Only known in accused mind, impossible
for Crown to prove beyond RD
 Mental disorder and extreme intoxication are also a reverse onus defence.
Wouldn’t make sense to have different burdens
- What does the defense have to do to put the issue in play – assertion that the act was
involuntary, there also must be expert evidence confirming that assertion, it cannot come
purely from accused w/o expert evidence, this can convince trial judge of evidentiary
foundation on which jury could find accused was in state of automatism (these criteria
were satisfied in this case)
Stage 1:
- Is automatism available?
- Useful factors for judge to consider if automatism (not distinguishing sane v MD) is proven (not a
closed category) (not required for air of reality, but helpful): severity of triggering
stimulus (makes it more believable), corroborating bystanders, corroborating medical history,
whether alleged “trigger” of automatism is also the victim (might just look like he’s angry and killing her
in Stone, rather than stabbing random stranger), if there was a motive
- In this case: no evidence that there was an external factor causing automatism (sane). So
trial judge correct in only putting MD automatism.

Stage 2:
- Once it’s decided to leave defence of automatism to jury, then must decide of sane or
MD automatism is available
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 Under advisement of Can. Psych Assoc  Presumptive Rule of MD

automatism (reverses Parks), unless evidence to take out od mental disordered
category (into sane)
Holitic Approach:
- Use internal cause approach  suggests MD
- Continuing danger approach  also suggests MD
- Policy concerns: floodgates, easily feigned
- Fundamental Q, does society need protection from accused such that they
should be subject to evaluation

Binnie (3 concurring) DISSENT:

- experts agreed no MD  this means he was entitled to sane automatism defence. It was
his only plausible full defence
- Burden to prove voluntariness falls on Crown
- Doubts usefulness of internal cause theory
Professor/Class:
I THINK:
Factual Q = automatism
Legal Q = MD
- Canadian Psychiatric Association said from medical perspective all automatism is
mentally disordered. Court “takes judicial notice” that non-MD automatism is very rare,
but leaves it available
NOTE TO SELF: be careful mixing up burden for automatism and MD, and difference

R v Luedecke (sexsomnia; sleepwalking as MD, policy; limited non-MD)

2008, ONCA (p. 827)
Facts:
- D and victim stranger at house party,
drinking and he was sleep deprived
- Both fell asleep on large couch, victim
awoke to D having sex with her
- She woke him, he looked dazed
- He only remembers being pushed to floor available
by him. Went home, woke up with condom
and threw it out. Heard later that someone
was raped at the party, turned himself in
- Evidence he had sexsomnia (history of
sleep problems, and sexsomnia with
formed gf’s, abnormal brain wave patterns on internal cause and risk to public, must
in sleep lab)
- Experts said not a disease of the mind,
treated through sleep-hygiene
- Trial judge acquitted on basis of sane
automatism
- Crown appealed, said defence should
Issue:
- Should MD automatism have been the
correct defence? Was sane automatism
available?
Decision:
NCR – MD, sane automatism NOT
Ratio:
- Applies the ratio from R v. Stone – almost
always MD automatism (must look to
social defence, and risk to public). Based
find MD.
 Concerns over moral
blame/likelihood to reoffend
addressed post-verdict (likely
absolute discharge)
- Sane automatism very rare
 109

have been MD automatism. CA agreed,

showing Stone overturned Parks
Analysis:
Doherty (2 concurring):
- public defence concerns important, should be scrutinising MH of people who do violent
things in altered state (even if we don’t think they have a major MD)
- Cannot appreciate nature/quality of acts when in state of involuntariness, so meets s. 16

- Presumption that most automatism claims in MD category. Holistic approach. Key

factor here = continuing danger
 Must look to likelihood of recurrence of triggering factors (ie.. drinking and sleep
hygiene)
- Accused’s “sexsomnia” defence was properly classified as MD automatism (accused
would prefer non-MD)
- Since Stone, Doherty JA outlines “a comprehensive response to automatism claims”
(para 100-101)
1. Pre-verdict, focus on social defence (risk to public): where there is a risk of
recurrence, that will most always lead to an NCR verdict (needed to protect
public)
2. Post-verdict, focus on the individualized assessment of the individual’s
dangerousness. S. 672.54 requires absolute discharged unless court/Review Board
determines “significant threat to the public”
 NCR verdict simply triggers inquiry into future danger
 Here, in post-verdict of automatism, found there was not a real risk of accused
reoffending, so absolute discharge
- Events that triggered episode likely to recur (bad sleep habits, alcohol, stress) 
accused can (point to internal MD)
- Occurred in the past with gf’s, concern that it will occur again. Matter of chance that gfs
weren’t upset in the fact (point to internal MD)
- MD suggested because of genetic/family link of sleep disorder, implies it’s an internal
factor
- Doherty says NCR stigma must be fought. Court cannot accept there is a negative
stigma and work around that. NCR simply means accused not criminally responsible for
an otherwise criminal act; due to internal factor there is a risk of reoffending. NCR does
not mean…
- on LEGAL SIDE, yes risk of reoffending (internal). POST-VERDICT, PSYCH
assessment, release because not a risk of reoffending
- non-MD automatism is very rare, one off circumstance, low (no?) risk of reoffending
Max:
 Defense advanced the defense of sane automatism, automatism – the mind does not go w/
what is being done
Trial judge erred in his finding of sane automatism – hereditary nature of accused’s
condition (internal cause and recurrence), there are concerns about recurrence due to
external causes (bad sleep hygiene, alcohol consumption), threat of recurrence also
suggests a mental disorder defense, Doherty dismisses what medical expert says about
whether this is a disease of the mind b/c court will decide what is a disease of the mind
 110

