INTRODUCTION:_____________________________________________________________4

• Principles of fundamental justice that put limits on the substantive criminal law include___5
Spanking Case:_____________________________________________________________________5

Bedford v Canada: (Prostitution)________________________________________________5

s.7 tests for validity of laws:__________________________________________________________6
R v Safarzadeh-Markhali__________________________________________________________________6

Protection of Communities and Exploited Persons Act (PCEPA):___________________________6

OAKES TEST:________________________________________________________________6
Frey v Fedoruk: (peeping-tom) no new common law offences_____________________________7
Statutory Interpretation:______________________________________________________7
R v Clark: (neighbour masturbate)[indecent public act]__________________________________7
R v Pare: (bridge rape murder) [Single Transaction]_____________________________________8
R v Goulis: (more favourable to the accused preferred)__________________________________8
Presumption of Innocence:____________________________________________________8
Purpose and Principles of Sentencing:________________________________________________9
Aboriginal Sentencing:___________________________________________________________________9

Elements of Offences:________________________________________________________10
Consent making an Act lawful:________________________________________________11
Vitiating Consent:______________________________________________________________________11
R v JOBIDON: (Bar fight – death)________________________________________________________11
NO CONSENT TO DEATH:____________________________________________________________11
Consent Vitiated by Fraud:_______________________________________________________________11
R v Cuerrier: (HIV-no safety) - Deprivation________________________________________________12
R v Mabior: (HIV-safety maintained) – further deprivation___________________________________12
R v Hutchinson: (condoms – holes)______________________________________________________12

Omissions:________________________________________________________________12
R v Browne: (Druggie partner overdose)__________________________________________________13
R v Peterson: (Dementia old dad)_______________________________________________________13

Voluntariness: (mention only if it is at issue)_____________________________________14

R v Lucki: (car opposite road side)_______________________________________________________14
R v Wolfe: (reflex telephone hit)________________________________________________________14
R v Swaby: (gun car passenger)_________________________________________________________14
Kilbride v Lake (no warrant car)_________________________________________________________14

Causation:_________________________________________________________________14
Basic Tests for Causation:________________________________________________________________15
Smithers v R: (hockey slurs epiglottis)____________________________________________________15
R v Harbottle: (rape murder held legs)___________________________________________________16
R v Nette: (old lady asphyxiation)_______________________________________________________16

Intervening Cause:__________________________________________________________16
Causation in Homicide:__________________________________________________________________17

1
 Homicide (indirect):________________________________________________________________17
Death that might have been prevented:________________________________________________17
Death from treatment of injury:______________________________________________________17
Acceleration of death:______________________________________________________________17
R v Smith: (soldiers stab bad medic)_____________________________________________________17
R v Blau: (Jehova’s Witness)____________________________________________________________17
R v Maybin: (Bar-bouncer; but for)______________________________________________________18
Analytical aids – intervening cause breaking chain:____________________________________________18

Fault Element: subjective v objective___________________________________________18

R v Beaver: (knowledge of possession of drugs)____________________________________________19
R v City of Sault Ste. Marie:____________________________________________________________19

MURDER:_________________________________________________________________19
Intentional Murder: s.229(a)_______________________________________________________19
Transferred intent: s.229(b) – kills someone else_______________________________________20
Constructive Murder – even though fault requirement is absent__________________________20
Vaillancourt v R (1987):_______________________________________________________________20
R v Martineau (1990):________________________________________________________________20

First Degree Murder:_____________________________________________________________20

Elevating Murder to First Degree:_____________________________________________________21
R v Dudley & Stephens: (boat cannibalism) [Necessity/Murder]_______________________________21

Subjective mens rea:________________________________________________________21

FAULT LADDER:_________________________________________________________________22
R v Buzzanga and Durocher: (flyer) INTENTION____________________________________________22
Recklessness and Wilful Blindness:________________________________________________________22
Sansregret v R:______________________________________________________________________22
R v Blondin: (scuba tank hashish)_______________________________________________________23
R v Lagace: (just obiter)_______________________________________________________________23

Objective Fault:____________________________________________________________23
Criminal Negligence:____________________________________________________________________23
O’Grady v Sparling:__________________________________________________________________24
R v Tutton and Tutton: (religious sect-5yo diabetic son-death) SMR v OMR______________________24
Marked Departure Test:____________________________________________________________24
R v Creighton: unlawful act manslaughter-cocaine injection-criminal negligence__________________25
R v Beatty: dangerous driving – marked departure for all objective crimes_______________________25
R v F.J.: “marked and substantial departure” – criminal negligence_____________________________26
Unlawful Act Manslaughter: s.222(5) – [predicate offences]____________________________________26
Aggravated Assault: s.268(1)_____________________________________________________________27

Rape Laws:________________________________________________________________27
Rape myth:_______________________________________________________________________28
Historical rules specific to rape cases__________________________________________________28
Definition of “Rape” (Old version Code s. 143)___________________________________________28
ALAN YOUNG – When Titans Clash____________________________________________________28
Current Offence of Sexual Assault:____________________________________________________29
R v Chase: 15yo girl-neighbour groped- define sexual assault_________________________________29
Fact Pattern Problem – father grabs son’s testes for punishment____________________________30
SUSAN ESTRICH – Teaching Rape Law____________________________________________________30
Consent in the Code:___________________________________________________________________30

2
 Where consent is vitiated (could be from either statute or common law)__________________________31
Code provisions for Consent and Mistaken Belief:________________________________________31
Mistaken Belief in Consent: s.265(4) + 273.2_________________________________________________32
R v Ewanchuk*: Elements of sexual assault________________________________________________33
R v A. (J.): no consent in advance________________________________________________________34

Incapacity:________________________________________________________________35
Age: s.13_______________________________________________________________________35
Mental Disorder: s.16____________________________________________________________35
Cooper v R.: TEST “disease of the mind” – nature & quality of act______________________________36
T.S. Szas – Psychiatry, Ethics and The Criminal Law_______________________________________37

Automatism:____________________________________________________________________37
Rabey v R: Ms X – letter – just a friend - choking___________________________________________38
R v Parks: sleepwalker case – killed MIL – injured FIL – POLICY COMPONENT_____________________38
R v Stone: leading automatism case – MDA v NMDA________________________________________39
R v Leudecke: continuing danger theory – sexsomnia_______________________________________39

Intoxication:____________________________________________________________________40
R v Daviault: extreme drunkenness defence for general intent offences_________________________40
• Parliament enacted Bill C-72 in reaction to this judgement.____________________________40
R v Daley: 3 levels of intoxication_______________________________________________________41

Defences: reverse onus______________________________________________________42

Self-defence: s.34________________________________________________________________42
R v Lavallee – reasonable person + circumstances__________________________________________43
R v Malott__________________________________________________________________________43
R v Cormier:________________________________________________________________________43

Defence of Property: s.35_________________________________________________________44

R v Cormier:________________________________________________________________________44

Necessity:______________________________________________________________________44
Perka v R: TEST______________________________________________________________________44
R v Latimer: Leading case______________________________________________________________45

Duress: s.17____________________________________________________________________45
R v Paquette: common law duress______________________________________________________45
R v Hibbert: moral involuntariness______________________________________________________46
R v Ruzic: immediacy and presence read out______________________________________________46
R v Ryan: MODIFED TEST______________________________________________________________46

Provocation: (only murder) s.232___________________________________________________46

R v Tran: 2 elements of provocation_____________________________________________________47
R v Hill: Leading case_________________________________________________________________47

Adversary System:__________________________________________________________48
Steve Coughlan, “the ‘Adversary System’: Rhetoric or Reality”________________________________49
Carrie Menkel-Meadow, Portia in a Different Voice: Speculation on a Women’s Lawyering Process___49
Madam Justice Bertha Wilson, Will Women Judges Really Make a Difference? – women & bias______49
Aboriginal Peoples and Criminal Justice – Law Reform Commission of Canada____________________49
Rupert Ross, Dancing with a Ghost______________________________________________________50
R v RDS, 1997 SCC – judges’ remarks should not give rise to reasonable apprehension of bias_______50

3
INTRODUCTION:
• The Application under s. 83.28 of the Criminal Code says the words in a statute should be
read:

– “in their entire context”

– “in their grammatical and ordinary sense”

– “harmoniously with the scheme of the Act”

– “harmoniously with…the object of the Act”

– “harmoniously with…the intention of Parliament”

• Legislation is presumed “to comply with constitutional norms”, including the Canadian
Charter of Rights and Freedoms

– When two readings are plausible, the Charter-compliant one is preferred

• Federal Parliament has the Criminal Law Power under s. 91(27) – over “The Criminal Law …
including Procedure in Criminal Matters”

• Provincial powers can also give rise to offences:

– 92(13) – “Property and Civil Rights in the Province.”

– 92(15) – “The Imposition of Punishment by Fine, Penalty, or Imprisonment for

enforcing any Law of the Province…”

• Other powers relevant to criminal law:

– Federal power over penitentiaries – s. 91(28)

– Provincial power over provincial jails – s. 92(6)

– Provincial power over provincial courts – 92(14)

More than 2 years -> penitentiaries. Less than 2 years -> provincial jail.

We will focus on two Charter provisions that have implications for substantive criminal law:

1. The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it
subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free
and democratic society.

7. Everyone has the right to life, liberty and security of the person and the right not to be deprived
thereof except in accordance with the principles of fundamental justice.

• A violation of s. 7 requires both:

- a deprivation of a right to either life, liberty, or security of the person, and

- that the deprivation violates some principle of fundamental justice

4
 • Principles of fundamental justice that put limits on the
substantive criminal law include:
1. A criminal law may not be too vague

The Spanking Case was challenged the Criminal Code under this principle.

“Every schoolteacher, parent or person standing in the place of a parent is justified

in using force by way of correction toward a pupil or child, as the case may be, who
is under his care, if the force does not exceed what is reasonable under the
circumstances.”

