CONSENT 4

Omission 5
R v Browne 5
R v Peterson 5

Voluntariness 6
R V Lucki (1955) 6
R V Wolfe (1975) 6
R V SWABY (2001) 6
KILBRIDE v LAKE (1962 NZ) 6

Causation 7
CAUSATION TEST: 7
R. v. Smithers (1978) SCC 7
R. v. Harbottle (1993) SCC 7
R v. Nette (2001) SCC 7
R v Talbot (2007) 7

Intervening Cause 8
R v Maybin TEST (2012) 8
R. v. Smith 1959 QB 8
R. v. Blaue (1975) Cr App 8
R. v. Maybin (2012) SCC 8

Fault (intro: obj., regulatory -> strict) 9

Subjective Fault definition [THEROUX]: 9
Determine if Criminal or regulatory offense: 9
Definition and Introduction of Strict Liability [City of Sault Ste. Marie] 9

Murder 10
Murder is separated from manslaughter by fault [chart] 10

Constructive Murder (Murder even though normal FAULT is absent in s.229(a)) 10

R. v. Martineau (1990) SCC 10
Vaillancourt v. R. SCC (1987) 10

1st Degree or 2nd Degree (plan&delib.) 11

1st Degree TEST s.231(2): 11

Subjective Mens Rea (code offenses require / knowledge) 12

Fault for most offenses [subjective] (ADH) 12
Subjective Mens Rea ‘knowledge/intention’ from ‘wilful’ (BUZZANGA & DUROCHER) 12
STATES OF MIND FAULT LADDER 12
Recklessness or Willful Blindness (subjective standard) 13
Recklessness def: Sees the risk and takes the chance (SANSREGRET) 13
Wilful Blindness def: (SANSREGRET) 13
WB new: ‘Deliberate ignorance’ (BRISCOE) 13
Caveat: sufficient subjective mens on subject matter (BLONDIN) 13

Objective Fault [ought to / s.219] (negligence) 13

Objective Fault TEST (CREIGHTON) 13
Dangerous Driving objective fault [s.249] (BEATTY) 13
Objective Fault TEST s.219 ‘Criminal Negligence’ (FJ) 14
Summary of the types of mens rea offense types and requirements 14

Unlawful Act Manslaughter (act causing death) 14

Unlawful act causing death (manslaughter) s.222(5)a TEST: (CREIGHTON) 14
Aggravated Assault s.268(1) reduced foresight TEST: (GODIN) 14

Rape and Sexual Assault 15

Elements of Sexual assault 15
Definition of Sexual aspect s.271 TEST: (CHASE) 15

Sexual Assault: Consent and Mistaken Belief 15

TEST for Consent (ACT): (EWANCHUK) 16
Under s. 273.1(e): consistent consent (AJ) 16
TEST for Mistaken Belief in Consent (MENS): (EWANCHUK) 16

Incapacity (Defense) [Age + Mental Disorder] 17

Age s.13 17
Defense of Mental Disorder s.16 (COOPER) 17

Automatism (Mental Disorder + Non-mental disorder) 17

Defence (Person [loose] + Property) 20

Air of Reality [AoR] (CINOUS) 20
Defence of Person s.34 TEST 20
Battered women s.34 Self Defense: 21
Defense of Property s.35 TEST [CORMIER] 21

Necessity 22
TEST of NECESSITY [Created by PERKA / test type and modified proportionality LATIMER]
22

Duress 23
TEST of DURESS s.17 [RYAN] (both common law and statute are combined) 23

Intoxication + s.33 24
DAVIAULT 24
R v Daley [2007] 24
Provocation s.232 (defense to murder) 25
TEST of Provocation: (TRAN) 25

INDIGENOUS SENTENCING 26
R v. Gladue (1999) SCR 26
R v. Ipeelee (2012) SCC [Revises Gladue and corrects erroneous ideas] 26

The Adversary System 27

CONSENT
Jobidon (connects / s.265 to s. 222) in a fist fight or brawl force (intended and caused) serious
hurt OR non-trivial bodily harm VITIATES consent
Moquin (Bodily Harm def s. 2 : [refine] Bodily harm can be reached by just interfering
with comfort and transience is variable based on injuries (serious injuries can have short
transiency)
s. 14 No consent to death
s. 265(3) Assualt vitiated by fraud (dopple sex, doctor asserts procedure, HIV)
HIV
Cuerier: fraud vitiates consent when dishonesty exposes “significant risk of serious bodily harm”
- HIV qualifies
Mabior (•The Cuerrier test “significant risk of serious bodily harm” means
–more than any risk but
–less than high risk
Fraud:
1. A dishonest act (either falsehoods or failure to disclose HIV status)
2. Deprivation (denying the complainant knowledge which would have caused her to refuse
sexual relations that exposed her to a significant risk of serious bodily harm
•In the context of non-disclosure of HIV+ status, consent will be vitiated by a “realistic possibility
of transmission of HIV” (para. 84)
•There is no realistic possibility of transmission where:
–viral load is low, AND
–a condom is used

Condom Holes
Hutchinson: (S. 273.1(1) was just for the physical act of sex itself BUT s. 265 for assault, the
risk of pregnancy and the deception VITIATED the consent)