based on policy considerations about social harm

Professor/Class:
- troubling that trial judge made finding of automatism. He had lots to drink before,
possible it was a case of intox
What remains for defence of non-MD automatism?
 In past it was for sleep-walkers
 Now sleep walkers don’t even get non-MD automatism
 One off, no risk of reoffending

R v Bouchard-Lebrun (toxic psychosis from E; self-induced intox not MD)

2011, QB (p. 839)
Facts: Issue:
- dividing line of MD and intox - Is MD defence available?
- Accused took E, lost contact with reality - Is toxic psychosis occasioned by a single
- In religious furor went to beat someone incident of drug use MD?
up Decision:
- Someone tried to intervene, D attacked NCR-MD not available
this victim and they had permanent brain Ratio:
damage (1) Deciding whether a state constitutes a
- “toxic psychosis” disease of the mind – (i) internal cause
- Accused arguing for MD automatism, factor, (ii) continuing danger theory, and
crown argued for intox (iii) external cause factor
(2) 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 individuals
inherent psychological makeup
Analysis:
Lebel:
- This was case of temporary toxic psychosis caused by self-induced drug intox
- Generally covered by “exclusion from Cooper” (self-induced states of automatism
caused by alc/drugs don’t count)
- Court uses the “holistic approach” from Stone to distinguish between MD or just intox
 Look to external cause, continuing danger, floodgates
 Internal cause: normal person would have reacted to this E by going into state of
toxic psychosis, so we cannot say this was internal from accused. All came from
drugs, external, implies non-MD
 Continuing danger: must look to risk of recurrence independent from will of
accused (ie.. taking E again). No risk.
- Toxic psychosis arising from single occasion not MD, not inherent to psych makeup,
just cause of the drug
- No reason to consider accused MD, he is intoxicated offender
Professor/Class:
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Comparing Defences
Defence Result for Accused

Non-MD automatism Acquittal 

MD (including MD Possible psychiatric :/
automatism) detention
Self-induced intoxication Generally no defence 

Intoxication
- Self-induced intox = voluntarily consuming substances knowing, or with good
reason to know, it will intoxicate them

R v Bernard (SA/punched woman while drunk; CL intox)

1988, SCC (p. 851)
Facts: Issue:
- Accused (D) forced female complainant When, if ever, can drunkenness ground a
to have sex with him. Also punched her defence to bodily harm?
twice, caused bodily harm Decision:
- D drunk, still able to walk, put on record
- Said drunkenness caused him Ratio:
- Wilson holding is general ratio, upheld in
- Trial judge told jury drunkenness is not a Daviault below
defence, and jury found him guilty of - Mens rea can generally be implied from
bodily harm the act
- In case of extreme intoxication akin to
automatism, intoxication can be a defence
put to the jury (involuntariness, negating
the actus reus)
Analysis:
McIntrye (1 concurring):
- Use as authority for difference btn specific and general intent
- distinguishes:
 “specific intention offences”  intent of the act and a further intent/purpose
(murder, intent to kill; B&E with intent to commit indictable offence; robbery and
theft with intent to deprive someone of their property, etc)
 “general intent offences”  only intent involved relates solely to the performance
of the act (manslaughter; common assault, simple intent to apply force; B&E and
committing a general intent indictable offence; SA; assault causing bodily harm)
o Sexual assault offence of general intent, a crime for which drunkenness
does not apply
- Intoxication is a defence if it prevents someone from forming the specific intent
 ie.. I assault PO trying to arrest me. Intox as partial defence b/c don’t have
specific intent to evade arrest; could be guilty of general intent of assault
 ie.. drunk and kill someone; partial defence didn’t have specific intent to kill so
not guilty of murder; guilty of manslaughter
- Drunkenness not defence to general intent offences
 112