Spanking Case:
The test applied by the majority is whether the law “delineates a risk zone for
criminal sanction”

 The policy basis of the vagueness doctrine is:

– Fair notice: Citizens must be able to know when they risk criminal sanction

– Rule of law (not of persons): Officials should not have too much discretion in
enforcement of criminal law

2. A criminal law may not be overly broad

3. A criminal law may not be arbitrary

4. A criminal law may not be grossly disproportionate

• [when answering a question related to this; site s43 from the criminal code and then talk
about how CJC McLachlin defined the statute further in the Spanking Case. Always site the
statute first]

Bedford v Canada: (Prostitution)

Leading case for the other 3 principles – overbreadth, arbitrariness and gross disproportionality.

• Constitutional challenge to Canada’s prostitution laws under s. 7 of the Charter

• Three criminal offence provisions were challenged:

– Keeping a common bawdy house (s. 210)

– Living on the avails of prostitution (s. 212(1)(j))

– Communicating for the purpose of prostitution (s. 213(1)(c))

• The Court struck down all three laws under section 7

• The Court accepted that prostitution itself was not illegal, but that the laws had the effect of
“making a lawful activity more dangerous” for sex workers

5
s.7 tests for validity of laws:
• The Court lays out legal tests by examining the connection between the law’s objective and
it’s negatives impact on s.7 rights:

– A law is arbitrary when it limits s. 7 rights in a way that bears no connection to its
objective

– A law is overbroad when some, but not all, of the limits it places on s. 7 rights bear
no connection to its objective

– A law is grossly disproportionate in extreme cases where its impact on s. 7 rights is

so serious that it’s totally out of sync with its objective: where the law has a
draconian impact entirely outside accepted norm in a free and democratic society.

R v Safarzadeh-Markhali
In cases on overbreadth, GD and arbitrariness, identifying the legislative purpose is key.
Evidence of the purpose can be found in:

- Statements of purpose in the legislation

- Text, context, scheme of the legislation
- Extrinsic evidence like legislative history and evolution.

Protection of Communities and Exploited Persons Act (PCEPA):

Parliament introduced new prostitution laws under this in 2014. It uses a model of asymmetric
criminalization:

– Criminalizes purchasing but not selling of sexual services

– Criminalizes receiving a financial benefit from the sale of sexual services but exempts non-
exploitive relationships
– Criminalizes communicating for the purpose of prostitution in public places near a school,
playground or daycare
– Criminalizes advertising sexual services (except one’s own)

OAKES TEST:
1. Pressing and substantial objective: “the objective, which the measures responsible for a
limit on a Charter right or freedom are designed to serve, must be ‘of sufficient importance
to warrant overriding a constitutionally protected right or freedom.’”

2. Proportionality test: the “means chosen” to pursue the objective must be “reasonable and
demonstrably justified”, balancing “the interests of society with those of individuals and
groups”

a) Rational connection – the means chosen must be “rationally connected to the

objective” – not arbitrary or irrational

6
 b) Minimal impairment – the means chosen should impair the right “as little as
possible” to achieve the objective – there must be no alternative means to achieve
the objective with less rights limitation

c) Proportionality of effects – balance the deleterious effects of the right-limiting

provision against its objective [later cases clarify: balance the salutary and
deleterious effects of the law]

Frey v Fedoruk: (peeping-tom) no new common law offences

No new common law offences should be allowed to be established at the discretion of the judiciary.
It is up to the parliament to list offences.

All criminal offences are now in the Criminal Code.

 There are no longer common law offences – only some defences and often the fault element
of an offence is found in the common law.
 All offences except contempt of court are codified in Criminal Code or other statutes.

R v HENRY:

Obiter Dicta is intended to give guidance and should be accepted as authoritative. But is not binding.

Statutory Interpretation:
R v Clark: (neighbour masturbate)[indecent public act]
Relevant Code Provision:
173. (1) Every one who wilfully does an indecent act
(a) in a public place in the presence of one or more persons, or
(b) in any place, with intent thereby to insult or offend any person, is guilty of an offence
punishable on summary conviction.

150. In this Part, … “public place” includes any place to which the public have access as of right or by
invitation, express or implied;…

173. (1) Every one who wilfully does an indecent act

(a)  in a public place in the presence of one or more persons…is guilty of an offence
punishable on summary conviction.

 Interpretation Preferences:
1. Bilingual interpretation – where meaning is unclear in one language but clear in the other,
the interpretation common to both languages is preferred.

7
 2. Where a criminal statute can be reasonably interpreted to mean two different things, then
the interpretation more favourable to the accused should be adopted. [R v Goulis]
3. When two readings are plausible, the Charter-compliant one is preferred

R v Pare: (bridge rape murder) [Single Transaction]

17yo lured 7yo under a bridge – sexual assault – threat – death by strangling – charged with 1 st
degree.

 Criminal Code s.231 (5) “murder is first degree murder…. When the death is caused … while
committing (number of offences) … an indecent assault”

 SINGLE TRANSACTION: the murder was temporally and causally connected to the underlying
offence. It formed part of one continuous sequence of events. It was part of the same
transaction.

R v Goulis: (more favourable to the accused preferred)

 Where a criminal statute can be reasonable interpreted to mean two different things, then
the interpretation more favourable to the accused should be adopted.

Presumption of Innocence:

 Proof Beyond Reasonable doubt is a measure much closer to absolute certainty than proof
based on a balance of probabilities (bop – one party’s case is more probable than the other).
[R v Starr]
 WD charge in R v JHS on how the jury must approach proof beyond reasonable doubt in
creditability contest case:
“First, if you believe evidence of the accused, you must acquit. Second, even if you do not
believe the evidence of the accused but you are left in reasonable doubt by it, you must acquit.
Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself
whether, on the basis of the evidence which you do accept, you are convinced beyond a
reasonable doubt by that evidence of the guilt of the accused.”
 The presumption of innocence is protected under the Charter in s. 11(d):
11. Any person charged with an offence has the right…
(d) to be presumed innocent until proven guilty according to law in a fair and public hearing
by an independent and impartial tribunal

– When is the state justified in imposing criminal punishment?

– Some suggest the scope of the criminal law is limited by the “harm principle”
The harm principle is the idea that the state is only justified in punishing individuals for
conduct that harms others

8
 – In R. v. Malmo-Levine, the Supreme Court considered and rejected the idea that the harm
principle is a principle of fundamental justice.
The majority also discussed requirements for recognizing a principle of fundamental justice
under s. 7, which must:
o “be a legal principle”
o attract “significant societal consensus that it is fundamental to the way in which the
legal system ought fairly to operate”
o “be identified with sufficient precision to yield a manageable standard against which
to measure deprivations of life, liberty or security of the person”

Purpose and Principles of Sentencing:

Purpose

718 The fundamental purpose of sentencing is to protect society and to contribute, along with crime
prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society
by imposing just sanctions that have one or more of the following objectives:

(a) to denounce unlawful conduct and the harm done to victims or to the community that is caused
by unlawful conduct;

(b) to deter the offender and other persons from committing offences;

(c) to separate offenders from society, where necessary;

(d) to assist in rehabilitating offenders;

(e) to provide reparations for harm done to victims or to the community; and

(f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to
victims or to the community.

Fundamental principle

718.1 A sentence must be proportionate to the gravity of the offence and the degree of
responsibility of the offender.

Aboriginal Sentencing:
The Criminal Code speaks specifically to the sentencing of Indigenous offenders:

718.2 A court that imposes a sentence shall also take into consideration the following principles:…

(e) all available sanctions, other than imprisonment, that are reasonable in the circumstances and
consistent with the harm done to victims or to the community should be considered for all
offenders, with particular attention to the circumstances of Aboriginal offenders.

• The Supreme Court interpreted this section in R. v. Gladue

• GLADUE REPORTS say that Section 718.2(e)

9
 - Is remedial
- Calls for a different method of analysis
- Requires judges to consider:

Unique background factors in relation to Indigenous offenders

Types of sentencing procedures and sanctions that may be appropriate to

Indigenous offenders

- Allows judges to take judicial notice of background factors

- Also requires consideration of case-specific information

 SCC rejects 3 key critiques of Gladue:

1. Sentencing is not appropriate or effective means or addressing overrepresentation
2. Gladue creates an unprincipled race-based discount on sentence
3. Unfair to distinguish Aboriginal offender from others who are similarly disadvantaged.

WHY DID SC REJECT?

1. Because the problem cannot be solved completely through sentencing. They reject the view
that sentencing has no role. To say that sentencing judges have no role in this is wrong
because every person that is in custody has been put there through the decision of a judge.

2. Courts are already supposed to be making sentencing that are proportional to the gravity of
the situation. It is about applying the principle in a way that is in accordance with the
indigenous people. Systemic discrimination is having criteria that on their face mean that
they are neutral criteria but mean that more people of a certain race go into prison – people
who don’t have social or economic support are more likely to offend – you end up
sentencing vulnerable communities (indigenous people) to more time because they “are
more likely” to offend. It is not a race-based discount.

3. Gladue and Ipeelee does not say that you can’t take similar factors into consideration for
other communities.

Gravity of Offence + Degree of Responsibility = Sentencing

People who are more socially stable and more advantaged in life have a higher degree of
responsibility to not commit certain crimes.

Elements of Offences:
EXTERNAL ELEMENTS:

• Act Element (actus reus, guilty act)  NEEDED

• Circumstance Elements (don’t need)
• Consequence Elements (don’t need)

10
FAULT ELEMENTS:

• Mental Element (mens rea, guilty mind) OR

• Negligence (no intention but actions resulted in offence)

All criminal offences have at least an act element and a fault element.

Consent making an Act lawful:

Some acts are only offences when done without consent (ex: Assault s.265(1))

- Absence of consent has to be proven by the Crown.

Vitiating Consent:
For consent to make the act lawful, it has to be valid. Consent can be vitiated under certain
circumstances – in R v Jobidon, consent is vitiated based on public policy grounds.

R v JOBIDON: (Bar fight – death)

The deceased consented to a fist fight that ultimately led to his untimely death.

Issue: Are there common law limits on the kinds of assaults for which consent can operate as a
defence? YES

• s.265 – vitiates consent between adults intentionally to apply force causing serious hurt or
non-trivial bodily harm to each other in the course of a fist fight or brawl.

