Criminal I (Young) - 2013

Criminal Law 2013 Professor Young
Table of Contents
ACTUS REUS AND MENS REA SYMMETRY............................................................................................................................3
NATURE OF CRIMINAL LAW.................................................................................................................................................4
INTRODUCTION........................................................................................................................................................................ 4
LIMITS OF CRIMINAL LAW....................................................................................................................................................5
INTRODUCTION........................................................................................................................................................................... 5
CASE LAW.................................................................................................................................................................................. 5
R v Malmo Levine; R v Caine (2003)...................................................................................................................................................................5
R v Clay (2003).................................................................................................................................................................................................... 5
R v Oakes (1986) [presumption of innocence & Burden of Proof]...................................................................................................................5
INTERPRETING ACTUS REUS.................................................................................................................................................6

INTRODUCTION........................................................................................................................................................................... 6
Elemental Analysis...........................................................................................................................................................6
R v Skoke-Graham (1985) [disturbance]...........................................................................................................................................................6
R v Lohnes (1992) [disturbance]........................................................................................................................................................................6
R v Hutt (1978) [soliciting]................................................................................................................................................................................. 7
R v Sloan [soliciting]............................................................................................................................................................................................ 7
R v Jobidon (1991) [Consent to Assault]............................................................................................................................................................ 8
VOLUNTARY ACT [ACTUS REUS ISSUE]................................................................................................................................8

INTRODUCTION........................................................................................................................................................................... 8
R v Parks [capacity issues, voluntariness issues]..............................................................................................................................................8
OMISSION AND CAUSATION [ACTUS REUS ISSUE].............................................................................................................9

OMISSION................................................................................................................................................................................... 9
Omission Liability.............................................................................................................................................................9
Legal Duties for Omission Liability..................................................................................................................................9
CASE LAW................................................................................................................................................................................ 10
Fagan v Commissioner of Metropolitan Police [omission; concurrence].......................................................................................................10
R v Miller (1985) [omission; concurrence]......................................................................................................................................................10
Party Liability................................................................................................................................................................ 10
Dunlop and Sylvester v R (1979) [omission] [party liability].........................................................................................................................11
R v Kulbacki (1966) [party liability].................................................................................................................................................................11
R v Thornton (1991) [donating HIV blood - do not harm neighbour principle used by court] [omission]..................................................11
Rex v Lewis (1903) [omission] [prayer situation]...........................................................................................................................................12
CAUSATION............................................................................................................................................................................... 12
Common Law Principles for Determining "Legal Causation".......................................................................................13
Criminal Code Sections Dealing With Causation in Homicide.......................................................................................13
CASE LAW................................................................................................................................................................................ 13
R v Smithers (1977) [factual causation = legal causation]..............................................................................................................................13
R v Blaue (1975) [causation-thin skull]...........................................................................................................................................................13
R v Maybin [key case for causation]................................................................................................................................................................. 14
MENS REA............................................................................................................................................................................... 14
INTRODUCTION.........................................................................................................................................................................14
ELEMENTS FOR CONSEQUENCE...................................................................................................................................................15
Mens Rea and Murder....................................................................................................................................................15
INTENT [APPLIES TO CONSEQUENCES].........................................................................................................................................16
R v Buzzanga and Durocher (1979) [“wilfully”; hate speech].........................................................................................................................16
R v Steane (1947) [intention requires purpose, not just knowledge]............................................................................................................17
R v Walle (2012) [common sense inference]...................................................................................................................................................17
KNOWLEDGE [APPLIES TO CIRCUMSTANCES]...............................................................................................................................17
R v Briscoe [proper application of willful blindness]......................................................................................................................................17
R v Blondin (1970) [wilful blindness - mistake of fact]...................................................................................................................................18
R v Currie (1997) [wilful blindness].................................................................................................................................................................18
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R v Jorgensen (1995) [knowledge- mistake of fact]........................................................................................................................................18
R v Molis (1980) [knowledge-mistake of law].................................................................................................................................................19
RECKLESSNESS [APPLIES TO CONSEQUENCES]..............................................................................................................................19
MISTAKE OF LAW V MISTAKE OF FACT.......................................................................................................................................20
SUMMARY OF MENS REA:..........................................................................................................................................................20
CONSTITUTIONAL DIMENSIONS........................................................................................................................................21
INTRODUCTION.........................................................................................................................................................................21
Absolute Liability vs Strict Liability vs True Crimes......................................................................................................21
Objective Mens Rea for Murder- Removing 230 and Restricting 229(c).......................................................................21
R v Sault Ste. Marie City (1978) [categories of offences].................................................................................................................................22
Reference re Motor Vehicle Act (British Columbia) S 94 (2) (1985)..............................................................................................................23
R v Vaillancourt (1987) [Felony/Constructive Murder].................................................................................................................................24
R v Martineau (1990) [Felony Murder-Reaffirms Vallaincourt].....................................................................................................................24
R v Shand (1990) [severed words "ought to have known"- 229c].................................................................................................................25
R v DeSousa (1992) [Departing from full mens rea].......................................................................................................................................26
CONSTITUTIONAL DIMENSIONS: PENAL NEGLIGENCE..................................................................................................27

INTRODUCTION.........................................................................................................................................................................28
HOW DOES IT OPERATE?...........................................................................................................................................................28
CASE LAW................................................................................................................................................................................ 30
R v Barron [crim neg-manslaughter]................................................................................................................................................................30
R v Tutton (1985) and R v Tutton (1989) [crim neg-manslaughter].............................................................................................................30
R v Creighton (1993) [manslaughter].............................................................................................................................................................. 31
R v Beatty (1998) [dangerous driving]............................................................................................................................................................ 32
R v ADH (2013) [unlawful act causing death]..................................................................................................................................................33
EXCUSES................................................................................................................................................................................. 33
INTRODUCTION.........................................................................................................................................................................33
PROVOCATION...........................................................................................................................................................................33
R v Hill (1986) [provocation]............................................................................................................................................................................ 34
R v Thibert (1996) [provocation]..................................................................................................................................................................... 34
R v Tran (2010) [provocation-suddenness requirement]...............................................................................................................................35
NECESSITY................................................................................................................................................................................35
R v Perka (1998) [necessity]............................................................................................................................................................................. 36
DURESS.................................................................................................................................................................................... 36
R v Ruzic (2001) [duress]................................................................................................................................................................................. 37
R v Hibbert (1995) [duress – party liability]...................................................................................................................................................37
INCAPACITY........................................................................................................................................................................... 37
INTRODUCTION.........................................................................................................................................................................37
CASE LAW................................................................................................................................................................................ 38
Rabey v R (1980) [insane v non-insance automatism-external cause]..........................................................................................................38
R v Stone (1999) [psychological blow automatism]........................................................................................................................................38
R v Luedecke (2008) [psychological blow/mental disorder automatism].....................................................................................................39
R v Abbey (1982) [mental disorder-NCR]........................................................................................................................................................ 40
R v Oommen (1994) [modern restatement of s.16 test].................................................................................................................................40
INTOXICATION...........................................................................................................................................................................40
Daviault v the Queen (1994) [Intoxication]..................................................................................................................................................... 41
R v Bouchard-Lebrun........................................................................................................................................................................................ 42
GENERAL INFORMATION - HERE ADD HANDOUTS.........................................................................................................42

