Contents

CONSENT....................................................................................................................................................... 2
OMISSIONS ................................................................................................................................................... 2
VOLUNTARINESS .......................................................................................................................................... 3
CAUSATION................................................................................................................................................... 4
REGULATORY OFFENCES .............................................................................................................................. 5
SUBJECTIVE MENS REA ................................................................................................................................. 5
MURDER ....................................................................................................................................................... 6
UNLAWFUL ACT MANSLAUGHTER (UAM) ................................................................................................... 7
OBJECTIVE FAULT ......................................................................................................................................... 8
SEXUAL ASSAULT .......................................................................................................................................... 9
INCAPACITY: ............................................................................................................................................... 10
1) AUTOMATISM: ............................................................................................................................... 11
INTOXICATION ............................................................................................................................................ 12
JUSTIFICATION AND EXCUSES: ................................................................................................................... 13
1) DEFENSE OF PERSON: ............................................................................................................ 13
2) DEFENSE OF PROPERTY: ........................................................................................................ 13
3) NECESSITY: ........................................................................................................................... 13
4) DURESS: ............................................................................................................................... 14
5) PROVOCATION:..................................................................................................................... 15

1
CONSENT
Common Law limits:

• Consent may be vitiated between adults where SERIOUS OR NON-TRIVIAL BODILY HARM IS
BOTH INTENDED AND CAUSED (Jobidon),
➔ where bodily harm is defined in s.2 of Code as “any hurt or injury to a person that interferes
with the health or comfort of the person and is more than merely transient or trifling in
nature.”

Consent vitiated by fraud

• Consent vitiated when significant risk of serious bodily harm which is more than any risk but
less than high risk (Cuerrier)
➔ However, no significant risk of serious bodily harm (Mabior) if
❖ there is NO REALISTIC POSSIBILY of transmission where viral load low AND
condom used, then consent not vitiated by fraud (Mabior)
• 2 elements of fraud (Cuerrier) needed for consent vitiated by fraud:
➔ Dishonesty: lying to someone or just not telling the truth (when there is an obligation to
disclose information) AND
➔ Deprivation: includes putting others at risk (either others have been harmed or put at risk)
• While Cuerrier narrowly applies to HIV case, it can be extended to other cases of STDs where
there is a “significant risk of serious bodily harm” and more broadly to other cases of consensual
sexual activity where there is dishonesty AND serious deprivation of someone’s health:
➔ Ex: Hutchinson, consent vitiated because accused MISREPRESENTED that he was wearing a
“working” condom and thus got girl pregnant (deprivation).

OMISSIONS
• an omission can ground criminal liability where there is a legal duty to act
• for s.217 failing to take an undertaking, Browne defines undertaking as:
➔ a “binding commitment”
➔ “clearly made, and with binding intent”
➔ Upon which reliance can reasonably be said to have been placed
➔ “mere expression of words indicating a willingness to do an act” → not enough to create an
undertaking
• For s.215(1)(c) being under someone’s charge (Peterson) means:
➔ Element of control being exercised
➔ Relative position of parties and their ability to understand the circumstances
➔ Public acknowledgement by accused where they took responsibility of the victim through
their words and actions

2
VOLUNTARINESS
• Not always a requirement – automatically assumed that an act voluntary on an exam, unless
otherwise stated.
• Voluntariness is internal to the act element, not fault element. So, judge should have said that
the act did not occur. (Lucki)
• Reflex action → involuntary (Wolfe)
• If one is in the car and then becomes aware of weapon, there needs to be a period of time
where the individual can make a choice → need a reasonable opportunity to make a voluntary
choice in some situations (Swaby)
• There can be examples of involuntary omissions, if something outside your control, esp.
relevant to absolute liability offences (Kilbride)