Omission
Omissions is a type of act element where there is a legal duty to act → generally omissions do not give
rise to criminal liability except where there is a legal duty to act.
Omission → when criminal liability can be imposed on a legal duty to act; when duties are prescribed by
law they can be either:
● Explicit – Section 21(1)b a party to an offence is someone who: does or omits to do anything for
the purpose of aiding any person to commit it
● Implicit – Section 446(1) makes an owner of an animal guilty of an offence if he or she: willfully
permits [the animal] to be cause unnecessary pain

R v Browne
TEST for s.217 (undertake a duty):
1. Needs to be a “binding commitment” “clearly made, and with inding intent.”
 2. “Mere expression of words indicating a willingness to do an act is not enough to create
an undertaking” “Something in the nature of a commitment, generally, though not
necessarily, upon which reliance can reasonably be said to have been placed”
Charged under s.219 (Criminal Negligence)

R v Peterson
TEST S. 215.1(c)(i)Undercharge (sliding scale):
“The exercise of an element of control by one person and a dependency on the part of the other
[42]
- Relative positions of the parties
- Ability to understand circumstances
- Whether accused explicitly assumed responsibility
Issue: was D. adult son under his charge?
Ruling: YES, charged with s. 215(2)
Facts of case indicated yes: dependent, controlled: living, personal care, legal, chose not to get
help, victim could not withdraw due to illness

Voluntariness
Part of the Act Requirement: removes the offense entirely,
HLA Hart def
Involuntary act: “not subordinated to the agent’s conscious plans of action: they do not occur
as part of anything the agent takes himself to be doing”
- Voluntaryness is internal to the act element
R V Lucki (1955)
There is no act if the absolute liability offense was not voluntary
Facts: slid on black ice
[IF involuntary no act even under absolute liability]

R V Wolfe (1975)
reflex is not voluntary -> there is no act
Facts: smashed the large phone on the person but was not liable
R V SWABY (2001)
The act and fault components must overlap at some point
IF they do not overlap -> no act
The Crown also had to prove that the coincidence of occupancy and knowledge was attributable
to something amounting to voluntary conduct on the part of the accused. Although s. 91(3)
contains no explicit defence, it must be interpreted so as to exclude the possibility of conviction
for what would amount to an involuntary act. If the accused acquired knowledge of the weapon
while the vehicle was in motion, he would have to be given a reasonable opportunity to either
remove himself or to see that the weapon was removed from the vehicle.
Facts:1. Was an occupant of the care 2. Knew the gun was in the car. BUT 1 & 2 did not overlap

KILBRIDE v LAKE (1962 NZ)

When there is an involuntary omission then there is no act
“Some other course open to him”
Facts: put the ticket there but it flew away and was charged

Causation
Causation offenses require some type of consequence
- i.e To be guilty of homicide you must have ‘caused’ the death
Factual - physical or factual
Legal - legal responsibility, sufficiently connected to the crime

CAUSATION TEST:
SMITHERS
1. THIN SKULL RULE: assaulter takes the victim as they find them
2. Jury should only be subject to expert opinion?
a. NO; they can look at expert and lay - common sense
CAUSATION [normal]
3. “Significant contributing cause” (SMITHERS -> NETTE)
4. and BUT FOR [helpful but not legal] (TALBOT)
CAUSATION [1st degree murder]
3. substantially connected to the death of the victim

R. v. Smithers (1978) SCC

Cause the act (of death)?
 1. THIN SKULL RULE: assaulter takes the victim as they find them
2. Jury should only be subject to expert opinion?
a. NO; they can look at expert and lay - common sense
3. Test for causation in assault causing death (quite easy to show):
a. Contributing cause of death
b. Outside minimus (trivial) range

R. v. Harbottle (1993) SCC

For 1st degree murder ONLY
[cause]: substantially connected to the death of the victim

R v. Nette (2001) SCC

Refine Smithers TEST for cause:
“Significant contributing cause” = SMITHERS: “contributing cause of death outside de minimis
range”

R v Talbot (2007)
BUT FOR and Significant Contributing Cause test (NETTE) used at the same time

Intervening Cause
Contributing cause of just the accuse
Intervening causes are an area of law that is inherently unclear, except when the facts abide by Criminal
Code provisions:
● S.222 Homicide Idem – “causes death by…causing human being to do anything that causes his
death”
● S. 224 Death That Might Have Been Prevented – “causes the death from that cause might have
been prevented…”
● S. 225 Death from Treatment of Injury – “causes bodily injury that is of itself of a dangerous
nature from which death results…”
● S. 226 Acceleration of Death - “causes bodily injury…that the effect of injury is only to
accelerate his death from disease or disorder arising from some other cause…”
R v Maybin TEST (2012)
[Leading case TEST for intervening cause/act]
1. Factual causation: BUT FOR
2. Legal causation: held accountable - intervening causes here
- Significant contributing cause (NETTE)
- Two aids for INTERVENING ACT breaking causation
1. Reasonable foreseeability: was the general nature of the intervening act
and the risk of harm foreseeable at the time of the act?
2. Independent Acts - was the intervening act so independent of the
accused’s act that it should be regarded as the sole cause? Or were the
acts so connected that they can’t be said to be independent?
R. v. Smith 1959 QB
Causes the death IF it is a bodily injury where death could result (despite proper or improper
treatment applied in good faith) [soldier stabbed]
R. v. Blaue (1975) Cr App
THIN SKULL RULE (Jehova Witness)
R. v. Maybin (2012) SCC
Issue and ruling:
1. Did bouncer cause death?
a. No, since there is reasonable doubt that the punch to the head was a significant
contributing cause (could have just been the other men)
2. Did assaulting men cause the death?
a. Yes, they either they caused the death OR they put him in a position that let him
be assaulted and die: significant contributing cause