HISTORY...................................................................................................................................................................................42
EXAMPLE OF ELEMENTAL ANALYSIS...........................................................................................................................................43
LEGAL REASONING....................................................................................................................................................................43
Judicial Decision Making................................................................................................................................................43
FIVE MODES OF ARGUMENT.......................................................................................................................................................43
ASSAULT...................................................................................................................................................................................43
METHODOLOGY FOR PROVING MURDER......................................................................................................................................44
First, you must establish a Homocide 222(1)................................................................................................................44
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Second you have to prove Culpable Homicide, Manslaughter.......................................................................................44
Third, Now you have to supply the mens rea for Murder..............................................................................................45
Fourth, you have to elevate 2nd Degree to First Degree Murder....................................................................................46
Finally, Reduction of Murder to Manslaughter – 2 Qualified Defences – Provocation and Intoxication.....................47
DEFENCES.................................................................................................................................................................................50
INTERPRETATION......................................................................................................................................................................52
KEY ISSUE: DID THE ACCUSED CHOOSE HARM OR WRONGDOING

Always have to define standard then apply the facts to the standard
Actus Reus and Mens Rea Symmetry

act needs mens rea of voluntariness - circumstances needs knowledge - consequence needs foresight
Element Actus Reus Mens Rea
1) Act  Voluntary?  Deliberate
 Interpretation of verbs (Defence:  Voluntary
restrict meaning, Crown: broaden
meaning)
 Historical/ Textual/ Doctrine/
Policy/ Purpose arguments
 If “act” is an omission, ask:
 1. Was it contemplated by the
provision (activeness of the act)
 2. Was there a legal duty?
 a. Duty of relationship
 b. Duty to complete an
undertaking
 c. Duty to rectify a peril of your
own making
 3. Was duty breached?
2) Circumstances  Interpretive problems?  Accused must have had knowledge or
must have been willfully blind
3) Consequences  1. Factual causation: But-for test  If mens rea specified:
o Not insignificant / beyond de  Interpretation of words such as
minimis range (Smithers) willful, with intent, knowingly,
o Direct or Indirect intentionally, means to…
 2. Legal causation  If “reckless” specified – objective
o Which factual cause is most or subjective?
culpable?  If mens rea implied:
o No causation if:  Direct Intent/Purpose –Acted with
 Not reasonably purpose and desired the
foreseeable, but Thin consequences
Skull Rule applies  Oblique Intent – You didn’t desire
(Smithers) the consequences, but you knew
 Culpable intervention of the consequence would result
3rd party – Reid from your action (foresaw the
 Not broken by religious certainty of consequences)
beliefs of victim (Blaue),  Recklessness – The consequences
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or by something that just were not the intention of your
accelerates the inevitable actions, but you foresaw the
(eg. Negligent doctor). probability, possibility, or
 Interpretive problems? likelihood. (objective or
subjective?)
 Negligence – Objective – You
didn’t have the foresight of the
consequence, but you should have
had the foresight that a reasonable
person would have had
 The above rules are not absolute and
mens rea be departed from with
respect to non-culpable aspects of the
actus reus
 Ulterior Intent “with intent/purpose”if
offense said doing this for purpose -
doing x to get y
 If specific – oblique intent; the
crown can argue that the
consequence was foreseeable
 If general – can be read up to
direct intent; crown will have
difficulty disproving a exculpatory
story
Nature of Criminal Law
Introduction
- Concept of criminal liability: fault justifies punishment

- Young believes: there is no truth to sentencing
o the sentence might not be warranted for the specific case
o people rarely serve full sentence
o parole is about institutional security, not rehabilitation
Three Main Sources of Criminal Law
- The Constitution: including the division of powers and the Canadian Charter of Rights and Freedoms
- Statutes enacted by legislatures, excluding the Criminal Code
- Jude made common law: in the form of defenses not codified in the Criminal Code
Contents of Criminal Code
- parts 2-14 deal with criminal law offences
- second year deals with procedure and sentencing
- every section of the code has definitions
o but what you think the word means isn't what the law necessarily things - always look at common law to see if
the courts have modified the meaning and look at the definition - never take a word at face value
Classification of Offences
- Summary Convictions: most minor offenses in criminal law, go to trial - Ontario Court of Justice - have a maximum cap 6
months jail or $5000 fine
- Indictable Offenses: the most serious offenses must be classified
o 3 types of indictable offences:
 Absolute Jurisdiction - 553 offences
 least serious indictable offense
 court of justice (provincial court) deals with these: trial without jury
 469 Offences
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 most serious offence [homicide, sexual assault] normally in front of a jury but can just be in
front of a judge - jury nullification: getting jury to not follow judge "nullifying them|
 Electable Indictables [556]
 give accused some choice as to how they want to be tried - judge from high court without jury -
judge and jury - judge of low court with no jury
o often decided on by cost, time, quality of judges
- Hybrid Offenses: punishable by either summary or indictment - Crown makes the decision
Limits of Criminal Law
Introduction
- S. 7 of the Charter discusses fundamental principles of justice

o everyone has the right to life liberty and security
o Any crime that results in a penalty of incarceration must be justified under s. 7
- this section can be used as defence to criminal offences where the law itself inhibits liberty or security
- S. 1 is the pairing to S.7
o it determines if the violation to s.7 is a reasonable limit on a free and democratic society [often determined
through the Oakes test]
Case Law
R v Malmo Levine; R v Caine (2003)
Take Away
- tries to argue that the harm principle is a fundamental principle of justice [i.e. that the offence must cause significant
damage to other parties] - court denies that this is a fundamental principle of justice
- try to argue that it is grossly disproportionate punishment however it is clear that the court does not agree
- 3 criteria for a principle of fundamental justice:
1. it has to be a legal principle
2. There must be a societal consensus that this is a fundamental principle
3. It must be ascertainable and definable – not too vague; it must be a good yardstick
R v Clay (2003)
Take Away
- can use statutory intepretation to demonstrate that parliament did not mean to make all forms of cannabis because not
all are intoxicating
R v Oakes (1986) [presumption of innocence & Burden of Proof]
* One of the earliest Charter cases (third?)