Holding: upholds CL Leary rule: intox can be defence for specific intent offences; never
a defence for general intent defences
 good policy that it’s never defence to general intent defences. Assault usually
happens when people are drunk, contrary to public policy
 Mens Rea for general intent offences very low (can prove by inference from the
act). In exceptional circumstances where mens rea cannot be implied from the act,
substitute it for intention to get drunk, that is the fault. Dangerous to other
people by intentionally getting drunk
 Policy reasons
 General concern over “substitute mens rea,” from the CL a concern based on CJ
principles
Wilson (1 concurring):
- In most cases mens rea can be proved from the act. Here it can, he had sex and that
infers he had required intent.
- Hypothetical discussion (not about this accused). How to deal with extreme intox:
 Intox might be so extreme it raises doubt as to voluntariness (ie// alcoholic
automatism; in such a state you are not in voluntary control over actions)
Holding: Intox defence for specific intent offences. For general intent usually not a
defence: 1) usually infer MR from act; 2) BUT where drunkenness is akin to automatism
or insanity, intox can be a defence (non voluntary)
Dickson (1 concurring) dissenting:
- Should get rid of distinction between general and specific intent offences
- Trier of fact must be able to consider drunkenness if relevant, crown must prove mens
rea BRD (beyond a reasonable doubt).
- If law is to be altered in the name of policy, should be left to parliament
Holding: evidence of intox can be considered with other evidence on MR (no SI/GI
distinction).
Professor/Class:

R v Daviault (sexually assaulted friend in wheelchair; Charter min intox defence)

1994, SCC (p. 873)
- Before, intox was never a defence. This case allows (b/c of Charter) intox as
defence to general intent offences when akin to automatism
Facts: Issue:- Is drunkenness akin to automatism
- D charged with SA of woman in a defence to a general intent defence?
wheelchair - What does the Charter say?
- Went to victim’s house with bottle of Decision:
Brandy, she drank some he drank the rest
- sexually assaulted her, went home Ratio:
- Woke up in his own bed next night, he - Charter minimum of defence of intox to
says he was drunk to point of general intent offences where accused was
insanity/automatism intoxicated to point of automatism  AKA
- Defence: extreme intoxication extreme intoxication
- Expert testified high blood alcohol, would
have caused death/coma in normal person - Reverse onus: burden on accused to
 113

- Expert said might have suffered from prove defence

“amnesia automatism” – crown didn’t
bring their own expert evidence to contest - Daviault defence removed for violent
this offences by bill C-72 (Charter-proof?)

- Trial judge acquitted, based on Wilson

from Bernard – “where drunkenness is
akin to automatism/insanity, it’s a defence”
Analysis:
- Cory (3 concurring) MAJORITY:
- Reviews 3 positions from Bernard, chooses Justice Wilson compromise
- Leary rule of conviction on inferred MR (on account of intox) for general intent
offences defies Charter (s. 7/11d), presumption of innocence. Intention to become drunk
is not intention to SA a person (McIntyre from Bernard). Not persuasive: no link btn
intox and crim (better to say: intox does not directly lead to crime)
 No pressing objective to violate the Charter here. Based on other countries (Aus,
NZ) there wasn’t a floodgate of increased acquittals when drunkenness was put to
the jury
 Available only in rarest cases
- Charter minimum of defence of intoxication to the point of automatism for general
intent offences
- Voluntary intoxication is not a crime. Cannot infer voluntariness for another crime due
to intox.
Sopinka (Dissent):
- Perverse results to use doctrine of MR as defence
- Moral blameworthiness of drinking himself into this situation. Allowing accused to
plead absence of MR because they voluntarily caused state in which they were incapable
of MR undermines the principal of moral responsibility that MR is intended to give effect
to
- If there’s remaining concern about lesser moral blameworthiness, can be taken into
account during sentencing
Professor/Class:

Bill C-72 (removed Daviault defence for violent general intent offences)
- response to Daviault
- Preamble: removes Daviault defence for violent offences
- parliament sees association between intox/crime/violence. Doubt possibility of
becoming drunk to point of automatism. Possibility of extreme intox from other
drugs
- public policy concern of victims of intoxicated violence
- share moral view with Canadians that if you get into self-induced state of intox, you
are morally blameworthy for the violence you cause
33.1
(1) not defence to general intent
 114

(2) marked departure from standard of reasonable care; thereby accused is

criminally at fault when in state of self-induced intox that renders them unaware
and involuntarily interferes (or threatens to) with bodily integrity of another person
(3) applies in respect of assault, interference or threat of interference with bodily
integrity
** NB: this does not remove intox defence to SPECIFIC INTENT OFFENCES
- Concerns over constitutionality of this act. Daviualt says Charter requires this
defence. Seems to breach s. 7 of the Charter, as it’s constitutionally required, even
for violent offences. MUST be defence of extreme intox when akin to automatism
 Only possibility for s. 33.1 to be constitutional is by s. 1, demonstrably
justified
 If we were to try to argue s. 33.1 is saved what arguments would we make?
o Pressing/substantial objective integrity of vulnerable groups
(women/children)
o Right for them to have benefit of the law. Not allow offenders to
violate physical integrity because of their self-induced intox
o Minimal impairment (not overbroad), only for violent offences.
Passed the law to be minimally impairing. Weakness: violent offences
is broad group of offences
o Sopinka dissent – justified because moral blameworthiness
associated with the self-induced intox.
o Experts doubt there even is possibility of intox induced automatism

- On Exam: - extreme intox to general intent violence. Say: Daviault limited by s.