Fault (intro: obj., regulatory -> strict)

Subjective and Objective Fault
Subjective fault: blameworthy state of mind - ‘mens rea’
Objective fault: Failed to live up to the standard of a reasonable person (negligence)
Mental states evidence
- Statements made by the accused
- *inferred from the evidence
Subjective Fault definition [THEROUX]:
- The test is not whether a reasonable person would have foreseen the consequences of
the prohibited act, but whether the accused subjectively appreciated those
consequences at least as a possibility.
1. Inquiry has nothing to do with the accused system of values
2. The crown does not have to show precisely what thought was in the accused’s
mind at the time of the criminal act.
When determining Mens Rea:
- Jury is to consider ALL evidence (and be directed towards pertinent evidence) [WALLE]
- The circumstances and consequence of a man’s act are no more evidence of his
intention [MULLIGAN]
- generally it is a reasonable inference that a man intends the natural consequences of his
acts [ORTT]

Determine if Criminal or regulatory offense:

MOTOR VEHICLE ACT REFERENCE
1. Absolute liability in penal law offends the principles of fundamental justice (s. 7).
- Strict liability is the minimum for any charter offence [imprisonment] and DEFAULT
WHOLESALE TRAVEL GROUP
he provision is located within a comprehensive regulatory framework would ordinarily be
sufficient to demonstrate its regulatory nature
Keep in mind regulatory provisions are
1. conduct by virtue of its inherent danger should be regulated (and avoids harmless
conduct)
2. It is to protect the vulnerable and should not be struck down lightly by the chater
The presence of moral blameworthiness as a crucial consideration in deciding whether an
offence is a crime as opposed to a regulatory offence.**
Definition and Introduction of Strict Liability [City of Sault Ste. Marie]
Three types of offences
1. Mens rea: positive state of mind
2. Strict liability: no necessity for crown to show. Left to defendant to show they took all
reasonable care (balance of probabilities)
a. Pure passivity is not due diligence (Levis. V. Tetreault)
3. Absolute liability: D. must show no fault

Murder
s. 222 (homocide - not an offence / cause element) -> s.229 (culpable homocide)
Murder is separated from manslaughter by fault [chart]
S. 229
A ‘means to’ cause the death or ‘knows’ is likely to cause death [SIMPSON]
- ‘likely’ normal meaning of the term [EDELENBOS]
- [Check the subjective standards(substantially certain to occur) [SUB.MEN.BUZZANGA]
(i)
(ii)
B (transfered intent - shooting into a crowd) (PH - doesn’t really care about recklessness now)

HOMICIDE
causing human death

CULPABLE HOMICIDE
Causing death by an unlawful act by NON-CULPABLE HOMICIDE
criminal negligence, etc.

Murder Manslaughter Not an offence

Constructive Murder (Murder even though normal FAULT is absent in s.229(a))
Murder even though normal FAULT is absent in s.229(a)
- It is mainly unconstitutional: requires foresight of death
R. v. Martineau (1990) SCC
(leading case showing)
s. 230 unconstitutional and parts of s.229(c) under s. 7
- s.229(c) ‘ought to know’ is wrong requires forsight
Reason: s. 7 REQUIRES subjective foresight of death for a murder conviction
Vaillancourt v. R. SCC (1987)
conviction of murder at least requires the death to have been objectively foreseeable
- under s. 7 principles of fundamental justice.
- Due to stigma and penalty

1st Degree or 2nd Degree (plan&delib.)

2nd degree default
S. 231(1)
To charge with first degree there are two steps:
1. Is the accused even guilty of murder?
2. If yes, should it be classified as first degree murder?
Sentencing for 1st is much more than 2nd degree
- Sentence for life imprisonment but different provisions for release s.745
- 25 parole vs 10-15
1st Degree TEST s.231(2):
1st degree has to be BOTH (SMITH)
1. Planned: arranged beforehand as a result of scheme or design
a. Few minutes of planning is not sufficient usually (SMITH)
2. Deliberate: considered and not impulsive
OR (NYGAARD & SCHIMMENS)
For murder does it meet s.231(2) for 1st degree IF
- Planned and deliberate was to bodily harm likely to cause death
OR
s. 231(4) 1st degree murder if: specified victims (police etc…)
- Mens rea ‘murder an undercover police officer’
- R v. Colins (1989) : appreciate risk they are a specified class
- s. 7 argument
s. 231(5) 1st degree WHILE COMMITING (illegal domination)
- PARE case: same series of events
- Harbottle: substantially connected to death
Subjective Mens Rea (code offenses require / knowledge / mens chart)
Fault for most offenses [subjective] (ADH)
parliament intends subjective fault unless noted (barring contextual analysis)
Subjective Mens Rea ‘knowledge/intention’ from ‘wilful’ (BUZZANGA & DUROCHER)
Intention (1 of 2):
- Conscious purpose to bring about a consequence [not just anti-french sentiment!]
- OR subjective foresight that the prohibited consequences is substantially certain to occur