- Facts: Person possessing narcotics was presumed to be trafficking. Had to prove that he wasn’t.
o Charged under s.8 of NCA
- Issue: did this infringe on presumption of innocence in s. 11(d) of the Charter?
- Decision: Violated presumption of innocence since accused could be convicted in spite of a reasonable doubt - not saved
under s.1 because there is no rational connection between possession and presumed intention to traffic
o here proportionality test is not met
 there was no rational connection between them having to prove possession and then having
presumption of intent
Take Away
- Section 1 limits rights so long as the limit is reasonable and demonstrably justified
- Two part to Oakes Test:
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o Must be sufficient importance to warrant overriding
 "an objective related to concerns which are pressing and substantial in a free and democratic society" and
it must be shown "that the means chosen are reasonable and demonstrably justified"
o Must meet proportionality test
 measure must be rationally connected to the objective
 measure should impair as little as possible the rights and freedoms
 effects of measure must be proportional to objective being advanced (balance between salutary and
deleterious effects)
 * government has to show that the law is carefully designed to achieve the objective and it is a
minimal impairment *
- burden is on the Crown to prove you are guilty beyond a reasonable doubt
- There are 3 reasons why the burden is on the state; 1- resources; 2- the other way round may lead to vindictiveness; 3-
not guilty means every element of crime is in question and on the table
o Dickson: “the presumption of innocence confirms our faith in humankind; it reflects our belief that individuals are
decent and law-abiding members of the community until proven otherwise”.
- "very often when you have the persuasive burden on the accused that raises the instances of them going to jail it can be
invalidated”
- if the provision could end up resulting in an accused being convicted in the face of doubt that will violate the
presumption of doubt
Interpreting Actus Reus
Introduction
- Actus Reus = all elements of the offence apart from those having to do with the offender's state of mind
- Contemporaneity (also called the “Concurrence Principle”):
o in all offences that require proof of fault, the offence cannot be proven unless the element of fault, the mens rea,
and the actus reus coincide (R. v Meli – 1961)
o Note: Mens rea and Actus Reus o not need to occur at the same time; can be super imposed on one another if act
is continuous (R v Fagan)
- the actus reus must contain one or more of the following:
o an act, omission or event
o that occurs in specified circumstances
o that results in designated consequences
 a mens rea element should be attached to each actus reus element
Elemental Analysis
- Three methods of escaping conviction on a criminal charge:

o failure of proof
o offence modification
 the above two require an identification of all elements of the offence as charged
o excuse or justification
o procedural grounds
R v Skoke-Graham (1985) [disturbance]
- Facts: some parishioners still want to kneel to receive communion, despite the diocesan directive that communion would
only be given to parishioners standing up; they kneel and eventually get up and return to their seats
o charged with s 172 (3): willfully disturbing the order or solemnity of an assemblage of persons met for religious
worship
- Decision: acquitted
- Reasons: Dickson said the conduct was not sufficient as it only produced "annoyance, anxiety, emotional upset"
o say section requires disturbance needs to manifest in a disorder
o use a textual argument to debunk what "disorder" meant - argued it could fall within ordinary meaning of the
words "disturber"
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o moved to a prudential argument - if you interpret word disturb to be any annoyance we will trivialize the section
- too broad - come up with an absurdity (reduction ad absurdem)
o goes through case law that has to do with the heading overall - ultimately concludes that no crime is committed
where the act is passive and you desist from it quickly and voluntarily
o * Note: Wilson uses statutory construction to interpret disturb in the context of “solemnity”, meaning that
emotional annoyance must be enough. However, she interprets “anything” as needing to be read down, based on
historical argument (bolstered by policy).
Take Away
- disturbance must cause an externally manifested disturbance of the public peace - need a response
o therefore if acts are brief and passive then they aren't causing enough disorder
- this is a realist perspective
R v Lohnes (1992) [disturbance]
- Facts: accused is charged with causing a disturbance by using insulting or obscene language [s. 175 (1) (a) (i)]
o went onto veranda and shouted obscenities at his neighbor across the street.
- Decision: acquittal
- Reasons: the crown cannot prove beyond a reasonable doubt the element of a disturbance because a disturbance
requires an externally manifested disorder
o disturbance must be more than a mere upset or annoyance
 must externally interfere with ordinary customary use by the public of the place in question
 not evident that anyone was truly disturbed
Take Away
- the offence here was modified - say that before a crime can arise it must cause an externally manifested disorder
o not just a mental disturbance
- used all five modes of argument here
o heading or preamble may be used for interpretation
 the offense of disturbing the peace requires proof of subjective fault as to the underlying act, such as yelling or
fighting, but objective fault, in relation to the actual disturbance.
R v Hutt (1978) [soliciting]
- Facts: the accused had smiled at a plainclothes policeman who was alone in his car, when he smiled in return she got
into car and asked him if he wanted a girl - made it plain she was a prostitute - entered conviction on claim that she was
soliciting the police officer
o s. 12 (1)
- Decision: acquittal granted
- Reasons: while the adjectives "troublesome, worrying, pestering or annoying" no longer define the act of "soliciting"
there must be a "pressing or persistent" element to the act and the act must contribute in some way to public
inconvenience
o police officer invited her by smiling at her and her statement was not "pressing or persistent"
o reinterpreted word 'solicit'
o state that a car is not a public place
o look again at the heading [disorder]
Take Away
- soliciting must be pressing and persistent

o prostitute could now ask if they wanted it once and it was not soliciting
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- a car is considered a private place in the eyes of the law
- created the "communication law"
o discovered that the inability to communicate with your client put you at a greater risk
 prostitution is legal therefore there must be a legal way to solicit clients
R v Sloan [soliciting]
* case caused by Hutt

- Facts: police officers see woman engage in brief convo with man and get into car - they follow them - car heads to
basically empty parking lot and to the end of the parking lot and backed up - very few vehicles - policeman "sneaked up"
and saw them engaged in fellatio
o charged with s 173 (1) (a) of the Criminal code
 every one who willfully does an indecent act
 in a public place in the presence of one or more persons
- Decision: acquitted
- Reasons: using mens rea requirement argues that there must be proof that you intended to do this in the presence of
others - clearly made an attempt to be hidden
o also argues that the car is a public place (R v Hutt) therefore looking at actus reus analysis it is your property
 argue that it is an overextension for this to be an indecent act [i.e. young couples in lust]
Take Away
 Osborn (dissent) uses a historic analysis: “wilfully” was moved so that it no longer applied to the entire subsection, just
the “indecent act”; must be Parliament’s purpose to limit the mens rea to the indecent act (purposive construction).
R v Jobidon (1991) [Consent to Assault]
- Facts: Consented to fight outside of a bar, accused punched him after he was unconscious, victim died
- Decision: Convicted of manslaughter [s. 265]
- Reaons: discussion about definition of assault and whether assault can be consensual - questions whether courts should
adopt the statute or common law version - common law was invoked as a defence to circumvent statute definition
o here there was consent, however made new condition: cannot consent to death
o to negate the common law requirement of consent, the judges listed a number of reasons why fighting is not
supported (e.g. no social utility) - argue you cannot consent to death
o the stateute was based on the common law and because the common law is so powerful, the interpretation
of a statute can be determined by the common law (where the statute does not out-right contradict
common law)
 this is a historical discussion - arguing common law illuminates the law
o very clear in stating that this does not apply to sporting activities where there is a physical element [needs to
have social utility]
Take Away
- there are limits to consent

