CRIMINAL 1

Table of Contents

R. v. Henry 7
Whether a statement in a case is binding- what does case actually decide 7
Sources of Criminal Law 7
Frey v. Fedoruk 7
Peeping Tom; concept of fair notice 7
R. v. Dudley and Stephens 7
Ate friend; No absolute defence of necessity/self preservation 7
Rex. v. Sedley 8
Historically able to punish behaviour as new offence if believed to be wrong 8
Statutory Interpretation 8
R. v. Clark 8
Masturbate; Statutory interpretation- ordinary meaning & parliament intention 8
Bilingual Interpretation 8
Schreiber v. Canada 8
Bilingual interpretation directions 8
Strict Construction 9
R. v. Goulis 9
Interpret penal provisions in way that is more favourable for accused 9
R. v. Pare 9
While committing; Doctrine of strict construction- Sequential crimes can be “single
transaction” 9
R. v. Mac 9
CC fraud; If no ambiguity in French interpretation, applies over strict construction 9
Reference re: Firearms Act (Canada) 10
Does Parliament have constitutional authority to enact the law 10
Constitution 10
Hunter vs. Southam Inc. 10
Principles for interpreting Charter- Purposive Approach 10
Vagueness 10
Can Foundation for Children v. Canada (Attorney General) 10
Spanking; Vagueness of S.43 of CCC 10
Bedford v. Canada 11
Prostitution; CCC violating s.7 principles 11
Procedural Classification of Offences 11
Presumption of Innocence and Burden of Proof 12
Woolmington v. D.P.P 12
Shot wife; Onus on C to prove guilt; with murder prove BRD killing AND intent 12
R. v. Oakes 12
Trafficking assumption; Proportionality test 12
R. v. Lifchus 13
Fraud; Guidance for providing jury necessary instructions as to meaning of BRD 13
R. v. Starr 13
 CRIMINAL 2
Jury instruction; Situates BRD on spectrum between two extremes 13
Credibility Contests 14
R. v. S. (J.H.) 14
Stepfather molester; Credibility contest error instructions 14
Victim Rights 14
Harm Principle 14
R. v. Malmo-Levine 15
Harm principle application/POFJ Test 15
Chronology of Criminal Prosecution 15
The Adversary System 16
Reasonable Apprehension of Bias 17
R. v. RDS 17
Race issue; Make decisions on evidence not generalizations/RAOB 17
Elements of Offences 17
The Act Requirement 18
Bodily Harm 18
Consent 18
R. v Jobidon 18
Fist fight; Leading case on consent- cannot consent to serious bodily harm 18
R. v. Moquin 19
Spousal abuse; Bodily harm is injury that interferes in grave or substantial way 19
Vitiated Consent 19
R. v. Cuerrier 20
HIV; Fraud vitiates consent when it poses significant risk of serious bodily harm 20
R. v. Mabior 21
Sexual consent is vitiated when there is a realistic possibility of transmission of HIV 21
R. v. Hutchinson 21
Condom holes; Sexual assault- consent vitiated by fraud 21
Omissions 22
Fagan v. Commissioner of Metropolitan Police 22
Driving on officer foot; Mens rea can be superimposed on an existing act 22
Duties to Act 22
R. v. Miller 23
Cigarette started fire; Duty to act if your act started chain of events 23
Moore v. R. 23
Legal duties sometimes create reciprocal duties 23
R. v. Thornton 24
Donated blood with HIV; Duty to exercise reasonable care for medical procedures 24
R. v. Browne 24
Crackhead friends; Legal undertaking req commitment/reliance for legal duty 24
R. v. Peterson 25
Arnold; Broad interpretation of duty to provide necessaries of life 25
Voluntariness 25
R. v. Lucki 25
POFJ that people will only be liable for acts that are voluntary 25
R. v. Wolfe 25
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Telephone hit; Crown has to prove voluntary act; reflex actions involuntary 25
R. v. Swaby 26
Unaware of gun; Voluntary conduct necessary for liability even if not expressly stated by
provision 26
R. v. Ryan 26
Book robbery; Probable and foreseeable (but accidental) consequences of actions are
voluntary 26
Kilbride v. Lake 27
Registration; Cannot be criminally responsible for act/omission unless choice 27
Causation 27
Smithers v. R. 28
Hockey; Prior causation test- prove that illegal act contributing cause o/s de minimis range
28
R. v. Harbottle 29
Team sexual assault; Substantial Cause Test for s.231(5) 29
R. v. Nette 30
Robbed widow; Leading cause test- act must be significant contributing cause of death 30
R. v. Talbot 31
Restaurant altercation; Supports Nette as sole test 31
Review of Causation Tests 31
Cases of Intervening Cause 32
Causation in Homicide 32
R. v. Smith 32
Military fight; If initial cause remains significant when prohibited outcome occurs- operating
cause 32
R. v. Blaue 33
Jehovas witness; Causing death that might have been prevented 33
The Queen v. Bingapore 33
If victim contributes to death, chain of causation remains bc 1st injury still operating 33
R. v. Maybin 34
Bar fight; Leading case on intervening cause; 3rd party intervention breaking chain of
causation 34
The Fault Requirement 35
Subjective/Objective Distinction 35
R. v. Mulligan 35
If A offers intent evidence, jury must inference intention from conduct/other facts 35
R. v. Ortt 35
It is a reasonable inference that man intends natural consequences of actions 35
R. v. Theroux 35
Accused system of values/belief of whether acts are wrong irrelevant 35
R. v. Walle 35
Words judges can use to juries- consider all evidence pointing to and away from guilt 35
Sane/Sober person usually intends the natural and probable consequences of action 35
Fault for Public Welfare (Regulatory) Offences 35
Beaver v. R. 36
 CRIMINAL 4
SMR req for possession offences; An honest but unreasonable mistaken belief will negative
MR 36
R. v. City of Sault Ste. Marie (SSM) 37
Leading case for regulatory offence fault- strict liability and due diligence 37
R. v. Wholesale Travel Group Inc. 38
Distinguishing criminal and regulatory offences 38
R. v. CanCoil Thermal 39
Standard of care- vulnerability justification 39
Due Diligence Requirement 39
Charter Standards 39
Reference re: S.94(2) of BC Motor Vehicle Act 40
SL is constitutional min fault requirement for any offence with possible imprisonment 40
R. v. Beauchamp 40
Leading case on careless driving provisions/fault requirement 40
Simpson v. R. 41
S.229- fault requirement for murder (subjective test) 41
R. v. Edelenbos 41
Fault for murder- “likely” to cause death 41
Constructive Murder/Felony Murder 42
Vaillancourt v. R. 42
S.230(d)- Constructive murder/objective foresight of death (s.230(d) of no force) 42
R. v. Martineau 43
S.230(a)- Subjective foresight of death 43
R. v. Smith 2 43
1st degree murder requires both deliberation and planning- impulse murder 43
R. v. Nygaard and Schimmens 44
Planned and deliberate infliction of bodily harm likely to cause death- 1st degree murder
44
R. v. Collins 44
Accused must know professional identity for 1st degree murder of specified victim 44
Subjective Mens Rea 45
R. v. H (A.D.) 45
Authority that SMR is default for criminal offences 45
Fault Ladder 46
Intention or Knowledge 46
R. v. Buzzanga and Durocher 47
Hatred promo; Leading case on definition of intention/knowledge 47
R. v. Theroux 47
Insurance fraud; Deceit and deprivation required for actus reus of fraud 47
R. v. Boulanger 48
Intention case- breach of trust 48
Recklessness and Wilful Blindness 48
Sansregret v. R. 49
Leading decision on rape- distinction between wilful blindness and recklessness 49
R. v. Briscoe 49
Defining WB as deliberate ignorance 49
 CRIMINAL 5
R. v. Lagace 49
If after inquiry suspicion remains and no further inquiry, still WB 49
R. v. Blondin 50
Hashish in scuba tank; SMR for unlawful importing 50
Objective Fault 50
Criminal Negligence 51
R. v. Tutton and Tutton 51
Faith healing; Test for criminal negligence 51
O’Grady v. Sparling 51
Waite v. R. 52
Hayride crash; Test for criminal negligence 52
R. v. Anderson 52
Fatally ran red light; Test for criminal negligence 52
Marked Departure Test 53
R. v. Hundal 53
Modified objective test for unlawful act manslaughter 53
R. v. Creighton 54
Personal factors in marked departure test 54
R. v. Beatty 55
Test for dangerous driving 55
R. v. F.(J.) 56
Authority for S.219 criminal negligence fault requirement 56
Crimes Based on Predicate Offences 56
R. v. Creighton (2) 56
Test for unlawful act manslaughter 56
Aggravated Assault 57
Rape and Sexual Assault 57
Social Issues 57
R. v. Chase 59
Playing with neighbours boobs; Leading case in Canada for definition of simple sexual
assault 59
Consent 59
Defence of Mistaken Belief in Consent 60
R. v. Ewanchuk 61
Job interview; NO defence of implied consent 61
R.v. Cornejo 62
Lifting pelvis; Reasonable steps requirement; belief that silence=consent is no defence 62
R. v. A. (J.) 63
Consent req ability provide active consent throughout every phase of activity 63
R. v. Ladue 65
Mistake as to nature of criminal act 65
R. v. Kundeus 65
Mistake as to nature of criminal act 65
Incapacity 66
U.S. v. Freeman 66
Cooper v. R. 67
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Murdered patient at psych hospital; Leading case on what disease of the mind means 67
Kjeldsen v. R. 67
Psychopathy; Not feeling guilt is not the same as not appreciating consequences 67
R. v. Abbey 68
Not understanding punishment doesn’t mean don’t appreciate consequences 68
R. v. Chaulk 68
Killing a loser; Definition of wrong 68
R. v. Rabey 70
Rock thrower; Leading case on automatism 70
Rabey v. R. 70
R. v. Parks 71
Sleepwalk in law murder; Non-Mental Disorder Automatism 71
R. v. Stone 72
Psychological blow automatism; Leading authority on distinguishing NMDA Defence 72
R. v. Luedecke 73
Sexsomnia; Automatism- interpreting Stone 73
R.v. Bouchard-Lebrun 74
Toxic psychosis arising from a single episode of intoxication not considered MD 74
Defences 75
Intoxication 75
Offences with Specific and General Intent 75
R. v. Daviault 76
Defence of intoxication in sexual assault 76
R. v. Jensen 78
R. v. Daley 79
Terminology for 3 levels of intoxication defences 79
Defences 79
Two Stages of Defences 80
R. v . Cinous 80
Air of reality for defences 80
Defence of Person 80
R. v. Lavallee 82
Battered woman syndrome 82
R. v. Mallot 83
Battered woman syndrome 83
Necessity 83
R. v. Dudley & Stephens 83
Necessity as common law defence 83
Perka v. R. 84
Accidental weed boat; recognizing that there is a defence of necessity in Canada 84
R. v. Latimer 85
Murdered disabled daughter; 85
Duress 85
R. v. Paquette 86
Robbery driver; Limits applicability of s.17 to actual person who commits offence 86
R. v. Hibbert 86
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R. v. Ryan 87
Hit man for husband; duress elements 87
Provocation 87
R. v. Hill 88
Gay panic; Leading authority on “Ordinary Person” in s 232(2) 88

R. v. Henry
Whether a statement in a case is binding- what does case actually decide
• Case is only authority for what it actually decides
• Additional analysis intended for guidance- authoritative, not binding
• Sellers Principle: court said SCC sometimes rules on a point of law even though not strictly necessary in
order to dispose of the appeal

SOURCES OF CRIMINAL LAW

Frey v. Fedoruk
Peeping Tom; concept of fair notice
• Everyone is entitled to notice of what is an offence- Can’t have this if you can create crime after action
• Peeping Tom arrested without warrant- suing Police who detained him for wrongful imprisonment
• Offence was not established

R. v. Dudley and Stephens

Ate friend; No absolute defence of necessity/self preservation
R. v. Dudley and Stephens 14 Q.B.D. 273 (Queen’s Bench Division. 1884)
F • Men cast away on yacht killed; weak man and ate him

I • Did the circumstances under which D&S killed P meet the criteria for lawfully taking the life of
another to save your own life?

C • Sentenced to death for wilful murder by judges (knew they would be commuted)

A • Taking another life is considered murder unless justified by well recognized excuse admitted by
the law
• Temptation does not meet threshold

R • Starvation/self preservation/temptation no excuse for murder- No absolute defence of necessity

N • Concern with principle of necessity having many arguments for atrocious crime going forward if
they allow this ie. floodgates opening
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Rex. v. Sedley
Historically able to punish behaviour as new offence if believed to be wrong
1663
F • Naked in public throwing pee filled bottles- Charged with misdemeanours vs. King’s Peace

I • Can judges convict and punish him for conduct that had not previously been recognized?

C • At the time it was decided (1663) open to judges to simply decide things were offences and
punish people because they felt it should be punished

A • Attempt to argue that crime can be anything that is expected to create violent response -too broad
and would allow judges to punish anything they deem punishable

R • If something not previously declared criminal it should be decided by parliament NOT courts
STATUTORY INTERPRETATION
• Anti-terrorist provisions of CCC- majority judgement summarized approach to stat interpretation
• Words read in entire context and grammar/ordinary sense harmoniously with scheme/object of act and
intention of parliament
• Where two readings equally plausible- interpretation according to charter values should be adopted

R. v. Clark
Masturbate; Statutory interpretation- ordinary meaning & parliament intention
SCC, 2005
C • Clark was charged with public indecency under s.173(1)(a) and indecency committed with the
intention to offend under s.173(1)(b)

F • A masturbating near window, neighbour saw and thought he was watching kids
• Says he did not wilfully commit, in public place, or in presence of people

I • Do you need to have physical access for somewhere to be deemed a public space or is it enough
to be seen through window

C • Acquitted because not found to be a public place

A • Other charge 174 (nudity) distinguishes between public places and places open public view-
made at similar time and obviously organized that way for a reason

R • Statutory interpretation should be understood through common grammar/ordinary meaning

and maintain consistency with parliament intention

N • COA said he was intentionally indecent to draw attn of others-> departed from trial judge finding
of fact when Not shown that trial judge made palpable/overriding error- only time appeal court
can find difference of facts

BILINGUAL INTERPRETATION
• Issue sometimes w/ reading statute in two languages if there discrepancies- both authoritative
Schreiber v. Canada
Bilingual interpretation directions
• Where one statute ambiguous and other is clear, the common meaning of two would be preferred
• Where one of two is broader, common meaning favours the most restricted meaning
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STRICT CONSTRUCTION
R. v. Goulis
Interpret penal provisions in way that is more favourable for accused
• Court often applied rule of stat construction that if penal provision is reasonably capable of two
interpretations than the one that is more favourable to accused must be adopted
• Two- Part Test for Application of Favourable Interpretation to the Accused
• PART 1: Determine the sense in which Parliament used the word using the context from which
the word appears (i.e. how it fits into the statutory provision)
• PART 2: Determine which interpretation is most favourable to the accused and the apply it
R. v. Pare
While committing; Doctrine of strict construction- Sequential crimes can be “single transaction”
R. v. Pare, SCC 1987
C • 231(5): first degree murder while committing offence of domination/sexual assault

F • 17yo lured 7yo under bridge and assaulted him then killed him
• Counsel for R argue that doctrine of strict construction of criminal statutes req that court adopt
interpretation most favourable to accused- “while committing” should mean simultaneously

I • Is this first degree murder because it was “while committing” another elevating offence (single
transaction) or were they separate offences?

C • Allowed appeal and restored conviction of first degree murder

A • All one continuous sequence of events of a “single transaction” (aggravates from 1st -> 2nd)
• Difficulty defining beginning/end of assault- if strangled 2 mins earlier there would be no Q
• Continuity of illegal domination (still touching the boy) links sequence of events

R • While committing does not mean simultaneously, sequential crimes can fall under this definition

R. v. Mac
CC fraud; If no ambiguity in French interpretation, applies over strict construction
2002, SCC
C • Accused charged with being in possession of materials adapted/intended to forge credit cards
I • Interpretation of word adapted in s.369(b)
C • SCC reversed- Held no ambiguity to wording of French version
A • Argued trial judge erred in instructing jury that word adapted meant suitable for vs. altered so as
to be suitable for
• Machines were suitable to make cc’s but had not been altered in any way
• Court held that offence of possession of adapted machines had to be given strict construction of
altered to be suitable for not suitable for
R • Courts may resort to strict construction of penal statutes where ordinary principles of
interpretation do not resolve ambiguity BUT only where there is true ambiguity that cannot be
discerned from words in isolation- need context, or other language statute
N • When unclear if Parliament has chosen to prohibit conduct by making it criminal- commitment to
individual liberty commands the doubt be resolved in favour of maintaining individual liberty
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Reference re: Firearms Act (Canada)
Does Parliament have constitutional authority to enact the law
• Issue regarding constitutional validity
• Fed govt asserts that gun control law falls under its criminal law power and general power to legislate
for peace, order, and good govt
• 2 steps to solve federalism problem:
• 1) Need to determine the pith and substance of the law- meaning or its core of legislation
• Court says you can look at the mischief or problem that the law is trying to solve->
Firearms trade, link between guns and violence, etc.
• 2) Determine which head of power pith and substance falls under
• Conclusion: law comes within Parliamentary jurisdiction over criminal law
• While law has regulatory aspects they are secondary to primary criminal law purpose of public safety

CONSTITUTION
Hunter vs. Southam Inc.
Principles for interpreting Charter- Purposive Approach
• SCC called upon to interpret sec 8 of charter-> guarantees protection vs. unreasonable search/seizure
• Announce purposive approach to interpretation of any charter provision- has been followed ever since
• Once enacted constitution provisions not easily amended/repealed
• Must be capable of growth over time to meet social/political contexts framers did not foresee->
living tree
• Judiciary is the guardian of the Constitution and must bear this in mind when interpreting provisions
ie. broad and purposive perspective

VAGUENESS
Can Foundation for Children v. Canada (Attorney General)
Spanking; Vagueness of S.43 of CCC
2004, SCC
C • Sec 43 CCC- every teacher, parent, person in place of parent justified in using force by way of
correction tw child under care if force does not exceed what is reasonable under circumstances

I • Whether law delineates (sets limits) a risk zone for criminal sanction

C • Sec 43 is NOT too vague- exempts minor corrective force of trifling nature aside from under 2 and
teens/no degrading conduct/use of objects/blows or slaps to head

A • Law is unconstitutionally vague if does not provide adequate basis for legal debate and analysis,
does not sufficiently delineate an area of risk, or is not intelligible
• Fair Notice: Vague law prevents citizen from realizing entering area of risk for sanction
• Too much discretion for law enforcement- should be governed by rule of law not rule of persons
• Purpose of s. 43 to delineate sphere of non-criminal conduct within larger realm of common assault
• Person applying force must have intended corrective purposes ie. can't include outbursts of
violence vs. Child -> only sober, reasoned uses of force
• Child must be capable of benefiting from correction
• Dissent:
• Lack of clarity problematic bc rights of children are engaged- vulnerable group
• Changes required are basically entirely new provision
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Bedford v. Canada
Prostitution; CCC violating s.7 principles

• Argued provisions violated s.7 bc put safety at risk and prevented from implementing safety measures
• Court declared unconstitutional- Dont just impose conditions but create dangerous ones
• s.210- keeping bawdy house
• Goal to prevent nuisance related community harms and safeguard public health and safety
• Effects on s.7 rights- impact on security of the person, endanger sex workers by preventing them
from safety precaution of fixed indoor location
• Endangerment is out of sync from avoiding unimportant nuisance related objective therefore law
is grossly disproportionate
• s.212- living on avails
• Objective to target Pimps and exploitative conduct- impacts on security of person
• In wide applications prevent relationships that aid safety ex. Bodyguard- law is overbroad
• s.213- communicating for purpose of prostitution
• Objective of law is to prevent street prostitution nuisances and related crimes ex. Drug trafficking
• Effects on security of the person- displaced sex workers to less public and less safe locations and
prevented proper screening of clients
• Found to be grossly disproportionate
• New Legislation- Protection of Communities and Exploited Persons Act
• Asymmetrical criminalization- Illegal to be a client of a sex worker but not illegal to sell
• Govt view is purely related to exploitation
• Only criminalizes communication to protect children ie. only disallowed by parks/schools etc.
• Criminalizing johns pushes it underground and makes women less safe
• Same effects on security if the person
PROCEDURAL CLASSIFICATION OF OFFENCES

• Contraventions Offences: regulatory offence

• Summary Conviction:
• Max penalty $5000 or 6 months or both
• Parliament could implement max penalty up to 5yrs less a day w/o violating s.11 right to jury
 CRIMINAL 12
• Normally dont need to appear in court- may choose to have lawyer/agent appear unless judge
orders appearance
• Indictable Offences:
• Offence section usually sets out punishment applicable or s. 743 of Code provides max 5 years

PRESUMPTION OF INNOCENCE AND BURDEN OF PROOF

• S. 11(d) of the charter
• Any person charged with an offence has the right to be presumed innocent until proven guilty according
to law in a fair and public hearing by an indep and impartial tribunal

Woolmington v. D.P.P
Shot wife; Onus on C to prove guilt; with murder prove BRD killing AND intent
1935, House of Lords
C s.222 first degree murder
F • A shot wife by accident during fight
• Circumstantial evidence of bad intention- Sawed off barrels of shotgun to conceal it and confessed

I • Does the accused have to prove that it was an accident?

C • Crown has to prove all the elements of criminal offence

A • Prima facie presumption of law that act of person causing death is murder unless contrary appears
(onus on accused to prove)
• Crown must prove killing was intentional and that accused cause the death (act element)
• Presumption of innocence- All elements have to be proven beyond reasonable doubt

R • Need to prove voluntary action and malice in murder cases- intentional and unprovoked

R. v. Oakes
Trafficking assumption; Proportionality test
• Narcotics Act s.8 (possession) assumes possession for the purpose of trafficking and reverses the the
onus onto the accused to prove they were not- Infringes on presumption of innocence
• s.1 limitation-> saving something that has breached s.7 under s.1
• Oakes Test
• To establish that a limit is reasonable and demonstrably justified in a free and democratic society, two
central criteria must be satisfied (in Charter chart p. 10)
• Objective to curb drug trafficking- no rational connection thus law is inappropriate
• Exception to Oakes- When the law found to violate charter is not a statute but a common law rule
• Something that violates s.7 can technically be saved under s.1
• S.1 is about justification of overarching public goal- Effectiveness is not the issue
• Look at # of people affected
• S.7: is about comparing law’s purpose taken at face value to negative effects
• No quantitative analysis- 1 person is enough
• Government bears burden of showing violation under s.1
• Claimant has burden to show infringement under s.7
• Court has NEVER saved s.7 violation under s.1
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R. v. Lifchus
Fraud; Guidance for providing jury necessary instructions as to meaning of BRD
SCC, 1997
C • Accused charged with fraud
F • Trial judge told jury in charge of burden of proof BRD- ordinary every day meaning
• On appeal- contended that trial judge erred in instructing meaning
• COA allowed appeal and ordered new trial
I • Did trial judge err in instructing meaning of BRD?
C • SCC dismissed Crown appeal0 words have special meaning in legal context
A • Trial judge said BRD are common words with specific meaning in legal context
• May mislead what standard of proof is
R • Explanation of meaning of BRD is essential when instructing juries
N • Instructions should include:
• Intertwined with presumption of innocence
• Burden of proof rests on prosecution and never shifts to accused
• Reasonable doubt is not a doubt based on sympathy/prejudice but reason/common sense
• Logically connected to evidence or absence of evidence
• Does not involve proof to an absolute certainty- not proof beyond ANY doubt
• More is required than proof that accused is probably guilty
• Cannot be described as ordinary expression with no special meaning
• Dont invite jurors to apply same to own important life decisions
• Dont equate proof BRD to moral certainty
• Dont qualify word doubt with adjectives other than reasonable ex. Serious
• Dont instruct jurors that the may convict if they are sure the accused is guilty

R. v. Starr
Jury instruction; Situates BRD on spectrum between two extremes
• SCC, 2000
• Add to jury instruction situation of the proof requirement comparing to civil standards
• Accused convicted of 2 counts of first degree murder
• Majority decided BRD instruction had same issues as Lifchus and likely misled jury
• Allowed appeal and advised
• Trial judge did refer to crown onus and presumption of innocence
• Error that they were not instructed as to how BRD is to be defined
• MUST be informed that in a criminal trail the standard of proof is higher than in everyday
decisions
• Not an easily quantified standard
• Explain it falls closer to absolute certainty than balance of probabilities
• SCC decision R. v. W. (D.) that guides judges how to explain BRD
• Helps to situate on spectrum bw two extremes
• 0——50%(over this is balance of prob in civil)— — absolute certainty
• BRD is closer to certainty
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CREDIBILITY CONTESTS
R. v. S. (J.H.)
Stepfather molester; Credibility contest error instructions
SCC, 2008
F • Stepfather charged with sexual assault starting at young age
• Daughter complained to mother- did not believe her and finally went to police at age 15
• Stepfather said she was making it up bc he wanted to send her to catholic school to control her
• Complainant and accused were principle witnesses

I • Did trial judge err in instructing jury about the W.D. principles?

C • Appeal allowed and conviction restored

A • Just thinking accused is lying not enough to convict accused

• Trial judge charged jury on credibility of witnesses instructing to consider all evidence and trial
not choice bw two competing stories
• Defence raised no objection to this
• Jury returned guilty verdict
• NS COA ordered new trial- Trial judge had insufficiently explained BRD as it applies to credibility
• Failed to express that disbelief in the accused testimony does not amount to proof BRD
• Judge must explain relationship bw assessment of credibility and crown’s burden to prove guilt
• SCC disagreed- trial judge did in fact communicate WD rules

R • Trial judges free to reject W.D as long as they make sure jury is warned of crown burden, that it is
not a choice bw competing stories, and that they may believe some, all, or none of any witness
• WD guidelines not a script to follow

N • WD instruction:
• 1. If you believe evidence of the accused, you must acquit.
• 2. If you do not believe the testimony of the accused but you are left in reasonable doubt by
it, you must acquit
• 3. 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

VICTIM RIGHTS
• Do not have formal part in the process
• Bill C-32: Victim’s Bill of Rights Act
• Outlines various rights ex. info, victim services, status updates, security considerations, victim
impact statement etc.
• Room for concern- a criminal trial is about determining guilt and just punishment, not about personal
redress for victims

HARM PRINCIPLE
• State is only justified in criminalizing conduct that causes harm to others- limiting principle
• Try to establish boundaries for the permissible intrusion of the state into private life
• Only purpose for which power can be asserted for another member against will is to prevent harm to
others
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• Exception to harm to others for vulnerable groups- those who need to be taken care of by others must be
protected against their own actions and external injury
• Rejects paternalism and notion of moral harm

R. v. Malmo-Levine
Harm principle application/POFJ Test
• SCC, 2003
• Marijuana possession carries sentence of fine of $1000 or imprisonment- does this violate principles of
fundamental justice under s.7?
• Claimed harm principle is not a principle of fundamental justice
• Incest, offences against animals that don’t conform to harm principle
• SCC laid out exact test for deciding whether rule of CJS qualifies as principle of fundamental justice
• Court held:
• Must be a legal principle
• Must be significant societal consensus that it is fundamental to how legal system ought to
operate
• Must be identified with sufficient legal precision to yield manageable standard
• Government tried to argue that marijuana is harmful to others
• SCC wants to give room for government to make policy

CHRONOLOGY OF CRIMINAL PROSECUTION

• 1. Charge
• 2. Classify the offence
• Indictment, summary, hybrid (crown election)
• 3. Preliminary Hearing
• Trial if crown shows prima facie case with evidence that if believed could lead to conviction
• Discovery function- defence lawyer cross examine crown witnesses to get more details
• 4. Arraignment
• Accused appears in court and charges are read
• 5. Plea Bargaining
• 6. Jury Selection
• Most cases are not- if so 12 jurors
• Crown and defence can challenge (and keep off jury) potential jurors who might be biased
• 7. Trial
• 8. Evidence and Proof
• C has burden of proof of guilt beyond reasonable doubt- Evidence may be direct or
circumstantial
• 9. Verdict
• Jury verdict must be unanimous
• 10. Sentencing
• Fine, Period of imprisonment, Suspended sentence, Conditional sentence , Absolute
discharge, Conditional discharge
• 11. Appeal
• Either side can appeal to COA
 CRIMINAL 16
Appeal from Appeal by Dispositions available

Sentence Either side (with leave/permission) Dismiss- upohold sentence

Allow- adjust sentence

Convictions Defence Dismiss- uphold conviction

Allow- order new trial
Allow-enter acquittal
Acquittal Crown Dismiss- uphold acquittal
Allow- order new trial
Allow- enter conviction (except jury cases)

• Normally only with errors in law- Instructions by the judge to jury or legal ruling during trial
• Appeals by SCC
• Appeals by leave/permission of court:- with national importance
• Appeals as of right: when a COA substitutes a conviction for an acquittal
• Either side can appeal by right if there was a dissent in its favour on a point of law at COA

THE ADVERSARY SYSTEM

Party Control (driving feature) Passive Judge Highly formalized rules

Parties investigate, collect Judges as umpire= keeps party Complex, technical rules govern
evidence to rules, impartially

Parties present evidence- Improper for judge to be too Evidence rules

choose, q witnesses active, talk too much

Crown brings charges Judge rarely qs witnesses Procedural rules

Accused can make admissions, Judge “above the fray” Its a contest- parties must play by
plead guilty rules
 CRIMINAL 17
REASONABLE APPREHENSION OF BIAS

R. v. RDS
Race issue; Make decisions on evidence not generalizations/RAOB
SCC, 1997
F • Black 15yo arrested for interfering with arrest of other youth (Officer and accused only witnesses)
• Trial judge decided accused should be acquitted saying high chance officer overreacted to POC
• Crown appeal based on biased comments in reasoning and new trial ordered- upheld by NS COA
I • Did judge Sparks show a reasonable apprehension of bias?
C • SCC allowed accused’s appeal and restored acquittals
A • Test: would reasonable person, informed and aware of all circumstances, conclude that her
comments gave rise to a reasonable apprehension of bias?
• Dont have to show actual bias- simply reasonable apprehension
• Crown said issue with trial judge was inability to respond to remarks
• Police officers don’t get some credibility bonus
• Judges cant divorce selves from life experiences
R • Must make decisions based on facts in evidence not biased generalizations however the burden
of proof for a judge to be found to have acted with reasonable apprehension of bias is high
N • Dissent- life experience is not a substitute for evidence
• Criticize stereotyping people based on predictable behaviour patterns
• Open to take into account the presence of racism and evaluate evidence against that background

Judge Cory (2) Major (3) L’Heureux-Dube (2) Gonthier (2)

Reasons Remarks worrisome Remarks Remarks Remarks

and close to like but unacceptable appropriate appropriarte
contextualized
judging
Result No RAOB RAOB No RAOB No RAOB

ELEMENTS OF OFFENCES
External Elements Fault Elements

Act element Mental element, Mens rea, guilty mind

-Actus reas, guilty act -Knowledge of what you are doing ex. possession of
marijuana you have to know what it is
-Guilty of murder if you intend someone to die

Circumstance elements ex. trespassing at night OR

Consequence elements ex. Shoot enemy in Negligence

head- if they don’t die cannot be guilty of -Ordinary person would have avoided this
murder bc person dying is CE
 CRIMINAL 18
THE ACT REQUIREMENT
• Actus Reus: crown must prove external act that accused has to do to be guilty of offence
• Circumstance element ex. Trespassing at night (has to be at night)
• Consequence element- Victim death is consequence element of murder (person has to die to be
convicted of murder)

BODILY HARM
• s.2 defines “Bodily Harm” 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
• Generally serious bruises or abrasions (Dixon) is least serious

CONSENT
R. v Jobidon
Fist fight; Leading case on consent- cannot consent to serious bodily harm
SCC, 1991
C • s.222 (5) culpable homicide
• Charged with manslaughter

F • Bar fight both parties consented to fair fist fight with the intention of physical injury
• Accused struck victim unconscious and then struck 4-6 more times- victim later died
• Trial judge acquitted bc consent-> no assault within s.265 and thus no unlawful act
• Crown appeal to COA- allowed with conviction of manslaughter

I • Are there common law limits on the kinds of assault of which consent can operate as a defence?
Was consent valid in eyes of the law or vitiated?