Serious hurt or non-trivial bodily harm must be intended AND caused.

“Bodily harm” for this purpose is defined in s. 2 of the Code as “any hurt or injury to a
person that interferes with the health or comfort of the person and is more than merely
transient or trifling in nature”

NO CONSENT TO DEATH:
• The Criminal Code provides:

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

Consent Vitiated by Fraud:

265(3)  …[in assault cases] no consent is obtained where the complainant submits or does not resist
by reason of

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

(b) threats or fear of the application of force to the complainant or to a person other

than the complainant;

(c) fraud; or

(d) the exercise of authority.

11
Consent vitiated by fraud requires:

i. Deprivation (Cuerrier, Mabior, Hutchinson)

ii. Dishonesty (Cuerrier)

R v Cuerrier: (HIV-no safety) - Deprivation

Leading Case that gives the Main test: -

Fraud vitiates consent when:

– The person is exposed to a significant risk of serious bodily harm

“the Crown will have to establish that the dishonest act…had the effect of exposing the person
consenting to a significant risk of serious bodily harm”

Test further proposed by minority judgement:

– The person was deprived the ability to exercise his/her will in relation to their physical
integrity with respect to the activity. (L’H-D  Most Broad)
– There is deception as to the presence of STD giving rise to serious risk or probability of
infection. (McL  Most Narrow)

R v Mabior: (HIV-safety maintained) – further deprivation

In the context of non-disclosure of HIV+ status, consent will be vitiated by a “realistic possibility of
transmission of HIV”.

There is no realistic possibility of transmission where:

– viral load is low, AND

– a condom is used

“serious bodily harm” mean[s] “any hurt or injury, whether physical or psychological, that interferes
in a substantial way with the integrity, health or well-being of a victim”

“significant risk of serious bodily harm” connotes a position between the extremes of no risk and
“high risk”

R v Hutchinson: (condoms – holes)

Boyfriend poked holes in the condom.

All judges agreed that there was no effective consent. The question was when was the consent
vitiated – was it never there to begin with?

• There is no consent ab initio (from the beginning) if the nature and quality of the act was
fraudulent.

Omissions:
An Omission can ground criminal liability where there is a legal duty to act under the Criminal Code,
statute or common law.

12
The Criminal Code imposes several important duties to act, for example:

– Section 215 duties to provide the “necessaries of life” to one’s children, one’s
spouse, and people under one’s charge

– Section 216 duties of those undertaking medical or surgical treatments or doing

other lawful acts that may endanger life

– Section 217 duty to follow through on undertakings where an omission to act would
be dangerous to life

– Section 217.1 duty of those directing others’ work to take reasonable steps to
ensure safety

R v Browne: (Druggie partner overdose)

Drug dealers – partner swallows bag of crack – Browne promises to take partner to hospital – dies in
the taxi. Court charges with negligence for not calling and ambulance and failing his duty because he
promised.

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

The accused was charged with criminal negligence causing death, as defined in s. 219 of the Code:

219 (1) Every one is criminally negligent who

(a) in doing anything, or

(b) in omitting to do anything that it is his duty to do,

shows wanton or reckless disregard for the lives or safety of other persons.

(2) For the purposes of this section, “duty” means a duty imposed by law.

R v Peterson: (Dementia old dad)

Dementia – old dad.

This case is about the duty to provide the necessaries of life to a person under your charge:

215 (1) Every one is under a legal duty…

(c) to provide necessaries of life to a person under his charge if that person

(i) is unable, by reason of detention, age, illness, mental disorder or other cause, to withdraw
himself from that charge, and

(ii) is unable to provide himself with necessaries of life.

Definition of person under your charge: “the exercise of an element of control by one person and
a dependency on the part of the other”

13
There is no legal duty to save someone’s life. Quebec’s Charter imposes a duty to rescue other
people but that is not in accordance with the Common Law in Canada.

Good Samaritan Law is in place to shield you from liability in a tort case in a situation where you try
to help another person but accidentally end up hurting them instead

Voluntariness: (mention only if it is at issue)

An act is only capable of constituting a criminal act when it is voluntary.

 An involuntary act does not even fulfil the act requirement.

ABSOLUTE LIABILITY OFFENCE – no fault element – to convict the accused the Crown only has to
prove the act element. No need to prove the fault element.
Voluntariness is a requirement even for absolute liability offences.

R v Lucki: (car opposite road side)

The trial judge found that the accused’s car got onto the wrong side of the road through an
involuntary act of the car sliding on black ice.

R v Wolfe: (reflex telephone hit)

Reflex action  no voluntariness

R v Swaby: (gun car passenger)

The accused was charged with being an occupant of a vehicle knowing there was present an
unlicensed, restricted weapon.

The Court of Appeal held that “Voluntary conduct is a necessary element for criminal liability”.

There needs to be clear simultaneity and correspondence of time between the fault and the act.
In this case the overlap of time occurs as soon as Swaby finds out there is a gun in the car.

Court of Appeal said that cant be found guilty if he found out the presence of the gun during the car
ride  needs to have an opportunity to deal with it.

Kilbride v Lake (no warrant car)

The accused was charged with having his car on the road without a warrant – he didn’t remove it but
knew it was gone.

Involuntary omission  no choice  no liability

Causation:
Some criminal offences require certain prohibited consequences to be caused by the accused’s act
or omission  consequence elements.

Causation must be proven in all homicide cases (murder and manslaughter)

14
 – The Code provides in s. 222: “A person commits homicide when, directly or
indirectly, he causes the death of a human being”

• Other offences where causation must be proven include:

– Assault causing bodily harm

– Aggravated assault

– Willful damage to property

– Arson

– Criminal negligence causing bodily harm

– Criminal negligence causing death

– Dangerous driving causing bodily harm (or death)

– Impaired driving causing bodily harm (or death)

There are 2 types of causation: (Both must be proven to prove causation)

 FACTUAL: Physical/mechanical cause of death

 LEGAL: Was the act connected closely enough to consequence such that it can be just to
recognize that the act caused the consequence.

Basic Tests for Causation:

1. [R v Smithers]: Was the legal act “a contributing cause of death, outside the de minimis
range”?  applies generally to homicide

2. [R v Harbottle]: “substantial cause” test for causation in first-degree murder under s231(5) of
the Code  only for s231(5) first degree.

3. [R v Nette]: “significant contributing cause” – applies in all homicide cases and more
generally as the test for causation in criminal law.

Even in cases of 1st degree murder, you have to start with the “significant contributing cause”
test because it needs to be established that the accused is guilty of murder in the first place
before moving onto whether it was 1st degree.

Smithers v R: (hockey slurs epiglottis)

Hockey game – accused(S) is black – was attacked with racial slurs by the deceased (C) – situation
aggravates – S is being held back by friends – S kicks C hard in the stomach – C dies – C choked on his
own vomit – malfunctioning epiglottis.

15
Jury found S guilty of “unlawful act manslaughter”

”Thin skull rule” applied.

R v Harbottle: (rape murder held legs)

Aided in sexual assault and held legs while companion strangled victim to death.

Stricter approach to causation for 1st degree murder under s.231(5)

– To be guilty of first degree murder under s. 231(5), an accused must have

“committed an act or series of acts which are of such a nature that they must be
regarded as a substantial and integral cause of the death.”

 “Substantial Cause Test”

– The accused’s acts must be an “essential, substantial and integral part of the killing”

– Requires the accused to play a very active (usually physical) role in the killing

An accused may be found guilty of first-degree murder under s231(5) if the Crown has established
beyond a reasonable doubt that:

(1) The accused was guilty of the underlying crime of domination or of attempting to commit
that crime;
(2) The accused was guilty of the murder of the victim;
(3) The accused participated in the murder in such a manner that he was a substantial cause of
the death of the victim;
(4) There was no intervening act of another which resulted in the accused no longer being
substantially connected to the death of the victim; and
(5) 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.

R v Nette: (old lady asphyxiation)

Someone robbed old lady’s house – bound her hands, feet and head – left on the bed – died of
asphyxiation – accused went in with the intention to steal and found the woman dead.

charged with second-degree

Intervening Cause:
Is there a factor that breaks the casual chain that links the act of the accused and the consequence?

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Causation in Homicide:
Homicide (indirect):
222…(5) A person commits culpable homicide when he causes the death of a human being…

(c) by causing that human being, by threats or fear of violence or by deception, to do anything that
causes his death

Death that might have been prevented:

224 Where a person, by an act or omission, does any thing that results in the death of a human
being, he causes the death of that human being notwithstanding that death from that cause might
have been prevented by resorting to proper means.

Death from treatment of injury:

225 Where a person causes to a human being a bodily injury that is of itself of a dangerous nature
and from which death results, he causes the death of that human being notwithstanding that the
immediate cause of death is proper or improper treatment that is applied in good faith.

Acceleration of death:
226 Where a person causes to a human being a bodily injury that results in death, he causes the
death of that human being notwithstanding that the effect of the bodily injury is only to accelerate
his death from a disease or disorder arising from some other cause.

R v Smith: (soldiers stab bad medic)

English soldiers fight – victim stabbed with bayonetted in arm and back – drop him twice while
taking to medic – medic gave bad treatment – death.

 Court says, there is no requirement that the accused action be the ONLY cause of death
– contributing cause.

“If at the time of death, the original wound is still an operating cause and a substantial cause, then
the death can properly be said to be the result of the wound, albeit that some other cause of
death is also operating.”

“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 the wound.”

R v Blau: (Jehova’s Witness)

Man demands sex – victim refuses – stabbed – refuses blood transfusion even after being told might
lead to death – against beliefs – dies

 “Thin skull rule” – take their victims as they find them

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s.224 – death that might have been prevented.

NO SUCH THING AS “CONTRIBUTORY NEGLIGENCE” IN CRIMINAL LAW.

R v Maybin: (Bar-bouncer; but for)

Maybin bros beat up victim in a bar – leave him unconscious on a pool table – bouncer beats on the
head – victim dies of head injury.