STATES OF MIND FAULT LADDER

Motive Higher-order mental states
Desire Deeper reasons for action
(not normally required to be proved because it is not an offence element
but evidence of motive/desire is admissible)
- Motive/desire and intention are different

Knowledge/Intention Subjective Mens Rea

What was in the accused’s mind?
Recklessness (default for criminal offences; required under Charter for murder and a few
other crimes)
Wilful Blindness - Crown can prove anyone of these states of mind (←) so as to satisfy the
SMR requirement

Negligence Objective fault (ie. Dangerous driving)

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

Absolute liability No fault requirement

Conviction follows if the Crown proves the act
(Under the Charter, never combine with imprisonment
Recklessness or Willful Blindness (subjective standard)
Recklessness is a subjective standard (SANSREGRET)
Wilful blindness is treated as having knowledge (subjective standard) (SANSREGRET)

Recklessness def: Sees the risk and takes the chance (SANSREGRET)
It is found in the attitude of one who, aware that there is danger that his prohibited conduct
could bring about the result prohibited by the criminal law, nevertheless persists, despite the risk
- Just a degree degree between intention and recklessness
Wilful Blindness def: (SANSREGRET)
Wilful blindness exists where the accused is aware of the need for inquiry and deliberately fails
to inquire in order to preserve ignorance
WB new: ‘Deliberate ignorance’ (BRISCOE)
- An actual process of suppressing a suspicion
Caveat: sufficient subjective mens on subject matter (BLONDIN)
Ruling:
1. sufficient mens rea IF it was a narcotic (does not matter about spec. drug)
2. Insufficient to know it was something illegal (like cigarettes)

Objective Fault [ought to / s.219] (negligence)

Objective mens rea is a lower level of fault, thus a lower burden on the Crown to prove → higher
conviction rate of these offences. Words that indicate objective fault in statute include: ought to,
reasonable care, good reason, reasonably. The accused is held to a standard of a reasonable person.
Criminal Negligence (S. 219) [s.219 is the def and applies to: Criminal Negligence Manslaughter (S.
220) and Causing Bodily Harm by Criminal Negligence (S. 221) are examples of crimes of objective fault.
Includes the definition of duty in the statute which refers to what the accused legally ought to do.
● Interpreting these statutes is complicated because wording is not explicit in required level of
fault; indications that may suggest either:
o Subjective fault → “reckless” “disregard” – know about something but choose to ignore
o Objective fault → “negligence” is in and of itself an objective standard

Objective Fault TEST (CREIGHTON)

McLauchlin (5) MAJORITY:
Objective Fault single standard: “Marked departure” from norm
- No personal factors
- ONLY exception is incapacity to appreciate nature of the risk
 Dangerous Driving objective fault [s.249] (BEATTY)
1. Marked departure from the standard of care of a reasonable driver
a. Way off the standard
2. Exculpatory defenses can be considered [like lapses in attention]
a. (PD - does not like this as many of the examples are included already in
preventing the act itself)

Objective Fault TEST s.219 ‘Criminal Negligence’ (FJ)

“marked and SUBSTANTIAL departure from objective norm”

Summary of the types of mens rea offense types and requirements

1. Regulatory offences (negligence): reverse onus
a. Minimum for imprisonment
b. STE MARIE
2. Objective Fault (gross negligence): “marked departure from the objective norm”
a. BEATY
3. Criminal Negligence (s.219): “marked and SUBSTANTIAL departure from objective
norm”
a. R v FJ
b. Worse than gross negligence

R. v. Tutton & Tutton (1989) SCC

3-3 Split on if s.219 is OBJECTIVE or SUBJECTIVE

Unlawful Act Manslaughter (act causing death)

Point 1 : unlawful act that causes death (has to have an unlawful act)
- Usually assault s.265 (that is enough)
- (NOT CRIMINAL NEGLIGENCE s.219/ not the same)

Unlawful act causing death (manslaughter) s.222(5)a TEST: (CREIGHTON)

1. Fault element of OFFENSE (that causes the death)
a. Dangerous act
b. NOT absolute liability
c. Constitutionally valid
2. Fault for MANSLAUGHTER
a. “Objective foreseeability of risk of bodily harm that is neither trivial nor transitory
in the context of the dangerous act”
Asserts it is constitutional since it is NOT murder (lower stigma) and the penalty can be low

Aggravated Assault s.268(1) reduced foresight TEST: (GODIN)

MENS Objective foreseeability of bodily harm “neither trivial nor transitory”
- CREIGHTON Test of ‘objective foreseeability’
- Does not require foresight of “maiming or disfiguring”
BUT Assault causing bodily harm is controversial
- [some provinces] no fault JUST bodily harm caused
- [ontario & others] require reasonably foreseeable