C • SCC dismissed appeal (upheld manslaughter charge)

A • TJ found accused did not intend to kill or cause serious bodily harm/did not exceed the consent
and fatal blows were struck under reasonable (yet mistaken) apprehension that victim was
capable of returning to fight
• Consent in assault should be construed subject to common law limits under which consent to
fight in private or public is not a defence to charge of assault when actual bodily harm is intended
and/or caused
• Parliament has provided that no person is entitled to consent to have death inflicted (s.14)
• Test: bc not in public interest to cause each other bodily harm consent is no answer to charge of
assault when actual bodily harm is intended and caused

R • Limitation- vitiates consent bw adult intentionally applying force causing serious hurt or non
trivial bodily harm to each other in course of fight or brawl
• Limitation only applies to where serious hurt or non trivial bodily harm is intended AND caused

N • Policy consideration re; social usefulness of fist fights- desire deterrence

• Assault defn says nothing about degree of harm- must look at parliament intention
• It would be nearly impossible for Parliament to create list of exceptions for all policy-based
limitation situations
• Minority view- creating offence that doesn’t exist in statute
 CRIMINAL 19
R. v. Moquin
Spousal abuse; Bodily harm is injury that interferes in grave or substantial way
SCC, 2010
C • s. 267(b) assault
F • Abusive relationship
• Accused pulled the complainant’s hair out, grabbed the complainant by the throat hard hard to
breathe/swallow, squeezed the complainant’s hand so hard so as to bruising, soreness, inability
to bend it for a week; and committed an assault leaving bruised arms and a sore throat
I • What constitutes “bodily harm”?
C • The trial judge held that these physical injuries did not amount to “bodily harm” as required by s.
267(b), and accordingly convicted the accused of common “assault”
A • Under s. 2 of the Criminal Code, bodily harm means any hurt or injury that interferes with the
health or comfort of the person and that is more than merely transient and trifling in nature
• Enough for interference of comfort
R • “Serious bodily harm” is any hurt or injury that interferes in a grave or substantial way with the
physical integrity or well being of the complainant

VITIATED CONSENT
• Lack of consent is a circumstance element
• Lack of consent often referred to as a defence
• Where consent of complainant operates in law to acquit it is better seen as a denial that Crown has
proven an unlawful act
• In assault cases “Force”= touching
• Lack of consent is element of offence that Crown needs to prove in all assault cases
• If consent is vitiated, then the consent will be invalid in eyes of the law
• Law changed in 1983- s.265 (3)
• No consent obtained where complainant submits or does not resist by reason of
• Force
• Threats or fear of force
• Fraud
• Authority
 CRIMINAL 20
R. v. Cuerrier
HIV; Fraud vitiates consent when it poses significant risk of serious bodily harm
SCC, 1998
C • s.268 aggravated assault and s. 265(3)(c) consent
F • Defendant had sex with 2 women without telling them HIV positive (which was known to him)
• Both women said they would not have had sex with him had they
• Trial judge acquitted, COA upheld
I • Did the accused’s failure to disclose his HIV status constitute fraud sufficient to vitiate consent to
sexual relations under s. 265(3)(c)?
C • SCC found guilty
A • Due to deadly consequences of HIV (great risk of deprivation) a broad view of fraud should be
adopted to include failing to disclose
• Worried about criminalizing trivial situations
• Deception of sexual character of act, id of perp or presence of STD giving rise to risk of infecting
complainant would catch conduct without invoking silliness like lying about job
R • In order for fraud to vitiate consent in the context of a sexual assault:
• (1) There must be a dishonest/deceptive act related to the obtaining of consent
• (2) The dishonest act must result in deprivation- may consist of actual harm OR risk of harm
• (3) The harm in question must be serious, and the risk substantial
N • Parliament intended to move away from the rigidity of the common law requirement that fraud
must relate only to the nature and quality of the act with s. 265(3)(c)
• LHD (1/7) FVC where deceit deprived the C of ability to exercise will in relation to physical
integrity with respect to activity in Q
• McLachlin (2/7) FVC in cases of deception to presence of STD/probability of infecting
• Cuerrier test can be applied broadly to all sexually transmitted infections
 CRIMINAL 21
R. v. Mabior
Sexual consent is vitiated when there is a realistic possibility of transmission of HIV
SCC, 2012
C • s.273 aggravated sexual assault
F • HIV positive but received treatment that lowered viral load level
• Did not reveal to 9 complainants- said they would not have consented if knew about HIV
• Trial judge convicted of 6 counts but acquitted with respect to those where he used a condom
• COA allowed appeal in part- either low viral load or condom would negate serious risk- left two
counts where load was not yet reduced and no condom
• Crown appealed 4 acquittals to SCC
I • Did accused owe duty to disclose of HIV positive status?
C • Appellate decision overturned for 3 of the 4 counts
• Acquitted on occasions where he had low viral load and used a condom
A • Revisited Cuerrier test re; dishonest act and deprivation- “realistic possibility that HIV will be
transmitted.”
• Although he had a low viral load when he had intercourse with three sexual partners, he did not
use a condom-> meets the test for “a realistic possibility of transmission of HIV”
R • Person may be found guilty of aggravated sexual assault under s.273 of CC if he fails to disclose
HIV positive status before intercourse and there is a realistic possibility of transmission
• There is not a realistic possibility of transmission where there is a low viral load and condom
N • Test specific to HIV cases
• Policy issue: stigmatizing HIV persons

R. v. Hutchinson
Condom holes; Sexual assault- consent vitiated by fraud
SCC, 2014
C • Aggravated sexual assault
F • Agreed to sexual activity with accused insisting that he use condom
• Accused poked holes in condoms and impregnated her- she had health complications related to
abortion
I • How can they reject claim of consent? Did she never consent or was consent vitiated?
C • Consented to sex but consent vitiated by fraud
A • Her consent was based on whether risk of pregnancy was mitigated
• All judges agree that he is guilty of sexual assault, there was no effective consent
• Minority view: No consent to be vitiated
• Majority view: Consented to sex, but consent vitiated by fraud
• Dishonesty because he sabotaged condom
• Depriving women of choice to get pregnant is equally serious deprivation to serious bodily harm
R • In order to establish fraud deprivation needs to be equivalent to seriousness of bodily harm
 CRIMINAL 22
OMISSIONS
Fagan v. Commissioner of Metropolitan Police
Driving on officer foot; Mens rea can be superimposed on an existing act
SCC, 1968
C • Assaulting a constable in execution of his duties
F • Police officer approached Fagan and told him to move his car
• Fagan backed his car up accidentally rolling it onto the foot of the officer
• When the officer yelled to move his car, he refused as an act of defiance
• Fagan appealed on the grounds that there can be no offence in omitting to act and that the act of
driving onto the constable's foot was done completely by accident so there was no mens rea
I • Do the facts at hand amount to assault?
C • Conviction upheld; Simultaneity existed and therefore assault
A • Divisional court agreed that assault cannot be committed by an omission
• In this case- the crime was not an omission to move the car; rather a continual act of battery
• In deciding not to cease this continuous act, formed an intent/mens rea for common assault
• Since both mens rea and actus reus were present, an assault had been committed
R • Both act and fault have to occur at the same time to make up assault
• If mens rea is formed during actus reus and act continues; it constitutes assault
• Mens rea can be superimposed on an existing act

DUTIES TO ACT
• 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
• In addition, duties to act may be found in the common law
• Common nuisance in sec. 180(2)- fails to discharge duty offence is defined in way that you can
do it by failing to do duty but duties not listed so must go elsewhere to find ex. CC, statute,
common law
 CRIMINAL 23
R. v. Miller
Cigarette started fire; Duty to act if your act started chain of events
SCC, 1983
C • Charged with arson contrary to s.1(1) and (3) of Criminal Damage Act
F • Miller was drinking, lit a cigarette and fell asleep
• Upon waking and seeing that the mattress he was lying on was on fire he got up, went into the
next room and went back to sleep and house caught fire
I • Is the actus reus of the offence of arson present when a defendant accidentally starts a fire and
thereafter, intending to destroy or damage property belonging to another or being reckless as to
whether any such property would be destroyed or damaged, fails to take any steps to extinguish
the fire or prevent damage to such property by that fire?
C • Appeal dismissed, conviction upheld
A • Actus reas can be deemed to have occurred bcMiller created a situation that would result in harm
if he recklessly failed to prevent the harm
• Created the liability himself - would make no sense to excuse him of criminal liability
R • Omission = actus reus if person creates a situation where harm to a person/property will occur
and intentionally/recklessly fails prevent harm
N • Legal duty arising from common law

Moore v. R.
Legal duties sometimes create reciprocal duties
SCC, 1979
C • s. 129: obstruct police/resisting arrest
F • Police officer saw Moore ran red light; Moore refused to give name/address
I • Does a failure to identify yourself to a peace officer constitute an offence?
C • SCC dismissed appeal- guilty of obstructing police officer
A • The defendant had an obligation to identify himself to a peace officer after he was seen
committing an offence
• The officer was required to ascertain the defendant’s identity in order to charge him
• By failing to stop for the officer he was obstructing the officer in the performance of his duties
R • There is a duty to identify yourself to a peace officer after being seen committing an offence
• Duty of police to investigate leads to implied or reciprocal duty
N • Dissent: (Dufraimont agrees)
• Omission to act in a particular way will give rise to criminal liability only where a duty to act
arises at common law or is imposed by statute
• There is no statutory/common law duty to speak to police- must assume legislation purposely
left out bikes from MVA
 CRIMINAL 24
R. v. Thornton
Donated blood with HIV; Duty to exercise reasonable care for medical procedures
ONCA, 1991
C • s.180 of CCC providing that everyone commits common nuisance who does unlawful act or fails
to discharge legal duty and endangers lives/safety of others
• s.216 bc involved in medical procedure
F • Thornton, knew he had tested positive twice for HIV and donated blood to the Canadian Red
Cross (CRC) without disclosing this to them
• Appealed to COA who found duty to refrain from causing harm to others in tort at common law
I • Is there a legal duty for an individual to disclose they are HIV-positive when donating blood?
C • Appeal dismissed
A • s.216 imposed duty of care in giving blood to the Red Cross- breached by not disclosing HIV
R • An individual cannot be found guilty of a crime for violating a common law duty as laid out in s.
9 of CCC-> an individual must violate a duty imposed by statute
N • Thornton v. R.
• SCC avoided issue of principle of whether criminal omission can be based on common law duty
in apparent violation of s.9 of CC
• SCC classified the donation of blood as a medical treatment, which puts Thornton under a legal
duty to exercise reasonable care under s.216 which was breached by not disclosing HIV thereby
endangering life of public

R. v. Browne
Crackhead friends; Legal undertaking req commitment/reliance for legal duty
ONCA, 1997
C • S. 217: everyone who undertakes to do an act is under a legal obligation to do it if the omission to
do the act would be dangerous to life
• S.219: Criminal negligence causing the death of another
F • Browne did not take other drug dealer to hospital after swallowed a bag of crack to avoid police
• Instead he waited until her symptoms got worrisome, at which point he called a taxi (not 911)
• The trial judge held that Browne undertook to take care of her after he knew she had ingested
crack and thus had an obligation to take her directly to the hospital
I • Whether the trial judge erred in holding that the appellant caused the victim’s death by breaching
his legal duty arising from an undertaking within the meaning of s. 217 of the CC
C • Allowed appeal and set aside conviction
A • Under s. 217, there must be an ‘undertaking’ before a legal duty can be found
• The words « I’ll take you to the hospital » hardly constitute an undertaking
• Not the same level of proof required to show a breach of civil standards of care
• Weighed against seriousness of consequences- life in prison
R • An undertaking cannot be implied; it must be clearly made, with binding intent, most likely
with someone relying on it in order for legal duty to exist
 CRIMINAL 25
R. v. Peterson
Arnold; Broad interpretation of duty to provide necessaries of life
ONCA, 2005
C • s.215(1)(c): failure to provide necessaries of life to someone under charge and endangering life
F • Arnold (84) under care of Peterson with horrible living conditions
• Arnold apprehended under mental health act as officer believed unable to care for himself
• Found to be in early stages of Alzheimer's
• Sentenced to 6mos prison, 2mos probation and 100hrs community service
• A submits that evidence does not support BRD: that sentence was excessive, and that judge did
not explain basis of conclusion that Arnold was in his charge
I • Whether Arnold under charge of Peterson and whether, when parent under charge of child,
situation falls under requirement to provide necessaries of life pursuant to s.215
C • Appeal dismissed
A • Dennis had power of attorney for Arnold’s care and publicly acknowledged caring for Arnold
• Number of indicators: family relationship, controlled Arnold’s living conditions, chose not to
make decisions to help with necessities of life, and Arnold incapable of withdrawing himself
• Marked departure from expected conduct
R • Being under the charge of another requires an exercise of element of control by one and a
dependency on the part of another
N • Dissent: legislation req to deal with parent child role reversal
• Policy issue of stereotypes of elderly and infantilizing them

VOLUNTARINESS
• It’s about control over the action, and a willingness to do the act
• Absolute Liability: no fault element
• To convict- Crown has to prove act element
• Bc voluntariness is part of act element- req for even absolute liability offences

R. v. Lucki
POFJ that people will only be liable for acts that are voluntary
• 1955, Sask
• Accused operated a car 10-15mph, skidded and collided with another car- involuntarily bc of conditions
• Charged with inconveniencing other drivers
• Not guilty
• Said it was under fault req- actually under act
• No problem with conclusion but should have been made on act element (sliding on black ice)

R. v. Wolfe
Telephone hit; Crown has to prove voluntary act; reflex actions involuntary
• 1975, ONCA
• Complainant came inside hotel when not allowed to
• Wolfe hits complainant with telephone receiver- charged with assault causing bodily harm
• Trial judge found action to be reflex action, but still guilty
• Court of Appeal: reflex actions involuntary
• Appeal allowed; crown has to prove voluntary act
 CRIMINAL 26
R. v. Swaby
Unaware of gun; Voluntary conduct necessary for liability even if not expressly stated by provision
• 2001, ONCA
• Following tip police follow accused car w/ passenger “J” and found loaded, unregistered gun
• Accused convicted s.91 (3) of CCC- occupant of vehicle with restricted weapon
• To establish guilt there are 2 essential elements- occupancy and knowledge
• Said gun was J’s and learned of it after arrest
• Need something amounting to voluntary conduct despite section not making explicit reference- must be
interpreted to exclude possibility for conviction for involuntary act
• Acquire knowledge of illegal weapon while travelling in moving vehicle- liability cannot instantly
attach
• Act and fault elements have to occur simultaneously
• Assuming he didnt know when he started driving car- statute looks like he becomes guilty the second
he finds out about gun -> no choice involved

R. v. Ryan
Book robbery; Probable and foreseeable (but accidental) consequences of actions are voluntary
• 1967 Aus
• Accused read novel where hero robbed a service station- Accused decided to copy this
• Threatened attendant with rifle, after getting money told him to put hands behind his back and
accidentally shot during sudden movement
• Jury dismissed defence of accident and convicted him of murder- life in prison
• Appeal- argued jury should have been instructed re; involuntariness
• Firing was reflex response to sudden movement by victim and was unwilled action
• High court rejected- Reflex muscular reaction not the unpredictable reaction of a man who was startled
• Not enough to deny criminal responsibility- foreseeable consequence of holding loaded gun to man’s head
 CRIMINAL 27
Kilbride v. Lake
Registration; Cannot be criminally responsible for act/omission unless choice
NZLR, 1962
C • Traffic Regulations Act for operating motor vehicle without “warrant of fitness” displayed
F • Proved he did have warrant of fitness, and it was displayed- somehow removed when he left car
• However, the offence simply states that you must display the warrant at all times, and when the
officer gave the ticket the warrant was not displayed

I • Can something done perfectly innocently become an offence by reason of an intervening cause
beyond his control, and which produced an effect outside of his knowledge?
C • Appeal allowed, conviction quashed
A • Defendant must be shown to be responsible for the physical ingredient of the crime to be
convicted- until this is proven, the question of MR is irrelevant
• Here, the prohibited event is permitting a vehicle to be on the road accompanied by an omission
to display a warrant- must occur simultaneously
• It was the extraneous cause that resulted in the conditions for conviction becoming present, and
the defendant did not voluntarily bring this about
R • Disregarding any mental elements of an offence, a person cannot be criminally responsible for an
act or omission unless it was AR done or omitted in circumstances where there was some other
course open to him/in a position to choose

CAUSATION
• Some offences have higher max penalties for graver consequences ex. Dangerous operation of vehicle
increases to 10 years if it causes bodily harm and 14 if death
• Factual Causation: was criminal act physical/mechanical cause of death
• Legal Causation: was act close enough to consequence to assign legal responsibility
• Both are required to prove causation
• Are they morally responsible for death? Were the persons’ actions closely enough related to be
attributed as a cause of death?
 CRIMINAL 28
Smithers v. R.
Hockey; Prior causation test- prove that illegal act contributing cause o/s de minimis range

C • Manslaughter
F • Smithers racially insulted him during hockey game
• After game punched Cobby twice in the head, Cobby doubled over, kicked him in the stomach
• Within five minutes appeared to stop breathing
• Cobby was dead on arrival at the hospital and the cause of death was determined to be
"spontaneous aspiration from vomit" during an autopsy – choking on his own vomit
• Cobby's epiglottis malfunctioned, and this led to his death
• Trial conviction was upheld on appeal
I • Was the kick a sufficient cause of the death to attract criminal liability?
C • Appeal dismissed, conviction upheld
A • Dickson- kick had to be an "operating clause outside of the de minimis (non trivial) range" in order
for it to be deemed the cause of death
• Crown had to prove that the kick caused the vomiting, and that the vomiting caused the death
• Thin skull rule applies in criminal law- thus kick led to the victim's reaction that resulted in death
• The fact that malfunctioning epiglottis was cause of death does not matter- illegal act just has to
be contributing cause
• This is a lower standard than the Smith test, which is what the defence wanted to be used
• Take victim as you find them- frailty no excuse

R • An action only has to be an operating cause outside of the de minimis range in order to be

deemed the cause of a prohibited result in criminal law; a lower threshold of causation than was
required in the Smith test
N • Principle applies beyond homicide- ex. Bodily harm assault
• **NOT USING THIS TEST ANYMORE
 CRIMINAL 29
R. v. Harbottle
Team sexual assault; Substantial Cause Test for s.231(5)
SCC, 1993
C • s.231(5) first degree murder murder while committing underlying offence forcible confinement
F • Accused and co-accused brutally sexually assault victim
• Accused strangles victim while co-accused holds victims legs
• Co-accused appeals to SCC
I • Can co-accused be found guilty of 1st degree murder without physically committing the murder?
C • Guilty- Co-accused’s appeal dismissed
A • In this case - the accused played a VERY physical role by holding down her legs- BUT FOR his
actions, she may have been able to escape
• Substantial Cause Test:
• 1. Accused was guilty of the underlying crime of domination/attempting to commit that crime
• 2. Accused was guilty of the murder of the victim
• 3. Accused participated in the murder in such a manner that he was a substantial and integral
cause of the death of the victim
• 4. No intervening act of another which resulted in the accused no longer being substantially
connected to the death of the victim; and
• 5. Crimes of domination and murder were part of the same transaction
• Requires that the accused play a very active role – usually a physical role – in the killing
R • Legislation can require more that the de minimus causation test (Smithers)
• Liability for those who did not physically kill but were still a substantial and integral cause
• Standard of causation for CC 231(5) is the Substantial Cause Test
N • The consequences of a conviction of 1st degree murder and the wording of the s. 229 are such
that a test of causation must be strict
• s. 231 (5) is aggravated form of murder not own substantive offence
• SCT applies to ONLY 1st degree murder that falls under 231 (5) ie. very narrow application
 CRIMINAL 30
R. v. Nette
Robbed widow; Leading cause test- act must be significant contributing cause of death
SCC, 2001
C • s.231(5) first degree murder
• s.231(7) second degree murder
F • 95 year-old widow robbed and left hog tied in her room with ligature around her neck
• Suffocated to death within 48 hrs
• Undercover investigation- Nette admitted to robbing and killing her
• Convicted at the lower court using the Smithers test (defence said was too low of a threshold)
• BC COA upheld
I • What is the threshold test of causation that must be met before an accused can be legally
responsible for causing a victims death in a charge of 1st degree murder?
C • Appeal upheld- Guilty of 2nd degree murder
A • Arbour (majority) states that the Smithers test applies for all forms of homicide and the
additional test used in R v Harbottle applies only in the case of first degree murder
• Smithers test should be based on “significant”cause as opposed to“beyond de minimis”
• Significant Contributing Cause Test: Illegal act must be established to be significant
contributing cause of death
• Still low threshold test – supposed to be the same test as in Smithers, just changing the wording
• Jury instruction: held that it is better to state the test positively as a "significant" cause rather than
negatively and that this is really the same concept as de minimus (which they take to mean a cause
that is "not insignificant”)
• Test still met by the appellant's actions and jury would have decided same thing with new charge
• L’Heureux-Dubé: has a serious problem with the changing of the phrasing in the jury instruction
from "not insignificant" to “significant"
• They say that this new test creates a much higher threshold of causation than Smithers test, and
that more than semantic difference bw "significant", "not insignificant", or "more than trivial”

R • When addressing a jury, the standard of causation for second-degree murder should be positively
stated in that the actions of the accused must have been a "significant contributing cause" of death
• However, the Smithers causation standard still applies to all forms of homicide
N • Proper standard of causation expresses element of fault that is in law sufficient in addition to req
mental element to base criminal responsibility
• Significant contributing cause test needs to be applied in every case of homicide even under
231(5) where Harbottle applies bc in every case of murder first question is if guilty of murder
then we move on to what kind
 CRIMINAL 31
R. v. Talbot
Restaurant altercation; Supports Nette as sole test
ONCA, 2007
F • Altercation outside a restaurant; one of them died
I • Whether the initial blow or the subsequent kick caused the death
A • “But for” inquiry answers factual causation ie. would not have died when/how they did but for
act of accused
• Legal requires normative inquiry- asks who among those who factually caused death would be
held liable (which could incl exacerbating fatal condition)
• Crown went no further than suggesting some unquantifiable possibility that kick exacerbated
head injury
R • In a causation question, apply the Significant Contributing Cause Test (Nette) – this
encompasses both the legal and factual aspects of causation
N • Helps to clear up ambiguity left from Harbottle and Nette

REVIEW OF CAUSATION TESTS

• Smithers v. R. (1978)
• Contributing cause of death o/s de minimis range (trivial)
• Rewording in R. v. Nette (2001)
• Significant contributing cause- applies in all homicide cases and more generally as the test for
causation in criminal law
• R. v. Harbottle (1993)
• Substantial cause- test for causation in first degree murder under s. 231(5) of CCC
• Own separate test relating only to causation in 1st degree murder context in this section alone
• Does not even apply in all 1st degree murder cases
• Even if this charge and subsection in play- still need to apply significant contributing cause test
in order to first establish if it is murder
 CRIMINAL 32
CASES OF INTERVENING CAUSE
• Accused’s act needs to be connected to prohibited consequence
• Intervening causes can break the chain of causation bw original criminal act and consequence

CAUSATION IN HOMICIDE
• Some situations where CCC explicitly upholds chain of causation:
• Homicide 222(5)
• By causing that human being by threats or fear of violence or by deception to do anything that
causes death ex. Chase someone and they jump out window and die
• Death that might have been prevented 224
• Person by act or omission does anything that results in the death of a human not withstanding
that death from that cause might have been prevented by resorting to proper means
• ex. Victim refuses blood- stabber still guilty
• Death from treatment of injury 225
• Person causes to human a bodily injury that itself of a dangerous nature and from which death
results- causes death of human notwithstanding that immediate cause of death is proper/
improper treatment applied in good faith- Stabber still guilty if victim dies from improper
• Acceleration of death 226
• Where person causes to human bodily injury that results in death- causes the death of human
notwithstanding that the effect of bodily injury is only to accelerate his death from a disease or
disorder arising from other cause ex. Heart disease case
• In the code- take precedent
• Any case that is NOT homicide, do not apply

R. v. Smith
Military fight; If initial cause remains significant when prohibited outcome occurs- operating cause
Britain, 1959
C • Smith was charged and convicted of murder at a court martial
• s.225 applies- death from treatment of injury if in CAN
F • Fight at a military base and Smith stabbed three people with a bayonet
• One man dropped twice while being carried to the hospital where they failed to proper treatment
• The victim died; 75% chance of survival if proper treatment had been given
I • Was Smith's action a sufficient cause to create criminal liability?
C • Appeal dismissed, conviction upheld
A • Victim would not have been in hospital but for his stabbing
• Argued court must be satisfied that death was a natural/sole consequence of the stabbing
• Parker held that if at time of death original wound is still a substantial cause, then the original
wound can be said to be the cause of death even though another cause is also operating
R • If an initial cause remains a significant cause when the prohibited outcome occurs, then it is said
to be the cause of the outcome even if there are other causes acting towards the outcome, unless
the subsequent causes are "overwhelmingly" to blame and overtake the initial act and break the
chain of causation **Can significant contributing cause/s.225**
N *Pre Smithers
 CRIMINAL 33
R. v. Blaue
Jehovas witness; Causing death that might have been prevented
Britain, 1975
C • s.224- death that may have been prevented if in CAN
F • Appellant stabbed Victim; later died for refusing medical treatment for religious reasons
• Appellant argued that bc Victim refused life saving medical treatment, his conviction for
manslaughter should be overturned
I • Whether the jury was given proper instruction regarding a determination of the cause of death
• Was refusal to accept the blood transfusion breaking the chain of causation?
C • Conviction upheld
A • At trial it was accepted she probably would have survived if she had blood transfusion
• The judge instructed the jury that they could find that Appellant was the operative or substantial
cause of death and convict on that basis- wound was still an operative cause of death
R • If at time of death the original wound is still operating and substantial cause, the death can
properly be said to be result of the wound, albeit that some other cause of death is also operating
N • Affirmation of thin skull rule- means you take victim with vulnerability that might make you
stabbing them more of an issue than someone else incl. religion

The Queen v. Bingapore

If victim contributes to death, chain of causation remains bc 1st injury still operating
Foreign Case
C • Covered under s. 224
F • V had a head wound
• The Dr. advised that the likely had a closed head injury and should stay at the hospital
• V and his wife heard this advice but left anyways
• A few hours later, V back at hospital in urgent need of care; operated on but died the next day
I • Whether the victim’s unreasonable conduct contributed to his death or if was the chain
of causation broken
C • No, not a break in causation; Guilty of murder
A • If at time of death the original wound is still operating and substantial cause, the death can
properly be said to be result of the wound, albeit that some other cause of death is also operating
• The court says that the victim’s actions don’t’ relate to a break in the chain of causation, but relate
instead to the loss of possible opportunity of avoiding death from a still operating cause (assault)
• The act of the accused causing the injuries from which the victim dies does not cease to be a
causative act because the victim thereafter acts to his detriment
R • If a victim acts in a way that may be have contributed to their own death, that action will not be
found to break the chain of causation, as the original injury will still be operating
N • Diff from Blaue where religious belief is pre-existing vs. after the fact decision not to mitigate
 CRIMINAL 34
R. v. Maybin
Bar fight; Leading case on intervening cause; 3rd party intervention breaking chain of causation
SCC, 2014
C • Charged with manslaughter s.222(5)(a)
• s 222(1) – homicide
• s.224/s.225 – relating to chain of causation
F • In a bar, T. and M. repeatedly punched victim in the head
• T knocked victim unconscious
• Arriving on scene within seconds, bouncer struck victim in the head again
• Medical evidence inconclusive which blows caused death
• Trial judge acquitted all- could have been either/or can’t be satisfied any SCCOD
• COA ruled that the accused’s assaults were factual contributions to the cause of death; “but for”
their actions, victim would not have died
• The risk of harm caused by bouncer was reasonably foreseeable to the accused; bouncer not liable
I • When does an intervening act absolve the accused of legal responsibility for manslaughter?
C • Appeal dismissed; new trial; accused caused death, bouncer acquitted
A • Trial judge said multiple transactions-> Maybin assault and bouncer assault
• 1. Factual Causation But For test-> Bouncer does not meet- would have died if M blows fatal
• No scenario where M are not but for cause- Either their punches caused the death, or their
punches caused him to be unconscious and open for the bouncer to punch him
• 2. Legal Causation- Nette Significant Contributing Test is still the ultimate test
• Two potential aids for analyzing whether intervening acts sever the chain of causation:
• Reasonable foreseeability:
• General nature of the intervening act and the risk of non-trivial harm are objectively
foreseeable at the time of the dangerous and unlawful act
• Could easily foresee intervention at busy bar
• Independent acts:
• Intentional acts by a third party acting independently (not triggered by the accused)
• So independent of accused that should be regarded as the sole cause
• Also look at the moral blameworthiness of the two parties
• Did the act of the accused merely set the scene, allowing other circumstances to coincidentally
intervene, or did the act of the accused trigger or provoke the action of the intervening party?
R • An accused who undertakes a dangerous act and contributes to a death should bear the risk that
other foreseeable acts may intervene and contribute to that death
• If the intervening act is a direct response or is directly linked to the accused’s actions and does
not by its nature overwhelm the original actions, then the accused guilty
 CRIMINAL 35
THE FAULT REQUIREMENT
• Level of moral blameworthiness
• Sometimes the accused testifies directly about what they were thinking (direct evidence)
• Often state of mind reasonably inferred from circumstances (circumstantial evidence)

SUBJECTIVE/OBJECTIVE DISTINCTION
• Fault element can be objective or subjective depending on the offence
• Mens rea applied to subjective fault

R. v. Mulligan
If A offers intent evidence, jury must inference intention from conduct/other facts
• SCC 1977
• Issue is whether accused meant to cause death or bodily harm when he repeatedly stabbed wife
• Statements made to police contained assertion that he did not mean to (did not testify for himself)
• Reference to subjective test can lead to idea that evidence of accused intent is more credible than other
evidence-> Always Q what did he in fact know, foresee, expect, intend
• We can assume he intended wife to die by inferring that from his repeated stabbing

R. v. Ortt
It is a reasonable inference that man intends natural consequences of actions
• ONCA 1968
• Charge of trail judge suggested onus on accused to prove incapacity to have necessary specific intent
• Said that intention of a person can be judged by what he says or does
• Appeal dismissed- charge as a whole made it clear that crown had onus of proof on the issue of intent
• Error in law to tell jury it is a presumption of law that person intends natural consequences->
word presumption to be avoided
• Rather permitted to make common sense inferences of intent of natural consequences of actions
R. v. Theroux
Accused system of values/belief of whether acts are wrong irrelevant

R. v. Walle
Words judges can use to juries- consider all evidence pointing to and away from guilt
Sane/Sober person usually intends the natural and probable consequences of action
• Allowed to find intention on a common sense inference
• Simple instruction along the lines of person usually knows what the predictable consequences of their
actions are and means to bring them about
• Critical that jury be made to understand in clear terms that in assessing the specific intent required for
murder- it should consider the whole of the evidence that could realistically bear on the accused’s
mental state at the time of the alleged offences
• Consider all evidence pointing to or away from intent
• Sane/sober person usually knows predictable consequences and means to bring them about