- Adults cannot legally consent to a fist fight where non-trivial bodily harm is intended and caused
- utility or value of an act is cited as an important factor in this case - there is very little social value - social utility is used to
determine if consent is sufficient
- very large change in law saying that the consent is limited and can be read out of the code where the judiciary sees fit
- Para 104: consent is ineffective when you cause bodily harm with intent unless, what you are doing has social
utility
o if you intend to cause bodily harm consent will no longer be effective - consent is vitiated if you intentionally
apply force causing serious or non-trivial harm
- common law can be used to evaluate provisions of a statute
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Voluntary Act [actus reus issue]
Introduction
- physical voluntariness is always a requirement of the actus reus - act must be voluntary to be culpable
- Definition: voluntariness is consciousness and the absence of compulsion
- voluntariness can be assessed as an actus reus or a mens rea element
- voluntariness relates to a fundamental defect that may exist between mind and body
o mens rea is a thinking mind
 voluntariness requires that mind body connection to be in tact so that thoughts are translated into
action- if there is a gap you are missing the link needed for your act to become a matter of responsibility
 minimum link is consciousness - cannot be voluntary if you are unconscious
- can have conscious involuntariness - driving while attacked by swarm of bees - muscle spasms - seizures
- claims of unconsciousness are capacity claims there are three types of capacity claims
o automatism
 does not exist outside of law - legal construct to refer to unconscious involuntary behavior
o not criminally responsible on account of mental disorder
o intoxication
- fair opportunity claims reference situations where you were conscious of acting but had no choice
o need to point to an external overwhelming factor
 i.e. hit oil slick - you lost your "fair opportunity" to adjust behavior to the law
 courts prefer these to internal capacity claims
R v Parks [capacity issues, voluntariness issues]
- Facts: while asleep, accused drove 23 miles to his mother-in-law's house and killed mother and father in law- directly
after incident confessed to police and showed remorse - expert witnesses all give credence to the claim
- Issue: Whether sleepwalking should be classified as non-insane automatism resulting in an acquittal or as a "disease of
the mind" [insane automatism] giving rise to verdict of not guilty by reason of insanity
o is it s. 16 [NCRMD] or is it a claim of automatism
- Decision: Parks is acquitted
- Reasons: judges to not believe s. 16 applies in this case - feels that it is a singular occurrence that was unlikely to recur
and is not directly related to the persons internal makeup
o there is a two pronged analysis for s.16:
 you must have a disease of the mind or a mental disorder
 more or less needs to be present in the DSM - needs to effect you specifically
 the disease must effect you in two ways
 you must be incapable of appreciating the nature and quality of the act or omission
 you must be incapable of appreciating that it was wrong
o all 5 psychiatrists agreed - no likely recurrence, no internal link found
o judges cautiously defer saying it is a unique case and therefore not committing to any rule coming out of this
Take Away
- decision made on a lot of policy values - i.e. if not likely to recur can be automatism if it is s.16
- Young says you should not argue s. 16 unless you know the Crown has a solid case - the accused faces high level of
restrictions if this is the case - mental facilities - can end up doing more time in psychiatric commitment than jail time
- the test to see if it is s.16 or automatism is the internal cause theory
o if something hits you and gives you automatism this is an external cause
 disease of the mind requires a predisposition
*information about mental illness and the law is in voluntary act, Oct 3rd *
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Omission and Causation [actus reus issue]
Omission
- general rule: doing nothing (i.e. committing an omission) is not criminal conduct
o has to do with policy values
 value individual freedom over the collective
 also concerns about how far do you have to go to help people
 omissions are ambiguous and therefore difficult to prove
 rule of law is supposed to create a stable framework for society - rescuing is unpredictable - would be
too invasive to force people to intervene
 YOUNG - feels this is disdainful and that it creates indifference
- exception: an omission will generally only form the actus reus of a criminal offence when an individual has a specific
duty to act
- Examples:
o s. 215 - Parent , spouse or guardian has a legal duty to provide the necessaries of life for his or her child, spouse,
or charge, and makes it an offence to fail to do so without lawful excuse
o s. 29 [codification of common law duties]
 (1) Everyone is criminally negligent who
 a In doing anything or
 b In omitting to do anything that is his duty to do shows wanton or reckless disregard for the
lives or safety of other persons
 (2) For the purposes of this section, "duty" means imposed by law
Omission Liability
- cannot read omission liability into an offence that requires an action

o i.e. requirement of assault is application of force - you cannot apply force through omission
- 1) omission liability only works if the code says a failure to do something is an explicit trigger
- 2) if it is a passive action - ex s. 245
- 3) if you have a duty to act - ex s.291 [criminal negligence] [punishes someone who does bad act or omits to act]
- Questions to Ask for Omission Liability
o Is it contemplated by the provision
o Is there a legal duty to act?
o Was that duty breached?
* Key to omission liability - if the fact pattern suggests that accused was not being active but letting things happen you
have to analyse the charge under omission
Legal Duties for Omission Liability
- s. 215 - duty to provide necessaries to your children and your spouse

o if you don't provide necessaries and they die will be charged under criminal negligence
 criminal negligence requires a predicate offence
- s. 216
o undertaking to do surgery or treatment and if you undertake to do this then you have a duty to use skill and
knowledge
- s. 217
o if you undertake to do something you will be under a legal duty to complete your undertaking if failure to do so
might end loss of life
 cannot undertake to do "anything" [i.e. call 911] and then not
- the last category is a duty arising from causal responsibility for dangerous situations
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Case Law
Fagan v Commissioner of Metropolitan Police [omission; concurrence]
- Facts: Appellant accidentally drove car on police officer's foot - officer asked appellant to get off his foot - appellant
refused and turned off engine - then slowly turned on engine and reversed off foot
o Charged with assault [s. 265]
- Reasoning: although an omission cannot amount to an act, they argue that it is not necessary that the mens rea be
present at the inception of the actus reus but rather that it can be "superimposed" upon an existing act
o initial act was not criminal but when the intention formed it became criminal
Take Away
 “mere omission to act cannot amount to assault”