Rape and Sexual Assault

Background: REMOVED
Overhauled in 1982 rape -> sexual assault
(3 tiers of seriousness) after s.265 assault
S.271 sexual assault
S.272 weapon, threat , bodily harm, multiple purps
S.273 aggravated sexual assault (wound dangers or injures)
Elements of Sexual assault
ACTUS REUS
1. Touching - s.265
2. Of a sexual nature (CHASE def)
3. Absence of consent - s.265(3) & s.273.1 (EWANCHUK)
MENS REA
1. Intention to touch - s.265
2. Subjective awareness of non-consent (mistaken belief) - (EWANCHUCK s.273.2)

Applies to all assaults Applies only to sexual assaults

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

Definition of Sexual aspect s.271 TEST: (CHASE)

Sexual assault (sexual aspect): “committed in circumstances of a sexual nature, such that the
seuxal integrity of the victim is violated”
Sexual nature TEST: reasonable observer viewed in light of all circumstances
- Body part touched
- Nature of the touching
- Surrounding situation or circumstances
- Accompanying words or gestures, including threats
- Intent or purpose (just an aspect)
MENS: general intent
NOTE: could be under threat s.265.3(b) [PH - likes to put this on the exam]

Sexual Assault: Consent and Mistaken Belief

MISTAKEN BELIEF IN CONSENT
- Mens rea component
- Defense does not exist in the code BUT is limited by the code
- s.265.4 s.273.2
S.265.4 (all assaults)
[requires instruct jury on reasonableness for mistaken belief]
- Does not have to be reasonable to introduce
- But requires the Judge to instruct the jury to consider
- REASONABLE GROUNDS for the belief
S.273.2 [sexual assault]
[Barrs defense of mistaken belief WHEN]
(a) Mistaken beleif arose from:
(i) Intoxication
(ii) Recklessness or wilful blindness
(b) Did not take reasonable steps [KEY LECTURE POINT in EWANCHUK]

DIFFERENT FROM: consent vitiated

(below are not exhaustive forms of consent vitation)
s.265(3) [all assaults (sexual and non-sexual)]
- We did a lot on © fraud
- Jobidon (Common Law limit on consent when brawling)

s.273.1(1) [specific to sexual assault (not exhaustive)]

1. MORGAN (have sex with his wife despite her complaints)
2. Unconscious or intoxicated or disabilities
3. teachers/priest
4. ‘No’ means ‘no’
5. Can withdraw consent

TEST for Consent (ACT): (EWANCHUK)

Consent - subjective: determined by reference to the complainant’s subjective internal state of
mind
BUT (like mens rea) can be challenged by facts
- While the complainant's testimony is the only source of direct evidence as to her state of
mind, credibility must still be assessed by the trial judge, or jury, in light of all the
evidence. It is open to the accused to claim that the complainant’s words and actions,
before and during the incident, raise a reasonable doubt against her assertion that she,
in her mind, did not [consent]
Under s. 273.1(e): consistent consent (AJ)
- Must be conscious throughout to be consenting / cannot consent in advance while unc.

TEST for Mistaken Belief in Consent (MENS): (EWANCHUK)

Only applies in situation of ambiguity (DAVIS)
- Does not have to be reasonable
- Juries must be instructed to consider reasonableness
- Belief that the complainant COMMUNICATED consent (not necessarily verbal)
- NOT Silence or ambiguous action
- ‘No’ does not mean ‘yes’
- To engage in further steps MUST do steps that a reasonable person would do (TEST)
Incapacity (Defense) [Age + Mental Disorder]
Age
Mental disorder
Automatism
Intoxication
Age s.13
- noone under 12 can be convicted of an offence at that age

Defense of Mental Disorder s.16 (COOPER)

[Cite at the end of a case in sentencing for mental disorder automatism]
Not responsible for the act or omission
1. While done ‘suffering from a mental disorder’
a. s.2 ‘mental disorder’ means disease of the mind
i. Judge Decided whether or not it is a disease of the mind NOT psyciatrists
(COOPER)
2. ‘That rendered the person incapable of’ [hard to prove (a) + (b)] : [jury decides]
(COOPER)
a. ‘Appreciating the nature and quality of the act or omission’ OR
b. ‘Knowing that it was wrong’
(2) ‘presumed NOT to suffer from mental disorder’
Under the old defense of disease of the mind - ‘insanity defense’
DEF: ‘disease of the mind’
“In a legal sense ‘disease of the mind’ embraces any illness, disorder or abnormal condition
which impairs the human mind and its functioning, excluding however, self-induced states
caused by alcohol or drugs, as well as transitory mental states such as hysteria or concussion.
In order to support a defence of insanity the disease must, of course, be of such intensity as to
render the accused incapable of appreciating the nature and quality of the violent act or of
knowing that it is wrong.”
- Underlying concept: responsibility - “an accused is not legally responsible for acts
resulting from mental disease or mental defect”

Automatism (Mental Disorder + Non-mental disorder)

There are two types of Automatism
1. Non-Mental disorder
2. Mental disorder - different from MD defence as it was involuntary/not consc.
The defense usually tries for non-mental disorder automatism as this does not carry the mental
institution sentencing from trying to defend a mental disorder.