FAULT FOR PUBLIC WELFARE (REGULATORY) OFFENCES

• Until law in Sault Ste. Marie- for not truly criminal offences the choice was bw Crown establishing full
subjective mens rea or absolute liability
• Public welfare crimes are not criminal but prohibited in the public interest
• Civil in nature and a branch of admin law where principles of criminal law have limited application
• ex. Traffic infractions, impure food sales, liquor laws etc.
• Argue require high standard of care- more likely to meet if know mistake wont excuse them
 CRIMINAL 36
• Admin efficiency- hard to prove mental culpability
• Arguments vs. Absolute liability- violates fundamental principles of penal liability and rests upon
assumptions not empirically established

Beaver v. R.
SMR req for possession offences; An honest but unreasonable mistaken belief will negative MR
SCC, 1957
C • s.4(1)(d) of Opium and Narcotic Drug Act- possession and trafficking (replaced since then)
F • Undercover cop set up a drug deal- Accused leads the cop to a bag and says that its heroin
• All along the accused was lead to believe it was only milk sugar intended to screw over cop
I • Is mistake of fact available as a defence?
• Is possession an AL offence or is MR required?
C • Conviction quashed for possession; upheld for selling
A • Cartwright J (+2):
• Trial judge had told jury that if they were satisfied that he had the package in his possession and
sold it, then he was guilty on both counts (made it an absolute liability offence)
• Every offence should require MR, unless it is displaced by the words of the statute or by the
subject matter with which it dealt
• Minimum sentence is six months’ imprisonment; can’t imagine Parliament would create this
penalty without requiring a fault element- would permit the conviction of the morally innocent
• Require knowledge that you possess substance and what it is
• Statute addressing the possession and trafficking of drugs cannot be compared to the statutes
about meat; not a public welfare offence
• Selling upheld bc sold it saying it was heroin- explicit in statute
• Fauteux (+1, dissenting):
• Purpose of act = preventing danger to public health
• Provisions show Parliament wanted the most efficient protection to public health
• This is rejected because heroin possession is clearly a serious criminal offence in itself
R • No legal possession without knowledge of the character of the forbidden substance
• An honest but unreasonable mistaken belief will negative MR
N • Later accepted that all drug offences require SMR and possession offences require knowledge
 CRIMINAL 37
R. v. City of Sault Ste. Marie (SSM)
Leading case for regulatory offence fault- strict liability and due diligence
SCC, 1978
C • S. 32(1) of the Ontario Water Resources Act (now s.30(1))
F • Sault Ste. Marie was responsible for the disposal of garbage
• Entered into an agreement with third party to dispose - created a landfill that leaked into the
nearby river causing pollution
• S. 32(1) stated that every person or municipality that discharged, deposits or causes or permits
the discharge or deposit of pollution into water is liable under summary conviction at the first
offence for a fine of not more than $5000, and on subsequent offences of a fine not more than
$10,000 or to imprisonment for less than a year
• The charge was dismissed at trial- judge held that the city was not itself responsible for the
disposal operations
I • What is the level of fault appropriate for regulatory offences?
C • Appeals dismissed, new trial ordered
A • Dickson J:
• Regulatory offence- strict liability offence unless the legislature clearly indicates otherwise
• When serious and risk of hefty fines/imprisonment- defendant should not be absolutely liable
• Should have the chance to excuse themselves if they can show, on a balance of probabilities, that
they lived up to reasonable standards/exercised care
• He defines three types of offences:
• 1. True Crimes: offences that require mens rea
• 2. Strict Liability: ie. offences in which there is no necessity for the Crown to prove the
existence of MR, but the defendant can get off by proving that they acted reasonably in the
circumstances (due diligence defence)
• Public welfare offences tend to fall in this category, as they are not in the Code, but have the
risk of large fines or imprisonment associated with them
• Reasonable to put the burden on the defence because they are the ones with the
information that can be used to show they exercised care
• 3. Absolute Liability: The Crown does not need to prove mens rea, and the defendant has no
chance to exculpate himself by showing he was acting reasonably
• These are generally only offences with very minor fines as punishment
• Provinces have no control over criminal law- offences cannot be "true crimes”
R • There are three different types of offences: true crimes, strict liability offences and due diligence
defence, and absolute liability offences
N • Policy Considerations:
• Arguments for absolute liability
• Administrative efficiency (Dickson rejects: we don't work injustices in the name of efficiency)
• Regulatory offences are essential for society to function; incentivizes high standard of care (if
convicted either way- why take more care?)
• Arguments for strict liability
• There still are stigma and penalties attached
• Opens up the risk of penalizing the morally innocent
 CRIMINAL 38
R. v. Wholesale Travel Group Inc.
Distinguishing criminal and regulatory offences
SCC, 1991
C • False advertising under s.36(1) (now 60(2) of the Competition Act (Federal)
F • Wholesale Travel falsely stated that they were offering vacation packages "at wholesale prices"
• The statutory punishments were a fine of up to $25,000 and five years in prison
• Wholesale Travel appeals on an order for trial from the Court of Appeal
I • Is this a criminal or regulatory offence and does strict liability breach s.7 and s.11(d) of charter? 
C • Regulatory offence
A • Factors Distinguishing Criminal and Regulatory Offences:
• Criminal act abhorrent in itself, regulations just pose dangers on society if not controlled
• Purpose is to keep people living up to standards going forward, criminal is for past moral wrongs
• Availability of imprisonment is a factor but not determinative
• Reaffirms SSM decision- strict liability offence
• Not morally blameworthy- trying to protect public interest of free competition
• Crown does not need to prove MR in order to get a conviction; however, the defendant can be
acquitted if they can show that they acted reasonably in the circumstances
• Not much stigma with conviction
• 1) Licensing justification
• Opting into rules of the system/choice in engaging in activity in the first place
• Justify holding them responsible even if just negligent not SMR
• 2) Vulnerability justification
• Regulatory regimes are there to protect vulnerable members of society

R • Public welfare offences are generally strict liability offences (Crown does not need to prove MR)
• Defendant can be acquitted if they prove that they acted reasonably in the circumstances
 CRIMINAL 39
R. v. CanCoil Thermal
Standard of care- vulnerability justification
ONCA, 1986
C • s. 14(1)(a) Occupational Health and Safety Act
F • Offence to fail to provide safety equipment
• Factory had a machine known as the “Newton Shear”
• CanCoil removed the safety guard, arguing that it made it hard to remove excess scrap metal
• Asked inspector if it was ok to take guard off, the inspector said yes
• An employee had the tips of six of his fingers cut off
I • Did CanCoil meet the standard required by the Occupational Health and Safety Act?
A • ONCA:
• Since imprisonment was available as a penalty, s. 14(1)(a) had to be read as a strict liability
offence despite the Legislature’s intention, in order to avoid a s. 7 Charter violation
• ONCA says potential due diligence
• Dufraimont: They took guard off on purpose. How can you say that they are duly diligent
• If due diligence requires reasonable steps to meet standard required by regulation, then its quite
fair that they don’t have due diligence met
• Took some care in asking for advice
N • Vulnerability justification
• Want to make sure we are enforcing regulatory standards bc if govt doesnt enforce workers with
no power are the ones getting hurt

DUE DILIGENCE REQUIREMENT

• Taking reasonable care- means different things in different contexts
• Making reasonable mistakes
• Taking reasonable safety precautions
• Pure passivity is not due diligence (Levis c. Tetreault)

CHARTER STANDARDS
• Fault element can be constitutionally required under s.7 POFJ to be guilty of certain offences
• Ex. Possession of heroin SMR fault element
• Constitution sets min fault requirements-> still choice just cannot go below min
 CRIMINAL 40
Reference re: S.94(2) of BC Motor Vehicle Act
SL is constitutional min fault requirement for any offence with possible imprisonment
SCC, 1985
C • Section 94(2) of the Motor Vehicle Act 
F • S.94(2) stated that a person who drives a motor vehicle on a highway while license is suspended
is guilty of an offence and liable to a fine between $300 and $2,000, and imprisonment between a
week and six months (on the first offence- AL)
• Guilt is established on proof of driving, regardless of knowledge about prohibition of driving
• The government is arguing that this does not violate charter s.7
• COA ruled violation bc AL offences cannot have mandatory prison sentences- violates the POFJ
• Did not answer whether or not merely having imprisonment available as an option for an
absolute offence was contrary to s7
I • Can AL offences have prison as possible punishment
C • Appeal dismissed; the section violates s.7 and is of no force and effect
A • Lamer (majority): combination of AL and imprisonment is contrary to s 7 of the Charter
• POFJ procedural and substantive; recognize that innocent must not be punished
• Lamer does not find that this section is saved by s.1 as it does not "minimally impair" the
impugned right (this judgment is pre-Oakes)
R • Absolute liability offences that have imprisonment available as a punishment violate s.7
• Imprisonment without a chance of defence is contrary to the principles of fundamental justice
• Charter minimum fault requirement for offences that involve imprisonment is strict liability
N • Revisited in 1995- Found constitutional bc No longer risk of imprisonment violation of s.7
• Due diligence relies on acceptance of citizens civic duty to take action to find out obligations-
passive ignorance not a valid defence

R. v. Beauchamp
Leading case on careless driving provisions/fault requirement
ONCA, 1953
C • Ontario Highway Traffic Act s. 130: Careless driving
F • Bus driver slowly backed up into a car that was in such a position that the accused could not
have seen it when honestly looked out for cars
I • In light of the circumstances, did the driver drive with the reasonable care of a reasonable driver?
C • COA allowed appeal and set aside conviction
A • Fault language: “due care and attn or w/o reasonable consideration for other persons”
• Interpreted as express fault requirement
• In light of circumstances driver aware of/reasonable driver- did driver fail to drive with care and
intention and if so- must amount to conduct that breaches duty to public/deserving of
punishment (overall fault requirement)
R • Objective fault requirement laid out in regulatory statute to be proven by crown BRD
• Differs from SL reverse onus and due diligence offence
 CRIMINAL 41
Simpson v. R.
S.229- fault requirement for murder (subjective test)
ONCA, 1981
C • s.229(a)
F • Stabbing case- attempted murder (victim survived)
• Trial judge made mistake in explaining requirement as an objective one
• Stated that the offender knows or ought to know the act is likely to cause death
• Section actually says knows not ought to
I • Was ought to know language enough to order new trial?
C • New trial ordered
A • Saying “ought to have known” changes murder from subjective intent to objective
• Murder requires high level of SMR
• What they ought to have known can be evidence of subjective state of mind- infer that they did
know ie anyone would have known but cannot be ULTIMATE legal test
• Seriousness of the error requires a new trial
R • Fault element for murder is a purely subjective state of mind
N • Not satisfied that reasonable jury with proper instructions having found that D stabbed would
find that he intended to kill
• If cite Simpson as source that fault requirement for murder subjective, you must also site s. 229(a)

R. v. Edelenbos
Fault for murder- “likely” to cause death
ONCA, 2004
C • S.229(a) Murder and S.231(5) first degree while committing an offence of domination
F • Admitted went to sexually assault and strangled victim- did not intend to kill
• Jury verdict 1st degree- appealed based on judges explaining of word likely- COA dismissed
• Jury explaining Watt Charges- no definition of likely
• Added that likely means more than possibility etc. where facts did not call for explanation
I • Did definition of likely provided to jury work to prejudice defence when explaining s.229a?
C • Definition given to jury did not operate to prejudice of defence
A • Court says trial judge gave novel explanation of what likely means
• Something that hadn’t been said before in cases, a judge can do this but should tell lawyers in
advance so they can do research- He didn’t do that and that was problematic
• However, “likely” was small part of large charge and didn’t work against the accused in any way
• Instructed that critical issue was whether Crown had established BRD that E meant to cause C
death or bodily harm knew likely to cause death
• Left out part about sane and sober person intending to cause predictable consequences- Evidence
E drinking- intoxication causes cast off restraint and act as they wouldnt act if sober- does not
afford excuse for commission of offence if intent was there- drunken intent is still intent
R • Novel explanation okay if doesn’t prejudice the defence but should be told to lawyers
 CRIMINAL 42
CONSTRUCTIVE MURDER/FELONY MURDER
• Constructive murder = A killing that in the eyes of the law is deemed to be murder, even though the
normal fault requirement under s. 229(a) may be absent
• Typical situation for constructive murder is when, for example, 4 people job a bank and one of the 4
shoots and kills someone in the process of the robbery
• All 4 will be charged with murder because they engaged in the act together.
• Constructive murder (s.230) has been held to be unconstitutional in Canada; it is still in the code but
cannot be applied
• Why? Constitutional minimum fault requirements for murder
• S.230 (then 213(d)
• Homicide will be murder if
• Occurred while committing or attempting specified offence
• Death ensued bc had weapon while committing or fleeing
• Did not require intend to cause/know death likely
• Even if no fault req from 229(a) still can be convicted

Vaillancourt v. R.
S.230(d)- Constructive murder/objective foresight of death (s.230(d) of no force)
SCC, 1987
C • s.230(d) constructive murder- Second degree murder
F • Robbery of a pool hall
• Explicitly told friend before the event that he did not want to have guns involved; brought gum
• During the robbery, his partner fired a shot and someone was killed
• S. 230(d) negates any necessity for MR of killing to be proven before a conviction can be entered
• The defendant is challenging this section, stating that it is contrary to s.7 and s.11 of the Charter
I • Is s.230(d) of CCC contrary to s.7 of charter because it imposes absolute criminal liability?
C • Appeal allowed new trial ordered
• s.230 infringes on s.7 and s.11 and not saved by s.1
A • Lamer (majority)- section is contrary to the Charter as it establishes an absolute criminal liability
• POFJ that there must be at least a minimal mental state requirement before criminal liability
• Murder is special and has high fault req/stigma
• Principles require at least that death must have been objectively foreseeable before conviction
• s.213d did not even req objective foreseeability
R • All crimes with significant stigma attached, such as culpable homicide and constructive murder,
require that the Crown prove objective foresight of death (subjective foreseeability is only
mentioned in obiter and therefore not binding)
N • Confirmed that there can be a constitutional minimum fault requirements for various criminal
offences set out by stigma and punishment (BC reform regulatory)
• Obiter- theft probably requires SMR-> provisions already require it in the code
 CRIMINAL 43
R. v. Martineau
S.230(a)- Subjective foresight of death
SCC, 1990
C • S.230(a) constructive murder- Means to cause bodily harm for purpose of committing offence
F • Accused and companion B&E- companion shot and killed two people after robbing them
I • Is section 230(a) of the Criminal Code constitutional?
C • Appeal dismissed; Unconstitutional
A • Lamer, following Vallaincourt again states that he believes that all murders should require
subjective foresight of death, as it is the most heinous and punished crime
• Needing proportionality bw fault requirement (stigma/penalty) and moral blameworthiness
• He decides that this section, as well as the rest of s.230 should be deemed contrary to the Charter 
• Dissent: Believes there was in fact objective foresight in this case- conviction should be reinstated
• States policy considerations in the legislation indicating that crimes such as those listed in s.230
should be considered murder as a deterrent for underlying crimes
• Thinks that requiring only objective foresight is not contrary to POFJ
• Sopinka agrees with Lamer that s.230 (a) should be struck down as contrary to the Charter
• Does not agree that all instances of murder must require subjective intent to be proven in order to
obtain a conviction, as the scope of this case is not wide enough to justify such a far-reaching
policy decision (leaning on the ideas of judicial restraint)
R • S. 230(a) of CCC is contrary to charter; A person cannot be convicted of murder without proof of
subjective foresight of death

R. v. Smith 2
1st degree murder requires both deliberation and planning- impulse murder
SASK CA, 1979
C • S.231(2) first degree murder planned and deliberate
F • Accused, victim, and another man Intoxicated shooting up farm
• 3rd person sees accused and victim pointing guns at each other and yelling
• Accused shot victim in the arm, then shot him several times until he was dead
I • Was there any evidence to support that this was a planned and deliberate murder?
C • Not planned and deliberate; Second degree murder
A • Has to be both planned and deliberate
• Planned means arranged beforehand, design, scheme previously arranged etc.
• Deliberate means considered and not impulsive does not mean intentional
• Sudden impulse murder intentional but not planned
R • If no evidence of a previously designed plan or scheme, killing is an impulse and thus not FD
N • Questionable result- maybe open to jury to say he had time to plan- no time/complexity limit
 CRIMINAL 44
R. v. Nygaard and Schimmens
Planned and deliberate infliction of bodily harm likely to cause death- 1st degree murder
SCC, 1989
C • s.231(2) 1st degree murder planned and deliberate
• s.229(a)(2) meant to cause bodily harm known likely to cause death
F • Two accused planned and beat the victim with baseball bats in relation to a relatively minor
dispute over money and property
• The victim died
I • Can someone commit a planned and deliberate murder if they never intended to cause death?
C • Guilty
A • Defence argued that the Crown shouldn’t be allowed to combine s. 231(2) and s. 229(a)(ii)
• If FDM is planned and deliberate, how can it be FDM if the intent is to not even cause death?
• The planning and deliberation may be coupled with the MR requirement of s.229(a)(ii) and first
degree murder can be sustained by virtue of the combined operation of s.231(2) and s.229(a)(ii)
• You can plan to cause bodily harm that may or may not cause death
R • Planned and deliberate harm that is likely to cause death counts as first degree murder
• 1st degree conviction can be sustained by virtue of combined 229(a)(2) and 231(2)
• Murder may be classified as first-degree murder on the basis of the secondary intent (reckless
killing) in s.229(a)(ii).
N • The vital element of the requisite intent is that of causing such bodily harm that the perpetrator
knows that it is likely to cause death and yet persists in the assault
• The planning and deliberation to cause the bodily harm, which is likely to be fatal, must of
necessity include the planning and deliberating to continue and to persist in that conduct despite
the knowledge of the risk

R. v. Collins
Accused must know professional identity for 1st degree murder of specified victim
ONCA, 1989
C • s.231(4) first degree murder for killing enumerated person
F • Accused killed a police officer, who was on duty and in uniform at local mall
• Argued infringement on s.7 Charter rights bc Crown doesnt have to prove planning/deliberation
I • Does s. 231(4)(a) require proof that the accused had knowledge of the deceased’s identify?
C • Knowledge requirement
A • The SCC has ruled that s. 231 of the CC does not set out the element of the offence of murder
• That was done in ss. 229 & 230
• 1st/2nd degree are not separate offences- aggravating circumstances
• Crown must prove that accused had subjective knowledge/knew that victim was police officer
R • Accused would have to know or perceive risk that person was police officer in order to be
convicted/have moral blameworthiness
 CRIMINAL 45
SUBJECTIVE MENS REA
• Charter may req subjective mens Rea (Rare)
• ex. Vaillancourt, Martineau subjective foresight
• Murder, Attempted murder, Organized crime, Accessory liability to an offence, War crimes, Crimes
against humanity
• Theft (constitutional issue does not come up bc no form of theft in code that does not req)
• Objective fault allowed for dangerous driving, manslaughter, failing to provide necessities of life,
careless use of firearm
• Statute: knows, knowingly, means to, intentionally, willfully etc. are subjective mens Rea words to
indicate legislature req SMR
• Common law
• All criminal offences should be presumed to include essential SMR element- No fault language should be
interpreted as subjective fault element - **Think SMR when all who do X guilty of Y
• Presumption comes out of common law unless statute says something different and takes precedence

R. v. H (A.D.)
Authority that SMR is default for criminal offences
SCC, 2013
C • s.218 child abandonment
• Unlawfully abandons or exposes child under 10 so that life is/likely to be endangered or health
is/likely to be permanently injured
F • Accused did not know she was pregnant and gave brith in toilet at Walmart
• Baby was blue and motionless- thought it was dead so she left it
• Baby was alive and recovered
I • Did accused have fault element?
C • Acquitted- subjective mens rea was not proved
A • CROMWELL J:
• Presumption -Parliament intends crimes have subjective fault element
• Common law presumption applies, which is based on the principle that the morally innocent
should not be severely punished
• “Expose” and “abandon” suggest subjective fault, denote some awareness of risk
• MOLDAVER J:
• Argues fault element here is objective
• Child protection legislation; it is proposing a societal minimum standard of conduct
• Want to keep children protected from dangers that reasonable person should see
• Trial judge concluded that her actions would be reasonable; therefore, she isn’t guilty
• In order to protect children from reasonable dangers people can see
• Min standards of care for children -> reasonable person (looks like objective fault)
• Failing to provide necessities of life (could be charged with this too) objective fault offence
R • Fault requirement is SMR, based on common law presumption
N • Criminal offcences presumed to require subjective mens rea
• Presumption can be displaced when full contextual interpretation of the offence provision
indicates that some other level of fault is required
 CRIMINAL 46
FAULT LADDER
Higher Order Mental States Motive
• Deeper reasons for action 

• Not normally req to be proved Desire

Subjective Mens Rea Knowledge/intention

• What was in the accused’s mind?
• Default for criminal offences; req under charter for murder and few other Recklessness
crimes
Wilful Blindness

Objective Fault Negligence

• Did accused conduct fall below an objective standard? 

• Default for regulatory offences Strict Liability (due
diligence defence/
reverse onus)

No Fault Requirement Absolute Liability

• All crown has to prove is act and conviction will follow
• Under charter can never be combined with imprisonment

• Motive
• Reason a person decides to act
• Not the same as intention
• Q whether person killed on purpose- intent is element of offence
• Evidence of motive is relevant and admissible- can be used to prove numerous elements
• Rare cases where Parliament can make motive an element of the offence
• Purpose and Desire
• Various parts of code require acts to be done for a certain purpose- context dependant ie. must
interpret what purpose means

INTENTION OR KNOWLEDGE
• When we say SMR is required, normally what we mean is that anyone of these state of mindsets is good
enough:
• Intention/Knowledge (Higher form of SMR
• Recklessness
• Wilful Blindness
• Recklessness might not always be enough
 CRIMINAL 47
R. v. Buzzanga and Durocher
Hatred promo; Leading case on definition of intention/knowledge
ONCA, 1979
C • s.319(2) willful promotion of hatred
F • Franco/Ontario community activists in favour of building a French language high school
• Thought school was not being built because of prejudice against French- Made satire flyer
• Convicted at trial, appeal to ONCA
I • Did they promote hatred against the French willfully?
C • COA said not wilful- new trial ordered
A • Justice Martin: Said no- Willful promotion of hatred requires knowledge or intention fault
• Parliament intended to limit provision to intentional promotion of hatred
• Lower level of fault ie. recklessness seeing risk of hatred- not enough
• Court says that accused’s conscious purpose was to create controversy- doesnt mean intent
• Trial judge said willfully means intention not accident- wrong
• Balance bw freedom of expression and upholding public order and group reputation
R • As a general rule, a person who foresees that a consequence is certain or substantially certain to
result from an act done to achieve some other purpose, intends that consequence
• Intention can have 2 meanings:
• 1) Bringing about the consequences is the actor’s conscious purpose
• 2) Acted despite subjective foresight that prohibited consequence is substantially certain to occur
N • Can require intention even if does not say it ex. s. 249(1) “in order to” evade officer = intends to

R. v. Theroux
Insurance fraud; Deceit and deprivation required for actus reus of fraud
SCC, 1993
C • Fraud
F • Accused ran construction company and took deposits from prospective buyers promising it was
insured when he knew there was no insurance
• Honestly thought project would go/money would not be lost
I • Did the accused’s honest belief that the money was safe negate mens rea/intention for fraud?
C • SCC said not a defence, mens rea for fraud was not negated
A • McLachlin J: Actus Reus of Fraud requires 2 things:
• 1) Deceit- Dishonest act of lying to the buyers
• 2) Deprivation (f something that should be theirs or placing property at risk)
• Mens rea would be intentionally committing deceitful act Subjective awareness that deprivation
would follow as likely consequence ie. knew placing property at risk
• Minimum here is level of recklessness, doesn’t require knowledge- Just need to foresee risk
R • AR for fraud has two elements: dishonest act & dishonest act must cause deprivation
• The mens rea for fraud requires subjective awareness that you are putting others' property at risk
N • Dufraimont: He had state of mind of intention in this situation
 CRIMINAL 48
R. v. Boulanger
Intention case- breach of trust
SCC, 2006
F • Accused municipal official with daughter in car accident
• Asked subordinate to write report saying it was not her fault (actually wasn’t) to make it more
complete so he did not have to pay insurance
• Breach of trust for abusing public office for improper purpose or personal benefit
I • Was B guilty of breach of trust?
C • Mens rea not met
A • Breach of trust req to prove
• Accused is official
• Acting in connection with duties
• Breached standard of responsibility and conduct demanded of them
• Serious and marked departure from standards
• Intention to use position for something other than public good
• Evidence- attempt to conceal, significant personal benefit
• mere fact that there is benefit is not conclusive
• No intention to mislead insurance company
• Did not undermine public good
• Error in judgement
R • Subjective mens rea: accused must have acted w. Intention to use public office for purpose other
than public good ex. Dishonest, partial, corrupt, oppressive

RECKLESSNESS AND WILFUL BLINDNESS

• CC expressly relies on recklessness as fault
• Murder under 229(a)(2)
• Wilful as defined in s.429 for part XI defences (mostly property such as mischief, damage, arson)
• Criminal harassment s.264
• Offences based on criminal negligence
• Reckless is all that is required because the Code says it
• No code provision that refers to wilful blindness
 CRIMINAL 49
Sansregret v. R.
Leading decision on rape- distinction between wilful blindness and recklessness
SCC, 1985
C • s.265 sexual assault
F • After violent altercation intercourse with gf and then she filed rape charge
• Acquitted at trial as the judge found that he had mistakenly believed she had consented
I • Is willful blindness relevant to a mistake of fact in consent in a sexual assault charge?
C • Appeal dismissed
A • Recklessness is attitude where aware of danger that prohibited conduct could bring about result
prohibited by law but persist- Sees risk and takes chance
• Lower state of mind and moral blameworthiness than intention where have to be substantially
certain consequences will follow
• Recklessness not same as negligence- recklessness is subjective standard and negligence is not
living up to objective standard
• Wilful blindness- subjective tantamount to knowledge and treated in law as knowledge
• Accused aware of need for inquiry and deliberately fails to inquire in order to preserve
ignorance- plausible deniability
R • Mistake of fact does not apply in sexual assault case where accused WB to lack of consent
• Authoritative definition for recklessness and wilful blindness

R. v. Briscoe
Defining WB as deliberate ignorance
• Glanville Williams explains key restriction of doctrine of wilful blindness: Courts can only find wilful
blindness where is can almost be said that the defendant actually knew – he refrained from obtaining the
final confirmation because he wanted in the event to be able to deny knowledge
• Deliberate ignorance involving an actual process of suppressing a suspicion

R. v. Lagace
If after inquiry suspicion remains and no further inquiry, still WB
• ONCA, 2003
• Even making inquiry does not mean that you are not willfully blind
• If after making inquiry the accused remains suspicious, but declines to make further inquires, accused is
still WB
 CRIMINAL 50
R. v. Blondin
Hashish in scuba tank; SMR for unlawful importing
BCCA, 1971
C • Narcotic Control Act- unlawfully importing narcotic
F • Hashish brought back to Canada inside scuba tank
• A said he did not know and did not even know what hashish was
• Knew something was illegal but did not know what
• Trial judge told jury that Blondin had to know hashish for SMR
I • What does he have to know (what MR) to be guilty of offence?
C • Knew it was a narcotic- guilty
A • Has to have knowledge of substance- court says he doesn’t have to know it is
• Wilful blindness relied on
• Enough that A knows it is a narcotic
• Also enough if shut eyes suspecting it may be a narcotic
• Mens rea in the widest sense
• Jury should have been told that he can be guilty if:
• 1) Reckless of what was in the tank
• Had some knowledge of the risk that it was a narcotic
• OR
• 2) Wilfully shut his eyes to what it was and also suspected it might be a narcotic- Wilfully shutting
his eyes tantamount to knowing it was a narcotic
R • To be convicted had to know or suspect that substance was a narcotic- did not have to know
hashish
• Mens rea in widest sense in relation to simply being a narcotic
• Knowing it was simply something illegal is not enough

OBJECTIVE FAULT
• Measuring accused’s acts against objective reasonable person standard
• Crown not req to prove what was in mind of accused at time of offence-Include carless use of a firearm,
treason, endangering aircraft safety
• Code uses word “reasonable”, “ought to know”, “careless”, “good reason”, for objective level of fault
• Negligence crimes
• “Criminal negligence” tiny fraction of crimes of objective fault- refers to s. 219 of the Code
• Duty based offence
• Recklessness- might indicate SMR
• SHOWS- objectively about conduct
• Word negligent is associated with objective reasonable person
• S. 220, 221, 222, 234, 236 (p.500)
• This is an offence that can be done through omission
• S. 219 is not in itself an offence, it’s a definition of criminal negligence
• Criminal negligence has to cause either death or bodily harm to be an offence
• Max penalty is life imprisonment for criminal negligence causing death
• Criminal negligence causing death is a form of manslaughter
• S. 222(5)(b) and s. 234
 CRIMINAL 51
CRIMINAL NEGLIGENCE
R. v. Tutton and Tutton
Faith healing; Test for criminal negligence
SCC, 1989
C • S.215 duty to provide necessities of life
• s.219 Criminal Negligence
• s.222(5)(b) manslaughter by criminal negligence
F • Accused charged with manslaughter regarding the death of their five year old son
• Believed in faith healing, stopped giving him insulin- omitting to provide necessaries of life
• Legal duty under Code (s. 215) provide necessities of life, includes medical treatment
I • What level of fault required for criminal negligence causing death?
C • Indecision
• Split 3-3 on fault element
A • McIntyre J:
• Criminal negligence causing death requires objective fault
• Conduct to be analyzed not intention
• Focuses on word “negligence”-being negligent is opposite of thought directed action
• Test for wanton or reckless disregard is of reasonableness and proof of conduct which reveals
marked and significant departure from the standard which could be expected of a reasonably
prudent person in the circumstances
• Decision must be made based on circumstances and accused’s perception of them
• Jury would have to decide if belief is honest and reasonable
• Lamer J:
• Its objective but as a matter of fairness, take factors of accused into account
• Wilson J:
• Writes for subjective wing of the court
• Objective would make it an absolute liability offence (no fault)- *inaccurate
• This section is ambiguous, should rely on default of SMR
• Parliament is free to enact objective fault requirement, but decided not to
• Wanton or reckless disregard req degree of awareness of threats (wilful blindness will do)
• Mistaken beliefs need not be reasonable- Even if have belief- whether accused may have
entertained any minimal awareness of the risk that amounts to SMR
• This subjective test is sufficient to protect public safety
• Argument that objective test does not recognize those who cannot live up to min standard and
cannot help failure to comply
• 2 part test looking at reasonable person standard and if fair to hold this person to standard
N • Hard to prove if subjective awareness of risk-> should have objective standard
• Doctor informed them
• Crown would have case under either version of fault element
• Religious autonomy
• Difficult Q of moral blameworthiness
O’Grady v. Sparling
• SCC, 1960
• Criminal negligence according to what is now s. 219 of the Criminal Code is a form of recklessness
which connotes advertence
 CRIMINAL 52
Waite v. R.
Hayride crash; Test for criminal negligence
SCC 1989
C • s.219 Criminal negligence causing death/bodily harm/ Dangerous driving causing death
F • Accused, who had been drinking and driving, struck and killed four young people taking part in
hayride and injured a fifth
• Accused approached hayride at a high speed on the wrong side of the road without headlights
• Found not guilty of causing death by criminal negligence, convicted of dangerous driving
• ONCA ordered new trials on criminal negligence counts
I • Is objective or subjective test applied in cases of criminal negligence?
C • SCC dismissed accused’s appeal
A • Wilson J: Trial judge’s instruction was in error as to the degree of mens rea required under s. 219
• Judge placed too high an onus on the Crown to prove elements of deliberation and willfulness
• Whizzing in the dark is marked/significant departure from the standard of a reasonable driver
R • Justified objective test of a marked and substantial departure of behaviour expected of reasonably
prudent persons in the circumstances
• Mental element in criminal negligence is the minimal intent, awareness of the prohibited risk or
wilful blindness to the risk
N • Companion case to Tutton
• Fault element described too high- Not deliberate/wilful assumption of risk- too high for SMR->
any minimal awareness and advertness to risk
R. v. Anderson
Fatally ran red light; Test for criminal negligence
SCC, 1990
C • s. 219 Criminal negligence causing death
F • Accused- legally impaired driver- Thinking of something else, ran a red light and killed someone
• Trial judge found Crown failed to prove BRD- COA allowed appeal
I • Whether TJ comments relating to relevance of consequences and intention affected outcome
C • COA set aside, appeal allowed and acquittal restored
A • Sopinka: Collision and death does not change whether or not drinking and driving and going
through red light is negligent
• Finding that conduct represents a marked departure from standard of care of reasonable person
makes them “fail” both tests:
• Ought to have realized the risk (objective), Probably did realize the risk (subjective)
• Accused’s action was a departure, but perhaps not a marked departure (compare to Waite)
• “Negligence” suggests departure from objective standard- “Wanton and reckless disregard”
suggests a more subjective view of the state of mind
R • Cases now require for a conviction for criminal negligence causing death, there has to be a
marked and substantial departure from the standard of care of a reasonable person
• Dangerous driving requires marked departure
 CRIMINAL 53
MARKED DEPARTURE TEST
• In Creighton case/companion cases, SCC adopted new approach to the interpretation of objective crimes
• Court unanimous in requiring a marked departure from the standard of care of a reasonable person
• Court divided over q whether personal factors could be considered in applying an objective standard
• McLachlin J decided that no individual factors short of incapacity could be considered
• In order to be criminally responsible- gross negligence
• 2 questions for marked departure test
• 1) Scope of MD test
• Which offences does it apply to?
• Applies to crimes of objective fault
• 2) Relevance of subjective factors
• How do we deal with personal factors of the accused ex. inexperienced
R. v. Hundal
Modified objective test for unlawful act manslaughter
TITLE
F • Court was called on to determine fault requirement for crime of dangerous driving
I • What is the fault requirement for the crime of dangerous driving?
A • CORY J:
• A truly subjective test asks what was in the mind of the accused when the offence was committed
• There doesn’t have to be a subjective intention to drive dangerously if what you do is marked
departure from the standard of care of a reasonable person
• Question to be answered under objective test is what the accused “should” have known
• Modified objective marked departure test; outside factors must be considered
• McLachlin (+1):
• Takes issue with calling it a modified objective test – it’s just an objective test period
• You can always take the relevant outside circumstances into account in a purely objective test