 Leading case of Canada on intervening cause.

Court suggest an approach to causation:

1. Factual causation: apply “but for” test

“But for” cause is neither necessary NOR sufficient to establish criminal offence  doesn’t
absolve accountability.
2. Legal causation: determine whether the accused should be held accountable [consider
intervening causes]

Analytical aids – intervening cause breaking chain:

1. Reasonable foreseeability: was the general nature of the Intervening Act and risk of harm
foreseeable?  if yes, chain does not break

2. Independent act: was the intervening act so independent of the accused’s act that it should
be regarded as the sole cause?  if yes, chain breaks

THESE ARE NOT TESTS THAT NEED TO BE PASSED. They are only meant to aid in analysis.

Fault Element: subjective v objective

SUBJECTIVE FAULT
The accused must actually hold a blameworthy
state of mind
Associated with the concept of MENS REA
OBJECTIVE FAULT
The accused must have failed to live up to the
standard of the reasonable person.
[Criminal liability generally requires a “marked
departure” from that standard]
Associated with the concept of NEGLIGENCE

Concerns what was actually on the mind of the Concerns what the accused “ought to” or
accused at the time of the act “should have” known

Absolute liability – The crown needs to prove only the actus reus.

Strict liability – The crown needs to prove the actus reus but you can argue that you did your due
diligence in the given circumstances and should therefore not be held liable. [Sault Ste. Marie]

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BC Motor Vehicle Act Reference – Under s.7 of the Charter, strict liability is the constitutionally
minimum fault for any offence that carries possibility of imprisonment. (if there is a risk of
imprisonment, it cannot be absolute liability)

Subjective mens rea – The crown needs to prove actus reus AND mens rea  no mens rea; no
liability.

R v Beaver: (knowledge of possession of drugs)

Accused and brother sold heroine to undercover officer – accused says he thought it was sugar.

 2 kinds of knowledge required for criminal possession:

1. Knowledge of possession
2. Knowledge of what the substance is

 Subjective mens rea required.

R v City of Sault Ste. Marie:

• Strict liability is the default fault category for regulatory offences

• UNLESS the legislature clearly indicated that the offence is either an absolute liability offence
or a subjective mens rea offence.

What does due diligence require?

- Taking reasonable care

Making only reasonable mistakes
Taking reasonable safety precautions
- Pure passivity is not due diligence

MURDER:
Homicide: causing human death, directly or indirectly.

1. Culpable Homicide (s.222(5)): causing death by an unlawful act/criminal negligence, etc.

– Murder (requires subjective mens rea)
- First-degree: by s.231
- Second-degree: by default
– Manslaughter
2. Non-culpable Homicide: Not an offence.

Intentional Murder: s.229(a)

229 Culpable homicide is murder

(a) where the person who causes the death of a human being

(i) means to cause his death, or

(ii) means to cause him bodily harm that he knows is likely to cause his death, and is reckless
whether death ensues or not

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221 (1) A person commits homicide when, directly or indirectly, by any means, he causes the death
of a human being.

(5) A person commits culpable homicide when he causes the death of a human being,

(a) by means of unlawful act,

(b) by criminal negligence,

(c) by causing that human being, by threats or fear of violence or by deception, to do

anything that causes his death, or

(d) by wilfully frightening that human being, in the case of a child or sick person.

Transferred intent: s.229(b) – kills someone else

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

Constructive Murder – even though fault requirement is absent

Killing that is deemed to be murder in the eyes of the law even though the normal fault requirement
under s. 229(a) is absent.

Vaillancourt v R (1987):
• 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

• Repealed s.230(d) that did not require the intent nor the foreseeability of death (then
s.213(d))

R v Martineau (1990):
• All of s.230 is unconstitutional under this.
• S. 229(c) -unlawful object murder- is unconstitutional in part.
• Ratio: the principles of fundamental justice under s. 7 require subjective foresight of death
for a murder conviction.

First Degree Murder:

First the accused needs to guilty of murder.

All murder is by default SECOND DEGREE unless the murder is elevated by any of the provisions laid
out in s.231

First degree murder includes:

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 • “planned and deliberate” murder: s. 231(2)
• murder of specified victims (on-duty police, prison workers, etc.): s. 231(4)
• murder “while committing” specified offences of illegal domination (hijacking, sexual assault,
kidnapping, hostage taking, etc.): s. 231(5)

Elevating Murder to First Degree:

• Murder is first degree when it is “planned and deliberate”: s. 231(2)

• According to R. v. Smith, under s. 231(2):

– Planned means “arranged beforehand” – “the result of a scheme or design

previously formulated or designed by the accused….”

– Deliberate means “considered, not impulsive”

– Killings on a “sudden impulse” are not planned and deliberate

• R. v. Banwait adds that

– Deliberate means “carefully thought out, not hasty or rash”, “slow in deciding”,
“cautious”

• R. v. Nygaard and Schimmens: s. 231(2) can include a plan to cause bodily harm the accused
knows is likely to cause death

R v Dudley & Stephens: (boat cannibalism) [Necessity/Murder]

 Necessity is not a defence for murder.
- There is no duty to save your own life, sometimes you should sacrifice your
life for others. One life has no more value than another.
- Only in some very extreme cases where the peril is immediate is necessity a
defence for murder.

Subjective mens rea:

R v ADH: (baby-walmart bathroom)

218 Every one who unlawfully abandons or exposes a child who is under the age of ten years, so that
its life is or is likely to be endangered or its health is or is likely to be permanently injured,

(a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years;
or

(b) is guilty of an offence punishable on summary conviction and liable to imprisonment for a term
not exceeding eighteen months.

Criminal offences are presumed to require subjective mens rea; unless there is some clear
indication that the offence was intended to be one of objective fault – parliament knows that the
presumption applies.

ACQUITTED: Trial judge found that the accused honestly believed her child was dead at birth and
that this was reasonable in the contract of the situation.

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FAULT LADDER:

R v Buzzanga and Durocher: (flyer) INTENTION

Flyers against French Canadians for building school

Intention is defined as the actor’s:

- conscious purpose to bring about a consequence

OR
- subjective foresight that the prohibited consequence is substantially certain to occur.

Recklessness and Wilful Blindness:

Sansregret v R:
- Recklessness is a subjective standard.

• “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.”

• It is the conduct of “one who sees the risk and who takes the chance.”

- Wilful blindness is also a subjective state of mind.

• “A person who is wilfully blind is treated in law as a person with knowledge.”
• Where the accused is aware of the need for inquiry and deliberately fails to inquire in order
to preserve ignorance.
• It involves “an actual process of supressing a suspicion”

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R v Blondin: (scuba tank hashish)
To be convicted of trafficking hashish, Blonding had to know or at least suspect that the substance
was a narcotic.

Just knowing that it was “something illegal” would not be enough.

R v Lagace: (just obiter)

Doherty JA

“I do not suggest that there is any onus on the accused to demonstrate that all reasonable steps
were taken… the trier of the fact will have to decide whether the Crown has proved beyond a
reasonable doubt that despite the inquiry the accused remained suspicious and refrained from
making any further inquiry because she preferred to remain ignorant of the truth”

Objective Fault:
Some offences have an “objective” fault element – do not require SMR.

- The Crown does not need to establish what was in the accused’s mind at the time of the
offence.
- The accused’s conduct is measured against the standard of a “reasonable person”.
- The Crown must prove Object Fault Element beyond a reasonable doubt.
 EXCEPTION: Strict Liability Offences – fault is objective and there is a reverse onus. (defence
of due diligence)

For crimes of objective fault aka negligent crimes, the code indicators are: “reasonable”, “ought to
know”, “good reason”, “careless”, “due care and attention”

Criminal Negligence:
 Criminal Negligence (an offense under s219 and is a subset of crimes of objective
fault/negligence crimes)

o Criminal negligence is not a crime in itself, it has to cause something – ex. Criminal
negligence causing death (s 220) (max penalty – life imprisonment) (form of
manslaughter, s 236) or criminal negligence causing bodily harm (s 221)

o Manslaughter sounds more serious, so it was tougher to get convictions so now

prosecuted under Criminal Negligence Causing Death

 S.219 of the Code:

219 (1) Every one is criminally negligent who
(a) in doing anything, or
(b) in omitting to do anything that it is his duty to do,
shows wanton or reckless disregard for the lives or safety of other persons.
(2) For the purposes of this section, duty means a duty imposed by law.

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  Noone can be charged directly under s.219 because it is not an offence provision. The
subsequent sections define the offence – 220 and 221.
Criminal negligence is restricted to only these two sections.

O’Grady v Sparling:
SCC said criminal negligence was a form of recklessness which connotes advertence.

This view is largely rejected by Provincial Courts in adopting an objective standard for criminal
negligence under s.219

R v Tutton and Tutton: (religious sect-5yo diabetic son-death) SMR v OMR

Couple charged with criminal negligence causing death, based on omitting to provide necessaries of
life to son. (s.215)

Court split on Test for Criminal Negligence:

• Wilson J. (for 3 judges):

– The fault element for criminal negligence is subjective (due to ambiguity in this area)

– TEST: “It requires some degree of awareness or advertence to the threat to the lives
or safety of others or alternatively a wilful blindness to that threat” (518)
– She argues that mistaken beliefs don’t have to be reasonable – but we have to look
at whether the person was wilfully blind.

• McIntyre J. (for 2 judges):

– The fault element for criminal negligence is objective

– TEST: It requires “a marked and significant departure” from the standard of the
reasonable person (513)

• Lamer J. agrees that the fault is objective – but special factors needs to be considered
(education, mental development)  “general allowance” should be given.

- Marked and significant departure means an unreasonable mistake or belief cannot be a

defence.
- “Reasonable mistake” can be a defence
- The level of reasonableness is for the jury to decide.

 Inconclusive 3-3 split.

Marked Departure Test:

Two-question test for objective fault offences:

1. To which offences does it apply? [SCOPE]

2. Should the accused’s personal characteristics be taken into account in applying it?

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R v Creighton: unlawful act manslaughter-cocaine injection-criminal negligence
Leading case on how far the accused’s personal characteristics can be taken into account in applying
objective fault.