33.1, but might be unconstitutional under s. 7, but might be saved by s. 1

R v Daley (3 levels intox)

2007, SK (p. 889)
Facts: Issue:
- No facts
Decision:

Ratio:
(1) Intoxication defenses – (i) Mild – never
a defense, (ii) Advanced – renders accused
lacking in specific intent (the accused`s
foresight of consequences of his or her act
impaired enough to raise reasonable doubt
w/r/t mens rea) (iii) Extreme – akin to
automatism, negates voluntariness and thus
is complete defense
Analysis:
Bastarache:
- 3 legally relevant degrees of intox:
1. Mild intox = (no defence) induces relaxation of inhibitions and increase in
socially unacceptable behaviour. Never accepted as factor in determining MR,
 115

trial judge not required to give jury instruction about mild intox
2. Advanced intox = (This is a defence). Impairment of foresight of consequences
that might raise a reasonable doubt as to whether accused had intent required.
Defence to specific intent offences, when person did not form the specific intent.
This is not a matter of proving they were so drunk they can’t be guilty of murder.
It simply means if you were seriously intoxicated at the time of the act it at least
raises issue as to whether or not they had the specific intent. (ie.. if you shoot
someone in the face, even a super druhnk person would have foreseen the death.
BUT, if they’re so drunk in bar brawl they kick someone in the head, might not
foresee the death)
3. Extreme intox = Daviault. Akin to automatism, negates voluntariness, negates
voluntariness and offers complete defence (NB s. 33.1)
Professor/Class:
2 important contributions:
1. In past when intox defence was raised, was talked about whether they had
capacity to inform intent. Daley says issue is whether they had specific intent (if
intox prevented them from forming it, no intent) – don’t need to discuss capacity
to form it at a higher level
2. Lays out catalogue of 3 legally revelant degrees of intox

R v Bouchard-Lebrun (E psychosis; when s. 33.1 applies)

2011, SCC (p. 891)
Facts: Issue:
- E inducing toxic psychosis again
Decision:

Ratio:
(1) S. 33.1 applies when THREE (3)
conditions are met – (i) The accused was
intoxicated at the material time, (ii) The
intoxication was self-induced, and (iii) the
accused departed from the standard of
reasonable care generally recognized in
Canadian society by interfering or
threatening to interfere w/ the bodily
integrity of another person
(2) When these 3 elements are proved, it is
NOT a defense that the accused lacked the
general intent or the voluntariness required
to commit the offense
Reasoning: LeBel J.
S. 33.1 holds someone at fault for committing violent crimes during the period in which
they were intoxicated – it prevents accused from avoiding criminal liability on ground
that his or her state of intoxication rendered them incapable of forming mens rea element
for general intent offences or voluntariness requirement
Ratio:
 116

Dividing Line Between Voluntary and Involuntary Intox:

- harder cases of when someone takes intoxicant that ends up being laced. Ie weed
laced with PCP
- How do deal with dividing voluntary and involuntary intox?

R v Chaulk
2007, SCC (p. 892)
- In obiter  for purpose of s. 33.1 “voluntary” means accused must “intend to
become intoxicated, either by voluntarily ingesting a substance knowing or having
reasonable grounds to know it might be dangerous, or by recklessly ingesting
such a substance”
Prof:
- concern over objective standard here, what about naive person who doesn’t get
alcohol will intoxicate them. Or someone who takes something they don’t know
what it is, because reasonable person would know
- area where the line is difficult to draw
- unclear if they have to know they’re containing each substance (ie.. beer with E in
it) or if knowing they are consuming a intoxicating substance makes them liable for
all

Justifications and Excuses: Defences

- Automatism, mistaken belief, consent, etc defences in the broad sense. Arguments
that can be used for an acquittal (all related to act/fault req)
- These are TRUE DEFENCES  all elements of the offence are proven beyond
reasonable doubt, and nevertheless some circumstance operates as a justification or
an excuse

Where do defences come from?

- Some rooted in statute (ie// self-defence) OR the CL
- No more CL offences, but s. 8(3) provides for CL defence

- Why do we have CL defences under s. 8(3)?

 Cannot foresee every circumstance that might excuse a crime in the future.
Unusual circumstances that might arise infrequently, inefficient to create
statute for every possible obscure defence
 Otherwise, the public’s moral feelings would conflict with the Code, if people
who had a good excuse were still convicted. People would oppose
codification

- Justification = rightful, appropriate in the circumstances

- Excuse = wrongful, but excusable in the circumstances
 117

Air of Reality
- To bring defence, must bring evidentiary burden. Evidence must be in play, 2
steps:
1. Evidentiary foundation for the defence to even be considered. Defence with
evidentiary burden for possible justification/excuse (D doesn’t need to bring
up the evidence, could be Crown. But D must point to why it’s evidence for
defence). If no evidentiary foundation jury mustn’t consider defence
a. either by judge not putting it to the jury, or even tell the jury “you
might think there’s self defence here, but there’s not”)
2. Meeting the persuasive burden –
a. Default rule (presumption of innocence) is Crown must prove
elements of the crime AND disprove defences BRD
b. Some reverse onus defences, where accused has burden to prove
defence on balance of probability’s (MD, automatism and extreme
intox)