R • Marked departure test is not only applicable to criminal negligence causing death – also
applicable here for dangerous driving
• Hundal marks marked departure test as objective fault
 CRIMINAL 54
R. v. Creighton
Personal factors in marked departure test
TITLE
C • unlawful act manslaughter- illegal act of drug trafficking- giving from one to another
F • Experienced drug user injected companion with cocaine
• Accused told other companion not to call ambulance, left and companion died
I • 1. Should accused personal characteristics be accounted for in applying marked departure test?
• 2. What is fault element for unlawful act manslaughter?
C • Guilty- Unlawful act of trafficking, guilty of criminal negligence, reasonably foreseeably risk
A • Unlawful act manslaughter only requires objective fault
• Lamer CJ (lost 5-4):
• For unlawful act manslaughter, Crown must prove that a reasonable person in the
accused’s person would have foreseen risk of death from the unlawful act
• Has to be invested in any enhanced foresight that accused had of membership in group
(Gossit) ie. Creighton can be held to higher standard bc of experience
• Standard can be lowered to accommodate incapacity of accused
• 1. Would a reasonable person be aware of risk of death of injecting cocaine?
• If yes- 2. was accused
• a) unaware bc did not turn mind to consequences and thus risk of death OR
• b) bc lacked capacity to turn mind to this due to human frailties
• If b- 3. In context of offence would reasonable person with capacities of A have
made self aware of the likely consequences of unlikely act/risk of death
• Worried about the frailties that we cant control that render A incapable of perceiving the
correct set of facts (Intoxication cannot vitiated liability)
• Insists test is still objective, but take personal factors into account
• McLachlin J (majority):
• Objective test as framed by Lamer problematic because it is essentially a subjective test
• SMR- req accused to have intended consequences or knowing consequences acted recklessly
• OMR- not concerned with what is actually in mind but fault lies in failure to direct mind to risk
which reasonable person would have appreciated
• Negligence must be marked departure of standard of reasonable person
• Law does not lightly brand someone as a criminal
• Differs from Lamer based on extent to which personal characteristics may affect liability under
objective test
• Wants single uniform standard of care for objective fault offences, unless incapacity to appreciate
nature of the risk (high threshold)
• Protecting morally innocent does not require consideration of indiv excusing conditions
• Marked dep test applies to objective fault crimes generally
R • Single uniform standard of care for objective fault offences, unless incapacity to appreciate
nature of the risk
• Applies to all objective fault offences
 CRIMINAL 55
R. v. Beatty
Test for dangerous driving
SCC, 2008
C • s. 249(4)- dangerous operation of a motor vehicle causing death
F • Accused drove into oncoming traffic for no apparent reason (may have fallen asleep)
• Hit other car, killed 3 other occupants
• Charged with 3 counts of dangerous driving causing death
• Trial judge: few seconds of negligent driving, doesn’t meet criminal standard (No marked
departure)
• COA ordered new trial
I • How does objective test apply in dangerous driving?
C • Appeal allowed; re-instated acquittal
A • Charron:
• Dangerous driving is an objective fault crime (Hundal); req license, automatic and reflexive
activity without subjective fault, language suggests objective, urgent need to curb conduct
dangerous to public
• 2 ways its modified objective test
• 1. Has to be marked departure from standard of care of the reasonable person (from Hundal)
• If criminalize every breach of the standard, casting net would be too wide
• Need to pay a lot attention to degree of negligence
• 2. Allowing exculpatory defence
• Heart attack or detached retina- has to be sudden and unexpected
• Expected to control for weakness if known about in advance
• Reasonably held mistake of fact may also provide a complete defence if based on A perception-
conduct measured up to standard of care
• Restatement of Hunda: Actus reus and Mens res
• Actus reus: as defined by CCC s.249 (1)(a)
• Not all negligent driving will constitute dangerous operation of a motor vehicle
• Look at manner of driving NOT consequence
• Mens rea:
• OMR (objective fault) determined by assessing the conduct against reasonably prudent
driver
• Marked departure from standard of care of reasonable driver considering any excuses
• If A offers explanation must BRD that reasonable person in circumstances would have been
aware of risk and danger involved
• Consider accused mind- not fault element but helps ie; fun to drive fast and weave
• Can add to finding of marked departure but not required to depart from objective standard
• Proof of SMR will suffice but is not essential
R • Modified objective test
N • We have actus reus here, but the mens rea was not proven- there was no deliberate intention to
create a danger
• Momentary lapse in attnt- defence lawyers love this
 CRIMINAL 56
R. v. F.(J.)
Authority for S.219 criminal negligence fault requirement
• Resolving split verdict in Tutton
• S. 222(5)(b) Criminal negligence is an objective fault crime
• Lays down distinction between marked and substantial departure and just marked departure

• 3 degrees of objective fault for offences:

• 1) Due diligence with onus reversed for regulatory offence- Strict liability offence is going to be simple
negligence standard
• Common law presumption under Sault Ste. Marie or Charter standard if risk of imprisonment
• 2) Marked departure from the objective norm for objective fault criminal offences
• Dangerous driving, careless use of the firearm, failing to provide necessities of life
• Beatty
• 3) Marked and substantial departure from objective norm, only for criminal negligence under s. 219
• Requires even more negligent behavior than gross negligence
• JF

CRIMES BASED ON PREDICATE OFFENCES

• Unlawful Act Manslaughter (UAM)
• In order to be guilty of main offence accused must be guilty of other underlying/predicate offence that
cause the death- usually assault
• Default category when person causes death of another person by means of an unlawful act (s.222(5) and
the fault element for murder is not made out
• Manslaughter is always available when someone is charged with murder- lesser offence if you cannot
prove the fault element of murder

R. v. Creighton (2)
Test for unlawful act manslaughter
• Lamer (minority):
• When unlawful act being committed there had to be objective foreseeability of death
• Stigma and penalty analysis
• Objective foreseeability has to be of death otherwise fault element is too low ex. Foresee harm
• McLachlin (minority):
• Lower fault requirement
• Section 222(4) of the Code- 3 types of culpable homicide (murder, infanticide, manslaughter)
• Manslaughter covers a wide variety of circumstances
• Manslaughter has two requirements:
• 1) Conduct must cause death
• 2) There must be some level of fault short of intention to kill
• Under 222(5) fault can lie in unlawful act or can be in the form of criminal negligence
• Objective fault requirement for UAM
• 1. Fault element of predicate offence must:
• Involve dangerous act
• Not be AL offence
• Be constitutionally valid
• 2. Additional fault element for manslaughter:
• Objective foreseeability of the risk of bodily harm which is neither trivial nor transitory in the
context of a dangerous act
• Seems to be lower than fault element for criminal negligence causing death
 CRIMINAL 57
• Does it violate s.7 of charter to not req foreseeability of death?
• Interpreting statute
• Looks at Lamer’s reasons for saying death has to be objectively foreseeable bc of seriousness of offence
and stigma- casnt be too easy to convict
• Acuts reus and mens rea should reflect one another
• 1) Gravity of offence
• Manslaughter not such a grave or serious of an offence
• Whole point of manslaughter is to be defined in contrast to murder (less stigma)
• No min. punishment for manslaughter
• Manslaughter strictly observes principle that intentional harm should be treated more seriously
• 2) Symmetry between act and fault
• There doesn’t have to be perfect symmetry
• Not a lot of difference between objective foresight of harm and death
• Think skull rule (causation doctrine not a fault doctrine)- cannot be abandoned
• Appropriate to seriousness of offence

AGGRAVATED ASSAULT
• s.286(1)
• Max penalty 14 years
• Everyone commits who wounds, maims, disfigures or endangers the life of the Complainant
• Previous req proof of intent to assault and act that caused aggravated consequences (form of AL)
• SCC in Godin (1994)
• Distinguishes from unlawfully causing bodily harm
• Says aggravated assault requires foreseeability of aggravated harm, not intent of consequences
• Godin effect- adds crime to list of predicate offences for which the fault requirement is much reduced
• Godin- aggravated assault requires assault that wounds, maims, disfigures or endangers life AND
objective foreseeability of bodily harm (drawn from Creighton)
• Assault causing bodily harm is controversial
• Some provinces only require assault that actually causes bodily harm with no fault element
• Other including ON say harm must be reasonably foreseeable (same as aggravated assault

RAPE AND SEXUAL ASSAULT

• Rape and sexual assault
• Offences overhauled in 1982
• Rape repealed and replaced with sexual assault
• Both offences- lack of consent is an element of offence must be proven BRD by crown
• Defence of consent in both cases
• Rape- intercourse with a woman
• Sexual assault much broader ie. men touching- got away from penetration issue

SOCIAL ISSUES
• Equality and gender implications- usually committed by adult men vs. women or children
• Singled out bc they are vulnerable
• Systematically disbelieved bc regulated to inferior social status as female
• Victims often “put on trial”
• Women from equity seeking groups victimized at a higher rate ex. Disabled, indigenous
• Discriminatory beliefs/rape myths- ex. Doesn’t happen to men, only strangers, victim blaming
• Historical rules
• Prior sexual history of complainant
• Routinely admitted and said to be relevant to:
 CRIMINAL 58
• Did she consent
• Was she credible/believable as a witness
• Doctrine of Recent Complaint
• Rape victims expected to report the rape at first available opportunity and spontaneously
• Delay thought to be a reason to doubt the truth of the report- juries would be instructed
of this
• No longer the case since 1982
• Corroboration rule
• Required testimony be corroborated by independent evidence implicating by accused
• Could not be convicted just by complainant
• Removed in 1982
• Not often testimony is the only thing that convicts
• Trend where they try and come up with therapeutic records
• Extension of old discriminatory ideas that women are lying
• Sexual assault trials there is usual no other evidence and to get to BRD there is going to be a lot
of concern about credibility of complainant becase there is some risk of false allegations
• Old offence of rape
• non consent is circumstance element
• Mental element- subjectively aware of non consent
• Reflected in defence of mistaken belief in consent (still a defence)
• Indecent assault removed
• Replaced with 3 tier structure of sexual assault
• 1. Sexual assault: s.271 (simpliciter)
• Hybrid offence max 10yrs
• 2. Sexual assault with a weapon, threats to a third party, or causing bodily harm: s.272
• Max 14yrs
• 3. Aggravated sexual assault: s.273
• Rape shield laws to protect use of prior sexual history and Doctrine of recent complaint and
corroboration rules removed
 CRIMINAL 59
R. v. Chase
Playing with neighbours boobs; Leading case in Canada for definition of simple sexual assault
SCC, 1987
C • s.271 sexual assault
F • Accused went to neighbour’s house, sexually assaulted 15-year-old (grabbed her breasts)
• Found guilty at trial- CA substituted conviction for common assault, stating that “sexual” meant
needed to touch genitals
I • How do you define sexual assault?
C • Appeal allowed; conviction of common assault set aside & conviction of sexual assault restored
A • McIntyre: Sexual assault is committed in circumstances of a sexual nature such that sexual
integrity of victim is violated
• Sexual nature determined objectively based on if reasonable observer would understand contact
as sexual
• Factors to consider:
• Body part being touched
• Nature of the touching
• Accompanying words, gestures, threats
• Intent/purpose behind it ex. Sexual gratification
• Surrounding situation or circumstances
• Offence only requires a general intent

CONSENT
• Actus Reus element that must be proven by crown BRD
• Code defines consent in sexual assault in 273.1(1)
• Voluntary agreement of the complainant to engage in the sexual activity in Q
• Definition applies only to all forms of sexual assault
• Subject to situations where consent is vitiated
• Can be common law limitations in addition ex. Jobidon
• Incapable- intoxication can apply
• Drunk person can consent to sex as long as not at point of incapacitation
• Two non-exhaustive lists in the Code of situations were consent is vitiated: s. 265(3) and s. 273.1(2):
• S. 265 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
• 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;
• (b) the complainant is incapable of consenting to the activity;
• (c) the accused induces the complainant to engage in the activity by abusing a position of trust,
power or authority;
• (d) the complainant expresses, by words or conduct, lack of agreement to engage in the activity
or
• (e) the complainant, having consented to engage in sexual activity, expresses, by words or
conduct, a lack of agreement to continue to engage in the activity
 CRIMINAL 60
• There are two Code provisions on mistaken belief in consent: s. 265(4) and s. 273.2
• 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
• Where belief in consent not a defence
• 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

DEFENCE OF MISTAKEN BELIEF IN CONSENT 


Applies to all assaults Applies only to sexual assaults

Definition of Consent none s.273.1(1)

Where Consent Vitiated s.265(3) s.273.1(2)

Mistaken Belief in Consent s.265(4) s.273.2

 CRIMINAL 61
R. v. Ewanchuk
Job interview; NO defence of implied consent
SCC, 1999
C • s.273.1 sexual assault (where no consent is given)
F • 17yo complainant job interview with 40yo accused- she thought door was locked and was fearful
• Kept trying to touch complainant with increasing intimacy, even though she said no every time
• Gave her $100 and let her go- She called police
• Trial judge: complainant hadn’t consented, but she didn't want the accused to know she was
afraid so she acted relaxed – “implied consent”
• CA: dismissed Crown’s appeal; upheld acquittal from trial level
C • SCC allowed Crown’s appeal, substituting a conviction and remitting the matter for sentence
A • Major (+5): Conviction of sexual assault requires proof BRD of:
• AR:
• 1. unwanted touching
• 2. of a sexual nature (determined objectively) Chase Test
• 3. with the absence of consent: Subjective state of mind of C at the time of the sexual touching
• MR:
• 1. intention to touch
• 2. Subjective awareness of lack of consent; knowing of or being reckless/wilfully blind either by
words or actions
• If court finds complainant subjectively doesn't consent, consent cannot be implied
• To be legally effective, consent must be freely given (p 656)
• Fear need only be proven subjectively; not whether it was reasonable
• Accused must not only believe that the complainant wasn't saying no, but that she was saying yes
(through words or conduct) – believe that she communicated her consent
• If she has said no, accused is precluded from relying on a defence
• Consent being vitiated by fear- must be honestly held fear and must be the actual reason for
submission but it does not need to be reasonably held; Dont have to discuss bc no consent at all
• L’Heureux-Dubé (+1, concurring); Not about consent, since none was given; myths/stereotypes
• Trial judge didn't take no to mean no; tried to say implied consent bc didnt protest
• Reject idea that even if C did not consent in her mind you can find objective consent by actions
does not reject that consent can be communicated through actions
R • There is no defence of implied consent to sexual assault in Canadian law- must be freely given
• Consent is subjective regarding what was in the complainants mind and can include their own
testimony as well as other evidence ex. Words or conduct at time or before touching
N • After Ewanchuk, number of restrictions on MBIC (mistaken belief in consent)
• 1) Belief that silence or passivity constitutes consent is not a defence
• 2) Not just belief that subjectively consenting in own mind but a belief in communication/
expression of affirmative consent-> Accused must have thought she said yes in words or actions
• 3) Once C says no, higher onus to make sure consent is provided/expressed mind change
• Cannot engage in further conduct to “test the waters”
• 4) MBIC is not consent where reasonable steps weren’t taken
• Myths and stereotypes evident in this case
• Woman says no but wants to be persuaded
• Women of loose moral character
• Should have hit him in the groin and got out of there
 CRIMINAL 62
Limits on Mistaken Belief of Consent
• Air of reality requires a “situation of ambiguity” (Davis)
• Limits in the Code (ss. 265(3), 273.1(2), and 273.1(3))
• No defence of mistaken belief without reasonable steps to ascertain that C was consenting
• Ask yourself would a RP in these circumstances take further steps to ascertain consent
and if answer is yes and accused didn’t then defence is available
• No defence of mistaken belief based on self-induced intoxication, recklessness, or wilful
blindness
• Juries must be instructed to consider reasonableness
• Additional limitations from Ewanchuk:
• A mistaken belief in consent must 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
defence
• Once the complainant says “no” the accused is on notice and must be sure consent is
communicated before proceeding
• Some may argue that all of these limitations taken together limit the defence so much that it doesn't help
more “sympathetic” accused
• Mistaken belief is SMR defence- Reasonable steps requirement brings in some objectivity

R.v. Cornejo
Lifting pelvis; Reasonable steps requirement; belief that silence=consent is no defence
ONCA, 2003
C • s.271 sexual assault
F • The complainant and Cornejo were co-workers
• Cornejo entered the victim's house, thinking there was consent from a phone call
• Victim drunk from party, Cornejo walked in, removed clothing, attempted to have sex w her
• C claims explicit in saying no; Cornejo claims she helped him get clothes off by lifting pelvis
I • Did the trial judge err in leaving the defence of honest but mistaken belief in consent for the jury's
consideration when there was no air of reality to that defence?
C • Yes, the trial judge erred. Crown’s appeal allowed.
A • Honest but mistaken belief in consent must meet air of reality test before going to jury as defence
• Ewanchuk demonstrates that silence or ambiguous conduct constitutes consent is NOT a defence
• Abella J.A.: In these circumstances, the movement of the complainant's pelvis was simply an
insufficient basis to allow the defence [of mistaken belief] to go the jury
• Belief that silence constitutes consent is a mistake of law and provides no defence
• Cornejo failed to take reasonable steps to ascertain the consent of the complainant in order to
invoke this type of defense (as per s. 273.2(b))
R • Belief that silence equals consent is not a defence
 CRIMINAL 63
R. v. A. (J.)
Consent req ability provide active consent throughout every phase of activity
SCC, 2011
C • s.271(1) sexual assault
F • In the course of sex, J.A. placed his hands around the throat of his partner, and choked her until
she fell unconscious
• K.D. testified that she consented to J.A. choking her
• Consensual vaginal intercourse after the anal
• She made complaint two months later, that while she consented to choking she did not consent to
sexual activity that occurred- Later recanted this allegation
• SCC allowed appeal and restored conviction of sexual assault
I • Can a person consent in advance to sexual touching that occurs while they are unconscious
A • SCC says you cannot consent to unconscious sexual activity
• Mclachlin
• Parliament had defined consent as requiring ongoing conscious consent throughout the
sexual activity bc protects individuals from sexual exploitation and ensures that people are
able to withdraw consent at any time
• Look at definitions of consent
• Consent has to do with subjective mind
• Consent to each part of sexual activity
• No consent if incapable of consenting- unconscious you cant consent
• Also look at MR provisions
• Mens rea is what accused understood from C communication
• 273.1(d) expresses lack of agreement- no means no
• What is being expressed to accused and expressing lack of agreement
• 273.1(2)(3) lack of agreement to continue
• Indiv must always be free to revoke consent so they must be conscious throughout
• Reasonable steps cannot be taken with unconscious person
• Dissent
• Look at same provisions and interpret in the opposite way
• Voluntary agreement to engage does not say at exact time of sexual activity
• Consent can continue through unconsciousness period
• Reasonable steps requirement does not omit in advance
• Right of women to make decisions about their bodies
• Policy arguments
• Evidentiary impossibility- how can you prove what sexual activity occurred
• Autonomy in sexual lives
• Social problem of protecting unconscious people being assaulted- often drunk
R • The definition of consent for sexual activity requires the complainant to provide actual active
consent throughout every phase of the sexual activity
 CRIMINAL 64
Defence of Mistake of Fact
• More broad than mistaken belief in consent
• Accused thinks carrying bag of oregano but its weed- innocent bc possession is SMR offence
• Challenge of distinguishing from mistakes of law bc mistakes of fact can be defence negating mens rea
• Mistake of law is generally not a defence
• s.19 of CC provides that ignorance of the law by a person who commits an offence is not an excuse for
committing that offence

Mistake of Fact and Fault

Fault Element Where mistake of fact is defence

Subjective Mens Rea Any honest mistake

Objective Fault Only honest and reasonable mistake

Due Diligence Defence Only honest and reasonable mistake with onus on
accused to show reasonableness
Absolute Liability No mistake is a defence

Mistakes as to Nature of the Act

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

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

Mistake is definitely a defence mistake is probably not a defence mistake may not be a defence

R. v. Tolson R.v. Ladue R.v. Kundeus

R. v. Beaver
 CRIMINAL 65
R. v. Ladue
Mistake as to nature of criminal act
YT CA, 1965
C • s 182(b): Improperly or indecently interferes with or offers any indignity to a dead body
F • Accused either copulated or attempted to copulate with a dead woman
• Accused is appealing, saying he didn't know the woman was dead (very intoxicated)
C • Appeal dismissed
A • Davey:
• Seems like a valid defence on the face of it: MR is required
• D couldn't have failed to perceive the woman was unconscious, incapable of giving consent
• If the woman was alive, he was raping her
• Intention to commit a crime, although not precise crime charged, will provide the necessary MR
• Assuming the facts were as D believed, he would be guilty of a more serious offence – therefore
mistake is probably not a defence
N • Laskin, in Kundeus, says that the proper charge here would’ve been attempted rape
• D: problem: not established that he believed this

R. v. Kundeus
Mistake as to nature of criminal act
SCC, 1976
C • Drug trafficking (LSD- restricted drug)
F • Sold drugs to undercover cop
• Thought it was mesculin but it was actually LSD
I • Did he have MR for trafficking LSD?
C • Appeal allowed
A • Majority said he did have MR
• Believing selling mesculin is close enough to selling LSD
• Know you are selling illegal narcotic either way
• Moral blameworthiness is not in Q
• Dissent
• LSD is a whole different scale of prohibition and regulation
• Committed to MR principles- how can we convict for something they did not have the MR for
• Idea you must have AR and MR for THAT specific offence
R • Crown alleges that it is sufficient to prove that the accused had general intention to traffic drugs –
once this is shown, the accused can raise an honest and reasonable mistake of fact
N • Related to Beaver and Blondin
• **pre charter
 CRIMINAL 66
INCAPACITY
• In what situations do people lack capacity to be responsible for criminal acts
• Age
• Mental disorder
• Automatism
• Intoxication
Age
• CCC- kids under 12
• 13. No person shall be convicted of an offence in respect o an act or omission on his part while that
person was under the age of 12
• Used to be 7-13 exempt from criminal responsibility unless they could show competence to show knew
and appreciated nature/consequences and that conduct is wrong
• 1982 raised to age 12
• Age measured at time of act
• JDA to YCJA apply to 12-17 yrs
• Ethic of child saving

Insanity (Mental Disorder)

• DSM-5 breaks down mental disorder into mental retardation, psychoses, anxiety disorders, personality
disorders (incl ASPD)
• Encouraged to assign more than one label wherever appropriate
• Historically insanity- now mental disorder
• Law and psychiatry not totally in sync
• Psychopath label troubling- category of legal responsibility
• Don’t want to say not responsible for hurting others simply bc dont care about hurting others- being a
psychopath may be a disorder and part of why they are offending but not a defence in most cases
• Mental disorder at the time of the act
• NCR defence: Not criminally responsible on account of mental disorder
• s.16 of the code accused is NCR MD if
• 1. 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 act was wrong
• Burden of proof of defence is on person who raises that defence (usually accused) ie. reverse
onus defence *violate presumption of innocence but SCC Chaulk decided justifiable limit
prescribed by law bc if crown had to prove sanity it would be too hard/too easy to fake mental
disorder
• s.2 defines MD as disease of the mind
• When successful- NCRMD rather than guilty/not guilty
• Then hold hearing to decide on absolute discharge, conditional discharge, or detained in psych facility
• Old defence had people found insane auto committed to psych detention-> now more favourable to
accused and disposition required to be AD unless there is a risk to public safety (proved by crown on
balance of probabilities)
U.S. v. Freeman
• History of M’Naghten rules show the law’s efforts to place people in a separate category if they cannot
be justly held “responsible” for their acts
• 1582: “If a man or a natural fool, or a lunatic in the time of his lunacy, or a child who apparently has no
knowledge of good or evil do kill a man, this is no felonious act…for they cannot be said to have any
understanding will” (764)
• Suffered from delusions of prosecution; Tried to kill English Prime Minister; killed someone else
• Found “not guilty by reason of insanity”
 CRIMINAL 67
Cooper v. R.
Murdered patient at psych hospital; Leading case on what disease of the mind means
SCC, 1979
C • Charged with murder of patient at psychiatric hospital
F • Strangled female friend to death; Did not understand would kill her by choking her bc of MD
• History of psychiatric problems since childhood
• Defence didnt plead insanity; trial judge thought insanity raised on the evidence; instructed jury
• Convicted- appealed up to SCC
I • Was a more adequate instruction required? Was there an evidentiary basis to put defence to jury?
C • Order new trial; trial judge didn't deal with s 16 properly
A • Dickson (+4):
• Disease of the mind meaning and whether certain disorder/condition meets this are Qs of law
• Whether accused in fact suffering from condition is a Q of fact for jury
• Leading definition in Canadian Law: “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”
• Not legally responsible from acts stemming from mental defect
• Must appreciate the nature of the act – means the accused must have the capacity to apprehend the
nature of the act and its consequences (not merely knowing)
• Cooper might have had the defence; failed to explain defence properly
• Real question is not merely whether he had a disease of the mind, but whether it rendered him
incapable of appreciating the nature and quality of the act OR knowing that it was wrong (s 16)

Kjeldsen v. R.
Psychopathy; Not feeling guilt is not the same as not appreciating consequences
SCC, 1981
C • Violent crimes
F • Defence made the argument: psychopath and didn't appreciate the nature and quality of the act,
bc the consequence was guilty and he didn't feel that – rejected
I • Is lacking remorse sufficient to establish not appreciating consequences?
C • Defence rejected
A • McIntyre (for the court): Psychopathy is a disease of the mind within the meaning of s 16
• BUT wasn't incapable of understanding what he was doing; rather “lacked normal emotions and
was incapable of experiencing normal feelings concerning the acts assuming he committed them”
• Not feeling guilt is not the same as not appreciating consequences
R • Defence not available when he understood nature and quality and consequences of act but lacks
appropriate feeling for victims
N • Dufraimont agrees with this decision
 CRIMINAL 68
R. v. Abbey
Not understanding punishment doesn’t mean don’t appreciate consequences
SCC, 1982
C • Importing drugs for trafficking
F • Admitted to offence but delusional belief that he was committed to importing it and no harm
would come to him and he would not be punished ie. no appreciation of consequences of jail
I • Is lacking appreciation for penal consequences sufficient for not appreciating consequences?
C • Defence rejected
A • Dickson: Not what is meant by understanding the nature and consequences of the act
• Punishment may be a result of the commission of a crime; it is not an element of the crime itself
• He knew it was forbidden by law; consequences does not mean penal consequences
R • Not understanding that punishment follows does not mean you dont appreciate consequences
N • MR helpful is deciding what consequences you have to appreciate

R. v. Chaulk
Killing a loser; Definition of wrong
SCC, 1990
C • B&E, Murder
F • Broke into individual's house, took valuables and then stabbed and bludgeoned him to death
• Evidence was adduced at trial that the pair were psychotic and thought that they were going to
rule the world - killing the victim did not matter as he was a “loser"
• They knew it was contrary to the law to kill people, but thought that they were above the law
• They were convicted by a jury and an appeal was unanimously dismissed
I • Issue of what “wrong” means?
C • SCC ordered new trial on the basis that mental disorder should have been considered
A • “Wrong” in s 16(2) must mean more than legally wrong – it means morally wrong in the
circumstances according to the moral standards of society
• It’s possible to be aware that it is ordinarily wrong to commit a crime, but believe it is right in
your circumstances because of disease of the mind
• McLachlin (+2): All that is required is that the accused is capable of knowing that the act was in
some sense “wrong” – this would be met if the accused knows that it is legally wrong
• Worried about special treatment – normally doesn't matter what people think of morality of acts
N • Focus not on general capacity to know right from wrong; rather on the ability to know that a
particular act was wrong in the circumstances (R v Ooommen):
• A killed friend for no reason – psychotic/paranoid, thought there was contract out on his life
 CRIMINAL 69
Mental Disorder Negativing MR
• Sometimes incapacity cannot be met and defence of mental disorder cannot be raised- still can go
towards forming MR required for offence
• R v Swain
• New common law rule which would only allow the Crown to independently raise the issue of insanity
after the trier of fact had concluded that the accused was otherwise guilty
• Don’t want Crown to bring forward defences if the accused wants to bring forward another defence
• Issue of insanity would be tried after a finding of guilt, before a conviction is entered
• Evidence of MD short of a full-blown defence under s 16 may be admitted on the issue of MR (Jacquard)