 Negligence must be marked departure from standard of reasonable person.

 Minority – objective standard is going to be ratcheted up depending on special experience or
knowledge; and ratcheted down depending on incapacity.
- The standard does not change for self-induced incapacity.
The accused person must control their incapacity into account so far as is reasonable.

 Majority – McLachlin J holds:

- “Marked departure” test applies to objective fault crimes.
- Objective fault crimes have “a single, uniform legal standard of care, subject to one
exception: incapacity to appreciate the nature of the risk which the activity in question
entails”
- The standard is objective to a “reasonable person” minimum standard of care
- Narrower definition of incapacity – must not make the test subjective.
- Only consider personal characteristics when they are so extreme that it would result in
incapacity to appreciate the risk.

 The fault element for unlawful act manslaughter has two parts:
1. The fault element of the predicate offence (here drug trafficking), must
- Involve a dangerous act,
- Not be an absolute liability offence, and
- Be itself constitutionally valid
2. The additional fault element requirement for manslaughter:
“objective foreseeability of the risk of bodily harm which is neither trivial nor
transitory, in the context of a dangerous act.”

R v Beatty: dangerous driving – marked departure for all objective crimes

• The elements of dangerous driving are:

1. Actus reus: laid out in the Code:

249 (1) Every one commits an offence who operates

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

2. Objective mens rea (fault): a marked departure from the standard of care of the
reasonable driver.

- Objective mens rea has a strict standard – only “marked departure”

Negligent driving by itself is not enough to ground liability. There needs to be a marked
departure from the standard of a reasonable driver.
The case at hand only has a momentary lapse of attention that cannot constitute a marked
departure.
- Beatty also says that, sometimes it may be necessary to consider the accused’s mental state
to decide whether the reasonable person would have been aware of the risk.

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 • The offence of dangerous driving has an objective fault standard, modified in two ways:

1. The standard is a “marked departure”

- The court is reluctant to brand someone as a “criminal” – strict standard

2. Exculpatory defences can be considered

- A reasonably held mistake may provide a complete defence if the conduct

measured up to the requisite standard of care
- Must take context of the event surrounding the incident into account.
- “Would a reasonable person/driver have done the same thing in those same
circumstances?”
- Not to be confused with considering personal characteristics of the accused
(no subjectiveness – objective test)

R v F.J.: “marked and substantial departure” – criminal negligence

 Difference between just “marked departure” and “marked and substantial departure” for
criminal negligence under s.219
- Criminal negligence requires marked and substantial departure
- All other OMR offences require only marked departure – POFJ s.7 Charter
 For regulatory offences of strict liability, due diligence is a defence – that’s a standard of
simple negligence with a reverse onus
[Regulatory offences – not listed in Criminal Code or its related statutes– can be law by govt]

Unlawful Act Manslaughter: s.222(5) – [predicate offences]

DIFFERENT FROM CRIMINAL NEGLIGENCE CAUSING DEATH

R v Creighton is the leading case.

 An offence based on predicate offence:

- The accused must have committed some other offence that causes death
- Usually the underlying or predicate offence is assault (but can be something else)
 R v Creighton held that the fault requirement for unlawful act manslaughter has two parts:
1. The fault element of the predicate offence (usually assault, here drug trafficking), which
must
o Involve a dangerous act,
o Not be an absolute liability offence, and
o Be itself constitutionally valid, and
2. The additional fault requirement for manslaughter (554): “objective foreseeability of
the risk of bodily harm which is neither trivial nor transitory, in the context of a
dangerous act.”

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Aggravated Assault: s.268(1)
268. (1) Every one commits an aggravated assault who wounds, maims, disfigures or endangers the
life of the complainant.

• Under R. v. Godin, SCC 1994, aggravated assault requires:

- An assault that wounds, maims, disfigures, or endangers life, AND [ACTUS REUS]
- Objective foreseeability of bodily harm (drawn from Creighton) [OMR]

• Assault causing bodily harm is controversial

- Some provinces only require an assault that actually causes bodily harm (with no
fault element related to the harm)
- Others (including Ontario) say that harm must be reasonably foreseeable

- The act elements of aggravated assault include:

o Touching (s. 265(1)(a))

o Lack of consent

 Note: fraud vitiating consent, including the issues of dishonesty

and deprivation, belong here

o A consequence: “wounds, maims, disfigures or endangers the life of the

complainant” (s. 268)

- The fault elements include:

o Intention to touch

o Objective foreseeability of bodily harm

 Instructions said not to discuss this element

Rape Laws:

 Rape used to be an offence of the code.

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

27
Rape myth:

 Stereotype: how the laws have moved beyond them?

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

Historical rules specific to rape cases

 Prior sexual history of the complainant

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

Definition of “Rape” (Old version Code s. 143)

 Until 1983, not a criminal offence in Canada for raping the wife. By marrying someone,
women have given general consent.
 Defined by gender. Now anyone with any gender can commit sexual assault.
 No penetration – no sexual assault. Victim Blaming.

ALAN YOUNG – When Titans Clash

- Defense lawyers in sexual offence cases who were looking for psychiatric evidence of the
complainants in order to attack their credibility.
- If the complainant told something like “maybe it was my fault for doing so and so ..” the
defense would be able to access that and use them against it.
- The thought of there being prevalent false allegations.

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- Trying to prove guilt in two witness cases – one of sexual assault and one of consent – is
extremely difficult – major evidence is testimonies
- The only way for the defense to function in such a case is to raise doubts in the complainant’s
testimony
- It’s not right that rape trials end up becoming “trials against the complainants”

Current Offence of Sexual Assault:

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

THREE-TIER STRUCTURE:

 Three-tier structure: (s.271)

1. Sexual Assault: Common assault- hybrid offence – 5 y
2. Sexual Assault with a weapon, threats to a third party, causing bodily harm or multiple
perpetrators – more serious (s.272)
3. Aggravated Sexual Assault – indictable offence – life sentence (compare to aggravated assault
offence – 14 y) (s.273)
As we go down the seriousness and penalties go higher.

 Gender Neutral
 Does not require penetration
 No spousal immunity
 Rape Shield Laws
 No Corroboration of Evidence needed
 No Doctrine of Recent Complaint
 Assault is more serious if it is sexual – as assault is deemed sexual when it is reasonable to
say that the assault was of sexual nature. [Chase case]
- Intent not necessary.
- Intent is just one of the factors taken into account to gauge whether the assault is of
sexual nature.
-

R v Chase: 15yo girl-neighbour groped- define sexual assault

Sexual exchanges of any kind with a child below the age of consent is a sexual assault – no debate.

The age of consent at the time of this case was 14.

A sexual assault is an assault “committed in circumstances of a sexual nature, such that the sexual
integrity of the victim is violated”

 Sexual nature of the contact is determined objectively, on the standard of the reasonable
observer

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  Factors to be considered include:
- The body part touched
- The nature of the touching
- The surrounding situation or circumstances
- Accompanying words or gestures, including threats
- The intent or purpose behind the touching, including sexual gratification
 The standard is objective.
If the person has high sexual integrity such that any type of touching would breach; doesn’t
matter – would a reasonable person look at the touching as being sexual in nature?

Fact Pattern Problem – father grabs son’s testes for punishment

- Facts: father grabbed his three-year-old son’s testicles to show him how much it hurt. It was a
disciplinary response to the child having engaged in similar activity with others, including the
accused.
- The father was found to have committed sexual assault.
- There was no intent of sexual gratification – intent is not required in the offence.
- Prof: it is right. Sexual integrity violated, even though there is no intention for sexual
gratification. Sexual gratification is only a factor, not required.
- As a matter of public deterrence, don’t want parents abusing sexual organs for punishment.

SUSAN ESTRICH – Teaching Rape Law

- Sexual assault continues to be controversial
- In past days it might have been controversial whether no always means no
- Now sexual assault isn’t any easier because there are questions about what evidences can be
brought in.
- Rape cases today are a battle of credibility between the two parties.
- Defense means destroying the credibility of the other person and convincing the jury to side
with you.
- Cases no longer require physical proof – bruises or penetration – that the assault occurred.
- There needs to be ways where we can protect the innocent defendant in the face of false
accusation.
- Psychiatric history of the plaintiff and past sexual history can no longer be admitted as evidence.
So how do we protect the innocent?
- A women’s sexual history of consensual intercourse has nothing to do with rape.
- The question surrounding this area of law have shifted – what counts as rape and how to prove
or disprove it.

Consent in the Code:

• Lack of consent is an actus reus element.

• The Code lays out a definition of consent in sexual assault in s. 273.1(1):

“the voluntary agreement of the complainant to engage in the sexual activity in question”
• This definition applies only to all forms of sexual assault

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 • It is subject to situations where consent is vitiated

• Does not apply to non-sexual assault – those rely on common law definition (Jobidon,
Cuerrier, etc)

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

law)
 Two non-exhaustive lists in the Code of situations were consent is vitiated: s. 265(3) and s.
273.1(2): there could be other situations where consent is vitiated, like the Jobidon case.
These are the codified vitiated consent.
 S. 265(3) applies to ALL assaults, sexual and non-sexual.
265(3) …no consent is obtained where the complainant submits or does not resist by reason
of
(a) the application of force to the complainant or to a person other than the complainant;
(b) threats or fear of the application of force to the complainant or to a person other than
the complainant;
(c) fraud; or
(d) the exercise of authority.

 S.273 applies to only sexual assault.

273.1(2) No consent is obtained, for the purposes of sections 271, 272 and 273, where
(a) the agreement is expressed by the words or conduct of a person other than the
complainant; [result of English case Morgan]
(b) the complainant is incapable of consenting to the activity; [unconscious, drunk, disabled]
(c) the accused induces the complainant to engage in the activity by abusing a position of
trust, power or authority; [teachers, priests, doctors]
(d) the complainant expresses, by words or conduct, a lack of agreement to engage in the
activity; or [no consent ab initio]
(e) the complainant, having consented to engage in sexual activity, expresses, by words or
conduct, a lack of agreement to continue to engage in the activity. [consent withdrawn]
 273.1(3): Nothing in subsection (2) shall be construed as limiting the circumstances in which
no consent is obtained
- there could be common law principles that may apply (Jobidon), or on public policy
grounds.