R v Cinous (air of reality test)

2002, SCC (p. 897)
Facts: Issue:
- No facts What is the standard for an air of reality in
order to put the defence of self-defence to
the jury?
Decision:

Ratio:
Air of reality test: whether there is
evidence on the record upon which a
properly instructed jury acting reasonably
could acquit
 Judge MUST put the defence if
there is an air of reality, and must
NOT if there isn’t
Analysis:
Test is: whether there is evidence on the record upon which a properly instructed jury
acting reasonably could acquit

- Trial Judge’s role:

1) Must put defence to jury when there is air of reality raised on the facts (whether
raised by the parties or not)
2) Positive duty to keep from jury defence lacking evidentiary foundation (air of
reality). B/C: (i) would be confusing for jury; (ii) leaves open possibility of
conclusion without evidentiary foundation
- Air of reality = Q of law, meaning appeal courts can deal with it
- This is why jury system works, needs to focus them on actually legal test that applies
Professor/Class:
- on exam, if defence looks weak could bring up air of reality
 118

Defence of Person (Self-Defence)

- applies if defending myself or another person
- considered rightful (not just an excused wrong), justification
- No precedent for car thief escaping attacker – not sure if statute should be limited
to force with force, and anything else to fall under necessity. More likely, care escape
will go under statutory defence. Car escape/house break in (policy reason)
BETTER option than shooting someone or using force
- Necessity (CL defence) will get swallowed by self-defence statute, b/c statute
supersedes CL?

- What if someone tells me to steal a bike or they’ll kill me? And I steal bike. Is that
duress, or is it self-defence to escape?
 Ryan – duress = someone threatening me for purpose of committing offence.
So maybe above needs to fall under duress.
 If we get borderline case that could fit both on exam, analyze under both

- Since there is a STATUTORY defence of duress, less likely it will get swallowed into
self-defence statute.

s. 34 (1)
Not guilty of offence if
(a) they believe on reasonable grounds that force/threat of force is being used
against them/another person; AND
(b) Act that constitutes the offence is committed for purpose of defending or
protecting; AND
(c) reasonable in circumstances

(2) when determining if reasonable consider (not limited to): …

(3) does not apply to force required/authorized by the law

- Important factors (consider what’s reasonable):

 Nature of force/threat (how serious)
 Extent of force
 Whether other means were available
 Person’s role in the incident (ie.. they initiated fight)
 Whether person had a weapon
 Age/size/gender
 Nature/duration/history of relationship (including past force, in context is it
reasonable to perceive a threat)
 Nature/proportionality of response

- No one is required to wait for extreme force to respond

- Should be judged according to accused’s reasonable beliefs of the threat (ie..
whether person thought they were armed because arm was in their coat, even if
they weren’t, could ground self defence)
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- Limits: must be for purpose of defence and reasonable in circumstances

Retreat:
- factor of whether other means were available
- Possible only reasonable thing to do would be retreat. Other circumstances where
it’s reasonable not to retreat and act out.
- Don’t have a requirement either way that we have to retreat or not.
- Thought is if you’re in your own home it is more justified to use defensive force
than to retreat

- What criminal acts are justified? Not sure how far this act goes and what it
covers. Might cover acts other than physical reponse. Ie.. steal car to escape. Or B&E
to escape
 In past this was covered under necessity

R v Lavallee (battered woman; surrounding circumstances for self defence)

1990, SCC (p. 905)
- old self defence provisions Issue:
Facts: - Is self-defence available, since he was
- Battered woman (D) killed abusive leaving the room, and was not an
partner in the back of the head as he left the immediate threat?
room - Should she have called the police,
- He beat her, he gave her a gun and said retreated, etc?
“either you kill be or I’ll get you” - Was it reasonable to use deadly force?
Decision:

Ratio:
- Must take into account broad
circumstances to determine what is
reasonable in the accused’s use of self-
defence
 Imminent danger not required
Analysis:
- Previously, had to wait until physical assault was in progress – imminent threat only
used when really necessary. Did not work well for battered women, might risk death
before they can protect themselves
Wilson (6 concurring):
- Imminence threat too restrictive for battered women
-“battered woman syndrome” evidence – helps jury to understand whether Lavallee’s
perceptions were reasonable in the circumstances
- Given the perceptions, circumstances, history and experience, her used of self
defence/force was reasonable
- Issue is what accused reasonably perceived, not what an outsider would perceive
- Need to separate revenge killings from true cases of self-defence
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Professor/Class:

R v Mallott (battered woman syndrome to understand what’s reasonable)