- Actions can become criminal when there is an omission to change a continuous illegal act
- Mens Rea need not be present at the beginning, it can develop later, as long as it is all one continuous act (Meli)
o concurrence principle [or principle of contemporaneous fault]: mens rea and actus reus must occur at the
same time
- Young feels this could more easily be solved as a "duty" case - you have a duty to rectify a peril that you created
R v Miller (1985) [omission; concurrence]
 Facts: two squatters, one smoking in bed; mattress catches fire, wakes up and goes into another room to sleep; house
burns down. Meli / Fagan argument: lack of concurrence– when he acted (dropping the cigarette) he had no mens rea. He
acquired mens rea when he smelt the smoke – purely omission.
o Charged with arson
 Issue: Can he be charged despite because not bring applicable in arson cases – arson has an “active” verb (damage) in its
statutory formulation.
 Decision: Guilty
 Reasoning: by stretching the actus reus, courts finds a continuous act;
Take Away
 Unintentional act + intentional omission = criminal liability

 actus reus continues until the consequence is completed; will be stretched from moment it starts until consequence
reaches its fruition.
 continuous act will be found on results based offences (ie. arson offense – “causes damages”)
Party Liability
Section 21 (1) Parties to an Offence – Every one is a party to an offence who

(a) actually commits it
(b) does or omits to do anything for the purpose of aiding any person to commit it; or
(c) abets any person in committing it
(2) Common Intention- Where two or more persons form an intention in common to carry out an unlawful purpose and to
assist each other therein and any one of them, in carrying out the common purpose, commits an offence, each of them who
knew or ought to have known that the commission of the offence would be a probable consequence of carrying out the
common purpose is a party to that offence
- "aiding and abetting" [aiding is material facilitation so providing something that makes the crime easier to commit]
[abetting means encouraging]
o aiding: hold him down/ abetting: telling person to stab him
- similar sections:
o s. 22 - counselling a crime
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o s. 23 - accessory after the fact [i.e. parent who let child inside enabling them to escape - not a party to the crime
but helped them after the fact]
Dunlop and Sylvester v R (1979) [omission] [party liability]
- Facts: gang rape situation - denied participation - said they arrived at scene saw what happened and left
o charged under s. 21 [party liability]
 Decision: Acquitted
- Reasons: just presence and passive acquiescence - no evidence of aiding, assisting or encouraging or any positive act
o one must be able to infer that the accused had prior knowledge that the offence was planned
o here the trial judge instructed them on the wrong classification
Take Away
- with party liability if you are a party to the crime you are charged with the crime
- mere presence at the scene of a crime or passive acquiescence is not sufficient to ground culpability - something
more is needed - encouragement of the principal, an act that facilitates the commission of the offence or knowledge that
the offence was planned - evidence is ultimately left up to teh jury - absent a dtuy to do so not aiding and abetting by
merely failing to prevent the crime
- there is still generally no duty to prevent harm [here they omitted to do something]
- Young: if the crown can argue that because you and all the others were present this stopped complainant from being able
to get help or call for help, you can be a party
o court is saying that if you show up and know what is going to happen and perpetrator sees you and you are not
doing anything then it is effectively encouraging the behavior- "the fact that a person was voluntary and
purposedly present without offering opposition though he may have had power to prevent" - however can't have
omission liability without still finding a duty to act
o duty may have been found if there had been prior knowledge
R v Kulbacki (1966) [party liability]
 Facts: K was not driving his car, a 16 year old girl was. K did not say or do anything to prevent her from driving over 90
on a highway. K was in the front seat and it was his far.
o Charged with driving a car in dangerous way [s.221(4)]
 Issue: Can Kulbacki be convicted of aiding and abetting a crime when he did not actively participate in that crime?
 Decision: Convicted – by not acting/ failing even to take some minimal action like protest, he aided and abetted [s. 21]
 Reasons: You can be convicted of aiding and abetting if you fail to act and that encourages the commission of an offense.
Take Away
 By lack of action, Kulbacki did encourage her to break the law.

 The distinguishing fact here is that K owned the car – so he had the duty to control the driver.
R v Thornton (1991) [donating HIV blood - do not harm neighbour principle used by court] [omission]
- Facts: man who knew he was HIV positive willfully donated blood to the Red Cross
o Charged under [s.180] “common nuisance”
- Issue: can a "legal duty" within the meaning of s. 180 (2) be one which arises at commonlaw?
o the issue here is he "omitted" to disclose his tainted blood - however no duty in criminal code
- Reasons: CA used a common law, non-criminal duty, to supply the element of the actus reus in a crime [duty from tort]
[refrain from conduct that endangers other people]
o the issue with using a common law duty is that there are different standards expected in tort law and criminal
o SCC found a duty of care within s. 216 - duty was breached by not disclosing that his blood contained HIV
o rejects duty at common law
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Take Away
 They say that the common law duty is a legitimate legal duty (too broad; SCC goes back on this)
- common law duty taken from analogizing duty in tort system [not to injure neighbor i.e. Donoghue]
o by donating blood the legal duty not to cause serious harm to others was breached - SCC later narrowed this and
said there was already a duty under s.216 if medical treatment endangers another person (though that section
only really applies to medical practitioners, etc.)
- there is no broad duty not to harm that can be used as a principle in common law *The SCC goes back on this.
- here you see a lot of subjectivity - this guy is an ass they want to convict him so they figure out how
Rex v Lewis (1903) [omission] [prayer situation]
- Facts: Lewis is charged with manslaughter for the death of his child after refusing to get him medical treatment.
o charged under s.215 [necessaries of life] and subsequently criminal negligence [s. 215]
- Issue: does necessities of life include medicine?
- Reasons: court made a value judgement that prayer does not constitute medical treatment - used reasonable person test
[objective test] what would a reasonably prudent parent do in this situation?
o erases what is unique about the person [young feels it's about societal expectations]
 to be bound need to fulfill knowledge requirement
 needs to know that child is sick - admitted that he would have called a doctor if not for his
religion shows an awareness of the risk
 this mental state requirement is essential - if you had no knowledge you do not fulfill mens rea
requirement
 also need to be able to discharge the duty
 could not discharge duty if they could not pay for medical treatment [lawful excuse]
What Should We Get From This Case
- to assess if a person breached a duty need to use Reasonable Person test to see if:
o the accused had knowledge of the circumstances giving rise to a duty
o the accused had the ability to uphold the duty
- here, “Neglect is the want of reasonable care – that is the omission of such steps as a reasonable prudent person would take
– such as are usually taken in the ordinary experience of mankind…”
- cannot convict if there is a “lawful excuse”
- when you have religious beliefs that causes one to see reality different from the state, need to ask:
o Does the religious belief know out the mens rea [like Tutton] - make it a mens rea argument instead of a religious
belief argument
 Young sees religion as a lawful excuse
Causation
Factual causation [or the causal connection] is established by the "but-for" test. Problems concerning legal causation [or causal
responsibility] arise when there are a number of potential causal candidates that all pass the "but-for" test. Legal causation is an
exercise to determine the strength or significance of one causal connection when measured against other causal factors.
Deal with operative cause [scientific reason] then look at "but-for" would this happen? If you are within the range, look to see if
contribution is more than de minimus If it is but there is another possible cause then use analytical tools [reasonably foreseeable
or voluntary & independent]. When doing this, know sometimes the intervention is the victim.
- not dealt with holistically - broke down into a series of questions