Code provisions for Consent and Mistaken Belief:

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

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Mistaken Belief in Consent: s.265(4) + 273.2
• There are two Code provisions on mistaken belief in consent: s. 265(4) and s. 273.2

1. Where belief in consent can be a defence

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

- Subject: the judge.

- The provision shows the worry that the jury will accept the claim of the mistaken
belief in consent when there is no reasonable ground for that if the judge tells them
to consider whether there is reasonable ground.
- An unreasonable belief in consent is still a defence.
- The judge has to tell the jury where there is an issue – whether the person had an
honest belief or not. – whether the belief is reasonable has to do with whether there
was honest belief or not; usually unreasonable belief is so unbelievable that
someone being honestly mistaken is impossible.

2. Where belief in consent not a defence (only sexual assault)

273.2 It is not a defence to a charge under section 271, 272 or 273 that the accused believed that
the complainant consented to the activity that forms the subject-matter of the charge, where

(a) the accused’s belief arose from the accused’s

(i) self-induced intoxication, or
(ii) recklessness or wilful blindness; or

(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.

- If the intoxication is not self-induced, this section does not apply, and belief could be argued.
- (b) comes up more often – the accused has to take reasonable steps at the time to ascertain
consent. – no reasonable steps; no defence available.

 Mistaken Belief is a mens rea problem – negates the requirement

 The code doesn’t create the defense – only has requirements and limitations.
 An unreasonable belief in consent is still a defense.
 Mistaken belief can be used as a defence only in “situations of ambiguity” [R v Davis]
 Further limitations in R v Ewanchuk.

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R v Ewanchuk*: Elements of sexual assault
Leading case in Canadian Sexual Assault Law

 Elements of sexual assault:

 Actus reas – unwanted sexual touching

1. Touching
o Objective test.
o Sufficient if the Crown prove the actions were voluntary
2. The sexual nature of the contact
o Objective test.
o No need to prove the accused had any mens rea with respect to the sexual nature of
his or her behaviour. [Chase case]
3. The absence of consent
o Subjective (of the complainant)
o Determined by complainant’s subjective internal state of mind towards the
touching, at the time it occurred.
o Not bound to accept what the complainant’s words
o Either consent in her mind OR no consent in her mind. No third option.
o Consent: complainant’s account of what was in her mind is not determinative. That
is just evidence. Look at the circumstances to judge whether she is lying or not. Her
words and actions also matter.
o “Implied consent”: if the trier of facts accepts the complainant’s testimony that she
did not consent, no matter what, the absence of consent is established.
o There is no defence of implied consent to sexual assault in Canadian law.
o “Fear”: we do not really need consent vitiated by fear, because non-consent has
already been proved. The complainant’s testimony is believed without reasonable
doubt. If fear is the actual reason for consent, there is no genuine consent.

 Mens rea: INTENTION to touch, knowing of, or being reckless of or wilfully blind to, a lack
of consent, either by words or by action, from the person being touched.
1. Intention to touch (usually pretty clear)

2. Subjective awareness of non-consent (possible defence of mistaken belief

consent. Negate it.)
 Limitations for mistaken belief in consent (difficult to succeed this defence)
o Does not provide a defence to implied consent
o In mens rea, for honest but mistaken belief in consent, consent means that the
complainant had affirmatively communicated by words or conduct her agreement to
engage in sexual activity with the accused  so implied consent could come in for
mens rea (just not actus reus)
o Silence, passivity, or ambiguous conduct does NOT constitute consent even if the
accused believes that
o Once someone has said no, there is NO consent until they indicate otherwise

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R v A. (J.): no consent in advance
Erotic asphyxiation – did not consent to sex after passing out

 A person cannot consent in advance to sexual touching that takes place while the person is
unconscious.

 McLachlin C.J. (5, Majority):

o Parliament defines consent in the Code as ongoing conscious consent – protects
them from exploitation and protects their ability to withdraw their consent (if
unconscious, can’t withdraw it)
o Actus reus consent is the subjective point of view of the complainant in her mind,
whereas mens rea involves knowing, being reckless or willfully blind to the fact that
the complainant is not consenting (Ewanchuk)
o Concludes that Parliament viewed consent is conscious agreement of the
complainant to engage in every sexual act in a particular encounter.
o Looks at definition of consent in S. 273.1(1)
 Highlights “sexual activity in question”
 Shows that consent needed for each and every sexual act
 Rules out broad advance consent
o S. 273.1(2)(b) – No consent is obtained where the complainant is incapable of
consenting to the activity
o Refers to 3 provisions from the code that refer to the mens rea of mistaken belief
in consent
o S. 273.1(2)(d) – No consent where lack of agreement to engage in the activity
 This is about mens rea, because it’s about what is expressed by words or
conduct (not what’s in the complainant’s mind which goes to actus reus)
 Effect is that the accused cannot claim to have misunderstood if she said no
 Expresses lack of agreement to engage in a particular activity, so can’t give
broad consent to sweep of activities in advance
o S. 273.1(2)(e) – Lack of consent to continue to engage in the activity (withdrawal of
consent)
 About mens rea of the accused, accused can’t ignore withdrawal of consent
 parliament wanted to make sure the person could always revoke consent
and is not free to do so if unconscious
o S. 273.2(b) – mistaken belief in consent is not a defence where accused did not take
reasonable steps to ascertain that complainant was consenting
 Can’t take reasonable steps with an unconscious person b/c not
ascertainable
o Parliament meant consent to mean a conscious mind capable of consenting to
each new act and capable of withdrawing consent at any time
o If the accused fails to perform the sexual acts precisely as the complainant would
have wanted, by neglecting to wear a condom for instance, the unconscious party
will be unintentionally violated.
o Sexual autonomy argument: If the purpose of our progressive sexual assault laws is
to champion everyone’s sexual autonomy, then shouldn’t we allow people to choose
to participate in this type of sexual behaviour if this is what they want to do. If we’re
putting rules on that, seems regressive and criminalizes certain kinds of sexual
behaviour. The right of women to make decisions about their bodies, and whether

34
 to engage in sexual activity, was better respected by allowing advance consent than
by forbidding it.
o Court has no place in the bedroom of consenting adults
o Floodgates argument and absurd result – Kissing a partner while they are asleep
considered to be sexual assault

Incapacity:
Incapacity can flow from:

- Age
- Mental Disorder
- Automatism
- Intoxication

Age: s.13
The Criminal Code says:

Child under twelve

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

 Age is measured at the time the offence was committed.

 Youth Criminal Justice Act: 12-17 years.
 These rules, procedures and sentencing is very different from adult offenders
 But substantive rules of criminal code still apply to children (ex. possession, mistake of fact,
all these issues are still treated the same)

Mental Disorder: s.16

The defence of “mental disorder” was historically known as the defence of “insanity”

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

 Under s. 16 of the Code, the accused is not criminally responsible by reason of mental
disorder if:

1. The accused committed the act “while suffering from a mental disorder”

2. “that rendered the person incapable of…”

a. “appreciating the nature and quality of the act” OR

b. “knowing that it was wrong”

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  PRESUMPTION:

s.16(2) Every person is presumed not to suffer from a mental disorder so as to be exempt from
criminal responsibility by virtue of subsection (1), until the contrary is proved on the balance of
probabilities.

• BURDEN OF PROOF (REVERSE ONUS):

s.16(3) The burden of proof that an accused was suffering from a mental disorder so as to be exempt
from criminal responsibility is on the party that raises the issue.

 Section 2 of the Code defines “mental disorder” as “a disease of the mind”

 Law is informed by psychiatry but also seeks to maintain its independence – mere existence
of a mental disorder does not mean they can use the defence of mental disorder
 2 times mental disorders can be used
o When mental disorder was during the act (focus of this course)
o When person is being brought to trial, someone who is not fit to be tried cannot be
tried (separate from question of whether they are criminal responsible during the time
of the act)

• In the past, person is acquitted on grounds of insanity

And if this was the basis of acquittal, sent to psychiatric facility who decides when they can
be released (seen as unconstitutional, changed)
• Now people can be acquitted on the grounds of being NCR (Not Criminally Responsible)
o No automatic commitment to psychiatric facility

• If an accused is found NCR on account of mental disorder, the judge can order:
- Discharged absolutely
- Discharged provisionally
- Sent to a psychiatric facility (still the norm)  WRT public safety

• The law is more sensitive toward the accused

• Absolute discharge should be ordered unless the person poses significant threat to public
safety.

Cooper v R.: TEST “disease of the mind” – nature & quality of act
Leading case in mental disorder.

• What constitutes a “disease of mind” and what it means is a question of law that is meant
for the judge to decide
- Dickinson CJ.
“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”
• Whether the accused suffered from it is a question of fact which the jury/trier of fact must
decide.
• In criminal law, psychiatry views from a legal POV

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 • The disease must be of such intensity as to render the accused incapable of appreciating the
nature and quality of the violent act or of knowing that it is wrong.
- “to appreciate means to have capacity to apprehend nature of the act and its
consequences”

T.S. Szas – Psychiatry, Ethics and The Criminal Law

- It is absurd to say that finding “mental illness” in the accused is a matter of fact.
- Mental illnesses are even more difficult to diagnose than bodily illnesses.
- Trained professionals like doctors only theorise illnesses when diagnosing.
- At best, that is all the jury/trier of fact can do – “theorise”
- Further, Durham says that the expert/jury must determine for “fact” whether the act
resulted as a consequence of that illness.
- This too is at best, a theory and nothing more.

Automatism:
Defined in Rabey v. R.:

“Automatism is a term used to describe unconscious, involuntary behaviour, the state of a person
who, though capable of action is not conscious of what he is doing. It means an unconscious
involuntary act where the mind does not go with what is being done.”