3
CAUSATION
• MUST ALWAYS BE PROVEN – esp. for offences that carry prohibited consequences like death.
➔ MUST BE PROVEN IN ALL HOMICIDE CASES (s.222), assault causing bodily harm, aggravated
assault, willful damage to property, criminal negligence causing bodily harm or death,
dangerous/impaired driving causing bodily harm or death
• FOR ALL CAUSATION ISSUES, esp. UAM and homicide, START WITH:
➔ FIRST: Nette’s test of causation as: “significant contributing cause”, which basically
reaffirms the Smithers test:
❖ for unlawful act manslaughter and homicide, test of causation is a contributing
cause of death outside the de minimis (trivial) range
❖ That is, a contributing cause of death that is not trivial

• SECOND: IF INTERVENING CAUSE AN ISSUE:

➔ USE MAYBIN TEST FOR FOLLOWING ANALYTICAL AIDS (for the Nette test) to determine
whether an intervening act breaks the chain of causation:
❖ Reasonable foreseeability: was the general nature of the intervening act and risk of
harm foreseeable at the time of the accused’s act?
❖ Independent acts – was the intervening act so independent of the accused’s act
that it should be regarded as the sole cause? (falling plane as an example of
overwhelming intervening cause)
❖ Or were the acts so connected that they can’t be said to be independent?
➔ Maybin also generally applies the “but for” test → i.e. “but for” the accused’s action, the
victim would not have been in such a vulnerable situation that would have resulted in their
death.
➔ Other examples of intervening cause where the accused WILL STILL BE THE CAUSE:
s.222(5)(c), 224, 225, 226

THIRD: [PROCEED WITH CAUTION]

ONLY IF THERE IS ISSUE OF CAUSATION IN FIRST-DEGREE MURDER UNDER S.231(5) WHERE

THERE IS ALSO ANOTHER ACT INVOLVED (ex: sexual assault), USE FOLLOWING TEST:
❖ Harbottle test of “substantial cause test”:
▪ the accused’s acts must be an “essential, substantial and integral part of the
killing”
▪ accused to play a very active (usually physical) role in the killing (such as
dominating the victim)
❖ note: would also talk about the “single transaction” under Paré as an issue for
s.231(5)

4
REGULATORY OFFENCES
• Regulatory offences – not true crimes but rather public welfare offences that prohibit certain
acts such as speeding and polluting waters
• Any regulatory offence will be an offence of strict liability by default (with reverse onus for
defense to raise defense of due diligence) (Sault Ste. Marie), unless the language of the
legislation clearly indicates it is either subjective or absolute liability, or through historic
interpretation shows that it should carry some other fault liability.
❖ Due diligence can’t be passive – must take reasonable precautions (Tetreault)
➔ STRICT LIABILITY (part of objective fault) = charter minimum fault requirement for ANY
OFFENCE punishable by IMPRISONMENT.

SUBJECTIVE MENS REA

• knowledge of some facts (such as intent) that points to a guilty mind
➔ can’t be guilty of possession of drugs, for example, without knowledge of the character of
the forbidden substance (Beaver – cocaine mistaken for sugar)
• common law presumption is that all true crimes have a subjective mens rea, if legislative
language seems ambiguous, as was the case of child abandonment provision s.218 in (R. v. H.
(A.D))
• language like “meaning to”, “willingly/willfully”, “intentionally”, “knowingly”
• intent defined as (R. v. Buzzanga & Durocher):
➔ conscious purpose to bring about a consequence, or
➔ subjective foresight that the prohibited consequence is substantially certain to occur
• Recklessness as subjective fault (Sansregret):
➔ One who sees the risk and still takes the chance
➔ “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.” McIntyre J in Sansregret
• Willful/willfully blind:
➔ Willful blindness also a subjective state of mind, so in law willfully blind person treated as
a person with knowledge (Sansregret)
❖ Exists where the accused is aware of the need for inquiry and deliberately fails to
inquire in order to preserve ignorance.
➔ An actual process of suppressing a suspicion and thus deliberately choosing to remain
ignorant (Briscoe)
➔ To meet the SMR for drug trafficking, you need to have known it was some type of
narcotic, if not the specific narcotic (Blondin) because that would amount to being willfully
blind to the fact that importing a narcotic
❖ However, no mens rea if he just knew it was something illegal – but could still be
found negligent.