Automatism
• Definition in r. v. Rabey- term used to describe unconscious, involuntary behaviour -> person though
capable of action, not conscious of what they are doing- mind does not go with what is being done
• Involuntary but own body of law outside simple situations like seizures
• Altered state of consciousness must be proven in addition to involuntariness
• Are not in control of any of their actions
• Reflex is involuntary but still conscious not an altered psych state
• Often complex behaviours within state ex. Have sex - cant be a reflex ex. Sleepwalking
• Automatism defences
• Non mental disorder automatism arising from something other than mental disorder in accused
ex. Concussion and acute event put them into state
• Mental disorder automatism (most common)
• Mental disorder defences- also mental disorder automatism as well as mental disorder not automatism
• s.16 defences NCR defence
• 2 Qs almost always highly contested in automatism
• 1. Was person actually in state of automatism (even if they say they are)- crown will argue
against this
• Cases focus on distinction bw mental and non mental disorder automatism you forget
controversy over fact that they were in a state of automatism at all (Q for trier of fact on
evidence)
• 2. Assuming they were, is it properly classified as MDA or NMDA
• A lot of law surrounding this- Q of law for the judge whether something is a mental
disorder
 CRIMINAL 70
R. v. Rabey
Rock thrower; Leading case on automatism
ONCA, 1977
C • Accused charged with causing bodily harm with intent to wound and possessing a weapon for
the purpose of committing an offence
F • Accused infatuated with Miss X; she wrote a letter saying he was “a nothing” and he found it
• Took rock, hit her on the head and strangled her and left her under stairwell
• Said strange things to people on the way out ex. killed her and ill kill you
• After arrest psych in patient assessment said he had no mental disorder
• Trial judge acquits Rabey due to NMDA
A • Trial: Under Crown assessment, found to have no mental disorder, just extreme state of rage not
dissociative state (not a defence to be angry and act intentionally) and blocked out memory
• Defence psychiatrist: based on amnesia, probably in a dissociative state (disorder of
consciousness and don’t realize what they are doing- type of automatism) due to the powerful
emotional shock from her thoughts about him– psychological blow automatism
• Martin:
• Defence of NMDA was not available; can only be insanity or lack of mens rea
• Dissociation in this way is not a disease of the mind
• Rare to occur; only a very slight possibility that the respondent would suffer from a recurrence
• ONCA- mental disorder automatism not sane automatism available for defence (SCC agrees)
R • Have to have amnesia to have automatism BUT not determinative of having automatism

Rabey v. R.
SCC, 1980
I • Was sane automatism available for defence or only mental disorder automatism? -MDA
A • Ritchie (+3): Automatism = unconscious, involuntary behaviour; person is capable of action but
not conscious of what they are doing
• Question: was Rabey’s dissociated state a mental disorder? – question of law (Cooper)
• If you fly into a dissociative state without a good reason, that is MD
• Distinguish automatism arising from internal or external causes (NMDA is external cause)
• Internal would be MDA
• Court doesn't think this psychological blow counts as an external factor because:
• Lack of severity- ordinary stress and disappointments of life dont constitute an external cause
• Wouldn’t put ordinary person into automatism so if it did he must be mentally disorded
N • Psychological blow could still sometimes cause sane automatism (NMDA)
• What might count: seeing someone murdered, seeing terrible accident o/s normal stress of life
• Distinguishing matters bc crown wants NCR verdict and detainment so they can be watched for
public safety but defence wants Rabey to walk away
• Dont have to listen to what psychiatrists say
• Criticism: why put people in psychological detainment if they aren’t mentally ill? Dickson
dissent: Deeply unjust to send a sane person to a psychiatric facility
 CRIMINAL 71
R. v. Parks
Sleepwalk in law murder; Non-Mental Disorder Automatism
SCC, 1992
C • Murder
F • Sleepwalking, drives and attacks in-laws
• Drops knife at police station and says I think I killed two people- self injuries and not ordinary
behaviour, doesnt seem to be in pain
• Raised the defence of sleepwalking (NMDA) at trial; was acquitted by jury
• Trial judge (murder): his defence should be left to jury as NMDA and acquittal rather than as a
form of the defence insanity, which would result in special verdict of NCRMD
• Subsequent trial (attempted murder): had to accept previous jury’s determination that defence of
sleepwalking had been made out
• Crown appealed; Ont CA dismissed appeals
I • Is sleep walking NMDA?
C • Dismissed Crown’s appeal; court agreed that, on the evidence, the trial judge had not erred in
leaving the jury the defence of NMDA instead of insanity
A • Lamer (for the court on this point):
• Cases have said that key example of NMDA is sleepwalking (in R v Rabey in obiter)
• Recognized in other foreign jurisdictions
• Evidence doesn't indicate an illness
• Medical evidence showed that sleepwalking was very common and, in contrast, violence while
sleepwalking was very rare (defence had 5 experts)
• Sleepwalking might be a disease of the mind in other cases, based on other facts
• La Forest (+5):
• Agrees but adds more – psychiatric evidence is not a sufficient basis for finding **Q OF LAW**
• Law gets determination of whether constitutes disease of mind by adding policy considerations:
• Continuing danger theory: condition that makes someone likely to present recurring danger to
public is MD for purpose of MDA
• Internal Cause theory: Rabey- dominant theory- if it stems from internal emotional make up it is
MDA (sleep deprived cannot take things in stride as wakeful people would)
• Both stemming from concern for public safety and recurrence
• Use them as analytical aids- not determinative
• It is said automatism is a defence that is easy to feign – open floodgates to these defences
• Lots of brainwave patterns you cant fake
• This has been an open defence for a long time and there haven’t been a flood of people using it
• When a defence of sane automatism is raised, the trial judge must determine whether the defence
should be left with the trier of fact. Two steps:
• 1) They must determine whether there is some evidence on the record to support leaving the
defence with the jury (mere assertion will not suffice); THEN
• 2) They must consider whether the condition alleged by the accused is, in law, sane automatism
• Then the onus rests on the prosecution to prove absence of automatism beyond a reasonable doubt
N • Based on the changes in Stone, Parks would probably end up differently today – he would
probably get a mental disorder automatism defence bc of fam history
 CRIMINAL 72
R. v. Stone
Psychological blow automatism; Leading authority on distinguishing NMDA Defence
SCC, 1999
C • Murder
F • Dysfunctional marital relationship, was in a car with his wife and she verbally abused him;
“whooshing sensation”, stabbed her 47 times
• Claims psychological blow automatism
• Trial judge: found there was evidence to support claim that he was unconscious and told jury
possible to find automatistic, but held that only MDA was valid, not NMDA
• Appealed saying Stone had the right to have NMDA defence put to the jury
• Convicted of manslaughter bc jury accepted provocation defence (not automatism)
I • Should this be categorized as MDA or NMDA?
C • Application to the facts: factors support trial judge’s decision of MDA
A • Bastarache (+4): case of psychological blow automatism; negates the actus reus of the offence
• Normally, Crown has burden of proving voluntariness, but with defence of automatism; reverse
the burden of proof to defence to prove on balance of probabilities because:
• Automatism is internal to the mind of the accused, makes sense to put that burden on D
• Mental disorder under s.16 and extreme intoxication akin to automatism defences are reverse
onus defences and these are very related
• Steps for trial judge:
• 1) Decide whether there is an automatism defence that should be considered (Air of reality test
for automatism)
• Required: assertion of involuntariness + expert evidence confirming the assertion
• 2) Decide whether it is mental disorder automatism or non-mental disorder automatism
• Presumption: MDA; accused must prove NMDA
• Use holistic approach – all policy considerations introduced by LaForest in Parks (internal cause,
continuing danger, ease to feign, floodgates)
• Fundamental question of mixed fact and law—whether society requires protection from the
accused, and whether the accused should be subject to psychological evaluation
N • Binnie (+3 dissenting):
• Appellant was entitled to have plea of NMDA left to the jury
• Trial judge found evidence to support unconsciousness; experts agreed wasn't mentally
disordered and shouldnt get NCRMD bc of automatism law
• Burden of proving involuntariness falls on the Crown- concern court reverses BoP on this issue
• Accused was either unconscious during the attack or he was lying at trial; D: no, he could have
blocked it out afterwards
• * Bastarache outlines factors to look at in step 1: taken back by SCC in subsequent cases (Fontaine)
– instead can help determine likelihood of success
• Look at the likelihood of success of claim from perspective of jury using relevant factors
• Severity of triggering stimulus
• Corroborating evidence by bystanders
• Medical history of automatistic dissociative states
• Whether there is evidence of motive
• Whether the alleged trigger of the automatism was the target of the violence
• Pre stone if sane automatism; crown disprove D BRD, if MDA s.16 and reverse onus and this
made no sense- harmonizes this in stone to reverse onus in all of them
 CRIMINAL 73
R. v. Luedecke
Sexsomnia; Automatism- interpreting Stone
ONCA, 2008
C • Sexual assault
F • Accused and complainant guests at a party; complainant awoke to find him having sex with her
• Accused was drunk and sleep-deprived
• Victim said he looked dazed; woke up and saw condom and heard about situation and turned
self in; history of sex w girlfriends while asleep
• Defence: NMDA on the basis of sexsomnia
• Trial judge acquitted the accused; Crown appealed; arguing defence should have been MDA
I • Is this NMDA or MDA?
C • No NMDA defence for Luedecke
• MDA appropriate not bc mentally ill but appropriate for assessment of dangerousness
• Found NCR briefly detained and shortly after released bc psych view not dangerous
A • Doherty (+2):
• Public protection – usually brought up where people commit violent crimes while sleeping
• Start from presumption of MDA and use holistic approach from Stone
• In light of Stone, key factor = continuing danger
• It isn’t just the likelihood of recurrence of violence; ikelihood of recurrence of triggering factors
• Comprehensive Response to Automatism Claims: (from Stone and Winko) (para 101)
• Pre-verdict stage: social defence concerns dominate – focus on the risk posed by the potential
recurrence; Where there is risk of recurrence, that will almost always lead to an NCR-MD verdict
• Post-verdict stage: focus on “individualized assessment” of dangerousness; If they don't
demonstrate requisite significant risk, they must receive an absolute discharge
• Trying to deal with concern of putting non-mentally disordered people into psychiatric detention
• Automatism- dont refer to s.16 criteria bc completely incapacitated with respect to capabilities
• Reference to Cooper- broad defn= Almost all automatism pooled into MDA
N • Could this be treated as a question of intoxication instead?
• If sleeping walking is not NMDA, what remains?
• “After Stone, many argue that successful claims of NMDA will be limited to those very rare ‘one
off’ cases in which an accused suffers a single incident of automatism, where the accuse 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”
• Now instead of starting with assumed sane and moving to MD now other way
 CRIMINAL 74
R.v. Bouchard-Lebrun
Toxic psychosis arising from a single episode of intoxication not considered MD
SCC, 2011
C • Assault causing bodily harm
F • Accused took ecstasy, ended up in a state of drug-induced psychosis
• Started beating someone up, threw intervening person down the stairs and seriously injured him
• Accused arguing that his state of psychosis should be treated as mental disorder automatism
I • Is toxic psychosis that arises from self-intoxication a mental disorder?
C • Appeal dismissed; there was no mental disorder for CC 16 and CC 33.1 applies
A • LeBel:
• This will generally be covered by the exclusion from Cooper: definition of a disease of the mind
has specific exclusion of self-induced states caused by alcohol or drugs
• Might be situations where accused can show a state caused from drugs is a mental disorder –
must show that they have a mental disorder separate from the drugs
• Uses holistic approach from Stone to decide if MD or Intoxication
• External Cause: drugs would lead to same effect in normal person; not internal ie. not MD
• Continuing danger: risk of recurrence (of taking drug) independently of the will of the accused
• Must be treated as intoxicated offender
• Principles set out in Daviault still represent the state of the law, subject to restriction set in s 33.1
• Provision applies where three conditions are met:
• Accused was intoxicated at the material time,
• The intoxication was self-induced*; AND
• The accused departed from the standard of reasonable care by interfering or threatening to
interfere with the bodily integrity of another person
• Where these are proved, it is not a defence that the accused lacked the general intent or
voluntariness required to commit the offence
R • Toxic psychosis that arises exclusively from a single episode of self-induced intoxication cannot
be considered a mental disorder/disease of mind bc not product of Indiv inherent psych makeup
N • MD argued bc other option is intoxication which almost never works
 CRIMINAL 75
DEFENCES

INTOXICATION
• Sometimes voluntariness is a mental requirement- ex. Non insane automatism
• Literally functioning like a robot bc of mental condition; not lacking MR but did not engage in voluntary
act
• Divide criminal proceeding into 2 phases; guilt/innocence and sentencing
• Two categories of offences
• Specific MR
• Intoxication can negative
• Definition of offence specifies greater level of knowledge or intent that doing physical act
ex. Murder
• General MR
• Intoxication cannot negative
• Diff bears on whether intoxication will negative or disprove that MR from existence
• Can get you murder to manslaughter but not to acquittal
• Backdoor cover for policy decision re; if we want intoxication to be available as a defence or not
• Charged w. Murder- you can try NCRMD- wont give you acquittal but hearing under s.16-
burden on A to prove
• Non insane automatism- close to s.16, burden on A; physical aspect
• Intoxication may reduce to manslaughter not total acquittal
• Traditional intoxication defence for Specific MR offence
• Not a defence in the traditional sense ie. accused has to prove or they are sunk
• Simply a set of evidence that may lead a jury to conclude that A was not proven to have MR BRD
• Common sense inference- that sane and sober person intends natural consequences of actions
• May draw; not must draw/presume
• Level of intox must lead to understanding you didnt forge specific intent or jury had doubt
• General intent- mental element is minimal ie. knowledge of applying force
• I did not mean to hurt them is no answer
• Blameworthiness for getting into state of intoxication such that you’re dangerous to other people

OFFENCES WITH SPECIFIC AND GENERAL INTENT

Specific intent (SI) General intent (GI)
- Murder (intent to kill) - Manslaughter
- Assault with intent to resist arrest (extra - Common assault (simple intent to apply
intent to resist arrest) force only)
- B & E with intent to commit indictable - B & E and committing a GI indictable
offence offence
- Robbery (application of force to facilitate - Sexual assaults
taking of property) - Assault causing bodily harm
- Theft
- Attempted crimes
- Aiding and abetting a crime
 CRIMINAL 76
R. v. Daviault
Defence of intoxication in sexual assault
1994, SCC
C • Sexual assault
F • Accused, an alcoholic, came over to the complainant’s house (65-year-old, partially paralyzed)
and they drank together
• Accused threw her on the bed and sexually assaulted her
• Medical witness said that his blood alcohol level would cause death or coma in a regular person;
might have suffered episode of “amnesia-automatism”
• Trial judge found accused had committed the crime but there was a reasonable doubt whether he
could possess minimal intent necessary
• CA substituted acquittal with conviction
I • Does voluntary intoxication to a point that closely resembles automatism act as a defence for
crimes of general intent?
C • Allowed appeal and ordered new trial
A • Prior to this case it was established in Leary that voluntary intoxication acts as a defence in crimes
requiring specific intent because it precludes the voluntariness and intent required to commit the
crime; no decision has been made for crimes requiring only general intent since the Charter
• Cory (+3):
• Upholds distinction between specific and general intent, but Leary rule violates the Charter, can
get a conviction even though mens rea hasn't been proven
• Voluntary intoxication can act as a defence in crimes of general intent only if the intoxication was
such that the person was in a state of automatism
• Allowing people to be convicted even though they were acting autonomously drastic violation of
ss 11(d) and 7; and can’t be saved by s 1
• Would essentially be substituting the intent to get drunk for the intent to commit the crime
• Essentially, takes Wilson’s requirement and makes it a Charter minimum
• Charter requires at least giving a defence of intoxication to GI offences where the accused was
intoxicated to the point of automatism
• This is known as the defence of “extreme intoxication”
• Sopinka (dissent)- denying this defence is not contrary to the Charter
• Does not think that voluntariness to commit the AR of offence is principle of fundamental justice
• Automatism does not apply in cases where the accused has brought the state on by own fault
• He holds that although the distinction between general and specific intent crimes is illogical for
some things, it makes sense for this – therefore the Leary rule applies and the defence of
drunkenness does not apply in cases of general intent
R • If an accused is intoxicated to the extent that they have no control over their action and they are
acting autonomously then they cannot form the necessary MR to commit crimes, or be said to act
voluntarily; being this intoxicated is a defence to crimes requiring both general and specific intent
• The burden of proof is on the accused to prove this on a balance of probabilities
 CRIMINAL 77
1994, SCC
N Rewrote common law rule bc violates s.7 of charter
Would recognize narrower defence than traditional intox and instead recognize defence to general mr
defences- extreme intox akin to automatism
unlike tradition intox BOP on accused on balance of prob and expert evidence on effect on mind
one side; pharmacologist said you can drink so much that cant form general MR of offence but can
have capacity to commit assault
Not qualified to give this evidence
Other side would say anyone that drunk cannot commit assault
Treating proof of drunk as substitute for proof of MR but all rests on assumption of fact by this
alleged expert
Voluntariness is mental element hidden in AR of offence
legal realism
Extreme intox with accused bop- policy analysis
Solution- this will be available in the rare case
not that many accused raising defence- if rarely raised but can always work that is no constraint
now in murder- NCR s.16 bop on A balance of prob; non insane automatism, bop accused, balance of
prob; assert intox negative MR down to manslaughter; assert daviault to get outright acquittal but
prove that intox so extreme leads to situation in case of MR for common assault or manslaughter that
meets strict bop on accused balance of prob rare case test
For general mens rea intox not irrelevant- defence is true defence with burden on defence with
strictness of daviault extreme
3 ways to get around
s.33 notwithstanding clause- whatever enacted immune from charter attack
Create offence of criminal intoxication for getting so drunk you are a danger
Enact 33.1 of ccc- (govt did this)
Attempt to reverse Daviault for crimes of violence- self induced
Back to traditional law- for specific but not general
Defence will say s.33.1 impedes on s.7
Govt brought evidence to support validity of s.33.1 to explain why passing it

• Parliamant’s Response to Daviault

• - Removes Daviault defence of extreme intoxication for violent offences
• - Preamble:
• o Parliament talks about why they've enacted this
• o Doubts that it’s possible to be drunk to the point of automatism
• o Concerned about intoxicated violence and the people subject to intoxicated violence
• o Third whereas clause: blameworthy in relation to their conduct
• o “The rampage is on you”
• - s 33.1(3): only for violent offences
• - ss 33.1(1) and (2): removes Daviault defence of extreme intoxication – the defence that the accused
lacked general intent or voluntariness
• - Doesn't change the law for specific intent offences
• - Constitutionality of this section could be questioned – if so, look at reasoning in Daviault
• - Likely to infringe on rights, main question would probably be if it can be saved under s 1
• o What kind of arguments can we make?
• o Infringement on s 7
• o Would have to go with s 1 analysis
• - Crown:
 CRIMINAL 78
• - (look at Sopinka’s dissent in Daviault)
• - Protection of vulnerable groups (their right to have the benefit of the law) – pressing & substantial
objective
• - Minimal impairment – limited to violent offences (proportionality test)
• - Moral blameworthiness
• - Alcoholic automatism is thought by most experts to not exist (more of a theoretical problem than an
actual problem)

R. v. Jensen
• Drunk and stabbed gf to death
• Blacked out- arguing extreme intox to lead to acquittal
• Expert said no operating mind and s.33/1 violated charter
• Accused allowed daviult defence to jury and failed- convicted of murder
• Appealed- judge didnt instruct jury properly on how to consider dav offence once raised
• s.33.1 should not have been struck down
• Expert was not valid
• Court asked to rule on constitutional q should not unless necessary to decide case
• Court ruled instructions valid- appeal dismissed
• SMR offence- reg intox down to manslaughter
• Extreme intox if s.33.1 knocked out to take down to acquittal

Rolled up instruction- leaves you with doubt you must acquit

Ridiculous
Assumption that multiple failed defences=defence
Little bit of alcohol, self defence, provocation mix to raise MR doubt if they don’t meet individual tests
provocation; defence can take you down to manslaughter
If jury satisfied that accused caused v death and requisite MR - they can argue reduction to ms if victim
inflicted sudden wrongful act or insult
Provocation only arises after MR proved

Right now- SMR available in Daley test

GMR offence- s.33.1 precludes intox defence in crimes of violence BUT trial judges are regularly striking it
down and allowing extreme intox defence and not clear whether or when will go to COA or SCC
failed intox can bootstrap with other failed defences and roll up to negate mr for murder
 CRIMINAL 79
R. v. Daley
Terminology for 3 levels of intoxication defences
SCC, 2007
C • Murder
F • Accused was charged with murder of his common law wife
• He called expert evidence about his blood alcohol level and effects on him
I • How is a jury to be charged regarding intent and the defence of intoxication?
• Whether the accused, by reason of his intoxication, lacked the MR for murder
C • Appeal dismissed; second degree murder upheld
A • Where drunkenness is raised as a defence, the issue is one of intent rather than incapacity
• Introduced new terminology:
• “Mild Intoxication”: alcohol-induced relaxation of both inhibitions and socially acceptable
behaviour. Has never been accepted as a factor or excuse in determining mens rea. Trial judge not
required to give jury information on mild intoxication
• “Advanced Intoxication”: impairment of accused’s foresight of the consequences of their act.
Accused lacks specific intent, raises reasonable doubt about the requisite mens rea. Is open to be a
defence to specific intent cases; ultimate question is whether, in fact, they had that specific intent
or not
• “Extreme Intoxication akin to Automatism”: Daviault defence; negates voluntariness, thus is a
complete defence to criminal responsibility. Would be extremely rare. By operation of s 33.1 of the
Code, limited to non-violent types of offences (but also know that there is a Charter problem with
this legislation)

DEFENCES
• Some defences negate act/fault elements
• Automatism negates voluntary act
• Mistake of fact negates fault
• Other defences operate even where all elements made out
• Now looking at true defences:
• Self defence (defence of person), duress, necessity, provocation
• All of the elements of the offence are fully proven against the accused beyond a reasonable
doubt, but they can still defend or excuse themselves
• Not a question of whether the person had the act or fault requirement
• Defences can be rooted in statute or in the common law
• Self defence and provocation are statutory
• s 8(3): allows for common law justification or excuses
• NO statutory defence of necessity- CL
• Why allow common law defences?
• Common law defences being available operates to the benefit of the accused person; as a matter of
trying to give full protection to the accused, it makes sense to hold onto common law defences – allows a
person who is morally innocent to be vindicated
• It is “if not absolutely impossible, at least not practicable” to anticipate every future defence- pragmatic
reason
• Evidentiary basis for defence to be put in issue- air of reality
• To limit defences to ones in the code would be to run the risk of conflict between the code and the moral
feelings of the public
 CRIMINAL 80
• Comes back to the principle of it being better to let 10 guilty men walk than to imprison one innocent
one

TWO STAGES OF DEFENCES

1. Meeting evidentiary burden: raising the defence air of reality test
• Accused carries this burden (R v Cinous; Pappajohn)
• Whether there is an evidentiary burden is decided by the judge

2. Meeting persuasive burden: whoever has burden of proof has to prove or disprove the defence
• In ordinary cases, if a defence is raised on the facts, the Crown has to disprove the defence BRD
• Self-defence, necessity, duress
• BUT there are some reverse onus defences where persuasive burden lies on accused to prove on
balance of probability:
• Mental disorder, automatism, extreme intoxication (Daviault)

R. v . Cinous
Air of reality for defences
SCC, 2002
C • Second degree murder
F • C was involved in criminal underworld- with X and Y and said he knew they were planning on
killing him-> saw an opportunity and shot X and Y
I • Is there an air of reality to the defence of self-defence?
C • Allowed the Crown's appeal and restored the conviction
R • McLachlin & Bastarache (+4):
• Test is whether there is evidence on the record upon which a properly instructed jury acting
reasonably could acquit (“Air of Reality Test” – Pappajohn)
• Applies to all defences
• Two obligations for judge:
• 1) if defence has an air of reality, judge must put it to the jury
• 2) if the defence doesn't, judge must keep it from the jury
• Question of law – appeal courts can overturn this if there is an error of law
N Keep things streamlined and focused on issues arguable on the facts
Don’t let defence argue defences that are not arguable on facts

DEFENCE OF PERSON
• s 34 of the code: Self Defence
• 34(1) three basic requirements:
• Reasonable belief of force or threat
• Defensive purpose of accused act
• Defensive act is reasonable in the circumstances (s.34(2) list of circumstances)
• Nature of force or threat
• Imminence and whether there were other meansPerson’s role in the incident (e.g., did
you start the fight?)
• Whether any party used weapon
• Size/age/gender/physical capabilities of parties
• Nature/duration/history of relationship between the two
 CRIMINAL 81
• Earlier communications/interactions
• Nature/proportionality of response
• Subsection 3
• If fight back vs. Lawful arrest- cant claim self defence even though person is using force bc they
have authority to arrest you (unless believe unlawfully arrested on reasonable grounds)
• “defence of person” because principles are the same whether you are defending yourself or someone
else
• Considered to be a justification which means that self-defence of action is considered rightful
• Not an excuse where it’s wrongful but excusable in the circumstances
• This body of law is relevant right now – this is the type of law that would be used in police shootings
• **Policy Consideration (PC)
• One hand: concern is to make sure that people who are in a position of defending themselves
aren’t held to too high a standard
• Other hand: if we don't have strictness, we end up with people faced repeatedly with use of force
that shouldn't be based in self defence

• Fundamental Interpretive Issues:

• Proportionality: how strictly do we hold to that requirement of proportionality? Some physical
threats are too minor to warrant excessive force. No one is required to weigh to a nicety the
degree of force required – due to emergency nature of situation
• Reasonableness of response: should be judged based on the accused’s reasonable belief of the
facts. Self defence can be based on a mistaken apprehension of a threat and still be valid, but it
must be reasonable
• Retreat: are people required to retreat if possible? Depends on circumstances whether it is only
reasonable to retreat or not. “Castle doctrine” – even more justified to use defensive force than
retreat when you’re in your own home
• What acts it covers: could possibly cover acts other than physically defending. E.g., break and
enter into a house while being attacked – used to be considered necessity, now it might be
included in this legislation. Could potentially even cover duress situations
• It will primarily apply to physical force situations, but it can potentially include other situations
 CRIMINAL 82
R. v. Lavallee
Battered woman syndrome
SCC, 1990
C • Murder
F • Accused was battered woman; killed abusive partner by shooting him in the back of the head as
he left the room – “either you kill me or I’ll get you”
• Problem: he was walking away from her and leaving the room
I • Was her use of force reasonable based on history/circumstances/relationship/perspective?
C • Appeal allowed; acquittal restored
A • Wilson (+6):
• Up until this case, physical threat had to be in progress
• But this doesn't work really well for battered women
• Lavallee said she was really scared; basic issue is whether these fears were reasonable
• Problem 1: imminence requirement in the past statute (Now, not a requirement, just a factor)
• Expert evidence needed with battered woman syndrome: often needed when stereotypes and
myths are inherent in a lay-person's reasoning
• The women's experience and perspective is relevant to inform the reasonable person's standard
required for self defence
• Take into her perspective based on experience- NOT what an outsider would reasonably perceive
• This is very much reproduced in the new legislation
R • Self-defence applies even when you are not directly or immediately in harm
• Expert testimony can be very helpful in claims of self-defence as it helps the jury/judge
understand the condition that the accused was in when they acted- objective determination if
their actions were reasonable in the circumstances
• Actions that claim to be in self-defence but are too temporally removed or violent in the
circumstances to be considered reasonable will not satisfy the s.34(2) requirements to be a defence
N • BWS not itself legal defence
• Expert evidence may be needed to understand perspective
• Issue of preemptive strike but attack not imminent
 CRIMINAL 83
R. v. Mallot
Battered woman syndrome
SCC, 1998
C • Murder & attempted murder
F • Accused shot and killed husband and drove to shoot and stab his girlfriend
• Accused appealing conviction bc trial judge’s charge on self-defence was inadequate
C • SCC unanimously dismissed her appeal
A • L’Heureux-Dubé (+1):
• Battered woman syndrome is not a defence in itself – defence is self defence; battered woman
syndrome is taken into account in determining the reasonableness of use of force in self defence
• Concerned that battered woman syndrome has actually created a new stereotype of women
• Solution: Each woman in this situation needs to be understood as an indiv and also by shared
experience with other women in these situations
R • Syndromization of women who act in self defence; will those who dont fit victim stereotype have
self-defence claims unfairly decided
N • Address issue new stereotype- act in helpless way if they dont will they still have defence

NECESSITY
R. v. Dudley & Stephens
Necessity as common law defence
QB, 1884
C • Murder
F • D & S were shipwrecked along with two other people; at sea for 3 weeks with very little to eat
• P, 16, was the sickest of the men. D & S decided to kill and eat him
• B was against killing P
• They were rescued several days later and charged with murder for killing P
I • Is necessity a self defence to murder
C • Queen Victoria actually changed the sentence from death to 6 months in prison; might have had
an impact on judge’s decision
A • Lord Coleridge:
• Duty isn’t necessarily to save your own life; more likely duty to sacrifice your own life
• Slippery slope/floodgates argument – once you start recognizing the defence of necessity to a
crime as serious as murder, you may be allowing too serious an offence
• Killing this boy was immoral; we don't want criminal law to be too divorced from morality
R • Necessity isn’t a defence for murder when the victim wasn't someone who was threatening or
committing any offending acts
 CRIMINAL 84
Perka v. R.
Accidental weed boat; recognizing that there is a defence of necessity in Canada
SCC, 1984
C • Charged with importing cannabis into Canada and possession for the purpose of trafficking
F • Shipping marijuana by boat Columbia to Alaska on International waters, encountered problems
and had to dock in Canada for repairs
• Claim that they didn't intend to import into Canada – had to because they were in danger
• Jury believed this and acquitted them
C • New trial ordered because of how trial judge charged jury- Defence is available to them but
second step of test wasn't stressed enough
A • Dickson:
• Rejects necessity as justification – “choice of evils” approach too subjective; holds action rightful
• Accepts necessity as an excuse based on “realistic assessment of human weakness” - still
wrongful but reason/circumstance to excuse it
• 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”
• Constrained choice- situations of moral involuntariness because the actor has no real choice but
to break the law – act is realistically unavoidable (moral equivalent to involuntariness)
• Defence of necessity strictly limited so it only covers acts that are truly morally involuntary
• Three requirements for defence of necessity:
• 1) An urgent situation of imminent peril
• 2) No reasonable legal alternative/legal way out
• Drawn out of Morgentaler requirement of compliance being demonstrably impossible
• 3) Proportionality between harm inflicted and harm avoided
• If necessitous situation foreseeable, cannot use necessity defence when doing something illegal
• Onus of proof: After the accused has proven the evidentiary burden, Crown has burden to
disprove defence of necessity beyond a reasonable doubt
 CRIMINAL 85
R. v. Latimer
Murdered disabled daughter;
SCC, 2001
C • Murder
F • Mercy killing of daughter Tracy who had cerebral palsy
• Charged with first degree murder; jury found him guilty of second
• At second trial, charged with only 2nd degree – found guilty
C • No air of reality to give rise to defence; appeal dismissed – conviction and sentence upheld
A • Pur Curiam (unanimous decision):
• Three requirements from Perka further interpreted:
• 1. Urgent situation of imminent peril- on verge of transpiring and virtually certain to occur
• 2. No reasonable legal alternative- realistic assessment of options
• 3. Proportionality bw harm inflicted and harm avoided- not req that the harm avoided clearly
outweigh the harm inflicted at a min the harms must be of equal gravity
• First two: use modified objective test – accused must have honestly believed on reasonable
grounds that he or she was in imminent peril with no legal way ou
• Objective evaluation that takes into account situation and characteristics of accused
• **DIFF THAN CREIGHTON- no characteristics of accused
• For 3: objective standard reflecting societal values
• To raise defence, trial judge must be satisfied that there is evidence sufficient to give an air of
reality to each of the three requirements
• Peril to daughter not him for surgery he considered mutilation; no threat to her life