1998, SCC (p. 915)
Facts: Issue:
- Accused charged with murder of deceased - What is the significant of Lavallee and
CL partner “battered woman syndrome”
- Went to medical centre for his illegal drug Decision:
trade; killed him then shot his side gf
Ratio:
- “Battered woman syndrome” is not a
defence; the expert evidence simply helps
court determine what was reasonable
Analysis:
L’Heureux-Dubé (McLachlin):
- Disucssed battered women syndrome since Lavallee
- Purpose of expert evidence in Lavallee to understand reasonableness of a battered
woman’s perception of a threat (and not think “why didn’t she leave?”)
- Battered woman syndrome is not the defence, just considered to determine what’s
reasonable
- Concern about stereotype created by “battered woman” and other who doesn’t meet that
stereotype wouldn’t have that defence considered. Must avoid “syndromization” of
women, seen as “abnormal reaction”
 Exercise still based on what reasonable person would have done in this situation
 Must considered individualized and shared characteristics
Professor/Class:
- Relevance to today, police shootings:
 Self-defence claims by police usually successful

Necessity
- Necessity = CL defence, not in Code
- Always in an emergency, normally for preservation of life
- Ie// camping and forest fire, forced to drink and drive

- Traditionally functioned as residual category for things that don’t fall into self-
defence or duress. Might be easier with new self-defence provision

Dudley v Stevens

Perka v R (weed international waters; 1st necessity in Canada; excuse/justification)

1984, SCC (p. 929)
Facts: Issue:
- D travelling with marijuana in - What is the scope of defence of necessity?
international waters from South America to Decision:
Alaska - New trial, judge erred in understating
- Got into trouble on the water, landed important of “no reasonable legal
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remote part of Vancouver Island alternative”

- Charged importation of cannabis and
trafficking Ratio:
- Clearly have actus reus, seemingly mens - Test:
rea to 1. Urgent situation of eminent peril
2. No reasonable legal alternative
Defence – didn’t want to import drugs or 3. Proportionality between harm
traffic in Canada, didn’t plan to stop in inflicted and harm avoided by
Canada, forced to out of necessity. Jury breaking the law
accepted this, acquitted. Went to SCC - Defence of necessity is an excuse, strictly
limited to acts that are truly moral
involuntary, realistically unavoidable
- Burden on Crown to disprove necessity
BRD; accused with evidentiary burden of
air of reality
Analysis:
Dickson (3 concurring):
- Necessity could arise where someone steals food to feed actually starving children;
maybe if speeding to hospital so someone doesn’t die
- Mergenthaler says if there is defence of necessity (didn’t declare if there was) it is to
“justify non-compliance in urgent situations of clear and imminent peril when
compliance with the law is demonstrably impossible”
- This would be an excuse, not justification
 If the thing you’re doing in breaking the law is the lesser evil, you’re justified.
Too subjective, not useable
 Excuse = realistic assessment of human weakness
- Court says “liberal and human criminal law cannot hold people to the strict obedience
of laws in emergency situations where normal human instincts, whether of self-
preservation or of altruism, overwhelmingly impel disobedience”
- Situations of moral involuntariness where person with no realistic choice but to break
the law “realistically unavoidable”
- Don’t want to punish morally involuntary b/c: (i) impractical, no deterrence value; (ii)
unjust, no choice, no moral-blameworthiness
- Could be justification (and otherwise criminal act is right in the circumstances) or
excuse (wrong, but something about circumstances that we can’t holder actor
responsible)

3 reqs defence of necessity:

1. Eminent peril/danger
2. No reasonable legal alternative (from Mortgentaler – was there a legal way out?)
3. Proportionate (societal expectation of resistance to legal act)
- Crown said person doing something illegal should not have defence of necessity. Court
rejects
 Necessity could still be available when doing illegal act. SUBJECT TO it being
FORESEEABLE (ie.. they got on super sketchy boat, knowing it was likely
they’d need to doc somewhere unexpected)
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- Onus of proof – crown but disprove defence of necessity BRD; accused’s with
evidentiary burden to bring defence into play with air of reality
- Must wait until situation is dire (ie.. waited for rescue ship, waited for storm to pass)
Professor/Class:
- 1st recognition of defence of necessity in Canada
- Discussion, p 934 notes: lost alpinist excused if they break into cabin b/c of unexpected
cold snap.
 What about squatters? Southwark London Borough Counsel, squatters claimed
defence of necessity. Court says this is not an emergency, long standing state of
affairs. Different than one off emergency.
- Difference of excuse/justification not clear in practice in Canada. Philosophical matter,
but doesn’t seem to matter in current state of the law.