- general principle: factual causation does not equal legal causation, they are two separate concepts
- there are two aspects to "causation" a factual one and a legal one
o Factual: the Def will be deemed to have caused the death of the victim if the death would not have occurred "but-
for" his action. This is usually easy to prove.
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o Legal: The Def will be deemed legally responsible for his being the factual cause where it is reasonably
foreseeable that his actions would result in the impugned result
- is the accused's contribution significant enough to warrant liability?
- Chain of Causation:
o the chain of causation is a metaphor used by the courts - if your action is linked by the chain of causation to the
impugned result then you are said to have been a/the cause - however if intervening actions/causes can break
the chain of causation (affect the resulting consequence) such that you can no longer be deemed the factual/legal
cause of the result
o intervening act needs to be a voluntary culpable act - if that is the case it breaks causation
- the jury is not just restricted to expert scientific analysis
- subsisting defects in victim do not break chain of causation - except when trying to show def actions were trivial
Common Law Principles for Determining "Legal Causation"
- Foreseeability
o attribute status of legal cause to deviations from the normal and foreseeable course of events
- Risk Theory
o a consequence will be attributable to the actions of the accused if and only if it is a result within the risks
contemplated by the offence and for which the prohibition was enacted in the first place
- Voluntary Intervention
o if an intervening cause is a voluntary and culpable intervention by a third party then attribute the status of legal
cause this intervention
Criminal Code Sections Dealing With Causation in Homicide
- s. 222 (6) - no causation if death caused by procuring false evidence in a capital murder case
- s. 222 (5) (c) - causation established if your actions cause someone to take their life due to your threats and fear of
violenace
- s. 224 - causation established if you cause an injury of a dangerous nature even though the immediate cause of death is
proper or improper treatment applied in good faith
- s. 226 - causation established even if your injury only serves to accelerate the victim's death from another subsisting
cause
- s. 227 no causation if death occurs more than a year and a day after the incident
- s. 228 - no causation if death caused by influence of the mind alone [unless fear causes death of sick or elderly person]
Case Law
R v Smithers (1977) [factual causation = legal causation]
- Facts: accused kicked victim in stomach, triggering aspiration of vomit - victim died because of defective epiglottis which
usually prevents foreign objects from the stomach from entering the air passage
o Charged with manslaughter
 Issue: Should the accused be held responsible for the deceased’s death, despite being unable to foresee that that he had a
health issue that may kill him?
- Reasoning: Defect in the victim is an exception to the rule of foreseeability - but because it is a thin-skulled case, the Def
is held responsible.
o De minimus test was accepted - accused must be a cause of death beyond de minimis [more than a trivial
cause]
 since the kick may have killed him its, contribution to his death was more than trivial so Smithers is
criminally liable
 do not have to answer the question "did the kick cause death" have to answer did it set it in motion?
o "immaterial that the death was in part caused by a malfunctioning epiglottis"
- Causation is established where the conduct is at least a contributing cause of death outside the de minimis range (i.e. not
trivial or insignificant)
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- Thin-skull rule: you take your victim as you find him - unforeseen defects in the victim do not break the chain of
causation
- This case equates legal and factual causation [seems to eliminate foreseeability aspect]
- Young does not believe that this should play into criminal law - does not deal effectively with fault - says need to
distinguish between causation of fact and causation as a factor of law
- The jury may look beyond medical evidence to determine causation (it’s a moral issue). Common sense is a vital as
scientific fact in determining causation – Dickson.
R v Blaue (1975) [causation-thin skull]
- Facts: defendant stabbed woman - she was taken to hospital and was told that a blood transfusion was necessary to save
her life - refused due to religion - died following day
o Def charged with murder
- Issue: What caused her death? Did the fact that she refused medical treatment break causal connection?
- Reasons: the stab wound caused death - the refusal of treatment did not break the causal connection between the act
and death
Take Awat
- Unforeseen defects or beliefs in the victim do not break the chain of causation - thin-skulled doctrine applies to
religious beliefs. You take the “whole man” as you find him (spiritual man)
o “It has long been the policy of the law that those who use violence on other people must take their victims as they
find them. This in our judgment means the whole man, not just the physical man.”
- only if second cause is so overwhelming - here she would not have made that choice but for him stabbing her
o
- Young disagrees with this decision
o argues victim did not respect the sanctity of her own life - paid the cost for her principles - should not saddle
others with responsibility because you chose not to preserve your own life - feels that refusing it treatment is
not something that defines you as a person
- rationale for think skull rule in Crim: when accused attacks someone on assumption that other was not unusually
sensitive it is not a reasonable defence - must take responsibility for things you cannot control
* note manslaughter do not need intent to kill *
R v Maybin [key case for causation]
- Facts: accused brothers repeatedly punched victim at bar - eventually struck blow that rendered victim unconscious-
bouncer struck victim in the head after asking who started the fight - the medical evidence was inconclusive about which
blow caused death
- Reasons: clarified that the factual cause is not limited to the direct or immediate cause - nor is it limited to the most
significant cause - rather the focus is still on the wrongful act but for which teh victim would still be alive
o in a homicide trial question is not a medical question or who is ultimately the most responsible - rather it is did
the accused cause death?
 was the act within the de minimus range?
Take Away
- the assault must be a significant and contributing cause - moral responsibility and foreseeability
- manslaughter definition: all you have to foresee is some non-trivial bodily harm
- Test for legal causation:
o were the unlawful acts of the appellants a significant contributing cause of death?
- Reasonable foreseeability is a useful tool however just an analytical tool - aid in determining causation in manslaughter
- Young feels case is about moral obligation:
- legal causation narrows all of the potentials to what the law believes is the most significant [significance determined by
reasonable foreseeability and voluntary culpability]
- voluntary and culpable intervention:
o "but for his actions" none of this would have happened - if the third party intervener is responding to acts of the
accused it will not break the chain of causation
 the act must be independent to be an intervening cause.
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o if someone intervenes independently and contributes to the death it breaks the chain - however if they intervene
because of your actions it does not break the chain
 they may still be culpable but does not remove your culpability
Mens Rea
Introduction
Actus Reus Mens Rea