DURESS
• The defence of duress existed at common law
• In Canada it was codified, statutory defence is now found in s 17 of Code
• Covers situations in which the accused commits an offence under compulsion by threats
• Features of s 17:
• Understood as an excuse
• Very restrictive requirements:
• 1) Threat of death or bodily harm to accused or 3rd party
• 2) Immediacy: act committed has to be committed under threat of immediate death or bodily
harm
• 3) Presence: threatener must be present when offence is committed
• 4) Belief: accused must believe that threats will be carried out (subjective)
• 5) Accused not party to conspiracy
• 6) Exclusion of certain offences: statutory defence of duress not available for murder, sexual
assault, robbery, etc.
• ***These requirements have been modified in light of the Charter (Ruzic)- not current law; Immediacy
and presence written out
 CRIMINAL 86
R. v. Paquette
Robbery driver; Limits applicability of s.17 to actual person who commits offence
SCC, 1977
C • Robbery, non-capital murder
F • Appellant threated with a gun to drive to place of robbery, threatened to wait for them outside
• Appellant acquitted at trial; appeal would have been dismissed not for Dunbar v the King (1936)
• Doesn’t want s.17 defence- murder and robbery are both excluded offences; wanted CL defence
(way better bc not clear any offence excluded)
C • Acquitted
A • Ritchie: SCC holds that s 17 only applies to the person who actually commits the offence; not to
other parties through language “a person who commits offence”
• Therefore: statutory defence doesn't apply here; he can access common law defence of duress
• Did not have common intention with guilty parties and therefore elements of s.21(2) not proven
and as a party rather than principle entitled to duress defence
• Person whose actions dictated by fear of death/harm cannot form genuine common intention to
carry out unlawful purpose with person who threatened him if he fails to cooperate
R • Statutory defence of duress does not apply to those party to offence as aider/abettor or by way of
common intention under party liability provisions of CC s.21
N • SCC obviously thought defence of duress should be available to people like him who did not
actual commit the crime and only guilty as parties; level of involvement and moral
blameworthiness is less than actually doing it

R. v. Hibbert
• SCC, 1995
• Lamer (+8): Duress is not based on the idea that coercion negates mens rea
• It operates by justifying or excusing what would otherwise be criminal conduct
• “Safe Avenue of Escape” requirement: It can only be invoked if there is “no legal way out” of the
situation of duress the accused faces (960)
• This req to has a modified objective standard

Evolution of Defence of Duress before Ryan

• Paquette: the defence of duress can be both:
• A statutory defence under s 17, which applies to principals
• A common law defence that is available to other parties
• Hibbert: The Supreme Court held that:
• Like necessity, duress is an excuse based on moral involuntariness
• Since based on moral involuntariness, duress requires 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
• Ruzic: The Supreme Court held that:
• Under s 7, POFJ 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
 CRIMINAL 87
R. v. Ryan
Hit man for husband; duress elements
SCC, 2013
C • Counselling commission of husbands murder
F • Husband threatened to kill Ryan/daughter; counselled to have him murdered; undercover cop
• Trial court concluded she may and acquitted her; Crown appeals
• Previous version of self-defence provisions made it clear you had to be the one to use the force
I • May a wife, whose life is threatened by her abusive husband, rely on the defence of duress when
she tries to have him murdered?
C • Appeal allowed; defence of duress not available
A • LeBel & Cromwell:
• “The defence of duress is only available when a person commits an offence while under
compulsion of a threat made for the purpose of compelling him or her to commit it” (974)- not
the case here so duress not available
• For statutory (1-4) and common law duress (5-7), common elements:
• 1. Threat of death or bodily harm directed at the accused or a third party
• 2. Accused actually and reasonably believes that threat will be carried out
• 3. Accused not party to a conspiracy or criminal association such that they are subject to
compulsion
• 4. Exclusion of certain offences (murder, sexual assault, robbery etc.)
• 5. No safe avenue of escape (Hibbert: on a modified objective standard (MOS))
• 6. Close temporal connection between threat and harm; MOS
• 7. Proportionality; MOS
• Statutory defence applies to principals; CL defence is available to parties (Paquette and Ruzic)
• CL Differences:
• Statutory defence has list of exclusions; unclear whether common law defence has exclusions
• Statutory exclusions may be unconstitutional if they remove the defence in situations of moral
involuntariness- s.7 POFJ that only morally voluntary conduct can attract criminal liability (Ruzic)

PROVOCATION
• Excuse defence
• Partial defence to murder
• Partial defence = defence to reduce but not eliminate criminal liability
• Another partial defence to murder is advanced intoxication (Daley)
• For provocation: a person who would otherwise be guilty of murder will get a verdict of manslaughter
• Statutory defence must reference s 232; Only for murder
• s 232(2): What is provocation?
• Victim conduct that would be an indictable offence, liable for 5-years imprisonment or more
(new requirement, ~ 2015 – before this, had to be a wrongful act or insult)
• Must be of such a nature as to deprive ordinary person of self-control
• Accused must be acting on it suddenly and before there is time for passions to cool
• Because legislation changed, previous cases are of limited utility
• Defence has basically two parts:
• 1) Objective question: provoking conduct that was sufficient to deprive an ordinary person of
self-control (NOTE: doesn’t say “reasonable person”)
• 2) Subjective question: person had to have actually lost control to get this defence
 CRIMINAL 88
R. v. Hill
Gay panic; Leading authority on “Ordinary Person” in s 232(2)
SCC, 1985
C • Murder
F • Hill was 16-year-old boy, stabbed a man from Big Brothers organization
• He was in his apartment, claimed that he made a homosexual advance
• He was charged with 1st degree and convicted of 2nd degree – rejected the defence of provocation
• Appeal to SCC on whether judge properly explained ordinary person standard
• Note: now important to determine what type of sexual advance it was – verbal or indictable
I • Did trial judge have to tell jury that “ordinary person” means ordinary person of the sex and age
of accused? What extent do we invest ordinary person with personal characteristics of accused?
C • Appeal allowed; 2nd degree conviction restored
A • Reasons for not considering personal characteristics: Makes it too subjective
• BUT- Sometimes the personal characteristics are necessary to the whole story of provocation (e.g.,
cases about racial slurs being provocation)
• Majority (Dickson):
• Ordinary person is person of normal temperament and self-control, not particularly aggressive or
short-tempered; but, nevertheless, can take into account some of the characteristics of the accused
that are relevant to the provocation
• There is no such thing as a sexless and ageless ordinary person
• Judge doesn't need to necessarily tell jury this – Jurors will do this as a matter of common sense
• Still binding today *
N • Why do we have a defence of provocation?
• p 988: “The defence of provocation acknowledged that all human beings are subject to
uncontrollable outbursts of passion and anger which may lead them to do violent acts”
• Could argue that you should just get rid of this defence
• Three main kinds of cases where provocation defence has been used:
• “Gay panic” cases: sexual advance from someone from same sex that is straight- Maybe giving
people an excuse for their homophobia
• “Adultery” cases: man comes home and finds his wife having sex with another man, will kill one
or both of them** Seem to be completely off the table going forward
• “Excessive self-defence” cases: these will probably still fit- Might be argued as a back-up if self-
defence isn’t accepted
 CRIM POLICY 1

TABLE OF CONTENTS
Criminology 2
Scope of Criminal Law 2
Deterrence 3
Evidence 3
Precedent 4
Fair Notice 4
Statutory Interpretation 4
Strict Construction 4
Constitutionality 5
Presumption of Innocence and Burden of Proof 6
Credibility Contests 7
Victims’ Rights 8
The Adversary System 8
Women in the Adversary System 8
Aboriginal Peoples and CJS 9
Racial Politics 9
Juries 9
Act Requirement 10
Consent 10
Omissions/Duties to Act 10
Voluntariness 11
Causation/Intervening Cause 12
Mens Rea 12
Reverse Onus Offences 13
Subjective vs. Objective Fault 13
Regulatory Offences 14
Homicide 15
First vs. Second Degree 16
Objective Fault Crimes 16
Criminal Negligence 16
Rape and Sexual Assault 17
Mistaken Belief in Consent 19
Mistake of Fact 20
 CRIM POLICY 2
Incapacity 21
Youth 21
Mental Disorder 21
Automatism 23
Defences 24
Intoxication 24
Defences 25
Defence of Person 26
Necessity 28
Duress 29
Provocation 30
Note on Carter 30
Solitary Confinement 31

Criminology
• Study of crime as a social phenomenon which explores the causes nature, punishment and treatment of
criminal behaviour
• We understand crime to be heterogenous, meaning it is not a phenomenon that is all the same;
questionable as to whether it is useful to discuss crime as a single social phenomenon
• The causes of crime are complex, there are a number of things that can contribute to the existence of
crime in a society including biological, phycological, sociological and social factors
• Rates of reoffending (recidivism) are high, regardless of treatment or punishment and we have yet to
find the solution to stopping people from reoffending
• Are there truths of criminological behaviour that should be taken into account in the development of
substantive criminal law principles?
• Barbara Wooten: contends that criminal behaviour covers too large a range of human behaviour to be
classified and analyzed, “a miscellaneous aggregate of quite different kinds of action”
• Difficulty with putting our hope in typologies is that no one has yet been able to develop them.
• Truths of criminology are limited, there are no clear explanations definitions or answers
• We can no longer develop our substantive law principles without taking this reality into account

Scope of Criminal Law

• What is the proper scope of the criminal law? When is the state justified in imposing criminal
punishment?
• Harm Principle: one approach to understanding criminal law, which believes the state to only be
justified in punishing individuals for conduct that harms others
• In his essay On Liberty, John Stuart Mill outlined the classic statement of the principle: “The only
purpose for which power can be rightfully exercised over any member of a civilized community,
against his will, is to prevent harm to others…To justify that, the conduct from which it is desired
to deter him, must be calculated to produce evil to some else.”
• His view has 2 essential features:
• (1) it rejects the prohibition of conduct that harms only the actor (paternalism)
• (2) it excludes what could be called “moral harm”; he required clear and tangible harm to the
rights and interests of others in order to prohibit conduct

 CRIM POLICY 3
he acknowledged an exception, which was that those who are still in a state to require being
taken care of by others, must be protected against their own actions as well as external injury
• Exception to harm to others for vulnerable groups- those who need to be taken care of by others must be
protected against their own actions and external injury
• Rejects paternalism and notion of moral harm
• Very limiting principle bc it implies all conduct harmful to others should be criminalized
• Established in Malmo-Levine that the harm principle is NOT a principle of fundamental justice
• SCC laid out exact test for deciding whether rule of CJS qualifies as principle of
fundamental justice
• Must be a legal principle
• Must be significant societal consensus that it is fundamental to how legal system
ought to operate
• Must be identified with sufficient legal precision to yield manageable standard
• SCC wants to give room for government to make policy
• For rule or principle to constitute principle of fundamental justice for purpose of s.7 must be significant
societal consensus that it is fundamental to the way legal system ought fairly to operate and be
identified with sufficient precision to yield manageable standard to measure against deprivations of
life/liberty/security
• Harm principle better characterized as description of important state interest rather than normative
legal principle

• Canadian Committee on Corrections: Provides 3 requirements that should be met to criminalize an act
• 1. No act should be criminally proscribed unless its incidence or potential is, substantially
damaging to society
• 2. No act should be criminally prohibited where its incidence may adequately be controlled by
social forces other than the criminal process
• 3. No law should give rise to social or personal damage greater than what it was designed to
prevent
• We have to keep in mind that criminal law is a blunt and costly instrument, meaning it should be used
as a last resort
• The scope of criminal law must not overextend itself but rather criminalize act thought to be seriously
wrong by out society
• Wrongfulness: is a NECESARRY not a sufficient condition of criminality
• Before an act should count as a crime three conditions should be fulfilled otherwise must stay
outside Code as quasi-criminal acts
• 1. It must cause harm to other people, to society or to those needing protection from themselves
• 2. It must cause harm that is both serious in nature and degree
• 3. It must cause harm that is best dealt with through the mechanisms of the criminal law

Deterrence
• Form of prevention using fear
• Specific: fear of same consequences for specific offender
• General: society/community hear about offender punishment and fear same consequences so don’t
commit same act
• Under S. 718 of CC– (purposes and principles of sentencing) general deterrence is considered a valid
principle for judges to consider when sentencing

Evidence
• By late 13th century the Norman Inquest had made way for new modes of fact finding with an emphasis
on rational inquiry consisting of sworn investigators and jurors who undertook to discover the fact and
relate the same to the judge
 CRIM POLICY 4
• Fact-finding process has developed into a system of inquiry which is considered rational (meaning that
there must be a rational connection between the evidence tendered and the proposition sought to be
established)
• Facts tendered in evidence are either testimonial or circumstantial
• Testimonial: direct evidence
• The trier is asked to infer from the fact that the witness made a statement to the truth of the
matter stated
• If witness seen to be sincere and possesses ability to observe and recall clearly, the testimony is
likely to be credited
• Circumstantial:
• Certain facts connected with the material fact are proved and the trier is asked to infer from these
facts that the material fact exists

Precedent
• Decisions of higher courts that are binding to the courts below
• The objective is to create certainty and predictability
• Notion that each phrase in a judgement should be treated or enacted as statute is inconsistent with the
basic fundamental principles of the law
• While some obiter dicta may be intended to give guidance, which is authoritative in nature, commentary
is regarded as simply persuasive
• Sellers v. The Queen ie. Sellers Principle: case where the binding nature of precedent was exaggerated
• Eluded to the fact that once we move away from our ratio decidendi to a wider circle of analysis,
the weight of certain statements decreases and becomes persuasive
• Widely accepted that the doctrine of precedent is a working ingredient in judicial function
• Achieves a compromise between certainty and flexibility, but each rule or principle is not
absolutely binding
• Case is only binding for what it decides; sometimes SCC rule on points of law even if not nec;
other analysis should be authoritative not binding

Fair Notice
• Everyone is entitled to notice re; what is an offence which cannot happen if crimes are created after an
action
• ex. Frey v. Fedoruk peeping tom case (offence was not established)

Statutory Interpretation
• Judges tasked with interpreting legislation and applying it to cases
• Is there room for creativity or are judges restricted by statutes and precedent?
• After anti-terrorism provisions of CCC; majority judgement summarized an approach to statutory
interpretation:
• Words read in entire context and grammar/ordinary sense harmoniously with the scheme/object
of act and intentions of parliament
• Where two readings are equally plausible; interpretation should follow Charter values
• R. v. Clark meaning of “public place”determined through statutory interpretation techniques
• Schreiber v. Canada bilingual interpretation:
• Where one statute ambiguous and other is clear, the common meaning of two would be preferred
• Where one of two is broader, common meaning favours the most restricted meaning
• R. v. Mac tried to use strict construction but no ambiguity in French version so SCC used that instead

Strict Construction
• R. v. Goulis
 CRIM POLICY 5
• Courts often apply rules of statutory construction in ways that if provisions are reasonably capable of
two meanings, adopt the one that is more favourable for the accused
• Two- Part Test for Application of Favourable Interpretation to the Accused
• PART 1: Determine the sense in which Parliament used the word using the context from which
the word appears (i.e. how it fits into the statutory provision)
• PART 2: Determine which interpretation is most favourable to the accused and the apply it
• Offences, not defences, should be given restrictive reading
• Hunter v. Southam Inc. - Purposive approach: consider the context of the law’s purpose; must be capable
of growth over time
• Commitment to individual liberty commands the doubt resolved in favour of maintaining liberty
• Strict construction is not always applied
• R. v. Pare “while committing” wording meaning a single continuous transaction was ruled to be
constitutional with no reasonable ambiguity bc it was consistent with Parliament choosing to
heighten certain situations with unlawful domination to 1st degree to increase penalties

Constitutionality
• Ref re: Firearms Act - Constitutionally valid; while this law has regulatory aspects, they are secondary to
primary criminal law purpose of public safety (pith and substance- trying to solve firearms trade and
gun violence mischief problems)
• Spanking case CFCYL - s.43 of code vagueness issue
• Every school teacher, parent or person standing in place of parent is justified in using force by
way of correction toward pupil/child
• S. 43 provides a defence for what otherwise would be an assault
• CFCYL brought a challenge to this law, arguing that it violated the principle of VAGUENESS
• Majority (McLachlin) rejected the Charter challenge by arguing that the provision can be interpreted to
have two limitations:
• 1. “by way of correction” = Means the person applying the force must have intended it to be
for educative or corrective purposes and that the child must be capable of benefitting from the
correction
• 2. “reasonable under circumstances” = Only minor corrective force of a transitory or trifling
nature. These phrases provide sufficient precision to delineate the zone of risk and avoid
discretionary law enforcement
• Strong Dissent (Arbour J former UN High Commissioner & Deschamps)
• s.43 is unconstitutionally vague based on few arguments that are proven not be valid in
assessing the vagueness of the statute
• Past cases show that s.43 fails in delineating the boundaries of the legal debate
• “Reasonableness” is an acceptable criterion in some criminal law contexts but here it has no clear
meaning
• Corporal Punishment is a controversial social issue, vagueness in defining the terms of a defence
which affects the physical integrity of children may be even more invidious
• Notable that the Committee has not recommended clarifying these law so much as abolishing
them entirely (in keeping with Convention of Rights of Child)
• To find the provision is not vague, the majority rewrites the statute = amounts to judicial
rewriting of the legislation- are courts overstepping to point htat they are redrafting leave to
legislation
• Vulnerable group’s interests at stake
• 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; Violates that persons should be governed by rule of law not rule of persons
• Doctrine of vagueness directed tw evil of leaving basic policy matters to police/judges/juries for
resolution on an ad hoc subjective basis
 CRIM POLICY 6
• Ad hoc discretionary decision making distinguished from appropriate judicial interpretation
• Nature of system that areas of uncertainty exist- legislators cannot foresee all situations
• Judges clarify on case-by-case basis

• Bedford Prostitution Case

• Argued provisions violated s.7 bc put safety at risk and prevented from implementing safety measures
• Court declared unconstitutional- Dont just impose conditions but create dangerous ones that prevent
them from taking steps to protect themselves from the risks associated with the legal activity
• Typically, in context of criminal law we are concerned with the deprivation of liberty, in Bedford this
was not the basis. Basis was the deprivation of security of the persons
• s.210- keeping bawdy house
• Goal to prevent nuisance related community harms and safeguard public health and safety
• Effects on s.7 rights- impact on security of the person, endanger sex workers by preventing them
from safety precaution of fixed indoor location
• Endangerment is out of sync from avoiding unimportant nuisance related objective therefore law
is grossly disproportionate
• s.212- living on avails
• Objective to target Pimps and exploitative conduct- impacts on security of person
• In wide applications prevent relationships that aid safety ex. Bodyguard- law is overbroad
• s.213- communicating for purpose of prostitution
• Objective of law is to prevent street prostitution nuisances and related crimes ex. Drug trafficking
• Effects on security of the person- displaced sex workers to less public and less safe locations and
prevented proper screening of clients
• Found to be grossly disproportionate
• New Legislation- Protection of Communities and Exploited Persons Act 2014
• Asymmetrical criminalization- Illegal to be a client of a sex worker but not illegal to sell
• Govt view is purely related to exploitation
• Only criminalizes communication to protect children ie. only disallowed by parks/schools etc.
• Criminalizing johns pushes it underground and makes women less safe
• Same effects on security if the person
• Bill has been applauded by those who see all prostitution as immoral and those who see sex
work as not ever a free choice by always exploitative, degrading and dangerous to women.
• Whether these new laws will survive another Charter challenge remains to be seen

• Oakes
• Proportionality Test
• Narcotics Act s.8 (possession) assumes possession for the purpose of trafficking and reverses the
the onus onto the accused to prove they were not- Infringes on presumption of innocence
• s.1 limitation-> saving something that has breached s.7 under s.1
• Objective to curb drug trafficking- no rational connection thus law is inappropriateS.1 is about
justification of overarching public goal- Effectiveness is not the issue
• Look at # of people affected
• S.7: is about comparing law’s purpose taken at face value to negative effects
• No quantitative analysis- 1 person is enough
• Government bears burden of showing violation under s.1
• Claimant has burden to show infringement under s.7
• Court has NEVER saved s.7 violation under s.1

Presumption of Innocence and Burden of Proof

• s.11(d) of the charter: Any person charged with an offence has the right to be presumed innocent until
proven guilty according to law in a fair and public hearing by an indep and impartial tribunal
 CRIM POLICY 7
• Woolmington v. D.P.P. - Common law presumption of innocence “; for the law presumeth the fact to have
been founded in malice, until the contrary appeareth”; all elements have to be proven BRD
• Minimal Impairment – whether or not the government could have achieved the objective in a way that
limits the right/freedom less
• Blackstone Ratio: It is better ten guilty persons should be acquitted than that one innocent person
should be convicted”
• Dickinson J in Oakes: there are many serious consequences of committing someone of an offence
(punishment, stigma) which is why the presumption of innocence and PBRD are essential in a society
that is committed to fairness and social justice
• Presumption of innocence confirms our faith in human kind because we treat people as law-abiding
until proven otherwise
• Beyond a Reasonable Doubt:
• The judge must explain this standard and burden of proof to the jury
• There are 2 things jury instructions supposed to do:
• 1. Want instructions to be legally accurate (error in law = gives rise to successful appeals)
• 2. Also want judge to explain law to jury in a way they can understand
• Lifchus - trial judge erred in instructing the jury on the meaning of the expression “proof beyond
reasonable doubt”
• Although the phrase is commonly used in speech, it has a specific meaning in legal context
which may not correspond precisely to its ordinary meaning
• Why is it important?
• Where the liberty of the subject is at stake it is fundamental that the jurors fully understand the
burden of proof that law requires them to apply
• How should it be explained:
• The standard of proof beyond reasonable doubt is intertwined with the presumption of
innocence, it is based upon common-sense and logically derived from the evidence or absence of
evidence
• When an accused enters proceedings presumes to be innocent, this remains through the case
until the Crown has satisfied the jury otherwise
• Understanding it as a continuum is helpful whereby proof beyond a reasonable doubt is closer to
absolute certainty than proof on a balance of probabilities - Starr
• Burden of proof rests on prosecution and never shifts to accused
• Reasonable doubt is not a doubt based on sympathy/prejudice but reason/common sense
• Logically connected to evidence or absence of evidence
• Does not involve proof to an absolute certainty- not proof beyond ANY doubt
• More is required than proof that accused is probably guilty
• Cannot be described as ordinary expression with no special meaning
• Dont invite jurors to apply same to own important life decisions
• Dont equate proof BRD to moral certainty
• Dont qualify word doubt with adjectives other than reasonable ex. Serious
• Dont instruct jurors that the may convict if they are sure the accused is guilty

Credibility Contests
• R. v. S (J.H.)- W.D. Instructions
• 1. If you believe evidence of the accused, you must acquit.
• 2. If you do not believe the testimony of the accused but you are left in reasonable doubt by it,
you must acquit
• 3. 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
• Trial judges free to reject W.D as long as they make sure jury is warned of crown burden, that it is not a
choice bw competing stories, and that they may believe some, all, or none of any witness ie not a script
 CRIM POLICY 8

Victims’ Rights
• Do not have a formal part in the process; in the dark and not a lot of influence
• Rape Shield law: laws that prevent the defence from bringing up victim’s sexual past
• Bill C-32 Victim’s Bill of Rights Act
• Outlines various rights:
• Victim services offices, bans on identifying victims, victim impact statement’s
• Right to info re. criminal justice system
• Right to info re. status of the investigations of criminal proceedings
• Right to have security and privacy considered
• Right to protection from intimidation
• Right to convey their views
• Right to have a restitution order
• Room for concern- a criminal trial is about determining guilt and just punishment, not about personal
redress for victims
• Constitutional rights for those alleging crimes were directly recognized by the SCC in R. v. Connor
• Court adopted special a special balancing procedure respecting discovery of medical records in the
possession of third parties
• Thus, balancing the accused’s right to a fair trial and full answer and defence with the complainant’s
rights to privacy and to equality w.o discrimination

The Adversary System

• Method of inquiry in our courts is distinct from scientific method in that it is adversarial as opposed to
inquisitorial
• The judges function is to make the ultimate finding of facts but not personally investigate
• Contestants seek to establish through relevant supporting evidence, before an impartial trier of facts,
those events which form the basis of their allegations
• It is a forum established for providing justice for litigants
• Whether or not this system approximates truth remains open to question: The main goal is to paint the
best picture of the client’s position as opposed to the most complete picture

Women in the Adversary System

• Portia in a Different Voice: Speculation on a Women’s Lawyering Process – Carrie Menkel Meadow
• Feminists have observed the law to be based on male values and behaviours
• Given that women were long excluded from the law it should come as no surprise that the traits
associated with women are not greatly valued by the law
• Men tend to view law through “the logic of justice” while women through the “ethic of care”
• Although the male lens is compatible with a “good lawyer”, the ethic of care approach is also
plausible and legitimate; There is no one best way to approach problems
• American model of litigation: advocacy, persuasion, hierarchy, competition, and binary results
• Adversary model force lawyers to assume competition over the same limited and equally
valued items (usually money) and assume that success if measured by individual gain
• This model of one-side advocacy seems contrary to “apprehending the reality of the other”
which many female lawyers tend to experience
• Mediation: An alternative to the adversary model which attempts to modify the harshness of the
adversarial process and expand the kinds of solutions available, in order to respond to the varied
needs of the parties
• Conclusion: Growing sum of women in the legal profession may change the adversarial system
into a more cooperative system of communication between disputants in which solutions are
mutually agreed upon rather than dictated by an outsider, won by the victor, and imposed upon
the loser
 CRIM POLICY 9

• Will Women Judges Really Make a Difference? - Madam Justice Bertha Wilson
• Judges must be both independent and impartial; these qualities are basic to the proper administration of
justice and fundamental to the legitimacy of the judicial role
• Justice Rosalie Abella doubts that judicial impartiality is a realistic requirement, every decision maker
enters a courtroom with a set of values, experiences and assumptions that are thoroughly embedded
• How do we handle the problem that women judges, just as much as their male counterparts, are subject
to the duty of impartiality?
• There is no reason why judiciary cannot exercise some modest degree of creativity in areas where
modern insights and life’s experience have indicated that the law has gone awry.
• Conclusion: If women lawyers and women judges can bring a new humanity to bear on the decision-
making process, perhaps they will make a difference and succeed in infusing the law with an
understanding of what it means to be fully human

Aboriginal Peoples and CJS

• The Aboriginal Perspective on Criminal Justice: each community has had a distinctive experience,
however, there is some oversimplification in the general descriptions of Aboriginal perceptions and
aspirations
• Aboriginal Perceptions: Criminal justice system is alien, imposed by the dominant white society
• They regard the system as deeply insensitive to their traditions and values, many view it as racist
• Abuse of power and distorted exercise of discretion are constantly identified
• Feelings of isolation erects barriers to attaining an understanding of the system
• The system presents an unending course of barriers and obstacles, with no avenues of effective
complaint or redress
• Aboriginal Aspirations: they have a vision of a justice system that is sensitive to their customs/beliefs
• Vision is a natural outgrowth of their aspirations to self-government and sovereignty
• Many contrasting visions, but fundamental is the belief that the system must be faithful to
aboriginal traditions and cultural values, while adapting them to modern society
• Challenges both common and civil law concepts
• Within an aboriginal justice system, laws would not be uniform rather they would vary from
community to community
Racial Politics
• R. v. RDS
• Trial judge Sparks held that an accused who engaged in a altercation with a police officer should be
acquitted because “police officers do overreact, particularly when they are dealing with non-white
groups”
• Although the SCC ultimately concluded that there was no reasonable apprehension of bias, they were
worried about the remarks made by Judge Sparks
• Concluded that it is dangerous for a judge to suggest that a particular person overreacted because of
racism unless there is evidence adduced to sustain this finding
• Although the courts split, Dufraimont believes that today the view that there was no reasonable
apprehension of bias and that Judge sparks was simply engaging in contextualized judging would have
been the majority opinion

Juries
• Q of law decided by judge and Q of fact decided by during
• Problem of deciding who should apply the laws to the facts
• In criminal cases judge instructs jury on the law that governs the case and the juries applies it to reach a
general verdict
• Jury instruction must satisfy two conflicting requirements:
• 1. The need to state accurately the relevant law and state the law so that the jury understands it
• Strict legal correctness is one of the primary concerns of appellate courts and trial judges
 CRIM POLICY 10
• 2. Instructions must be understandable to the jury
• Allocation of responsibility between judge and jury is premised on the jury’s ability to understand and
apply the law
• Often alleged that one serious efficiency of trial by jury is the jury’s inability to follow and comprehend
the instructions given by the judge.
• If jurors are confused about the law they are to apply, they cannot perform their function properly, and a
just verdict will be reached only by chance

Act Requirement
Consent
• Some acts are only offences when they are done without consent
• Lack of consent is often referred to as a defence
• For consent to make an act lawful, the consent had to be valid
• Some situations where consent was given, consent is “vitiated” or invalid in the eyes of the law
• Jobidon - a person cannot consent to an assault that intentionally causes “serious hurt or non-trivial
bodily harm… in the course of a fist fight or brawl”
• Gonthier in case: “all criminal law is ‘paternalistic’ to some degree”
• Requires serious harm both intended and caused for consent to be vitiated
• The courts decided that common law limits on consent were good policy; fistfights have no social
value and consensual fights may lead to larger brawls and breaches of peace
• Common law limit: one cannot consent to serious, non-trivial bodily harm

• Cuerrier - HIV positive had unprotected sex with two partners and was charged with aggravated assault
under s. 268, even though neither partners contracted HIV
• The question for the court was whether fraud vitiated consent; ultimately ruled vitiated
• This was considered good policy because fraud requires dishonesty and deprivation and the potentially
devastating consequences of HIV transmission fulfilled this
• A question of policy for the courts was whether or not recognizing new categories of vitiating consent
would criminalize trivial situations ie. lying about your profession
• Thus McLachlin stated that consent would only be vitiated when there is high risk of exposure to
serious diseases- But what determines a high-risk?
• Mabior - Charged with 6 counts of aggravated assault, but was ultimately acquitted in the cases where
he had a low viral load and used a condom because this did not amount to a high risk of exposure to
HIV
• Had to redefine the Cuerrier test, based on 2 criticisms of the test
• 1. Uncertainty fails to draw a clear line between criminal and non-criminal conduct; not
knowing that an act is a crime before you preform it is contrary to s. 7 of Charter
• Test gives rise to two uncertainties: what constitutes “significant risk” and what
constitutes “serious bodily harm”? This test offers no answer
• Makes it impossible in some cases to predict whether an act is criminal under s. 265
• 2. Breadth it either overextends the criminal law or confines it too closely
• Danger of overbroad interpretation of criminalization of conduct that doesn’t present the
level of moral culpability and potential harm
• Judges should clarify their judgments and interpretations of statutory provisions the first
time around so that trial time is not wasted, and inconsistent convictions are not made,
potentially convicted the morally innocent
• Hutchinson - poked holes in condom; consent vitiated bc depriving women of choice to get pregnant is
equally serious deprivation to serious bodily harm

Omissions/Duties to Act
• Omission or failure to act will generally only form the actus reus of a criminal offence when an
individual has a specific legal duty to act
 CRIM POLICY 11
• In Macaulay’s draft Code: it was provided that an omission should be illegal if it has caused and has
been intended to cause harm OR was known to be likely to cause harm OR was on other grounds illegal,
that is, an offence in itself or a breach of some direction of law, or such a wrong as would be a good
ground for a civil action
• Both the Quebec Charter and French Penal Code have adopted provisions which imply that every
person must come to the aid of anyone whose life is in peril unless it involves danger to themselves
• Relevant Cases:
• Peterson - s.215(c) there is a duty to provide the necessaries of life to a person under your charge
• Failure to discharge this duty can lead to criminal liability for the omission
• Arnold Peterson, elderly father with dementia determined to be under the charge of his
son, Dennis
• Being under the charge of another centrally required the exercise of an element of control
by one person and a dependency on the part of another
• We must also consider the relative position of the parties, their ability to understand
circumstances and whether the accused explicitly assumed responsibility of the person
• As was discussed by the dissent in this decision, we have a social responsibility to be
careful of the easy assumption that elders are like children
• If they don’t really have a problem of incapacity, then they have the right to refuse certain
services; stereotypes and infantilization
• Browne - issue of not taking fellow crackhead to hospital; only binding and intentional
undertakings will suffice to expose an accused to criminal liability for failing to act
• A mere expression of words will not normally be enough to create a duty under section
217
• Moore - Refusal to identify yourself to a police officer who saw you commit a crime has been
held to be an obstruction of a police officer under section 129 of Criminal Code
• He was guilty of s. 129(a) Obstruct Policy “everyone who resists or willfully obstructs a
peace officer”
• This is worded broadly enough to be done by omission. (could easily fail to do something
that is your legal duty to do)
• Reciprocal duty based on police duty to investigate
• Dissent: Omission to act in a particular way will give rise to criminal liability only where
a duty to act arises at common law or is imposed by statute
• There is no statutory/common law duty to speak to police- must assume legislation
purposely left out bikes from MVA
• Miller - fell asleep and cigarette started fire; he did nothing to extinguish it
• Common law duty to act based on creating a situation where harm to a person or
property could occur and being reckless in preventing harm