R v Latimer (explained necessity test; objective/subjective test)

2001, SCC (p. 940)
Facts: Issue:
- Robert Latimer carbon monoxide - What are the requirements of the
poisoned daughter necessity defence?
- Upcoming surgery, they perceived as Decision:
mutilation
- said no to feeding tube, thought it would Ratio:
falsely preserve life - See below, explanation of necessity test –
need air of reality for all 3
- Urgent and no reasonable alt = modified
objective
- Proportionality = objective
Analysis:
Per Curiam (for the court):
- Use factors from Perka, with additional explanation:
1. Urgent situation of imminent peril – “on the verge of transpiring and virtually
certain to occur” (could be saving someone else)
2. No reasonable legal alternative – realistically assess options (not NO other
possible option)
3. Proportionality between harm inflicted and avoided – harm need to clearly
outweigh harm inflicted, at a minimum harms but be of equal gravity
- For reqs 1 and 2 use modified objective test – takes into account
situations/characteristics of the accused (must have honestly believed, on reasonable
grounds, imminent peril and no legal way out)
- For req 3 objective test
- For defence of necessity, must have air of reality for all 3. Here, no air reality to any
- #1 – ongoing, unfortunate situation (not imminent, under modified objective); #2
alternative to struggle on, feeding tube, group home; #3 difficult to know, Dudley v
Stevens might mean it cannot exist for murder (inconclusive). Would need to be
comparable gravity of death. She had manageable, medical condition
Professor/Class:
Qs:
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- could necessity ever be defence to killing? See p. 948 Re. A (Children) – conjoined
twins. Operation would kill 1 child, otherwise both would die young. Parents objected.
Doctors allowed court to do it anyway. Necessity as justification.

Duress
- seems like an emergency if someone threatens mean, but must separate them
- Understood as excuse

s. 17 – compulsion by threats
- Old Requirements (change in Ruzic and Ryan):
1. Threat of death/bodily harm to accused/third party
2. Immediacy act committed under threat of ‘immediate death or bodily harm’
(READ OUT IN RUZIC)
3. Presence: Threatener must be “present when the offence is committed”
(READ OUT IN RUZIC)
4. Belief: accused must “believe the treats will be carried out”
5. Accused not party to conspiracy
6. Exclusion of certain offences: statutory defence or duress not available for
murder, sexual assault, robbery, ETC

- Cannot use if party to conspiracy where person is subject to compulsion (ie.. I

choose to work for Hell’s Angels)

R v Paquette (defence of duress CL or stat; forced to be getaway driver)

1977, SCC (p. 954)
Facts: Issue:
- Accused charged with murder, drove 2 Does D have duress defence under murder
robbers while they killed someone; drove charge, since murder and robbery are
around block while they were robbing excluded offences?
- Tried to refuse to drive, robbers pulled a Decision:
gun and threatened D able to use CL defence of duress.
Ratio:
2 defences of duress:
1) CL defence of duress
2) Statutory defence - s. 17 statutory
defence of duress, applying to principles
who committed the offence
Analysis:
Martland:
- s. 17 only applies to party who commits the offence, not other parties
- S. 17 does not apply to parties to an offence as aiders and abettors “or by way of
Mcommon intention under the party liability provisions of the code (s. 21)
- B/c statutory defence doesn’t apply to him, so can use C/L defence of duress
- So, D charged with robbery as a party, not principle, could have defence of duress under
the CL (wouldn’t have had as principle under statute)
- C/L may not exclude any offences from the defence of duress
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Professor/Class:

R v Hibbert (modified objective standard)

1995, SCC (p. 959)
Facts: Issue:
- Accused charged w/ attempted murder as
aider and abetter (not principal), accused Decision:
was afraid of principal who compelled him
to participate Ratio:
No safe avenue of escape = modified
objective standard
Analysis
Lamer:
- Based on moral involuntariness; requires accused had no safe avenue of escape –
modified objective standard
Professor/Class:

Ruzic (fundamental justice, morally involuntary not criminally liable)

- In class
Facts: woman in Serbia, forced to smuggle drugs or her mother would be killed
- No defence of duress under s. 17 because person threatening her was not
immediately present in the airport with her
Ration:
- Moral involuntariness principle of fundamental justice
- s. 7 Charter – principle of fundamental justice - Only morally voluntary
conduct can attract criminal liability
- S. 17 violates s. 7 of the Charter because of immediacy and presence
requirements remove the defence for some morally involuntary acts
- Read out immediacy/voluntary

R v Ryan (tried to hire hit man for husband; duress only if compelled to commit)
2013, SCC (p. 974)
Facts:
- Woman abused by husband; he had
threatened her and daughters life
- She went to police, not protected
- She came to the view killing her husband Ratio:
was only option; tried to hire hit man
- Lived in small community, people found
out she was trying to hire hit man
- Undercover cop
- CHARGE: counselling the commission of
a murder
- She brought defence of duress because
Issue:
Is defence of duress available?
Decision:
NO
- Defence of duress only available under
the compulsion of a threat made for the
purpose of compelling him or her to
commit it.
Statutory Defence of Duress:
1. Threat of death/bodily injury
2. Belief (honest, actually held,
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old self-defence law made it seem like she reasonable)