Act Voluntary; Deliberate
Knowledge (Can be read down to "ought to have known" [objective])

Circumstance Wilful Blindness
Direct Intent (for crimes that require proof of consequences ie. ulterior intent
Consequence crimes)
Oblique Intent (foresight of certainty of consequence)
Recklessness (foresight of possibility of consequence)
Negligence
- The assumption of free will is part of the criminal justice system. We naturally see conduct as an indication of choice, and
we punish that, but without the choice we’re not comfortable with punishment.
- criminal law is built on culpability of choice - once you prove objective elements [actus reus] and once we can
conclude that you chose it [mens rea] we can draw an inference to your character
o criminal system uses mens rea as a proxy for choice which is a proxy for character
- mens rea language is inconsistent - need to get clues from the actus reus elements
Elements for Consequence
- Direct Intent:
o Don’t usually rely on this. The highest form of mens rea, is is hard to impose on the Crown.
o the best arguments for Direct over Oblique comes with provisions that are Ulterior Intent formulations
- Oblique Intent:
o a person acts purposely as to conduct if he means to engage in such conduct, and, in the case of an omission if he
also knows the circumstances giving rise to the duty to act or is reckless as to their existence.
o Most of the time, this refers to “foresight of certainty”. This is considered virtually identical to desire.
 subjective awareness
- Recklessness:
o a person is reckless as to the consequences or circumstances if, in acting as he does, he is conscious that such
consequences will probably result or that such circumstances probably obtain
 taking a risk, subjective awareness
- Negligently:
o a person is negligent as to conduct, circumstances or consequences if it is a marked departure from the ordinary
standard of reasonable care to engage in such conduct, to take the risk (conscious or otherwise) that such
consequences will result, or to take the risk (conscious or otherwise) that such circumstances obtain
 looks at what the accused ought to have known - not what they actually knew
 There is a presumption against negligent liability. Since 1993, the SCC has been embracing negligence.
 “reasonable person”
*as defence want to have to prove the highest form of mens rea because it's the hardest - crown wants to prove the lowest *
Mens Rea and Murder
 229 is the section that elevates manslaughter to murder. It all has to do with intent (mens rea)
229. Murder — Culpable homicide is murder
(a) where the person who causes the death of a human being 16
(i) means to cause his death, or
(ii) means to cause him bodily harm that he knows is likely to cause his death, and is reckless whether
death ensues or not;
- mens rea analysis for murder (s. 229)
o a (i) don't need to have a purpose to cause death to be convicted of murder - oblique intent applies to murder
o a (ii) Double Barrelled Mens Rea
 foresight of certainty of death (oblique intent)
 recklessness; a foreseen and unjustifiable risk (Buzzanga)
o 229 (b) Transferred Mens Rea
 is about transferring mens rea from one victim to the next - even though you didn't intent to kill other
person you did intend to kill
o 229 (c) Unlawful Object murder: will lower mens rea to recklessness: “likely to cause death”
 “ought to have known” (constructive murder) must now be read out, according to s.7 of Charter
(cannot have murder on an objective liability basis)
o 230 2nd Constructive Murder provision has been read out, because a charge for murder cannot have objective
liability - (R v Vallaincourt)
Intent [applies to consequences]
- where parliament has specifically used the words "with intent" this will generally exclude lower forms of subjective mens
rea such as recklessness
- motive and direct intent only apply to consequence section of actus reus [motive is not part of act or circumstance]
- ulterior intent
o when you see “doing x with a further intent” courts will listen to arguments that the mens rea is direct intent
(“desire”). For prudential reasons, this mens rea is too high.
o if it is a specific intent the courts do not want to go to purpose they want to go towards oblique intent
 ex: an indecent act with intent to offend [there is a specific intention]
 ulterior intent is very generic; must use objective standard (NOT objective mens rea) of the best
proof of the subjective state of mind
R v Buzzanga and Durocher (1979) [“wilfully”; hate speech]
- Facts: accused were charged with willfully promoting hatred against Francophones - the accused argue that they were
sympathetic to community and published ad to combat apathy in relation to building a French language school
o [s. 319(2)] Charged with wilfully distributing material with intent to promote hatred
- Issue: How distinction between knowledge and conscious object arises?
- Decision: Appeal allowed
- Reasoning: word willfully has not been uniformly interpreted - primary meaning is intentionally but is also used to
mean recklessly
o in s. 281 2 (2) willfully means with the intention of promoting hatred and does not include recklessness
 an act is not done with intent to produce the prohibited consequence unless it is the actor's conscious
purpose to bring it about and that the actor's foresight of the certainty of the consequence is not
synonymous with an intention to produce it
o as a general rule a person who foresees that a consequence is certain or substantially certain to result from an
act which he does achieve some other purpose, intends that consequence
o state there are three possible meanings for willful
 intention - reckless - deliberate
o decides that it is intent but that there can be two meanings of intent - direct intent and oblique intent
 court says direct intent's role is limited as there will be many cases where intent will be foresight of
certainty
Take Away
- intent in criminal law will almost always be oblique intent