Voluntariness
• Lucki - people will only be held liable for acts that are voluntary; essential to actus reus and is made out
if the consequences of actions are reasonable and foreseeable (Ryan)
• When punishing people, we are punishing morally blameworthy choices of action
• Voluntariness is something the Crown must prove in order to establish the actus reus
• To punish someone who was acting involuntarily would be pointless, because the point of punishment
is to deter these actions from taking place in the future, and if they are involuntary they cannot choose to
refrain from doing so
• In most cases this is not an issue, (e.g. X shoots Y in the face, most people talking about whether it is
voluntary, but usually this is out of the question. Normally voluntariness is obvious, but where it is an
issue there is a high standard for Crown to prove it beyond a reasonable doubt)
• Relevant cases: Wolfe, Swaby, Kilbride
• Absolute Liability Offence: is an offence that has no fault element (things you should know are a
criminal offence like parking in a no parking zone, not paying for ttc etc.
 CRIM POLICY 12
• TO convict the accused of an absolute liability offence, the Crown simply must prove the act
element and nothing else
• Because voluntariness is part of the act element, it is a requirement even for absolute liability
offences
• Theroux -McLachlin stated mens rea of the offence does not encompass all the mental elements of
a crime because act must be a voluntary act of the accused for actus reus to exist- for example
automatism defence amounts to negating actus reus through evidence of involuntariness (Parks)
• Also with some limitation extreme intoxication- Daviault

Causation/Intervening Cause
• The test for proving general causation in regards to homicide was established through the significant
contributing cause test in Smithers and later reaffirmed Nette
• In order for the actus reus of homicide to be proven causation must be established beyond a reasonable
doubt
• Harbottle substantial cause test for 231(5) bc of consequences of conviction; can be liability for those who
did not physically kill but were still a substantial and integral cause
• Intervening Cause
• In order to break the chain of causation intervening acts must be overwhelming to make the
operating and substantial cause/original wound “history” in order to make the intervening act
the cause of death
• Statutory homicide rules where intervening causes are stated not to break the chain of causation:
• 1. Homicide 222(5): By causing that human being by threats or fear of violence or by deception to
do anything that causes death ex. Chase someone and they jump out window and die
• 2. Death that might have been prevented – S. 224 Where a person by an act or omission, does
anything 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.
• a. Blaue – Jehovas Witness refused blood transfusion and died
• Thin Skull Rule: under the law the accused must take their victim as they find them
• 3. Death from treatment of injury – S. 225 Where a person causes to ha 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
• a. Smith – Accused stabbed victim; could have been saved but due to bad medical care
died
• 4. Acceleration of Death – S. 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 ex. Heart disease case
• a. There are cases where medical treatment that was not rendered in good faith, and if
the treatment is not in good faith then the section does not apply
• Maybin:
• Analytical tools for intervening act
• Ultimate issue was whether the accused actions of the Maybin brothers constituted a significant
cause of death
• The case indicates the test of whether an intervening act was reasonably foreseeable from the
accused’s actions and whether the intervening act was independent of the accused’s actions,
enough to break the chain of causation
• SCC – has yet to address charter issues respecting causation

Mens Rea
• Level of fault can differentiate different criminal offences, even if the act looks the same
 CRIM POLICY 13
• actus non facit reum nisi mens sit rea – “there is no guilty act without a guilty mind”
• This maxim expresses the idea that criminal offences require some fault element
• There is no single state of mind intended by the term mens rea
• Fault element: Showing the level of blameworthiness the accused has in relation to the act
• Common Law Mens Rea – G. Mueller
• False to conclude that there is no unifying mens rea concept
• All crimes have a different mens rea and yet the concept of mens rea must be regarded as a
unifying concept of various possible frames of mind
• Mens Rea: is the ethico-legal negative value of the deed (appearing in various legally prescribed forms)
it is a community value of which the perpetrator at the time of the deed knows the existence and that it
will materialize when the deed becomes known
• Criminal Law: The General Part – G.J. Williams
• May be said that any theory of criminal punishment leads to a requirement of some kind of mens
rea
• Deterrent theory is only workable if the culprit has knowledge of the legal sanction if man does
not foresee consequence of his act he cannot appreciate what punishment lies ahead
• Retributive theory presupposes moral guilt; incapacitation supposes social danger, and the
reformative aim is out of place if the offender’s sense of values is not warped
• Neither of these harmonize well with mens rea
• Relevant Cases:
• Creighton - McLachlin indicated that the following considerations were relevant in determining
constitutional requirements of mens rea
• 1. Stigma attached to offence and available penalties requiring a mens rea reflecting the
particular nature of the crime; (Vaillancourt, Martineau - murder subjective mens rea)
• 2. Whether the punishment is proportionate to the moral blameworthiness of the offender;
(refused to strike down weed laws in Malmo-Levine based on this) and
• 3. The idea that those causing harm intentionally must be punished more severely than those
causing harm unintentionally
• In Martineau, SCC held that proof that the accused means to cause bodily harm for the purposes of
facilitating an offence – S. 230(a) of CCC is contrary to charter; A person cannot be convicted of murder
without proof of subjective foresight of death
• Dissent: to SMR
• Need to consider deterrence, danger to public, prevalence of offences
• Stigma over emphasized
• Dealing with expressly acting with intent to commit at least 2 underlying serious crimes
• Thinks fact that someone has died should be taken into acct not just fault reflecting moral
blameworthiness

Reverse Onus Offences

• Due diligence defences in Regulatory Offences
• Mental disorders; Chaulk
• Automatism; Stone
• Extreme intoxication; Daviault
• Things that are internal to the mind of the accused
• Avoid MD etc. being too easy to fake/impossible for Crown to prove
• Whenever there is reverse onus, the accused is only ever required to prove things to the standard of a
balance of probabilities

Subjective vs. Objective Fault

• Mens rea of a criminal offence may be either subjective or objective, subject to the principle of
fundamental justice that the moral fault of the offence must be proportionate to its gravity and
penalty
 CRIM POLICY 14
• Subjective mens rea – requires that the accused has intended the consequences of his or her acts, or that
knowing the probable consequences, the accused has recklessly proceeded in the face of the risks
• Requisite intent or knowledge may be inferred directly from what the accused said or says about
his or her mental state, or indirectly from the act and its circumstance
• Concerned with “what was actually going on in the mind of the accused at the time in question”
• Objective mens rea – is not concerned with what the accused intended or knew, rather mental fault lied
in failure to direct the mind to a risk which the reasonable person would have appreciated
• Not concerned with what was actually in the accused’s mind, but with what should have been
there, had the accused proceeded reasonably
• Hundal – established that a person may be held criminally responsible for negligent conduct on
the objective test (does not violate PoFJ that moral fault must be commensurate with gravity of
offence and its penalty)
• Negligence must constitute a marked departure from the standard of the reasonable person
• In an offence based on unlawful conduct, a predicate offence involving carelessness or
negligence must also be read as requiring a “marked departure” from the standard of the
reasonable person
• Martineau – it is appropriate that those who cause harm intentionally should be punished more severely
than those who cause harm inadvertently
• Sault Ste. Marie & Sansregret – constitutionality of crimes of negligence is also subject to the caveat that
acts or ordinary negligence may not suffice to justify imprisonment
• Theroux – Although the case established that mens rea does not encompass ALL of the mental elements
of a crime (because the voluntary nature of the act which is under actus reus is considered a mental
element) the courts posit that mens rea is largely subjective
• Accused system of values/belief of whether acts are wrong irrelevant
• *Dufraimont: He had state of mind of intention in this situation
• The test is not whether a reasonable person would have foreseen the consequences of the
prohibited act, but whether the accused subjectively appreciated those consequences
• A subjective state of mind is proved from the facts and circumstances

Regulatory Offences
• Not true criminal offences; prohibited in the public interest
• Generally less serious than criminal offences and require a lower level of fault. Examples would include:
all validly enacted provincial offences - hunting regulations, Ontario highway traffic act
• Federal Regulatory offences – associated with air traffic, fishing relates regulations
• There is an element of choice in engaging in these types of activities, thus actors subject themselves to
these standards by choosing to engage in these activities (licensing justification)
• Courts are worried about not being able to protect vulnerable parties when we can use the Charter to
have high levels of fault. (vulnerability justification)
• Want to make sure we are enforcing regulatory standards bc if govt doesnt enforce workers with
no power are the ones getting hurt
• Until law in Sault Ste. Marie- for not truly criminal offences the choice was bw Crown establishing full
subjective mens rea or absolute liability
• This case defines three types of offences:
• 1. True Crimes: offences that require mens rea
• 2. Strict Liability: ie. offences in which there is no necessity for the Crown to prove the existence of
MR, but the defendant can get off by proving that they acted reasonably in the circumstances (due
diligence defence)
• Public welfare offences tend to fall in this category, as they are not in the Code, but have the risk of
large fines or imprisonment associated with them
• Reasonable to put the burden on the defence because they are the ones with the information that
can be used to show they exercised care
 CRIM POLICY 15
• 3. Absolute Liability: The Crown does not need to prove mens rea, and the defendant has no chance
to exculpate himself by showing he was acting reasonably
• These are generally only offences with very minor fines as punishment
• Admin efficiency- hard to prove mental culpability; don't work injustices in the name of efficiency
• Arguments vs. Absolute liability- violates fundamental principles of penal liability and rests upon
assumptions not empirically established
• Argued Regulatory offences are essential for society to function bc incentivizes high standard of care
BUT if convicted either way- why take more care?
• Arguments for strict liability
• There still are stigma and penalties attached
• Opens up the risk of penalizing the morally innocent
• Public welfare offences are generally strict liability offences and D can be acquitted if they prove they
acted reasonably in the circumstances (passivity is not due diligence)

• BC Motor Vehicle Act - An offence punishable by imprisonment cannot be an absolute liability offence;
any offence that is punishable by imprisonment must at least be a strict liability offence

• Sault Ste. Marie - Any regulatory offence will be an offence of strict liability unless legislation clearly
indicates the offence has some other level of fault
• Strict liability fault is default for regulatory offences in general (statute can impose different level of
fault) allows for the accused to raise a defence of due diligence
• . Does not need to prove beyond a reasonable doubt
• Due Diligence: Accused has to prove that they reasonable believed they attempted to meet the
reasonable level of due diligence to prevent the offence from taking place. This is based on the
acceptance of a citizen’s civic duty to take action to find out what his or her obligations are. Passive
ignorance is not a valid defence

• Can Coil Thermal: Machinery had a blade that would cut metal; Factory owners and workers decided the
safety guard was getting in the way of cutting the metal (contrary to Occupational Safety Act)
• Does it make sense, what would manager say in being diligent in removing the guard (they
removed the guard and an inspector came and they said can we take it off, inspector said yes)
• Officially induced error of law other defence (not what we are concerned with)
• What due diligent requires is that accused should have met the reasonable requirements to meet
the law
• This would mean taking steps to ensure the guard is ON not OFF
• In this case they took steps to do what they were not allowed to do, so is this really a good
contestation of the due-diligence defence? Not really

Homicide
• Minimum Fault Requirement
• Vaillancourt – concluded that objective foreseeability of death was the minimum threshold test before a
conviction for murder could be sustained (s.230(d) of no force)
• Principles of fundamental justice, however, require proof beyond a reasonable doubt of
subjective foresight of death
• Ultimately creating a constitutional minimum fault requirement for murder
• Martineau – Further reaffirmed the decision in Vaillancourt (s.230(a) of no force)
• It is a principle of fundamental justice that a conviction for murder cannot rest on anything less
than proof beyond reasonable doubt of subjective foresight of death
• But there was a strong dissent expressed as to the striking down of the constructive murder
provisions
• L’Heureux Dube: She thought that there were many good policy reasons for upholding the
constructive murder provisions by maintaining an objective minimum fault requirement
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• She believed that we should have a fuller view outside of fault that makes murder a serious
offence and not rigidly limited to subjective standard
• She also does not believe that there is a concern for overly stigmatizing people who were already
in the commission of a serious crime, this is in her eyes misplaces compassion since these people
are worthy of the stigma
• Lastly she argues that murder is a legal concept, thus we should not be having arguments over
labels
• Dufraimont: Appreciates the argument that murder is a legal concept; Parliament gets to say
what murder is and the courts have to conform to this meaning

First vs. Second Degree

• Once the fault requirement of s. 229 has been met, classifying murder as first or second degree only
becomes an issue if the accused is charged with first degree- Otherwise the default category would bring
them straight to second
• 3 Sections that can elevate Second degree to First
• s.231(2) – Planned and Deliberate murder
• .231(4) – Murder of Specified victims (on-duty police, prison workers etc.)
• In favour of knowledge requirement: Purpose of more severe punishment would be to
punish morally culpable people who knew who their victim was
• It is no more culpable to kill someone who happens to be a police officer (when you do
not know that) then when it comes to killing anyone
• Against knowledge requirement: Degrees of murder are simply a classification scheme,
they do not have different elements, rather a murder may have aggravated circumstances
that bring it up or down. While subjective mens rea has to apply to all of the parts of the
offence, the offence of killing a specified victim is simply an aggravated circumstance.-
Collins – CoA shot this argument down. This approach would not be fair
• s.231 (5) – Murder “while committing” specified offences of illegal domination (hijacking, sexual
assault, kidnapping, hostage taking etc.)
• Pare – definition of “while committing” ; small amt of time bw offences should not rid
him of blameworthiness
• Do these adequately differentiate murders meriting a higher level of punishment?

Objective Fault Crimes

• R. v. F. (J.) - 3 degrees of objective fault for offences
• 1. Strict liability: (Sault St. Marie) due diligence offence, reverse onus on accused, regulatory
offences (negligent standard)
• 2. Criminal offences requiring objective fault: (Beatty) marked departure from objective norm,
e.g. dangerous driving, failing to provide necessaries of life, careless use of firearm; require gross
negligence
• 3. Marked and substantial departure from objective norm: (F. J.) s 219 criminal negligence,
more than gross negligence (whereas other criminal offences of objective fault require only a
“marked departure”)

Criminal Negligence
• Tutton - Fault element for criminal negligence (only s. 220 and 221) should be objective
• The test of reasonableness is proof of conduct that is a marked and significant departure from the
standard expected of a reasonably prudent person
• Dufraimont says the dissenting opinion that criminal negligence should be subjective fault is an
overstatement BUT does pay mind to the judgment of Lamer J, who agreed that the standard is
objective but says it should take into account particular characteristics of the accused
• Argument that if Parliament wanted objective they would have made it so
• Difficult Q bc of religious autonomy
 CRIM POLICY 17
• Creighton – Further discussion re. this debate
• Ultimately decided that the marked departure test is the test for objective fault crimes, and that
in applying criminal negligence, personal factors should not be considered unless they rise to the
level of causing incapacity
• Objective test as framed by Lamer problematic because it is essentially a subjective test
• Protecting morally innocent does not require consideration of indiv excusing conditions
• Two main principles engaged by this debate bw Lamer and McLachlin
• 1. Notion that criminal law may properly hold people who engage in risky activity to a
minimum standard of care, judges by what a reasonable person would do
• Agree that morally innocent not be punished if they are unable to appreciate the risk, but
the habitual factors taken into account by Lamer are problematic
• Creating a SoC that varied with the background and predisposition of each accused,
holding some to a higher standard (i.e. Creighton)
• The only exception to the uniform standard = incapacity to appreciate the nature of the
risk which the activity entails
• 2. Notion that morally innocent not be punished (BC Motor Vehicle Act) : accused must have mens
rea
• Finding mens rea does not require consideration of personal factors short of incapacity
• Criminal law has rejected the idea that a person’s personal characteristics can excuse
them from meeting the standard of conduct imposed by the law

Rape and Sexual Assault

• Provisions
• PAST: s. 143 – Rape: A male person commits rape when he has sexual intercourse with a female
person who is not his wife,
• (a) without her consent, or
• (b) with her consent if the consent is
• (i) is extorted by threats or fear of bodily harm
• (ii) is obtained by personating her husband, or
• (iii) is obtained by false and fraudulent representations as to the nature and quality of the
act
• Note the absolute immunity for the man who rapes his wife, as well as requirement of proof of
sexual intercourse (which is penetration to even the slightest degree)
• S. 143 contained no expressed mens rea requirement
• Sexual Assault:
• In 1983 the crime of rape was replaced by a three-tier structure of sexual assault offences (now ss. 271,
272, 273)
• 1. Sexual Assault: s. 271 – basic offence of sexual assault, hybrid offence and max 10 years impr
• 2. Sexual assault with a weapon, threats to a third party, or causing bodily harm: s. 272 –
these are alternates which can be made out by sexual assault causing bodily harm, it is any one of
these that get you into the second tier. This will have a general maximum of 14 years in prison.
• 3. Aggravated sexual assault: s. 273 - require that assault wounds, maims, disfigures or
endangers the life of the complainants
• These tiers have ascending seriousness, and the penalties go up as we see
• New offence is gender neutral, there is no language about wife, women, or sexual intercourse, thus
covers a broader areas of crimes
• Chase – Objective test to recognize sexual aspect: Would a reasonable observer understand the contact as
sexual?
• Factors to be considered (not determinative)
• Body part touched, nature of touching
• Surrounding situation or circumstances
• Accompanying words or gesture, including threats
 CRIM POLICY 18
• Intent or purpose behind the touching, including sexual gratification
• Note. For both offences, lack of consent is an element of the offence that must be proven by the Crown
• This generally tends to be the biggest issue in rape cases
• Sometimes you have claims where no actual assault took place, more often however, is that some
type of sexual assault took place but no admission took place

• Context:
• Sexual Assault is epidemic, about 1 in 2 females and 1 in 3 males have been subjected to unwanted
sexual acts
• It is a highly gendered crime that is disproportionately perpetrated by men against women
• Myth that the worst rapes are committed by strangers should be dispelled
• Danger is that only these types of sexual assaults will be taken seriously by the police and eventually the
courts; It may be more devastating when it is someone you loved and trusted
• Notwithstanding the frequency of crime only 1 in every 10 sexual assaults are reported to the police;
These offences less likely to be cleared by police
• Majority of sexual assault survivors never report the assault because of mistrust of the system that is
trying them, not their attackers
• Women often questioned about their past sexual history for two reasons:
• 1. There was the belief that sexual history or reputation was clearly relevant to the issue of
consent
• 2. If the woman had not reported the rape immediately, it suggested that in the interim she had
fabricated the charge of rape
• In rape prosecutions the jury was warned that it was dangerous to convict on the evidence of the
woman alone if there was no other corroborating evidence, independent of her, implicating the accused
• In other instances, the statute provided that no conviction could be had without corroboration even if
the jury was satisfied of guilt beyond reasonable doubt
• Prior Sexual History
• Courts have focused on the previous sexual history of the primary witness in a sexual assault
case as relevant to the outcome of the trial
• Unchastity was considered relevant to issues of consent and credibility of testimony
• Not uncommon to read judicial expressions if partaking in sex may be unable to resist
• Unrestricted access to cross examine a rape victim as to her previous sexual history with others
was perhaps the practice that was most responsible for trials being seen as of the victim rather
than the accused
• Doctrine of Recent Complaint
• Doctrine was embodied in the common law; meant that a complaint by a victim of a sexual
assault had to be made at the first reasonable opportunity and it had to be made spontaneously
• This was an exception to the general common-law rule that a witness’ previous statement are
inadmissible since they constitute self-confirmation of ones own version of events
• Justification for fresh-complaint rule; clearly due to the distrust of women
• Logic behind doctrine = from fear that unwanted pregnancy or bitterness might convert a
participant into a complainant in sexual activities
• These views were integral to the judicial consideration of sexual assault charges and resulted in
establishment of certain presumptions
• Corroboration
• Requirement for corroboration of a woman’s evidence in sexual matters was established by early
authorities: “No judge should ever let a sex-offence charge go to the jury unless the female
complainant’s social history and mental make-up have been examined and testified to by a
qualified physician”
• Justification for rule; stories of rape often fantasies, should not be enough to convict
• Without a corroboration “every man is in danger of being prosecuted and convicted on the
testimony of a base woman, in whose testimony there is no truth”
 CRIM POLICY 19
• Although these propositions seem patently unreasonable today, they have had immense
influence on the development of this particular area of law
• Now rape shield laws to protect use of prior history and other rules not in use since 1982 Charter

• When Titans Clash: The Limits of Constitutional Adjudication – Alan Young

• R. v. O’Conner - SCC set out a two part procedure for determine the defence access to
therapeutic and medical records of sexual assault complainants
• In the last 5 years we have seen increasing defence strategy requesting medical records of sexual
assault complainants
• Stripped of context, no different from breathalyzer BUT issue of producing sensitive and
confidential records of complainants is animated by deeply held ideology
• (Since this piece. Canada has ordered a stay when documents shredded on basis that they might
have been helpful to the accused)
• To understand the battle: Must recognize that historically, sexual assault victims have been re-
victimized by an insensitive and patriarchal criminal justice system
• In most cases of sexual assault, there is an absence of confirmatory evidence and independent
witnessed, which raises the spectre of false accusations
• Other offences may have higher unfounded rates than sexual assault, but we do not see the rush
to impeach the credibility of Crown witnesses in these cases by resort to psychiatric records.
• May suggest that defence lawyers still cling to and believe in the Wigmorian assessment of
sexual assault complainants
• Both sides of the battle view the other with much suspicion and some disdain
• Theme: discussing a trend when article was written in the 1990s, of defence lawyers seeking
psychiatric and therapeutic records of the complainants
• Teaching Rape Law – Susan Estrich
• Society is not orthodox in its views, there is debate going on about when women should be
believed and what counts as consent
• Only way to change things is to confront the issues squarely, not pretend they don’t exist
• William Kennedy Smith trial; defence argued that the complainant said yes
• Strategy reflects an accurate assumption that judges and juries are less inclines to accept male
conduct that only a few years ago was tolerated as macho
• Shift in our thinking about the elements of culpability leaves credibility as the only defenc game
• If no means yes, if bruises aren’t necessary and if no unusual force is required, then in many
cases there is not going to be much physical evidence to rely on
• Key question in rape cases today: What we need to know about the victim and the defendant in
order to decide who is telling the truth
• Many traditional rules of rape liability were promised on the notion that women lie
• One answer = we need symmetry: exclude all evidence about both of them
• Problem = it is false symmetry that is being enforced
• Questions have shifted, no longer about definition of force and consent rather the evidentiary rules and
standards of credibility

Mistaken Belief in Consent

• Ewanchuk restrictions on defence of mistaken belief in consent
• 1. Consent must be express/communicated
• 2. Silence/ambiguity or a belief that no means yes is not a defence
• 3. Once complainant says no, accused must take steps in order to establish further consent
• 4. Where reasonable steps were not taken, is there ambiguity where the reasonable person
would have taken additional steps to ascertain consent?
• **LHD strong dissent re; COA judge sexist comments/myths/stereotypes about victim’s moral
character and clothing
• AJ – requires that the complainant must provide ongoing, conscious consent
 CRIM POLICY 20
• Meaning conscious agreement of consent of every sexual act in a encounter
• Impossible for an unconscious person to satisfy requirement even if expressed advance consent,
so sexual activity with an individual incapable of consciously evaluating whether she is
consenting is not consensual within the meaning of the code
• Majority: This protects sexual exploitation and the right to ask partner to stop at any time
• Dissent
• Look at same provisions and interpret in the opposite way
• Voluntary agreement to engage does not say at exact time of sexual activity
• Consent can continue through unconsciousness period
• Reasonable steps requirement does not omit in advance
• Right of women to make decisions about their bodies
• Policy arguments
• Evidentiary impossibility- how can you prove what sexual activity occurred
• Autonomy in sexual lives
• Social problem of protecting unconscious people being assaulted- often drunk
• Cornejo- silence/passivity is not consent; must take reasonable steps to ascertain consent

Mistake of Fact
• More broad than mistaken belief in consent
• Ex. accused believes he is carrying a bag of oregano when in fact it is marijuana, he may be entitled to
the mistake of fact defence)
• Mistakes of fact must be distinguished from Mistakes of Law
• Must be able to distinguish the two because, mistake of fact is a defence where it negates mens rea, but
mistake of law is generally not a defence
• S. 19 of Criminal Code – “Ignorance of the law by a person who commits an offence is not an
excuse for committing that offence”
• Few Exceptions:
• Officially induced mistake of law – if you check with an official and it turns out they
told you the wrong thing to do you may have a defence there.
• But this is extremely narrow, and generally there are no exceptions to mistake of law not
being a defence
• On the issue of whether a mistake in fact is a defence, Pappajohn v. R. is still the leading decision
• Justice Dickinson decided that a mistake of fact defence constitutes a denial that the Crown has
proved the fault element. It follows that:
• 1. Where there is a subjective mens rea requirement, the mistake need merely be honestly held
with reasonableness only relevant to assessment of credibility
• 2. Where the fault element requires objective negligence, the mistake must be both honest and
reasonable;
• 3. Where there is a due diligence, the mistake must be both honest and reasonable, with an onus
of proof on the accused in the case of regulatory offences; and
• 4. Where the offence is one of absolute liability, mistake of fact is not a defence
• Ladue – Attempted to copulate with a dead woman, claimed he did not know she was dead
• Courts ruled this did not justify defence of mistake of fact
• If facts as x thought would be guilty of worse offence MoF invalid (had MR for rape)
• Kundeus – Accused met mens rea for trafficking lsd even though he thought it was mescaline
• Majority: It is enough to know you are selling an illegal drug
• Dissent: (Dufraimont thinks this is a better reasoned argument) You cannot be convicted if you
do not have the requisite mens rea for that offence
• LSD and mescaline are different classes of drugs in terms of scale and prohibition
• It is not okay to convict someone for a more serious offence when they only have the mens rea
for a lesser offence
 CRIM POLICY 21
• Potential problem – Code can expressly prohibit mistake of fact as a defence for some offences, which
can essentially turn offence into absolute liability offence -> If this is combined with imprisonment, it
can give rise to constitutional challenges (BC MVA Ref)

Incapacity
• A situation where people are thought to be not fully responsible for their criminal acts
• Crim law is about punishing people for their morally blameworthy acts, but there are situations where
people lack the capacity to be responsible

Youth
• Child saving ethic with YCJA
• Under 12 no criminal responsibility unless show competence that they knew and appreciated nature and
consequences of wrongness

Mental Disorder
• History
• Defence of “mental disorder” was historically known as the defence of “insanity”
• There is an underlying tension here with distinguishing between people who do bad things bc of
mental illness versus those who do bad things bc they are bad
• Criminal law is about punishing morally blameworthiness
• Label of psychopath is troubling as being a category of legal responsibility: I don’t think we
would want to say people are not criminally responsible for hurting others just because they
don’t care about hurting others (this seems like the type of person you would want to criminalize
• Just the mere fact that someone is a psychopath may not be a defence in most cases. (even though
this is a mental disorder
• The issue of mental disorder can be brought forward by the Crown, but the Crown can only raise
it once the trier of fact has already determined the accused to be guilty.
• There are situations where the hard part of the mental disorder test, (incapacity) cannot be met
• You do see psychiatric information coming in even when a defence of mental disorder is not
raised; This is because it may sometimes shed light about the mens rea of the act
• Any one individual can present the conditions more strongly at sometimes than others
• Any one individual can present symptoms of more than one label at any one time
• These limits are recognized by DSM-5 – Classification scheme which divides up mental disorder into
inter alia, mental retardation and psychoses, anxiety disorders, and personality disorders
• Clinicians are encouraged to assign more than one label whenever appropriate
• The DM-5 classification scheme avoids abstraction and instead identifies a host of “diagnostic
criteria” for each type of disorder
• Conduct Disorders: defined as involving repetitive and persistent patterns of violations of social
norms falling into four categories:
• 1. Aggression to people and animals
• 2. Destruction to property
• 3. Deceitfulness or theft
• 4. Serious violation of rules
• Psychiatry, Ethics and Criminal Law – T. S. Szasz
• According to Durham if the defence of insanity is raised in criminal trial, it is considered to be a
matter of fact for jury to decide whether offender suffered from illness at time of the commission
of the act in question
• This is nonsense; To speak of “mental illness” is epistemologically very much worse than it is to
speak of diseases of the body
• Yet jury is supposed to determine as a matter of fact whether accused has or does not have one
• Cannot transform inadequate theory into judicial fact
• Mental illness cannot be a fact nor theory; It merely explains how events occurred
 CRIM POLICY 22
• DSM-5 was not published until 2013
• Modern critics complain that the categories are still not the subject of verified research, have
grown exponentially, and that psychiatrists too blindly rely on them
• DSM-5 has broadened diagnostic boundaries by including precursors of disorders and including
spectrums. It also replaced mental retardation with intellectual disability
• Code
• 1992 -Bill C-30 came into force – declared a comprehensive legal regime to deal with accused
who suffer from mental disorder
• Defence of mental disorder speaks to the persons disorder at the time of the act that led them to
have certain incapacities
• It can also be important at the time of trial, raises a whole other question that we are not
concerned with
• Mental disorder is a statutory defence that can be found in s. 16 of 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
• Appreciating the nature and quality of the act, OR
• Knowing that it was wrong
• Burden of proof lies on the person who raises that defence on a BOP = ACCUSED
• This violates presumption of innocence of the accused, but in Chaulk this was identified as a
reasonable limit proscribed by law, since if the law had to prove sanity it would be too easy for
people to fake mental disorders if the Crown had to prove sanity each time
• Verdict after a successful defence is not criminally responsible by reason of mental disorder
• When this verdict is given the judge holds a hearing to decide what to do:
• Absolute discharge: person goes home
• Conditional discharge: person abides by certain conditions
• Detained: person must go to a psychiatric institution
• Old version of defence would automatically send those to institutions if they were found insane; NOW
it is absolute discharge unless the person poses a risk or significant threat to public safety
• This would have to be proven by the Crown that the accused presents this threat
• CASE LAW
• Swain – SCC held that mandatory detention of an insane acquitee under s.614(2) without any chance of
hearing violated s. 7. However, although under the new code regime there are limited dispositional
options, a defence based on MD will still likely result in indeterminate detention of some kind
• Cooper – Disease of the mind embraces an illness, disorder or abnormal condition which impairs the
human mind and its functioning, excluding self-induced states
• Underlying all of this discussion is the concept of responsibility and the notion that an accused is
not legally responsible for acts resulting from mental disease or defects
• In this case, the expert testimony says the accused was suffering from various mental disorders
and may not have had the capacity to appreciate but ultimately did not conclude that they
suffered from a disease of the mind; unhelpful conclusion
• Although it is informed by psychiatry it is not ruled by it and we do not simply defer to it
• This is a legal question that is meant to be determined by the judge and later the jury to determine
whether there is an evidentiary basis
• Chaulk – said the term wrong in s. 16(2) must mean more than simply legally wrong
• A person may be aware that an act is contrary to the law, but, by reason of the disease of the
mind is at the same time incapable of knowing that the act is morally wrong in the circumstances
• McLachlin (Dissent): Takes a narrower view of the defence, saying all that is required is that the
accused be capable of knowing that the act was in some sense wrong
• As long as capacity is present it should give rise to criminal responsibility
• Deficiency of moral appreciation due to mental illness should not have a different consequence
than deficiency of moral appreciation due to a morally impoverished upbringing
 CRIM POLICY 23
• Good and Bad of the Development of Law in Canada:
• The issue of s. 16 is still not informed by modern psychology and psychiatry principles
• Driven by policy concerns – how wide mental disorder defence should be and need to protect
public by controlling those who have caused serious harm while in mentally disturbed state. i.e.
in Stone said open to trial judges to find policy reasons to influence what constitutes a disease of
the mind
• Sometimes the harshness of this test can get it right e.g. in Kjeldsen held that lack of remorse for a
heinous crime did not constitute failure to appreciate the consequences of it for s. 16.
• Bouchard-Lebrun principle – mental conditions arising from temporary self-induced intoxication
not suffering from legal mental disorder – problematic, because some instances of toxic
psychosis are not simply foreseeable results of drug use, could actually be triggering deeper
mental disorders and psychoses of which there is growing medical evidence for
• This could be overly draconian
• Particularly hate the second objective arm of the test – incapable of knowing it was wrong – this
dramatically simplifies and reduces all of the huge variety of mental disorders suffered by people, and
compares their ability to tell right from wrong according to the “moral standards of society” Chaulk