would need to commit the act 3. Cannot be party to conspiracy that
would cause them to be put under
duress
4. Exclusion of certain offences
ADDS:
5. No safe avenue of escape –
modified objective standard
6. Close temporal connection
7. Proportionality – harm threatened at
least equal to harm inflicted by
accused, and accused must show
normal resistance to the threat –
modified objective standard (NB: in
necessity they use objective)
** Questionability of Charter req, why
can’t I have defence when I’m principal on
an offence, but morally involuntary.
MORALLY INVOLUNTARY
CONDUCT cannot be subject to criminal
liability
CL Defence: All the same EXCEPT
exclusion of certain offences (can be used
for any offence)
Analysis:
- Defence of duress only available under the compulsion of a threat made for the purpose
of compelling him or her to commit it (para 2)
 Duress not available, husband clearly didn’t compel her to kill him. Looks like
self-defence
Professor/Class:
- para 81 summary defence of duress
- Might want to distinguish justified and excused defences – maybe excused only gives
partial defence (ie.. murder to manslaughter; not complete defence)

- Necessity often seen as residual category, when situation doesn’t fall into duress or
self-defence.

Provocation
- p 986-995
- Partial defence, reduces guilt but not a complete defence
- Other partial defence to murder = defence of advanced stage intox
- s. 232 Code (statutory defence, ref s. 2320  ONLY for MURDER
 (1) Murder reduced to manslaughter if the person who committed it did so in
the heat of passion caused by sudden provocation
 (2) conduct by victim that would constitute indictable offence, 5+ years
indictable, sufficient to deprive ordinary person of the power of self-control.
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Accused must act on it suddenly in a state of passion, before time for passion
to cool
o If they’re cool as a cucumber (even if normal person would be in state
of passion) they can’t rely on the defence
o This is new qualification, so old cases about what is an insult doesn’t
apply
 (3) Not provocation if they had legal right to do it, or accused incited them to do to provide
excuse
 Person otherwise guilty of murder would be guilty of manslaughter

Two Part Test:

1. Objective Q - had to be provoking conduct sufficient to deprive ordinary
person of self-control
2. Subjective Q – Accused acted in state of passion (actually lost control)

R v Hill (sexual advance; personal characteristics for provocation)

1985, SCC (p. 987)
Facts: Issue:
 Accused 16 yo, stabbed victim (knew Did the trial judge properly explain the
from Big Brothers), alleged victim made defense of provocation to the jury – that
homosexual advances ordinary person is ordinary person of
sex/age of Hill? To what extent do we
invest ordinary person with personal
- Jury convicted him of 2nd degree murder –
characteristics of the accused?
they rejected provocation defense, appealed
Decision:

Ratio:
(1) To determine if defense of provocation
applies, ask 3 questions – (i) would
ordinary person be provoked by the
wrongful act or insult? (ii) Did the accused
in fact respond to those provocative acts?
(iii) Was the accused’s response sudden,
and before their passion could cool?
(2) The ordinary person has a normal
temperament and level of self-control and
is not exceptionally excitable, pugnacious,
or in a state of drunkenness
Analysis:
Dickson
Question (i) – Court says we should consider whether a person of similar personal
characteristics to the accused would have been provoked (look to case to determine why
we take into account personal characteristics, one reason is that personal characteristics
can be the reason for the insult)
- Sometimes personal characteristics are required to make sense of provocation
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 Ie// cases about racial slurs as provocation, must consider personal characteristics,
or person with disability
- p. 993 ordinary person standard (still law today):
 Person of normal temperament/self-control (wouldn’t consider if person has bad
temper)
 Nevertheless, can take into account characteristics relevant to provocation (jurors
would obv do this)
 Judge doesn’t have to tell jury to consider age/sex/etc, because they would do this
as a matter of common sense
- p. 988, why do we have defence of provocation?
 Defence of prov acknowledged all human beings are subject to uncontrollable
outburst of anger that may lead them to do violent acts
 Criminal law doesn’t normally accept this, weird here. AND, only applies to
murder

Professor/Class:
- Should we really have this defence? Is this really the most sympathetic set of
circumstances to mitigate conviction
- could be self defence but doesn’t have to be; doesn’t nec need to be offence against you
- Them where provocation defences have been successful: gay panic; adultery (usually
man finding wife having sex with other man); excessive self- defence

Q 1 = fact pattern (1 hour)

Q 2 = fact pattern (1 hour)
Policy = choose 2 out of 3 policy Qs (30 mins each, 1 hour total)

Policy Q:
- EXPLAIN the law, then comment. MUST comment 1st
- Accurately express what the legal standards are, then intelligently comment on
that accurate expression
- Creativity within bounds of having expressed what the governing law is

Fact Pattern Qs:

- refer to act/fault req
- Then relevant defences (issue on the facts)

Exam
IRAC – R: state precisely; A: make specific reference to facts, don’t skip them
(remote control)
 Point form ok if out of time, better than nothing
- There will be things from the code, not just cases (like s. 225). Code section she
names is not only relevant – she names offence provision (still need to discuss first
part of code or OTHER code provisions that are necessary)
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- always look at defences if they’re there (ie.. look at viable legal issues. Don’t just
talk about charge, talk about defences)