Def Automatism RABEY: “Automatism is a term used to describe unconscious,involuntary

behaviour, the state of a person who, though capable of action is not conscious of what he is
doing. It means an unconscious involuntary act where the mind does not go with what is begin
done.”
ALL AUTOMATISM Presumption:
- Reverse onus (burden of proof on defence) on a balance of probabilities to the trier of
fact (STONE)

ALL AUTOMATISM: Judge decides below

1. Is automatism an issue the Judge puts for the jury to decide? TEST 2 steps
a. Assertion of involuntariness ‘woosh’ and amnesia
b. Expert evidence (psych. etc.) on a balance of probabilities they were in a state of
automatism
2. If so, is it mental disorder or sane automatism? [disease of the mind or not] [RABEY]
a. If automatism, now PRESUME mental disorder automatism must prove it is non-
mental disorder automatism defence will have to show it is NOT (incredibly hard
to prove) [LUEDECKE/STONE]
‘Disease of the mind’ is determined by the legal community TEST: (PARKS)
Definition in COOPER (s.16) refer [several exclusions]
- Legal component
- Policy component
1. Continuing danger theory* (most important) (LUEDECKE)
i. Pre-verdict, focus on social defense: where there is a risk of
recurrence, that will almost always lead to an NCR (not criminally
responsible) verdict (LUEDECKE)
1. It is not a stigma to be attached to a person / cannot argue
it should not be attached
b. DENING: (controversial) “Manifested itself in violence and is prone
to recur”
2. Internal cause theory (dominant theory BUT is an analytical tool NOT a
test)
Differentiate automatism w/ ‘cause theory’ [RABEY]
1. External cause -> Non-Mental disorder
a. Physical reflex
b. “Extraordinary external events” causing a “psychological
blow” may be ok
i. ‘Serious accident’ or ‘loved one murdered’
2. Internal cause -> Mental disorder
a. “The ordinary stresses and disappointments of life… do not
constitute an external cause”
3. Flood Gate concern: this will generalise to more normal behavior
4. Easy to feign
a. Hard to argue for sleep walking (brain waves)
Jury consideration / and conviction TEST (STONE)
Factors (not limited) to consider for automatism[state at offense]
1. severity Triggering stimulus [minor]
2. Corroborating evidence of bystanders
3. medical history of dissociative states
 4. Motive for crime
5. the trigger of the violence is the victim
Post-verdict, focus on the “individualized assessment” of the individual’s dangerousness for
detainment IF mental disorder automatism (LUEDECKE)

Defence (Person [loose] + Property)

Defenses work even with the intent and fault elements
- Come from both the Common law and Statute

In order to even apply the defense in the case you must meet the Judge’s AoR TEST
Air of Reality [AoR] (CINOUS)
[do this extremely briefly]
 1. Defense is even an issue (AoR)
a. Defense does not have to bring the evidence BUT they do have to point to it
2. Once reaches the threshold then it is put to the jury
a. “Whether there is evidence on the record upon which a properly instructed jury
acting reasonably could acquit”

uses loose language and can capture

Defence of Person s.34 TEST
New test (2013) run through [s.1 (a-c)] and then contend on the[‘reasonable circumstances’ in 2]
Ss1
(a) ‘believe on reasonable grounds’ that force or threat is being used against them
(b) Is used for ‘defending themselves or another person from that use or threat of force’
- Has to actually be a defense
- No Duty to retreat [a factor to consider if NOT done] (CORMIER)
(c) Reasonable in the circumstances? (usually the most contested point)
Limits
1. (a+b) Defending or protecting a person
2. Reasonable in the circumstances [compare to CODE wording]
a. OBJECTIVE TEST of reasonable person w/ their experience [MALOTT]
b. Ss2 [factors]
a. Extremity of force
b. Immediacy [used to believe lethal force could be used only
‘with the upraised knife’ loosened up with LAVO
i. Could they run away?
c. If they were the initial aggressor that would work against
them
d. Weapons make it more reasonable
e. Outmatched?
f. Who used it / and how they acted previously ‘prior assaults
by the same person’ / earlier communications were threats
g. ***[critical] response should be proportional
i. Does not have to be exactly proportionate ‘could
shoot a knife attack’
h. ‘If the police officer is arresting’ factor against

Battered women s.34 Self Defense:

R. v. MALOTT [updates for outdated cycle theory in Lavallee]
Expert testimony is necessary
- Assist in the defense of being reasonable
- If NOT then they assent ‘murder by installment’
- But currently there has been a lot of scientific doubt cast on the ‘cycle’
Objective test is still reasonable person
Given the history circumstances and perceptions of the battered women… was the use
of force reasonable’ [LAVALLEE]
 - Not an outsider BUT the accused experience and belief being accurate
R. v. Lavallee (1990) [OUTDATED]
TEST
Death or grievous bodily harm required current assault
- This is too restrictive when applied to battered women
- Expert evidence was needed to evaluate the defense at the time / ordinary
people would not understand the situation
- Dr. X / cycle theory of violence / predictability of the violence
- Assist in the defense of being reasonable
- If NOT then they assent ‘murder by installment’

Defense of Property s.35 TEST [CORMIER]