5
 MURDER
• OFFENCE PROVISION: S.235
• ACTUS REAS: s.222
• MENS REA: s.229(a) = INTENTION AND KNOWLEDGE [i.e. subject intent] OF DEATH
FOLLOWING FROM YOU ACT
➔ S.229(b): transferred intent where you end up killing someone else accidentally other than
your intended victim

FIRST STEP: ARE YOU GUILTY OF MURDER?

• The instruction to jury in a murder case must be in a SUBJECTIVE WAY, NOT objective
(Simpson case)
• Language for subjective fault MUST include KNOWLEDGE AND INTENT!! (Edelenbos)
• Murder under constitution (s.7(d) of charter) requires AT LEAST OBJECTIVE FORESIGHT
(Vaillancourt)
➔ However, according to Martineau, murder requires not just objective, but SUBJECTIVE
foresight of death, (s.7(d)) so parts of s.230 (constructive murder) were found
unconstitutional because of “ought to know” language {objective fault language}

SECOND STEP: WAS IT 1st or 2nd DEGREE MURDER?

FIRST DEGREE VERSUS SECOND DEGREE
Similarities: BOTH AUTOMATICALLY LEAD TO IMPRISONMENT FOR LIFE (S.235)
• Serve 25 years of sentence before eligible for parole (s.745) • Serve 10
• Factors that elevate from 2nd to 1st degree: years of
➔ Aggravating factors (use language related to that, not actus reas or mens rea sentence
anymore) before
➔ “Planned and deliberate” s.231(2) eligible for
➔ Murder of specified victims (on-duty police officers, prison workers, etc.). s.231(4) parole
➔ Murder “while committing” specified offences of illegal domination (hijacking, (s.745)
sexual assault, kidnapping, hostage taking, etc.) s.231(5) (apply Paré single • All murder
transaction rule & causation rule from Harbottle for ONLY this section) cases by
default 2nd
degree
Case law:
• “Planned AND deliberate” means (Smiths 1979):
• More than intentional
• Planned means arranged beforehand (scheme, or design previously formulated)
• Deliberate means considered, and not impulsive
• Language like “carefully thought out, not hasty or rash”, “slow in deciding”, “cautious”
• You can have planned and deliberate murder even where there wasn’t an intention
to cause death but if their planning/deliberating involved causing bodily harm that
they knew would likely cause death (Nygaard – ex: beating up with a baseball bat
which was planned and deliberate, not the murder itself)
• under s 231(4), the accused must know or perceive the risk that the victim is a police
officer, else we run into Charter problems (Collins)

6
UNLAWFUL ACT MANSLAUGHTER (UAM)
• IF DEATH FROM AN UNLAWFUL ACT → DO TEST FOR AUM!!!
• THERE MUST BE A PREDICATE OFFENCE/UNLAWFUL ACT THAT CAUSED DEATH
➔ Usually assault, like in Jobidon s.265(1)

FIRST PROVE PREDICATE OFFENCE → AR, MR AND CAUSATION

➔ Predicate offence: must involve dangerous act, CANNOT BE ABSOLUTE LIABILITY OFFENCE
➔ NOT AGGRAVATED ASSAULT EITHER – JUST ASSAULT IS ENOUGH ON ITS OWN AS A
PREDICATE OFFENCE (no need to prove/discuss the aggravate part as well)

SECOND APPLY ADDITIONAL FAULT REQUIREMENT FOR UAM BY APPLYING TEST:

➔ “objective foreseeability of the risk of bodily harm which is neither trivial nor transitory, in
the context of a dangerous acts.” (Creighton)
❖ Lower standard since foreseeability of BODILY HARM, not death required.