• It is a very rare defense – difficult to argue

• Involuntary: we apply the rules of automatism separately because it is a complicated issue
that should be separated from the voluntariness issue, although it is indeed a voluntariness
issue. We cannot simply apply the simple voluntariness rule.
• The actions often look voluntary – driving a car, sex, etc.
• There are 2 categories:
- Mental Disorder Automatism (MDA)  Broader category  NCR + maybe detention
- Non-Mental Disorder Automatism (NMDA) aka Sane Automatism  Acquittal
Usually no psychological detention. May result from trauma/“psychological blows”

• In order to claim automatism, people generally have to show no recollection of

events. But amnesia by itself is not enough for automatism.
• Important to know if the amnesia occurred during the event or after the event.
(mens rea may be present during the event  not automatism)

Claim Amnesia

Amnesia

Automatism

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Rabey v R: Ms X – letter – just a friend - choking
• Two central questions:

1. Is the condition the accused claims to have suffered a disease of the mind? (in
Rabey, is a dissociative state a disease of the mind?)

 question of law for the judge

2. Does the evidence establish that the accused was in that state at the time of the
offence? (was Rabey actually in a dissociative state as claimed?)

question of fact for the jury

• The judgment focusses on the first question, but both are important and often highly
contested

• If automatism is of question, move on to – is it MDA or NMDA

- Automatism that flows from internal cause: MDA

- Automatism that flows from external cause: NMDA (sane automatism)

 Held: The ordinary stresses and disappointments do life do not constitute an external
cause
 Sane automatism can only arise from a “psychological blow” in cases of “extraordinary
external events [that] might reasonably be presumed to affect the average normal person”
(813), for example:
- being in a serious accident without being physically injured
- seeing a loved one murdered

R v Parks: sleepwalker case – killed MIL – injured FIL – POLICY COMPONENT

 Issue: Is sleepwalking a sane automatism or mental disorder automatism? (The jury has
decided he is already in a state of automatism. So, we are answering the second question.)
- According to common law, sleepwalking is always NMDA
 A question of law, not solely determined by psychiatric evidence:
“the legal community reserves for itself the final determination of what constitutes a
‘disease of the mind’. This is accomplished by adding the ‘legal or policy component’ to the
inquiry”
 Policy component  concerns about recurrence and public safety
 Two approaches to the policy component:
1. The continuing danger theory
2. The internal cause theory  mental disorder? - dominant theory – analytical tool
not an overarching test.
 Wider policy concerns:
- Floodgate arguments
- Automatism is easy to feign

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R v Stone: leading automatism case – MDA v NMDA
- Argument with wife – she said horrible things – felt whooshing sensation - stabbed her
47 times - concealed body, fled to Mexico, but later came back and surrendered himself
(unlike Park. Park would get MDA after Stone now.)
- Admitted he stabbed her, but wanted defence of NMDA claiming he lost consciousness
when he snapped under his wife’s verbal abuse – claim of psychological blow
automatism

 The burden of proof in automatism lies on the defence – on a balance of probabilities

[REVERSE ONUS]
 This harmonizes with the burden of proof on two related defences:
- Extreme intoxication akin to automatism
- Mental disorder under s. 16 (including cases of mental disorder automatism)

 The judge asks the questions:

- Is automatism an issue here?  question of fact (jury)
This requires 2 things:
1. Claim of involuntariness
2. Expert Evidence
- If yes, is it sane or mental disorder automatism?  question of law (judge)
We start with the presumption of mental disorder automatism. It is up to the defence to
prove otherwise (through clear external cause)
- Holistic approach in Parks
• Internal Cause theory  [Rabey – internal v external cause]
• Continuing Danger theory
• Floodgates concerns (policy)
• Automatism is easy to feign (policy)

R v Leudecke: continuing danger theory – sexsomnia

• The accused’s “sexsomnia” defence was properly classified as MDA.

• In light of Stone, Doherty JA outlines “a comprehensive response to automatism claims”

1. Pre-verdict, focus on social defence: where there is a risk of recurrence, that will almost
always lead to an NCR verdict (institutionalization)
2. Post-verdict, focus on the “individualized assessment” of the individual’s dangerousness
does the person deserve to be institutionalised?
• There has to be a good reason to take the judgement out of MDA
• Continuing danger theory:
- In Rabey it was about the likelihood of reoccurrence of that kind of violence
- But in Stone and Luedecke, the likelihood in question is about the triggers that
lead to the automatism – in this case it is likely that Leudecke will continue to
drink alcohol and be sleep deprived – risky for the public.

Excerpt from judgement: After Stone, many argue that successful claims of non-mental disorder
automatism will be limited to those very rare “one off” cases in which an accused suffers a single

39
incident of automatism, and where the accused can point to some specific external event that
precipitated that event, can demonstrate that the event is unlikely to reoccur, and finally, can show
that the event could have produced a dissociative state in an otherwise “normal” person.

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

R v Daviault: extreme drunkenness defence for general intent offences

• Distinction between specific and general intent offences.
• “substitute mens rea” is a violation of s.7 rights that cannot be saved under s.1
• Dealt with this as negating mens rea of the offence, but all analysis would apply if you
discussed this in terms of actus reus too b/c if the person is drunk to the point of
automatism, then there’s no voluntariness and actually no act  that’s why we have to
have this defence so that Crown has to prove both actus reus and mens rea where there’s a
doubt about these things

• Parliament enacted Bill C-72 in reaction to this judgement.

- Remove Daviault defence of extreme intoxication for violent offences.

40
 - Parliament shares with Canadians the moral view that people while in a state of
intoxication do violence to others are blameworthy in relation to their harmful
conduct and should be held criminally accountable for it.

- S. 33.1(3) of the Code

This section says Daviault offence only removed for violent offences –
interference with, or threat of interference with the bodily integrity of another
person
- S.33.1(1) We are talking about general intent offences, does not change the law
with respect to specific intent offences (ex. murder)  Daviault defence doesn’t
apply to specific intent offences
- There is quite some debate about s.33.1 being unconstitutional – but this
debate is still ongoing – section can be used in arguments.

R v Daley: 3 levels of intoxication

 Daley does 2 things

(1) Clarifies when talking about specific intent offences, ultimate question is whether person
had actual intent or not (not about capacity to form intent)
o If intoxication prevented them from forming actual intent, then it is a defence

(2) Think of intoxication on 3 levels:

(1) Mild intoxication – no defence

- Induces relaxation of inhibitions, increase in socially unacceptable behaviour
- NOT a defence, just look at fault required for the offence

(2) Advanced intoxication – to specific intent offences

- It’s a high level of intoxication, perhaps enough that they lacked the specific
intent
- Gives defence for specific intent offences, but depends on facts
- Issue is still whether there was ACTUAL INTENT – open to be a defence,
might be seen as impairment of foresight of consequences that might raise a
reasonable doubt, but defence will depend on the facts of the case (ex.
shoot someone, might still think they’ll foresee the death b/c it’s so
obvious…if they just kick someone in the head, might be harder to foresee
death if very intoxicated  look at plausibility of argument)

(3) Extreme intoxication akin to automatism (Daviault defence) – non-violent

offences only (33.1)
- Defence to specific intent offences AND general intent offences (non-violent
re. s. 33.1)
- Negates voluntariness and is complete defence (can’t be guilty of any
offence)

41
 - BUT limited by s.33.1 to be a defence only for non-violent offences, violent
offenders would still be guilty  BUT there’s a Charter issue with that
(which hasn’t been decided yet, so need to raise it if it applies to the facts)
- You have to get an expert to testify that the person was out of
consciousness.
- Anyone who is extremely intoxicated can also be argued to be advancely
intoxicated – argue to at least bring murder down to manslaughter.
- Intoxication can never be argued for drunk driving because the fault
element there lies in getting drunk.

Defences: reverse onus

Some “defences” negate the act or fault elements of offences, or example:

- Automatism negates the voluntary act

- Mistake of fact can negate the fault element

Other defences operate even where all the elements of the offence are made out. These are
sometimes called “true defences”:

1. Defence of person/Self-defence  statutory defence

2. Defence of property  statutory defence
3. Necessity  common law defence
4. Duress  statutory defence
5. Provocation (only murder)  statutory defence

• Air of reality test:

- A defence should be put to a jury if and only if there is an evidential foundation for
it.  applies to all defences
- Test: Evidential Burden – Considering the totality of evidence and assuming the
accused evidence as true, does the evidence disclose a real issue to be decided by
the jury?
- Trial judge does not decide whether the defence will be successful or not – jury’s
job.

Self-defence: s.34
• Section 34(1) – three basic requirements:

– Reasonable belief in force or threat

– Defensive purpose of accused’s act

– Defensive act is reasonable in the circumstances (s. 34(2) factors here)

• Not limited to defending yourself. You could also be justified if you want to protect others.
• Test of reasonableness. Overall test is objective, with consideration to personal and
circumstantial evidences.

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R v Lavallee – reasonable person + circumstances
• The need for expert evidence on the effects of abusive relationships in order to properly
understand the CONTEXT in which an accused woman killed her partner. The expert
evidence is necessary in order to understand the reasonableness of a battered woman’s
perceptions, which in this case was the accused’s perceptions that she HAD TO act with
deadly force in order to preserve herself from death or grievous bodily harm.
• Imminent requirement does not apply well to battered women. We have to think about
whether imminence is reasonable.
- Imminent requirement would mean that she would have to wait until she was being
might not have been able to defend herself any longer.

• We have to look at the psychological evidence.

Battered women syndrome is not a defence itself, it just shows their perception of the
situation and why they thought their actions were reasonable (subjective factors).

 Self defence test is overall objective, but the court needs to look into circumstantial
evidence when considering the standard of a “reasonable person”.
 “Imminence” is not required by the statute; but a factor to be considered.

R v Malott
• The legal inquiry into self-defence must focus on the reasonableness of her actions in the
context of her personal experiences, and her experiences as a woman, not on her status as a
battered woman and her entitlement to claim that she is suffering from “battered woman
syndrome”.
• There are other factors, such as a fear of losing custody of her children, that indicate her lack
of an alternative to the use of deadly force to preserve herself from death or grievous bodily
harm.
• All the evidence should be presented in such a way as to focus on the reasonableness of the
woman’s actions, without relying on old or new stereotypes about battered women.
 Avoid a too rigid and restrictive approach to the admissibility and legal value of evidence and
look at the situation in their whole context.