1. [Check the code for the specifics]
a. Reasonably believe they are in “peaceable possession” or assisting a person in
peaceable possession
b. Reasonably believe another person is going to enter, damage, destroy or take
the property
c. Act for the purpose of preventing the damage, entry,taking etc [SUBJECTIVE
assessment]
d. Act in a way that is reasonable in the circumstances [OBJECTIVE assessment]
- No Duty to retreat in one’s home [a factor to consider if NOT done]
- CORMIER implies common law idea that murder is not allowed to defend property

Necessity
TEST of NECESSITY [Created by PERKA / test type and modified proportionality
LATIMER]
Used: excuse for act NOT justification - Emergency situations where normal human instincts,
whether of self-preservation or of altruism, overwhelmingly impel disobedience. [PERKA]
Acts are presumed voluntary BUT if there is evidence + reasonable view of the facts -> no onus
on the accused [PERKA]
“Modified Objective” (means different things here): Objective evaluation but takes into account
accused's:
- Situation
- Characteristics
TEST
1. The situation be urgent and the peril be imminent: “On the verge of transpiring and
virtually certain to occur”[LATIMER]
a. Modified objective
i. Homeless squatters is not applicable
 2. No reasonable legal alternative
a. Modified Objective [LATIMER]
3. Proportionality: minimum of equal gravity - NOT required that it clearly outweighs
[LATIMER]
a. Objective standard [LATIMER]
4. Illegal character of prior conduct NOT relevant
(modified objective takes into account the accused’s characteristics AND situation)
Barriers
1. Foreseeable to a reasonable observer
2. Contemplated or ought to have contemplated that it would give rise to an emergency
breaking the law

Duress
TEST of DURESS s.17 [RYAN] (both common law and statute are combined)
Only Used: accused “commits an offence under compulsion of a threat made for the purposes
of compelling” the accused to commit the offence” [RYAN]
Different for Principals (doing the act) and parties. [PARUETT s.21(2)]
- Parties DO NOT have #6 [PARUETT]
- Principals can make CHARTER argument if #6 applies [RYAN]
Modified Objective: ‘takes circumstances of the accused’
TEST
CODE s. 17 (Statutory)
1. Threat of Death or Bodily Harm
2. Immediacy: Act committed under threat of “immediate death or bodily harm” RUZIC
3. Presence: Threatener must be “present when the offence is committed” RUZIC
4. Actual Reasonable Belief that the Threat will be carried out
a. Modified objective
5. *No Participation in a conspiracy or Criminal Association
a. Subjective Standard
i. Not OK if they knew “that threats and coercion to commit an offense were
possible result of this criminal activity/conspiracy/association…”
6. Exclusion to certain offences: murder, sexual assault, robbery etc. [OK for parties]
Common Law
1. NO safe Avenue of Escape [HIBBERT]
 a. Modified objective
2. *Close Temporal Connection
a. Can work for future harm [different from necessity generally]
3. **Proportionality
a. Modified Objective: 2 elements [different from necessity which is objective]
i. Difference between the nature and magnitude of the harm threatened
ii. Offence committed , as well as general moral judgment regarding the
accused’s behavior in the circumstances

Intoxication + s.33
the defence will only be put forward in those rare circumstances of extreme intoxication. Since
that state must be shown to be akin to automatism or insanity, I would suggest that the accused
should be called upon to establish it on the balance of probabilities. (DAVIAULT)

DAVIAULT
(for categories of intoxication below)
General intent offense: minimal intent to do the act / implied usually from the act
- Assault (all types pretty much)
Specific intent offense: those generally more serious offences where the
mens rea must involve not only the intentional performance of the actus reus but, as well,
the formation of further ulterior motives and purposes
- Ulterior Intent Offense: over and above general intent (resist arrest vs. assault)
- Specific Intent Offenses (not fitting ulterior intent): (murder) to allow people to get off on
manslaughter

R v Daley [2007]
Three types of intoxication
1. Mild intoxication: relaxation of inhibitions
a. Never an excuse
2. Advanced intoxication: “to the point where the accused lacks specific intent, to the extent
of an impairment of the accused’s foresight of the consequences of his or her act
sufficient to raise a reasonable doubt about the requisite mens rea.”
a. Only to specific intent offenses (murder)
b. Level of intoxication varies with offence type
c. In most cases it will not work unless incapacitated by Alch.
3. Extreme intoxication: akin to automatism
a. Negates voluntariness / complete defence
 b. Limited to NON-VIOLENT (s.33.1) / argued s.33.1 unconstitutional (s.7 or 11d)
c. Extremely rare
Argue 2 AND 3 always
In class (complete later)
S.33.1 removes DAVIAULT defense of extreme intoxication
Does it violate s.7

Judges always say yes because they do not want defense to appeal w/ charter argument
- Never appealed by defense because the jury convicts anyways
- IF it was to work then it was a sympathetic case and the prosecution will not appeal

Provocation s.232 (defense to murder)

Partial defense to murder (acquitted of murder but convicted of manslaughter)

TEST of Provocation: (TRAN)