DANGEROUS DRIVING
No liability→ civil liability (Beaty)→ criminal liability under s.249(1)→ criminal negligence (s.219)

LOWEST CHARGE HIGHEST CHARGE

Aggravated forms of assault

• DEFINITION (not offence) OF AGGRAVATED ASSAULT:

➔ s. 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 BOTH SUBJECTIVE AND OBJECTIVE
TEST:
➔ (ACTUS REA): an assault (i.e. subjective intent to touch) that wounds,
maims, disfigures or endangers life, AND
➔ (MENS REA): objective foreseeability of bodily harm (drawn from
Creighton)

Criminal negligence causing death is one offence (which also happens to be manslaughter) – UAM is
another offence. KEEP THEM BOTH SEPARATE DO NOT MIX THE TWO!!!

7
 OBJECTIVE FAULT
• ALL objective fault offences usually use "marked departure from reasonable standard" as level
of fault
• crown proves objective fault EXCEPT strict liability offences, where reverse onus on defense to
raise defense of due diligence. (Sault Ste. Marie)
• Language indicating objective fault – “ought to”, “reasonable care/steps”, “good reason”,
“due care and attention”
• Historically, crim negligence had subjective fault (O’Grady) until…
• Split decision and discussion of whether criminal negligence in s219 has objective or subjective
fault (Tutton & Tutton)
• Creighton established an objective marked departure for UAM and additional test of objective
foreseeability of risk of bodily harm
• In dangerous driving context, to be criminally negligent under s.249(1) (AR) objective standard
modified in two ways in Beaty (to separate criminal negligence of dangerous driving from civil
negligence for tort damages):
i. Marked departure – look at the degree of negligence
ii. Exculpatory defenses can be considered (unexpected stuff like heart attacks,
seizures etc.)
➔ For dangerous driving cases specifically, momentary lapse of attention is not enough to
meet criteria of “marked departure” under s.249(1) to have objective fault for criminal
negligence (Beaty) – momentary lapse gets you to civil liability only
➔ Dangerous driving that would be criminal negligence under s.219 would have to have a
“marked and substantial departure” (R. v. F(J), Tutton & Tutton)

OBJECTIVE FAULT

UNLAWFUL ACT
CRIMINAL NEGLIGENCE OTHER OBJECTIVE STRICT LIABILITY MANSLAUGHTER (UAM)
OFFENCES (s.219) FAULT CRIMES (s.222)

Examples: failing to provide

Examples: ONLY necessaries of life, careless Examples: Regulatory EXAMPLE: R. V.
S.220 & 221 use of a firearm, TEST: offences (Sault Ste. CREIGHTON
OFFENCES “marked departure” from Marie)
SOC – personal factors only TEST: additional fault
TEST: “marked and for incapacity TEST: simple requirement “objective
substantial negligence with foreseeability of the risk
departure” from SOC Dangerous driving s.249(1) – reverse onus on of BODILY HARM which is
(R. v. F(J), Tutton) TEST: modified objective test defense to raise neither trivial nor
& considering exculpatory defense of “due transitory
factors outside your control diligence”
(Beaty)

8
SEXUAL ASSAULT
• 3-tier structure in Code that creates sexual assault more an act of violence, of which sexual
component is one part.
➔ 271, 272 & 273
• Definition of sexual assault after the Codes enacted: A sexual assault is an assault “committed
in circumstances of a sexual nature, such that the sexual integrity of the victim is violated”
(Chase)
❖ Factors to be considered: 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

Actus Rea: touching, sexual nature, absence of consent (determined by complainant’s subjective
internal state of mind) (Ewanchuk)

Mens Rea: mind of accused (whether he knew, was reckless or willfully blind to the fact that
complainant not consenting – can only determine the mind of accused by looking at what the
complainant expressed (ex: saying no at every advancement like in Ewanchuk)

Consent & Mistaken Belief, Consent Vitiated:

Defense of mistaken belief in consent negates mens rea Applies to Applies only
of subjective fault all assaults to sexual
assaults (s.
➔ Limitations on this defense → only in
271, 272 &
“situations of ambiguity” (R. v. Davis)
273)
➔ Limits in the code: (s.273.2 and s.65(4))
❖ no defense of mistaken belief Definition of none 273.1(1)
without reasonable steps consent
❖ no defense of mistaken belief based
on self-induced intoxication, Where 265(3) 273.1(2)
recklessness, or willful blindness consent
❖ juries must be instructed to vitiated
consider reasonableness. Note: other common law limits on consent
➔ No such thing as implied consent beyond the above row – ex: Jobidon
(Ewanchuk). Further limits we get from Mistaken 265(4) 273.2
Ewanchuk on mistaken belief: belief in
❖ a mistaken belief in consent must consent
be a belief that consent was
expressed or communicated
❖ a belief that no means yes, or that silence, passivity or ambiguous conduct equals
consent is no defense.
❖ once the complainant says “no” the accused is on notice and must be sure consent
is communicated before proceeding.
• definition of consent for sexual assault requires the complainant to provide ongoing,
conscious consent [because it exists in the mind of the person (Ewanchuk)]. Consent means
conscious agreement of consent of every sexual act in a particular encounter. (R. v. A. (J))

9
INCAPACITY:
AGE: s.13 – children under 12 lack capacity to be held responsible for criminal acts.

MENTAL DISORDER: s.16 – defines accused not NCR by reasons of mental disorder; s.2: defines mental
disorder as “disease of the mind” further elaborated:

“in a legal sense “disease of the mind” embraces any illness, disorder or abnormal condition
which impairs the human and its functioning, excluding however, self-induced states caused
by alcohol or drugs, as well as transitory mental states such as hysteria or concussion. in
order to support a defense of insanity the disease must, of course, be of such intensity as to
render the accused incapable of appreciating the nature and quality of the violent act or of
knowing that it is wrong. Dickson J in Cooper
➔ appreciating something is deeper than knowing it. Dickson J in Cooper
➔ appreciating requires emotional awareness and understanding of the consequences of
the act, not just the physical act. Dickson J in Cooper

10
 1) AUTOMATISM:
• Automatism defenses:
i. mental disorder automatism (MDA)– ex: sexsomnia
❖ NCR that may result in indeterminate psychiatric detention
ii. sane (non-mental disorder) automatism – ex: blow to the head
❖ Can get a clear acquittal

In automatism claims, presumption of MD automatism. (Stone). Reverse onus on defense to prove

there is automatism and then to rebut presumption of MD automatism by proving sane automatism.
(Stone). Sane automatism cases limited to very rare cases where accused can point to a SPECIFIC
EXTERNAL EVENT that precipitated that event, can demonstrate it is unlikely to reoccur, and show that
it would have produced a dissociative state in an otherwise “normal” person. Ex: blow to the head.
(Luedecke)

FOR AUTOMATISM CLAIMS, START BY FOLLOWING ANALYSIS FROM STONE:

STEP 1: decide whether the defense of automatism is properly at issue and thus should be put to the
jury:
• need two things: an assertion of involuntariness AND expert evidence to indicate person was
in state of automatism
• just being angry doesn’t get you there, even if amnesia (Rabey); rather you must have lost
touch with reality (Parks=sleepwalking)
• factors considered: severity of triggering stimulus (minor trigger=automatism less likely),
corroborating medical history (Parks), corroborating evidence of bystanders (Rabey); evidence
of motive
Step 2: If automatism at issue, is it MD or sane automatism?

• Presumption of MD; reverse onus to prove sane automatism

➔ Take holistic approach (Stone) to decide between the MD and sane automatism:
❖ Internal vs. external cause theory
❖ Continuing danger (fundamental question of whether society needs protection
from accused and thus needs to be subject to psychiatric detention under MD
NCR regime of the Code)
▪ Thin line between sane and MD – if high risk of recurrence, then MD. If
no danger of recurrence, then sane automatism.
❖ Policy concerns of being easy to feign, floodgates etc.
▪ Worried about opening floodgates because of how easy it is to feign in
some instances (like Rabey)
Step 3: Apply comprehensive response to automatism claims (Doherty JA in Luedecke):
i. Pre-Verdict - when deciding whether to find NCR of full acquittal:
❖ Focus on social defense – where there is a risk of recurrence, that will almost
always lead to an NCR verdict
ii. Post-Verdict
❖ Focus on individual assessment of the individual’s dangerousness and only be
detained if dangerous.