R v Cormier:
- There is no obligation to retreat in the face of aggression.
- Choosing not to retreat is not a barrier to self-defence claims.
- Self-defence is available in the face of unlawful assault (or the threat of it) as long as there is
a reasonable apprehension of risk of death or serious bodily harm and there is a reasonable
belief that there is no way to preserve oneself except by injuring the attacker. [Sinclair]
- Choosing not to retreat may be relevant to determine whether there was a reasonable belief
that there was no other way.
- There is also no obligation to retreat from one’s own home – Citizen’s Arrest and Self-
Defence Act (also extends to people lawfully assisting the person)

43
Defence of Property: s.35
• See s. 35 for the requirements of defence of property

• Briefly, a person claiming defence of property must:

– reasonably believe they are in “peaceable possession” or assisting a person in

peaceable possession

– reasonably believe another person is going to enter, damage, destroy or take the
property

– act for the purpose of preventing the damage, entry, taking, etc. (subjective)

– act in a way that’s reasonable in the circumstances (objective)

R v Cormier:
The defence is triggered upon a reasonably based belief of peaceable possession of property and of
another person’s specific actions regarding that property  s.35(b)

Upon being triggered, an act committed to prevent the triggering event is justified provided it is
“reasonable in the circumstances”.

- The reasonableness is objectively assessed

- Citizen’s Arrest and Self-Defence Act

Necessity:
 Not a defence to murder when the victim was not a direct threat to the perpetrator’s life or
committing illegal acts [Dudley]

Perka v R: TEST
• The Court concludes that “a liberal and humane 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.”

• These are situations of “moral involuntariness” because the actor has no real choice but to
break the law – the act is “realistically unavoidable

• The defence of necessity must be strictly limited so it only covers acts that are truly morally
involuntary

• Three requirements for the defence of necessity:

1. An urgent situation of imminent peril

- Has to be happening right now
- Must be so urgent that normal human instincts cry out for action
2. No reasonable legal alternative
- If there is a legal way out then there is a reasonable legal alternative
- High standard is very important
3. Proportionality between harm inflicted and harm avoided

44
 - Between the harm that is inflicted by breaking the law and the harm that is avoided
by breaking the law
• Even if someone is doing something illegal, necessity defence could still be available.
- If the necessitous situation was clearly foreseeable as part of doing something
illegal, then it would probably take away defence of necessity

R v Latimer: Leading case

• Further interprets the three requirements of necessity:

1. An urgent situation of imminent peril – the peril must be “on the verge of transpiring
and virtually certain to occur”

2. No reasonable legal alternative – realistically assess options

3. Proportionality between harm inflicted and harm avoided – not required that the
harm avoided clearly outweigh the harm inflicted – at a minimum the harms must
be of equal gravity

• For requirements 1 & 2, use a “modified objective test” that makes an objective evaluation
but takes into account the situation and characteristics of the accused

- Accused must have honestly believed on reasonable grounds that he or she was in
imminent peril with no legal way out

• Requirement 3, proportionality, is assessed objectively

 No air of reality to any of these requirements on the facts

Duress: s.17
• Section 17 lays out numerous restrictive requirements for the defence of duress:

1. Threat of death or bodily harm to the accused or a third party

2. Immediacy: Act committed under threat of “immediate death or bodily harm”

3. Presence: Threatener must be “present when the offence is committed”

4. Belief: Accused must “believe[]…the threats will be carried out”

5. Accused not party to conspiracy

6. Exclusion of certain offences: statutory defence of duress not available for murder,
sexual assault, robbery, etc.

R v Paquette: common law duress

- S.17 only applies to the person who COMMITS the offence/
- The defence foes not apply to those party to an offence as aider and abettors or by
way of common intention under the party liability provisions of s.21
- Since third parties cannot access the statutory defence of duress; they can access
the common law defence of duress.
• Robbery and murder are not clearly excluded in the common law defence of duress.

45
R v Hibbert: moral involuntariness
– Like necessity, duress is an excuse based on moral involuntariness

– Since it is based on moral involuntariness, duress requires that the accused had “no
safe avenue of escape”

– This “no safe avenue of escape” requirement is applied on a modified objective

standard, taking into account the accused’s characteristics

R v Ruzic: immediacy and presence read out

– Under s. 7 of the Charter, there is a principle of fundamental justice that only
morally voluntary conduct can attract criminal liability

– S. 17 violates s. 7 of the Charter because the immediacy and presence requirements

remove the defence for some morally involuntary acts

– So, the immediacy and presence requirements were read out of s. 17

R v Ryan: MODIFED TEST

• The Court clarified the scope of the defence:

– The defence of duress is only available when the accused “commits an offence under
compulsion of a threat made for the purposes of compelling” the accused to commit
the offence

- Modified statutory defence requirements: (4 from s.17)

1. Threat of death or bodily harm to the accused or a third party
2. Belief: Accused must actually and reasonably believe the threat, on a “modified
objective standard”
3. Accused not party to conspiracy
4. Exclusion of certain offences: murder, sexual assault, robbery, etc.
 Plus, three common law requirements ensure moral involuntariness:
5. No safe avenue of escape – on a “modified objective standard”
6. Close temporal connection between threat and harm
7. Proportionality – harm threatened at least equal to harm inflicted by accused, and
accused must show normal resistance to the threat – also on “modified objective
standard”

• The common law defence has the same requirements as above, EXCEPT 4. as it does not
clearly exclude any offences.

Provocation: (only murder) s.232

• Partial defence - does not result in acquittal – reduces liability to manslaughter
• Does not negate actus reus or mens rea of offence
- Remember: Voluntary intoxication at an advanced level is also a partial defence to
murder that reduce murder to manslaughter. (defence of advanced intoxication)
 S. 232 of the Code:
(1) Provocation allows an accused to commit murder in heat of passion caused by
provocation and only be convicted of manslaughter
(2) Only counts if: (what constitutes provocation)

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 (1) Victim committed an indictable offence of 5 or more years of punishment against
you (even it is the maximum year will suffice) (assault will be an example)
(2) Would deprive ordinary person of self-control (Hill)
(3) Accused acted on it suddenly and before passion cooled

You can argue both self-defence and provocation.

R v Tran: 2 elements of provocation

1. Objective element: there was provoking conduct (which now must be an offence)
sufficient to deprive an ordinary person of self-control

2. Subjective element: the accused was actually provoked, lost control and acted while
out of control

- Ordinary person standard must be informed by contemporary norms of behavior,

including fundamental values such as the commitment to equality in the Charter.
- It would be appropriate to ascribe racial characteristics to the accused if
they were the recipient of racial slurs
- But it would not be appropriate to ascribe homophobic traits to the accused
if they were recipient of homosexual advance [Hill]
- There is no place in the law for antiquated beliefs.

R v Hill: Leading case

 Any characteristics of the accused will be considered to the extent that they are relevant
to the provocation.
 Ordinary person is person of ordinary temperament and self-control  this is the standard

o POLICY CONSIDERATIONS
o Court acknowledges that the basis of this defence is that all people can lose their
cool and lose control that could lead them to do violent acts
 For: Should we really have this defence? Mitigating their murder conviction
on basis of anger. A recognition of the inflexibility of the criminal regime
that associates with murder. Even though they are still blameworthy, they
are not as blameworthy as others. Should have some flexibility of the
sentencing to avoid automatic life imprisonment.
 Against: the whole point of criminal is to punish morally blameworthy
people and losing self-control to kill others are within the penal regime.
o To put this in perspective, look at provocation cases historically:
(1) Gay panic cases
 Gay sexual advance leads male accused to kill male who made advance
 Highly problematic because it seems like we are giving people an excuse
based on their homophobia  troubling if it was just some words, perhaps
more understandable if there was an actual sexual assault
(2) Adultery cases (off the table now, adultery not an offence)
 Man comes home to find woman cheating, kills one or both of them

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  Claims provocation
 No longer covered under provocation b/c adultery is not a criminal offence
(3) Excessive self-defence cases
 Usually defending someone else and actually kills someone, but goes too far,
maybe they were trying to leave, weren’t actually coming at you with force
 However, if the person was committing an indictable offence, then
provocation may be a defence
o Defence of provocation has always been controversial because of discriminatory
basis of why people lost control
 Parliament tried to constrain law to avoid giving valid provocation defence
to people acting on discriminatory basis
o Also, still only a PARTIAL defence, so just mitigates the harshness of murder
provisions that provide for an automatic life imprisonment

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

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

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

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

 Thesis – law system based on the male experience

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

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

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

Aboriginal Peoples and Criminal Justice – Law Reform Commission of Canada

 Overrepresented in the criminal justice system and reasons for this are many (ex. trauma
from colonial practices like residential schools)
 There are statutes that require judges to take into account these factors when deciding and
sentencing
 Aboriginal ppls in general believe that the criminal justice system does more harm than
good in their communities

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  Aboriginal ppls believe that criminal offending by them should be dealt with by them b/c
they better understand the circumstances etc. and their aims in terms of resolution would
be very different and in culturally appropriate ways
 Challenge that might come up with Aboriginal communities taking charge of criminal issues:
it’s a fundamental notion of our formal criminal justice system to treat similar offenders
equally  under Aboriginal system, laws would not be uniform or homogeneous, that
wouldn’t even be the goal
 S. 35 of the Constitution Act of 1982 recognizes that Aboriginal ppls have a right to self-
government  can be used as a justification for them being able to also govern their own
justice system

Rupert Ross, Dancing with a Ghost

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

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

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

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 context is a positive for the judicial system, and they can’t be expected to divorce
themselves from that experience when appointed to the bench. The judge did not
actually find that it was an overreaction and in L’H-D’s view this was an appropriate
exercise of contextualized judging.
 Gonthier (+1):
o Remarks appropriate, no reasonable apprehension of bias.

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