1. Objective element (ordinary person)
a. Offense
b. Sufficient to deprive the ‘ordinary person’ of self control
i. HILL: person of normal temperament and self control .. cannot be in a
state of intoxication .. but do want to consider characteristics relevant to
the … (age could be relevant) “
ii. TRAN: [34] Norms of behavior including charter standard … fundamental
values … appropriate for racial characteristic … no place for antiquated
standards]
1. (real narrowing of the provocation defense / #1 homophobic and
#2 adultry cases are no longer acceptable [not an offense
anymore])
2. Subjective
a. Indictable offense 5+yrs (s.232)
b. Actually provoked
i. Not anger (PARENT)
c. Lost control and acted while out of control
INDIGENOUS SENTENCING

Sentencing
Retributivism - proportional response to morally blameworthy
Consequentialism - for good outcomes
Bit of both

Pg 1198-1203

R v. Gladue (1999) SCR

Section 718.2(e)
- all available sanctions other than imprisonment that are reasonable in the circumstances should be
considered for all offenders, with particular attention to the circumstances of aboriginal offenders
In sentencing an aboriginal offender, the judge must consider:
(a) the unique systemic or background factors which may have played a part in bringing
the particular aboriginal offender before the courts; and
(b) the types of sentencing procedures and sanctions which may be appropriate in the
circumstances for the offender because of his or her particular aboriginal heritage or
connection.
Section 718.2(e) applies to all aboriginal persons wherever they reside, whether
on- or off-reserve, in a large city or a rural area. In defining the relevant aboriginal
community for the purpose of achieving an effective sentence, the term “community”
must be defined broadly so as to include any network of support and interaction that
might be available, including one in an urban centre. At the same time, the residence of
the aboriginal offender in an urban centre that lacks any network of support does not
relieve the sentencing judge of the obligation to try to find an alternative to
imprisonment.
This ruling tried explicitly tried to rectify the gross overrepresentation of aboriginals in prisons.
Higher incarceration rates.They did this by calling on more and special consideration for
aboriginals and a emphasis on rehabilitation (asserted to be couched in their culture)

R v. Ipeelee (2012) SCC [Revises Gladue and corrects erroneous ideas]

Done so that we would have a longer reading and a better idea of aboriginal sentencing
measures
 - Alcoholic and long criminal record
- Due to his crimes of abuse of vulnerable groups he was labeled a long term offender:
require pattern of repetitive behavior that is likely to cause death, psych dmg or injury
- Long term supervision order as a consequence important req: abstain from alcohol
- Failure to comply with LTSO - minimum 10yrs
- Judge Main criteria: protection of public and deterrence
- SCC shoots back that it is for rehabilitation and to reintegrate

SCC rejects 3 critiques of Gladue

1. Sentencing is not an appropriate means to rectify overrepresentation in prison
a. One important step that can be taken
2. Unprincipled race based discount
a. Take into account personal factors that come from blood
3. Unfair to distinguish abo offenders from others
a. Take into account everything

Two errors in reading Gladue Previously

1. Must establish causal link : between the offense and the history
a. too complex; lower standard
2. Does not apply to serious offences
a. No it does apply and takes it all into account

The Adversary System

General
Basically argues that the adversary system leaves important things out and that they result to
negotiation anyways and then tries to infer that they should switch to a collaborative system. (Of
course they never realise that good negotiation only happens WHEN there is actual recourse to
an adversarial system; the entire process is couched in the system; removing this and you will
do away with the a guarantee of consideration for any point
Role of Prosecutor by SCC: (PD - asserts that it is not contested and most Crowns aim for this)
It cannot be over-emphasized that the purpose of a criminal prosecution is not to obtain a
conviction,it is to lay before a jury what the Crown considers to be credible evidence relevant to
what is alleged to be a crime. Counsel have a duty to see that all available legal proof of the
facts is presented; it should be done firmly and pressed to its legitimate strength bu tit must also
be done fairly. The role of a prosecutor excludes any notion of winning or losing: his function is
a matter of public duty that which in civil life there can be none charged with greater personal
responsibility. It is to be efficiently performed with an ingrained ssense of the dignity,
seriousness and the justness of judicial proceedings

BLACK EXPERIENCE PROJECT [crim justice system]

(excerpt not in readings; from last class)
Survey research
- Report on policing and systemic discrimination
- Key findings: more than half had been stopped by the police in a public place; more than
half thought it treats black people unfairly

R. v. R.D.S
- 15 yr old black kid arrested for interfering with an arrest
- His word is against the police officer
- Black judge made inferences of racism and acquitted
- Appeal ruled new trial
- New trial acquitted and went to SCC
Issue: did judge show a reasonable apprehension bias
Test: would a reasonable, informed person aware of all the circumstances, conclude that her
comments gave rise to a reasonable apprehension of bias?
Ruling SCC: acquit

Cory J. (2) - worrisome but No RAOB; no reason to undermine the credibility of police officer
Major J. (3) - remarks unacceptable; no evidence - stereotyping police
L’Heureux (2) - remarks conextualized; could use to assert a possiblity for RD
Gonthier (2) - both with Cory and L’Heureux

DF - Thinks L’Heureux would be majority nowadays; contextualized judging.

Dissent: cannot infer broad racism and apply it to specific case without evidence