11
INTOXICATION
According to Daley, there are three legally relevant degrees of intoxication:
1. Mild intoxication – reduces inhibitions and can increase aggression, but it is not a
defense.
2. Advanced intoxication [start with this defense AND BRING DOWN CHARGE] –
depending on the facts, can raise a reasonable doubt about whether the accused
formed specific intent [for specific intent offences like murder (reduced to
manslaughter) and assault with intent to resist arrest (reduced to assault)]
➔ Specific intent – intent beyond just the physical assault
➔ When someone is quite drunk, then that can raise a reasonable doubt about
whether they formed the specific intent to kill for murder or assault for intent to
resist arrest
➔ A highly intoxicated person will try to use this defense as not foreseeing death from
their actions
➔ It is a factual question at the end of the day whether this specific person formed the
intent
➔ Not just how drunk they were, but what did they do?
➔ With certain actions might be easier to see if they foresaw death (ex: drunk and
shooting point blank another person in the head vs. in a brawl and kicking
someone)
3. Extreme intoxication [very rare defense – move on to this to get a full acquittal for
assault and manslaughter]– makes the accused’s actions involuntary and applies to
general intent offences of non-violent nature only (ex: theft, drug trafficking, property
damages) by Code, s. 33.1 (which may be unconstitutional under R. v. Daviault)
➔ S. 33.1(3) of the Code:
❖ This section says Daviault defense removed for violent offences – interference
with, or threat of interference with the bodily integrity of another person
➔ Extreme intoxication that can result in involuntariness may be unconstitutional
(s.7d) if denied for violent offences
➔ Crown would still argue s.33.1 – it’s just under a cloud
❖ Justification of this violation under s.1
➔ This defense raises doubts around actus rea as well if the person is drunk to the point
of automatism, then there’s no voluntariness and actually no act, THUS VIOLATING S.7

LASTLY, TALK ABOUT SECTION 1 (oakes) ARGUMENTS BETWEEN S.33.1 & DAVIAULT, & JENSEN

➔ Section 33.1 is aimed at the pressing and substantial objective of protecting the innocent
public from violence perpetrated by people who voluntarily get themselves extremely
intoxicated
➔ Section 33.1 is rationally connected to that objective, as was the broader common law rule
attacked in Daviault

12
JUSTIFICATION AND EXCUSES:
• FOR ALL DEFENSES – START WITH “AIR OF REALITY” TEST (Cinous)
➔ Whether enough evidence to raise defense and which ones
➔ Once a defense raised, crown must DISPROVE beyond reasonable doubt that no defense.

1) DEFENSE OF PERSON:
• S.34(1): Self-defense provision (a type of justification, not excuse to the offence)
• s.34(2): factors to consider for deciding if defensive act reasonable in the circumstances
• battered women syndrome not a defense in itself (Malott), but rather allows expert evidence
to be permitted to consider objectiveness not of the reasonable man, but of the reasonable
woman. (Lavallee)
➔ Further, the expert-evidence looks specifically at the battered woman’s individual and
shared features to determine reasonableness of circumstances, rather than what an
outside would reasonably perceive.
❖ Ex: looking specifically to level of threat, relationship, physical
capabilities etc. (Malott)

2) DEFENSE OF PROPERTY:
• S.35: defense of property provision
➔ No list of what is reasonable – common law understanding for reasonableness (ex: killing
someone for trespassing property is inherently disproportional)
• Defense of property can also result in defense of person – stepping outside your home to
defend your property does not bar one’s self-defense claim (Cormier)