• Ethical dilemma for defence lawyers - might try to plea guilty and get lower sentence rather than NCR,
in practice better result then indefinitely detained; But ideal is they should never instruct them to plead
guilty if they have viable NCR defence

Automatism
• Word we use to describe unconscious, involuntary behaviour, where a person physically acts without
being conscious of what they are doing. (Rabey)
• Rabey dissent: Deeply unjust to send a sane person to a psychiatric facility
• Basic Principle: absence of volition in respect of the act involved is always a defence to a crime
• Defence of automatism entitles the accused to a complete and unqualified acquittal
• Sane Automatism/NMDA: external factor causing automatism (malfunctioning of mind: physical blow
or psychological blow); insane automatism: internal factor causing automatism (organic pathology,
psychological makeup of the accused)
• R. v. Parks - Automatism is unique in that it is a subset of the voluntariness requirement, which is part
of the actus reus component of criminal liability
• Sets grounds for distinguishing automatism and insanity on two overarching policy
considerations:
• Continuing danger theory: any condition likely to present a recurring danger to the public
should be treated as insanity/mental disorder, thus if found NCR they can be detained
• Internal Cause Theory: a condition stemming from the psychological or emotional makeup of
the accused should lead to a finding of (mental disorder automatism) insanity (rather than some
external factor which leads to sane automatism)
• Neither of these two approaches determines an obvious result in regards to sleep walking.
• Policy Implications for distinguishing between MDA and NMDA:
• Floodgates concern that sleepwalking is easy to fake (not real issue)
• But it is difficult to fake because there must be evidence of family history, etc.
• Not a lot of evidence that there are many cases raising defence of sleepwalking
• Automatism is easy to feign “I don’t remember I must have been in a dissociative state”
• Stone – Established the legal test for distinguishing MDA and NMDA
• Step 1: decide whether the defence of automatism should be put to the jury (if there is evidence
of the defence at all) – job of the judge
• Trial judge must decide whether there is evidentiary foundation to find that the accused
acted involuntarily using accused’s assertion and expert evidence
• RELEVANT FACTORS (as to whether person was in state of automatism)
 CRIM POLICY 24
• Severity of triggering stimulus Are we likely to believe this claim. Something
relatively minor is probably more likely to be doubtful
• Corroborating evidence of bystanders Were they acting in a completely robotic
way or in a way that was villainous (evil soliloquy)?
• Evidence of motive for the crime; may undermine claim of automatism
• Whether alleged trigger of crime is also
• Step 2: judge to decide whether automatism should be left as MDA or sane automatism
• 3 questions:
• 1. What mental conditions are disease of the mind? (question of law, judge to decide)
• 2. Whether the claimed state of mind was a disease of the mind (question of mixed fact
and law, judge to decide)
• trial judge should start from presumption that the accused’s condition is a
disease of the mind, only move it out if there is a special reason to say it is not
disease of the mind
• use holistic approach to distinguish sane/insane automatism (similar to La Forest
in Parks)
• consider internal/external cause factor
• consider whether person presents a continuing danger factor
• consider other policy concerns (feigning, opening floodgates to defence)
• In sum: consider whether society requires protection from the accused, and
whether accused should be subject to evaluation under the mental disorder
regime.
• 3. Whether the accused actually suffered from the condition (question of fact, jury to
decide) – consider the following factors:
• Severity of triggering stimulus – the more severe, the more likely to believe they
went into automatism
• Corroborating evidence of bystanders – overall strange demeanour/incoherent
words, etc.
• Corroborating medical history of automatistic-like dissociative states – more likely
to believe if you have a history of somethin
• Whether there is evidence of a motive for the crime
• Whether the alleged trigger of the automatism is also the victim of the
automatistic violence – if automaton attacks a complete stranger, goes in favour of
the defence (they otherwise have no motive for attack)
• Ludecke - automatism will almost always be mental disorder automatism, including sleepwalking cases.
Sane automatism very reduced now (e.g. maybe blow to head cases)
• Reason we want to deal with automatism as mostly mental disorder automatism is policy concern
overall protection of public from kind of dangerous behavior that has occurred
• Social defence concerns will dominate at this stage of deciding what verdict should be – gives state way
of monitoring accuse
• Thus in most cases of automatism we should start with the presumption that automatism flows from
mental disorder unless something takes it out of that realm

Defences
Intoxication
• Discrepancy between how we approach insane and severely intoxicated; Both have lost power of self-
control
• Key policy concern is to what extent should incapacity due to intoxication be a defence?
• Distinction between voluntary/involuntary intoxication
• Moral concerns: fault associated with self-intoxication but not so when not intention to become
intoxicated
• But is this fault level equated to the fault for their later crimes? Moral grey area
 CRIM POLICY 25
• General v specific intent distinction largely a legal fiction driven by policy –
• Could be uncertain where certain offences fall under, seems to be driven also about ultimate
concerns about disposition of the accused
• Often not concerned with letting an accused off for specific intent crime because they will almost
always be convicted of a lesser general intent crime – e.g. instead of robbery, assault.
• Problems, by equating the choice to become intoxicated as reckless behavior, and recklessness and
suitable mens rea for the criminal offence, they are replacing the mens rea ahead of the actual actus reus;
They did not occur at the same time and were not simultaneous (Fagan)
• In effect creates an absolute liability offence out of intoxication entirely inconsistent with the basic
requirement for a blameworthy state of mind required for imposition of penalty; Offends s. 7 and s.
11(d) of charter
• In general intent crimes guilt is in effect presumed upon proof of fact of intoxication.
• Daviault allowed a defence for extreme intoxication, with a reverse-onus burden upon the accused
• Allowing people to be convicted even though they were acting autonomously drastic violation
of ss 11(d) and 7; and can’t be saved by s 1
• Charter requires at least giving a defence of intoxication to GI offences where the accused was
intoxicated to the point of automatism
• One study (Drassinower and Stuart (1995) of the effects of the Daviault defence found only 11
considered at trial, 5 successful with 2 later reversed on appeal (This out of possibly thousands of
criminal cases involving intoxicated accused over that period)
• Despite this – public hysteria about what might result with this defence available, worries about
drunks getting off scott-free willy-nilly
• Response of Parliament in s. 33.1 was to again return this to pre-Daviault levels largely;
Constitutionality of this still in question
• Parliament talks about why they've enacted this
• Doubts that it’s possible to be drunk to the point of automatism
• Concerned about intoxicated violence and the people subject to intoxicated violence
• Third whereas clause: blameworthy in relation to their conduct
• Also uncertain whether or not it applies to involuntary intoxication – depends if courts interpret
involuntary fitting under “self-induced” or not.
• Parliament should create a new offence of “dangerous intoxication” to create a better matching/
mirroring of mens rea and actus reus
• Protection of vulnerable groups (their right to have the benefit of the law) – pressing & substantial
objective
• Minimal impairment – limited to violent offences (proportionality test)
• Moral blameworthiness
• Alcoholic automatism is thought by most experts to not exist (more of a theoretical problem than an
actual problem)
• My view is that if the courts are fundamentally going to alter basic principles of criminal liability by
punishing those without requisite mens rea for explicit policy reasons, they are acting outside of their
properly accorded reach
• “if the law is to be altered in the name of policy over principle, that is surely a task for Parliament
rather than the courts”

Defences
• The reason why common law definitions of offences should be taken away while common law
principles as to justification and excuses are kept alive, is the same reason why the benefit of doubt
should be given to the prisoner
• Worst result could arise form the abolition of the common law offences would be the occasional escape
of a morally guilty person. Whereas the latter would result in morally innocent person being convicted
• By allowing them to remain we run the risk of tempting the judges to express their disapproval of
conduct which on political, moral or social grounds they consider deserving of punishment
 CRIM POLICY 26

• Air of Reality
• Idea that there has to be an evidentiary basis for a defence before it is put in issue
• “Whether there is evidence on the record upon which a properly instructed jury acting reasonably could
acquit” Thus, you can think of raising a defence in a criminal trial in two stages:
• Two steps to prove defences:
• 1. evidential burden – evidentiary burden to put defence in play – accused carries this burden
always – “burden of going forward”
• a. “air of reality” test
• b. In a jury case, if the defence is unable to point to any evidence that hints towards a
defence, the judge will not even instruct them on it. People in society are generally aware,
but if it is not raised on the facts the jury will often be told not to even think about it.
• c. This burden, in respect to all defences, lies on accused
• 2. persuasive burden – whether the defence actually succeeds or fails – prove or disprove
defence – ultimately persuades trier of fact – may be either on accused or crown – ordinary rule
is that the burden is on the Crown (must disprove there is no self-defence BRD) – reverse onus
offences: burden on accused (automatism, extreme intoxication, mental disorder automatism) on
a balance of probabilities
• a. Burden: is on the Crown
• b. The ordinary rule is that the Crown has the persuasive burden, because defences are
an issue in a criminal case under presumption of innocence it is up to the crown to raise.
• Reverse Onus Defences: where the accused must prove the offence on a balance of probabilities
• Cinous – Presents us with the evidentiary standard for determining air of reality
• Keep things streamlined and focused on issues arguable on the facts
• Don’t let defence argue defences that are not arguable on facts

Defence of Person
• An accused person who has used some sort of force against another person when that other person was
using force against them or threatening them
• Normally the person who is saying they were acting in self-defence usually assaults the other, (may
even be murder if that is what she chose to do)
• General notion is that even though the person may have intentionally killed another person (shot them
in the face knowing it was likely to be lethal) they clearly have the act and fault for murder, they can still
raise the true defence of person by arguing that they were in a situation where they had to defend
themselves
• The old provisions, while badly drafted, had attempted to set out reasonably specific rules – outlined
criteria where a person was entitled to act in self defence
• New provision sets out non-exhaustive list of relevant factors and directs decision-maker to weight
some or all in the balance, with very little guidance
• Simplified, but at expense now to predictability
• Potential challenge to the law in future under vagueness – is the zone of risk for criminal liability
clearly delineated (Spanking case)?
• Duress and necessity require a proportional response, defence of person response only need be
“reasonable” wide range of deference here
• Unclear relevance of old doctrine of “duty to retreat” although somewhat referenced in s.(34)(2)(b)
• No more reference to intent of accused – no relevance to contours of a justification
• Lavallee showed potential of this defence to live up to modern demands – added in what were ultimately
subjective factors into an objective test (reasonableness) by looking back at the relationship of accused to
victim and seeing the “battered woman” syndrome
• Some problems in that this syndrome has been criticized as “pseudoscience” but the progressive
approach of the Court in this case should be applauded: “it strains credulity to imagine what the
 CRIM POLICY 27
‘ordinary man’ would do in the position of a battered spouse, it is probably because men do not
typically find themselves in that situation
• Code now followed this lead by adopting the multifactor test
• If courts continue to follow Lavallee seems like they might introduce more subjective analysis/
broaden interpretation of s. 34
• If we consider her experience and perspective, perceptions, context and relationships which are
shaped as being a battered woman, this affects her reasonableness of use of force
• Her perception of what her options were affected by this. Why didn’t she leave the house?
Maybe the threat would have persisted, also goes back to the idea of home as a sanctuary and
not having to flee your own house
• The most dangerous stage for battered woman is when they leave the relationship or seek
authority, so this may only increase the threat
• We need expert testimony to help the jury understand her decisions.
• Malott – Recognizes many of the weaknesses in Lavelee
• Clarifies that battered woman syndrome is not itself a legal defence, really the message is that
expert evidence may be needed to understand the experience or perception of battered woman
• Helps the jury understand whether they reasonably met the threshold for use of defensive force
• We must look more specifically to level of threat, relationship, physical capacity, finances,
protection of children
• Women should be understood as an individual but also through the shared experiences of other
battered women
• Addresses stereotype- act in helpless way bc if they dont they may not have defence

• Interpretive Issues
• Proportionality: It has been clear for a long time that the force does not have to be precisely
proportional
• If someone is coming at you with a knife you are not only entitled to defending yourself
with a knife of equal size, this would be unrealistic to the kinds of situations actually
faced
• The person who only has a machine gun in their hand is not required to die because the
person who is coming at them with a knife
• Reasonableness of response: should be judged based on the accused’s reasonable belief of the
facts
• Self defence can be based on a mistaken apprehension of a threat and still be valid, but it
must be reasonable
• Retreat: are people required to retreat if possible? Depends on circumstances whether it is only
reasonable to retreat or not
• “Castle doctrine” – even more justified to use defensive force than retreat when you’re in
your own home
• What acts it covers: could possibly cover acts other than physically defending. E.g., break and
enter into a house while being attacked – used to be considered necessity, now it might be
included in this legislation
• Could potentially even cover duress situations
• It will primarily apply to physical force situations, but it can potentially include other situations

• Michael Bryant Case - Someone driving in their car downtown and attacked by a cyclist, the driver drove
away and killed the cyclist by driving over him
• But the options were be attacked unlawfully by this person, the case for self-defence was so
strong that the Crown withdrew the charges

Police Shootings
• This is the body of law that governs police shootings and we know this is a big problem for racialized
men, the officers claim self-defence
 CRIM POLICY 28
• In Canada, the question is whether the defensive use of force was reasonable; Becomes a very
open textured analysis that is applied in this politically charged context
• Shooting of Michael Brown who was shot in Ferguson, MS in 2013; One of the cases that led fuel to the
creation of the BLM movement
• In Toronto there was the case of Sammy Yatin, who was brandishing a knife on a Toronto
streetcar and was shot to death by a constable even though he was completely alone in the
streetcar and the officer was 10 meters away from him; The constable was convicted 6 years
• This is rare because juries do tend to be worried about coming down too hard on police officers,
however, there is so clearly an issue of racialized people being subjected to way too much police
violence with very little justification
• He was convicted of attempted murder, thus when the constable shot him he was attempting to
murder him but he was already dead
• But the notion was that the jury were not willing to say that the first folly of shots were not self-
defence beyond a reasonable doubt; They accepted self defence on the murder charge, but not
justified to sink 6 more bullets to someone who is likely to already be dead
• DUFRAIMONT – very pleased to see police officers being held to some standards
• A lot of what you see in the US or Canada seem to think that non-compliance in itself is grounds
for lethal force, when it in fact is not; This is what we see in these cases

• You can have Mistaken Self-defence the person may think the other person is armed, when they
actually are not ie. you think you are facing a situation of threat when you actually are no
• One hand: concern is to make sure that people who are in a position of defending themselves aren’t held
to too high a standard
• Other hand: if we don't have strictness, we end up with people faced repeatedly with use of force that
shouldn't be based in self defence

Necessity
• Ever since Dudley and Stephens, which denied the defence of necessity on the basis of “the Great
Example” (sacrifice of Jesus), necessity has been rife with moralizing and policy
• Although absolute law may defend actions by necessity, we can not completely divorce the law from
• Our duties are to impose moral necessity, thus not the preservation of another for one’s own but rather
sacrificing their own lives for others
• Thus, the absolute or unqualified necessity to preserve one’s own life = INCORRECT
• True common law defence – Introduced finally in Canada in Perka
• Goal is to avoid the punishment of “morally involuntary” conduct
• Excuse for morally involuntary conduct, gives constitutional foundation under Ruzic which holds a
principle of fundamental justice that person who acts in a morally involuntary manner not be punished
• Means that attempts to abolish or restrict common law defence of necessity would likely be found to
violate principle of fundamental justice that prevents punishment of those who act involuntarily
• First requirement of Latimer (reasonable belief in imminent danger) might be in tension with Lavallee
which held that some accused because of their situation should not be required to wait until harm was
just about to occur
• Will be interesting to see if the Court follows Lavallee in loosening the imminence requirement for
necessity
• Second requirement – (no reasonable legal alternative) principled focus should be on whether accused
acted in morally involuntary manner at time offence committed
• Third requirement – proportionality between harm inflicted/avoided
• Objective standard of proportionality is warranted, maintains a common standard of behaviour
expected of all citizens in society in these situations.
• Hypotheticals:
 CRIM POLICY 29
• 1. p. 934 Imagine a lost alpinist who on one of their treks realizes the weather gets cold to the
point where they have to freeze to death. Dickson would say he would be excused from
breaking into a mountain cabin to keep warm and survive. This is a clear necessity defence
• BUT What about in relation to squatters, how is this any different?
• London Burrow Counsel (UK) dealing with squatters in a house
• Squatters claimed defence of necessity and Court said this is essentially NOT an
emergency, this is a long-standing social problem of poverty & homelessness that is
NOT an emergency
• Law seems to have a distinction. Is this right?
• Whereas lost alpinist and a one-off emergency
• Useful to see the law is more open to necessity for the one-off emergency than necessity
that is a long-standing social problem
• Notion is that if you were to accept needing a place to stay as grounding a need of
necessity, just like if you were to accept hunger as grounding a defence of necessity that
this would create anarchy and would create a real problem for protecting people’s
property rights
• PROF: This case has the most detailed discussion in Canadian law of distinction between
justifications and excuses
• Fair to say that criminal law theorists love this distinction between justifications and excuses and
think it’s very important
• The distinction is not very well managed in our law
• Excuse or justification not included in s.34.
• While self-defence has been traditionally thought of as a justification defence, under the new
regime it’s not even clear that that’s the case anymore
• No discussion of it; Currently we don’t know how much it matters if a defence is thought of as a
justification or an excuse

Duress
• Excuse of criminal liability –does not relieve accused of requisite mens rea.
• “the law is designed for the common man, not a community of saints or heroes” (LeBel in Ruzic)
• Punishing a person whose actions are morally involuntary is unjust because it conflicts with the
assumption in criminal law that individuals are autonomous and freely choosing agents
• Principal vs party to an offence distinction is artificial, harsh, and likely unconstitutional
• The exclusion of offences listed under s. 17 from the codified defence can result in the situation where
somebody was compelled under a genuine situation of duress to commit one of these offences
• In these cases the law would be punishing the morally involuntary individual, which goes against it’s
fundamental principles as well as potentially be struck down under the Charter, for offending s. 7,
especially in its arbitrary effect/moral involuntariness standars
• Giving two individuals committing a particular crime under duress two legal outcomes – one who is a
party could be found innocent, whilst the principal could be found guilty
• Indeed, in Ruzic part of s. 17 was struck down as unconstitutional (the immediacy and presence
requirements); it is possible that this case is only the beginning of a gradual winnowing of the provisions
provided or eventual violation of s. 7
• Pre-charter, courts restricted the harshness of the codified defence by applying it only to principal
offenders and not parties to a crime Paquette – acknowledgment by the courts of the inappropriateness of
this legislation
• The doctrine is also clearly being applied confusingly at various levels of the judiciary – the frequency
with which the Crown changed its position on the law between the appeal and trial process led to a full
acquittal in Ryan, despite the finding that defence of duress did not in fact apply to the situation at all
• Common law defence is much more flexible, and the two should be harmonized under a common law
defence or the common law defence should be codified
 CRIM POLICY 30
• Duress only relevant to high levels of mens rea and even then it remains to be seen whether courts will
allow duress to negate mens rea
• Quite possible for them to conclude it speaks only to motive rather than to intent (Hibbert)
• Duress really relevant to proof of fault problem?
• Modified objective standard of proportionality different from objective standard of necessity
• Court in Ryan argues based on diff targeted temporal situations – necessity more immediate and duress
can be more future oriented

Provocation
• For provocation: a person who would otherwise be guilty of murder will get a verdict of manslaughter
• Statutory defence must reference s 232; Only for murder
• s 232(2): What is provocation?
• Victim conduct that would be an indictable offence, liable for 5-years imprisonment or more
(new requirement, ~ 2015 – before this, had to be a wrongful act or insult)
• Must be of such a nature as to deprive ordinary person of self-control
• Accused must be acting on it suddenly and before there is time for passions to cool
• Because legislation changed, previous cases are of limited utility
• Defence has basically two parts:
• 1) Objective question: provoking conduct that was sufficient to deprive an ordinary person of
self-control (NOTE: doesn’t say “reasonable person”)
• 2) Subjective question: person had to have actually lost control to get this defence
• The defence of provocation acknowledged that all human beings are subject to uncontrollable outbursts
of passion and anger which may lead them to do violent acts
• Perhaps we shuld simply rid of this defence
• Three main kinds of cases where provocation defence has been used:
• “Gay panic” cases: sexual advance from someone from same sex that is straight- Maybe giving people
an excuse for their homophobia
• “Adultery” cases: man comes home and finds his wife having sex with another man, will kill one or
both of them** Seem to be completely off the table going forward
• “Excessive self-defence” cases: these will probably still fit- Might be argued as a back-up if self-defence
isn’t accepted

Note on Carter
• Note on Carter v. Canada (Attorney General)
• Concerned a constitutional challenge to Canada’s laws prohibiting medical assistance in dying
• The following sections of the Criminal Code were challenged under s. 7 of the Canadian Charter of
Rights and Freedoms:
• 14. No person is entitled to consent to have death inflicted on him, and such consent does not affect
the criminal responsibility of any person by whom death may be inflicted on the person by whom
consent is given.
• 241. Every one who…
• (b) aids or abets a person to commit suicide, whether suicide ensues or not, is guilty of an indictable
offence and liable to imprisonment for a term not exceeding fourteen years.
• The unanimous Supreme Court held that these sections, which had the effect of prohibiting medical
assistance in dying in all cases, engaged the rights to life, liberty and security of the person
• The Court further held that these sections were overbroad and therefore not in accordance with the
principles of fundamental justice
• The Court explained at para. 86:
• we conclude that the prohibition on assisted dying is overbroad.  The object of the law, as discussed,
is to protect vulnerable persons from being induced to commit suicide at a moment of weakness
• Canada conceded at trial that the law catches people outside this class: 
 CRIM POLICY 31
• “It is recognised that not every person who wishes to commit suicide is vulnerable, and that there
may be people with disabilities who have a considered, rational and persistent wish to end their own
lives” (trial reasons, at para. 1136)
• The trial judge accepted that Ms. Taylor was such a person — competent, fully informed, and free from
coercion or duress (para. 16)
• It follows that the limitation on their rights is in at least some cases not connected to the objective of
protecting vulnerable persons.  The blanket prohibition sweeps conduct into its ambit that is unrelated
to the law’s objective
• This overbroad prohibition on medical assistance in dying could not be saved under s. 1 of the Charter.
• The Court therefore declared the impugned laws constitutionally invalid at para. 127:
• The appropriate remedy is therefore a declaration that s. 241(b) and s. 14 of the Criminal Code are
void insofar as they prohibit physician-assisted death for a competent adult person who (1)
clearly consents to the termination of life; and (2) has a grievous and irremediable medical condition
(including an illness, disease or disability) that causes enduring suffering that is intolerable to the
individual in the circumstances of his or her condition
• The Court noted that Parliament and/or the provincial legislatures could enact legislation to regulate
medical assistance in dying
• Such legislation was enacted into the Criminal Code in 2016 (see especially the new sections 241.1-241.3).

Solitary Confinement
• Mr. Sapers undertook an Independent Review of Ontario Corrections, which was published in March
2017 and prompted the provincial government to commit immediately to radical reform
• Solitary confinement is also known as “administrative segregation” and in the federal system is
authorized by s.31 of the Corrections and Conditional Release Act, S.C. 1992, c.20
• states that “[t]he purpose of administrative segregation is to maintain the security of the
penitentiary or the safety of any person by not allowing an inmate to associate with other
inmates,” and
• provides that “[t]he inmate is to be released from administrative segregation at the earliest
appropriate time
• “earliest appropriate time” was too late in many cases
• Suicides during lengthy periods of solitary confinement – by Ashley Smith, Edward Snowshoe,
Christopher Roy, and many others – led to public awareness
• Ontario, Adam Capay’s prolonged detention in solitary confinement was the catalyst for the
Independent Review undertaken by Mr. Sapers
• Government’s response to his report has been described as “immediate and profound
• A court challenge to solitary confinement in federal corrections began in British Columbia on July 4,
2017
• 2 weeks before- fed govt intro legislation to place limits on SC
• Bill C-56 raised Q whether govt late-breaking reforms sufficiently limited the use of SC to change
outcome of proceedings in BC
• Ashley Smith
• Committed suicided after effects of long term segregation
• According to The Correctional Service of Canada, administrative segregation not a form of punishment
but means to help ensure the safety of all inmates, staff and visitors
• Say mental and physical health analyzed after 24hrs (often not the case)
• 1/3 of 8,200 inmates in seg across Can are aboriginal
• Similar stats in US
• 30k inmates hunger strike to protest SC conditions
• Negative impacts on mental health
• Poor interactions with staff
• Fluorescent lighting 24hrs/day
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• No human contact
• Considered the new residential schools
• Admission of white adults to prison declined but aboriginals is surging
• 4% popn and 20-30% prison popn
• In prison, Indigenous are placed in minimum-security institutions at just half the rate of their
non-Indigenous counterparts
• Risk level over classified by custody rating scale
• Marginalization experienced by some Indigenous peoples gets turned into “risk”:
intergenerational trauma, alcoholism, a history of abuse, a lack of education, employment, a
bank account or even hobbies make it more likely an inmate will be housed in maximum, and
classed “high risk
• Main reason Indigenous women moved to higher security levels is due to self-harm, including
suicide attempts
• Kinew James
• Died in prison in Saskatchewan
• Aboriginal
• Complaining of illness all day and guards ignored it
• When guards finally came at midnight she was unresponsive
• Heart failure
• Very poor mental health, self harmed
• 6 of 15 years were spent in SC
• Ample evidence her death was preventable
• Adam Capay and Sherman Quisses
• Initially in jail for assault for 5 months
• Accused of murdering Quisses in jail
• Capay has been awaiting trial in SC for 4 years
• Human Rights commissioner went to see conditions- In response to the revelations, Ontario’s
corrections minister, David Orazietti, pledged an external review “of the corrections system as a
whole”
• Goal to use SC as a last resort
• Trial has been continuously delayed
• Once for psych assessment- deemed fit to stand trial
• Once when he alleged makeup of jury unconstitutional due to lack of diversity (lost this
motion)
• Once when fired lawyer before proceedings
• Troubled childhood- need to own role we have played in past and support aboriginal youth
• UN would call treatment torture
• **shouldnt be in SC for more than 15 consecutive days
• Capay has spent 1,560
• In 2013, a ruling from the Human Rights Tribunal of Ontario ordered that inmates put into segregation
receive a handout that spells out their rights while in solitary confinement
• review every 5 days
• Separate review every 30 days to incl mental health/explore alternatives to SC
• Explore alternatives to SC
• United Nations Standard Minimum Rules for the Treatment of Prisoners
• Mandela Rules
• Define solitary confinement as the confinement of prisoners for 22 hours or more a day without
meaningful human contact
• Somehow Canada adamant they do not practice SC just “admin seg”
• “management protocol,” a super maximum designation allowing inmates to be held indefinitely in
segregation; when it was quietly ended in 2011, 100 per cent of inmates so designated were Indigenous
• Kinew James
• Indep Review of Seg in ON report
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• 63 suggestions incl updated legislation, policy recommendation, division of seg placements into
categories incl special needs to meed inmates who req mental health services
• Long-term recommendations focus on re-imagining correctional facilities, with suggestions made
for partnerships between the Ministry and the Ontario Human Rights Commission
• Out of Oversight, Out of Mind from ON office of Ombudsman
• Narrow focus
• Deals w how ministry tracks admission/cont placement of seg inmates and adequacy and
effectiveness of review process
• Outlines systemic failure of SC ex. “2 hour rule” where admin somehow consider people who
they allow to leave seg for 2 hours a day not in seg?
• Last year 7/10 in seg were in pretrial detention – legally innocent, waiting for their trial or a
determination of their bail
• In most institutions, segregation is the default tool to manage individuals
• mental health needs
• at risk of self-harm or suicide
• disabled and elderly who need mobility assistance devices
• critically ill patients requiring close medical supervision
• individuals who feel unsafe when in general population units
• transgender inmates before in-depth placement and needs assessments can be completed
• The lack of clear definitions and standards undermines accountability and transparency
• Ministry policies are not publicly posted and are not provided to inmates or their advocates
• Provincial law and policy require correctional authorities to maintain an extensive, detailed paper trail,
conduct frequent and repeated segregation reviews and forward reports through a cascading oversight
structure
• Often incomplete
• Purpose to release indiv from seg asap
• Adjudicatory and review framework for both administrative and disciplinary segregation lack many
basic elements of independence
• Accurate data collection issues
• Ministry is facing a broad set of infrastructure and staffing challenges, many of which directly impact on
segregation
• September 2015 the Ministry overhauled its segregation policies to bring them into compliance with
human rights standards and introduced a prohibition, to the point of undue hardship, on placing
inmates with mental illness in segregation
• Should have diverted many with mental health issues into more appropriate care placements
• Was not executed
• Mental health screening is frequently delayed, medical services are not provided as required by policy,
and local staff struggle to identify any alternatives to segregation for those with mental illness
• The Government of Ontario is committed to transforming the current system into a modern outcomes-
focused, care-based correctional service
• Conflicting definitions of SC
• Failure to accurately track ie. many start dates
• Bill C-56
• June 2017
• Make changes ti Corrections and Conditional Release Act
• If passed- ensure training resources and updates to policy in order to implement legislation
• Propositions:
• Set presumptive release for offenders in administrative segregation by 21 days (e.g.,
offenders will be released before the end of the 21st calendar day, unless the Institutional
Head provides a written rationale that shows their release would jeopardize the security
of the institution, a person or the offender, or interfere in an ongoing investigation) and
move to a 15-day presumptive release 18 months after the legislation take effect.
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• Have independent external reviewers appointed by the Minister of Public Safety and
Emergency Preparedness to review the files and make a recommendation in relation to
any offenders who: are in administrative segregation for longer than 21 calendar days;
have been in segregation for a total of at least 90 cumulative days within the same
calendar year; or, have been in administrative segregation at least three previous times in
the same calendar year.
• Authorize the head of a CSC region to, following a review, order that an inmate be
released or maintained in segregation. 
• Hold a comprehensive review of the reforms made to administrative segregation five
years after the legislation comes into effect.
• Reinstate least restrictive measure principle
• Amend abolition of early parole act
• Amend CCRA so that after a suspension, termination or revocation of parole/stat release
you will get oral hearing
• MOJ review to ensure consistent with charter
• Would introduce a number of additional safeguards, while continuing to protect the
safety of other inmates and penitentiary staff
• BC Civil Liberties Association and the John Howard Society of Canada sued the federal government in
January, 2015, over the use of SC
• Bill C-56, fell short of what some prison-rights advocates had expected: They argued it still leaves too
much discretion with a federal prison agency that has a long history of neglecting inmates in segregation