3) NECESSITY:
• ARISES IN EMERGENCY SITUATIONS – very narrow defense
• Necessity is not a defense to murder (Dudley & Stephens), especially when you haven’t been
provoked.
• (Perka): Illegality does not block out defense of necessity. It is an excuse because of “moral
involuntariness” that make the act “realistically unavoidable”.
➔ NOT a justification – too subjective to allow people to choose when is it worth following
the law.
➔ 3-part test for necessity defense to qualify (Perka) & modified by Latimer:
i. An urgent situation of imminent peril
▪ Where peril is on the verge of transpiring and virtually certain to
occur
▪ Modified objective test (NOT SAME AS OBJECTIVE FAULT OFFENCE)
ii. No reasonable legal alternative
▪ Realistically assess options
▪ Modified objective test (NOT SAME AS OBJECTIVE FAULT OFFENCE)
iii. Proportionality between harm inflicted and harm avoided
▪ Proportionality is assessed objectively – proportionality at a
minimum must be of equal gravity.

13
 4) DURESS:

• COMMITTING OFFENCE UNDER THREAT OF BODILY HAMR OR DEATH FROM SOMEONE

• S. 17: duress provision in the Code; however, some requirements modified in light of Charter
➔ IMMEDIACY OF DURESS AND CLOSE PRESENCE OF PERSON THREATENING WHILE
OFFENCE BEING CARRIED OUT – READ OUT OF S.17 IN RUZIC DUE TO VIOLATION OF
S.7(d) PFJ that only morally voluntary conduct can attract criminal liability.
• S.17 requirements for duress – only applicable to principle offender (Paquette):

STATUTORY DEFENSES of duress for PRINCIPLE OFFENDER (Ryan):

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

2. Belief: accused must “believe…the threats will be carried out”
3. accused not party to conspiracy → so if you’re already involved with a criminal organization you
can’t claim defense of duress
4. exclusion of certain offences: statutory defense of duress not available for murder, sexual
assault, robbery, etc.
Plus three common law requirements from Hibbert which also apply to statutory defenses which
ensure moral involuntariness:
5. no safe avenue of escape – on a “modified objective standard” (characteristic and situation of
the accused) (Hibbert)
6. close temporal connection between threat and harm (ex: Ruzic)
7. proportionality – harm threatened at least equal to harm inflicted by accused (similar to
proportionality requirement in necessity), and accused must show normal resistance to the
threat (like in necessity) – also on “modified objective standard”

COMMON LAW DEFENSES of duress for AIDERS/ABETTORS (Ryan):

1. threat of death or bodily harm to the accused or a third party (so not to you, but a second party
in the car)
2. Belief: accused must “believe…the threats will be carried out”
3. accused not party to conspiracy → so if you’re already involved with a criminal organization you
can’t claim defense of duress
4. exclusion of certain offences: statutory defense of duress not available for murder, sexual
assault, robbery, etc. whole purpose in Paquette!!
Plus three common law requirements from Hibbert
5. no safe avenue of escape – on a “modified objective standard” (characteristic and situation of
the accused) (Hibbert)
6. close temporal connection between threat and harm (ex: Ruzic)
7. proportionality – harm threatened at least equal to harm inflicted by accused (similar to
proportionality requirement in necessity), and accused must show normal resistance to the
threat (like in necessity) – also on “modified objective standard”

14
5) PROVOCATION:

• Can claim BOTH self-defence and provocation.

• s.232(1): A type of partial defense that ONLY APPLIES TO MURDER, which is reduced to
manslaughter.
➔ S.231(2): Victim must have done something himself that would be an indictable
offence (punishable by 5 years of imprisonment) → so assault could count as
provocation AND would deprive ordinary person power of self-control
➔ VERBAL ABUSE & ADULTERY NOT OFFENCES, so no provocation defense.
• 2 elements of this defense (Tran):
i. Objective element: there was provoking conduct (i.e. an offence
punishable 5 years of imprisonment) that would be deprive an ordinary
person of self-control
▪ Ordinary person does not possess personal characteristics but
only to the extent they are relevant to the provocation (ex: Age,
race etc.) (Hill)
ii. Subjective element: the accused was actually provoked, lost control and
acted while out of control
▪ There was a suddenness/unpreparedness

15