- if there are no mens rea words we assume minimum mens rea [recklessness]
o but where there is a mens rea word [i.e. willfully] we assume the higher standard of mens rea [i.e. intention]
17
- as a general rule - a person who foresees that a consequence is certain or substantially certain to result from an act which
he does in order to achieve some other purpose, intends that consequence (i.e. knowledge = purpose); this is an
objective standard to understand subjective state of mind
- only willfully [intentionally] promoted hatred if:
o a) their conscious purpose in distributing the document was to promote hated against that group
o b) they foresaw that the promotion of hatred against that group was certain or morally certain to result from the
distribution of the pamphlet
- the general mens rea which is required and which suffices for most crimes where no mental element is mentioned is either
the intentional or reckless bringing about of the result (consequence) which the law in creating the offence seeks to prevent
- Two Step Approach to Recklessness:
o Did the accused foresee the risk (reasonable person- objective)? And;
o Was running the risk justifiable?
- Young - common way to argue about mens rea is from the point of view of a reasonable person - if the reasonable person
can argue that they would have seen it them "surely the accused foresaw"
R v Steane (1947) [intention requires purpose, not just knowledge]
- Fact: British appellant employed to do radio broadcasts for the Germans - after expressing desire to leave his job told if
he didn't cooperate his wife and children would be put in concentration camps
o charged with doing acts likely to assist the enemy, with intent to assist the enemy (think buzzanga)
o mens rea: intent for assisting [doing x with a further intent to do y]
- Issue: If specific intention is mentioned in an offence, must it be proved for a conviction?
- Decision: appeal allowed, conviction quashed
- Reasoning: duress is a defence but there must be limitations to the defence - have to look at whether fear was a mere
motive or was part of the mens rea
o question of does intention require purpose or is knowledge enough?
 case says it requires PURPOSE and not merely knowledge (contradicts Buzzanga) where court held that
as long as you had knowledge that your act was criminal you are still guilty
o wording requires intent to assist the enemy for conviction
Take Away
- motive and intention are lumped together - duress is put into mens rea which is problematic [because at the time there
was no duress defence]
- prosecution must prove intent - intent can't be presumed from the act - intention requires not merely knowledge but also
PURPOSE
o Steane had knowledge of what he was doing but he did it to save his family therefore did not have purpose
 overturned in Hibbert where the court distinguished intent from motive
- difference between guilty intent and guilty knowledge -> accused knowingly engaged but did so for another purpose
- “ if the prosecution prove an act the natural consequences of which would be a certain result ... then a jury may ... find that
the prisoner is guilty of doing the act with the intent alleged ... but, if ... there is room for more than one view as to the intent
of the prisoner ... (and) if they either think that the intent did not exist or they are left in doubt as to the intent, the prisoner
is entitled to be acquitted”
R v Walle (2012) [common sense inference]
- Facts: shot person in chest at close range with rifle - killed him - charged and convicted of second degree murder -
claimed that discharge of gun was involuntary and unintentional
o Charged with 2nd degree murder (not manslaughter)
- Issue: Did the trial judge err in resorting to the common sense inference (Buzzanga) without first considering whole of
appellant's state of mind?
- Decision: held
- Reasons: no doubt that he was fully aware of fatal consequence that were likely to follow when he pulled the trigger
o reverted to common sense inference = a sane and sober person intends the reasonable and probable
consequences of his acts - found he had requisite intent for second degree murder [deliberately pulled trigger]
o defense tries to argue on appeal that common sense does not apply because he has a developmental delay -
however cannot present new evidence after the trial if it was evidence that was available at the time of trial
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Take Away
- when is it inappropriate to draw common sense inference because person is unique

- always have to state standard and then define how to use it
- look at totality of facts when determining mens rea
Knowledge [applies to circumstances]
- willful blindness can prove mens rea knowledge requirement for the circumstances
R v Briscoe [proper application of willful blindness]
- Facts: crown believes the accused assisted in the crimes by driving a group to the crime scene, providing a wapon, and
holding the victim and telling her to shut up.
o charged under s. 21 (1) (b); party liability
 Issue: Is Briscoe guilty of murder via party liability if he claims he did not know that they were definitely going to kill the
victim (which the did so out of his sight)?
- Decision: held
- Reasons: willful blindness does not define the mens rea required - rather it can substitute for actual knowledge
whenever knowledge is an element of the mens rea "deliberate ignorance"
o trial judge erred by failing to consider willful blindness as the accused's statements suggest knowledge
o mens rea element reflected in the word "purpose" has 2 components: intent and knowledge
 argue that purpose and intention should be synonymous - but what does intention mean?
 must prove that they intended to assist - does not require that they wanted crime committed
successfully
Take Away
- for aiding and abetting purpose does not mean desire it means intention
- purpose implies knowledge - purpose means intention in aiding and abetting cases [purpose is synonymous with
intent in this situation]
- you must foresee the certainty that they will commit crime
- willful blindness: does not define mens rea requirement but can substitute for actual knowledge whenever knowledge is
a component of the mens rea
o imputes knowledge to the accused whose suspicion is aroused to the point where he sees need for
further inquiries but chooses not to
 this way do not have to prove actual knowledge of crime but just that they had a suspicion
 applies to circumstances not to consequences
R v Blondin (1970) [wilful blindness - mistake of fact]
- Fact: guy brings back scuba tanks with drugs in them - charged with importing narcotics w/ prison term - he said
someone gave him scuba tanks didn't know there were drugs - thought he was smuggling something minor
- Issue: What knowledge is necessary for the accused to be convicted?
- Defense of mistaken fact is applicable
- Reasons: relied on stigma of offence - can only convict someone on the charge for which they have awareness
o to satisfy mens rea they need to show that he knew it was a narcotic - make it general
o mistaken of fact provides defence where specific knowledge is required that mistake prevents
 smuggling narcotics requires knowledge
Take Away
- court said the knowledge must go to:

o the essence of the offence
o an essential element of the offence
o modern era: must attach to the culpable aspect of the actus reus
 thus in situations with more than one circumstance courts will not require Crown to prove all of them
- defense of mistaken fact is applicable
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R v Currie (1997) [wilful blindness]
- Facts: C charged with unlawfully and knowingly uttering a forged document [trying to cash a stolen cheque] - claims he
didn't know it was a stolen cheque with a forged signature on the back - was only trying to help the guy who gave it to
him to cash
o trial judge convicted him on the grounds that he was willfully blind
- Issue: Should doctrine of willful blindness apply here?
- Decision: Currie acquitted
- Reasons: Willful blindness is only applicable when a suspicion arises and a person omits to make further inquiries
o here Currie was never suspicious - perhaps he "ought to have known" but this does not constitute knowledge for
the purpose of criminal liability
 must be a deliberate choice not to inquire
Take Away
- willful blindness is only applicable when a suspicion arises and a person omits to make further inquiries
- willful blindness is subjective - MR is subjective - does not matter if reasonable person would have made further inquiry -
what matters is that the accused is not suspicious
- willful blindness can be seen as a form of omission liability - one has a duty to address their suspicion before they forage
ahead - suspicion - duty to inquire; failure to inquire - courts will deem that you have knowledge
R v Jorgensen (1995) [knowledge- mistake of fact]
- Facts: selling obscene material, with approval from ON film review board
o convicted under s. 163 (2) of the CC
o what is obscenity?
 sex with violence against community standards, sex without violence but is degrading
 erotica is within community standards
- Issue: did the accused knowingly sell obscene material - and did he do so "without lawful justification or excuse?"
- Reasons: the law requires the Crown to prove that an accused retailer knew of the specific acts or set of facts which led
the court to the conclusion that the material in question was obscene (know it’s a procedural claim, because burden
switches)
o approval of film board cannot negative the MR of the offence
o regulatory offence not true crime therefore defence of officially induced error is available for regulatory offences
o issue of how do you determine mens rea - need to compare two related provisions

 for maker of movie no mens rea for distributer however word "knowingly" is present
 "it's a general rule of statutory construction that when the term 'knowingly' is used in a
criminal statute, it applies to all circumstances in the actus reus"
Take Away
- officially induced error of law works as an excuse but not a full defence [Ontario Film Board was the official]
- officially induced error will only result in a “stay of proceedings” (it is a procedural error)
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o Test for officially induced error:
1) You claim a mistake of law.
2) Next, you say that you sought legal advice
3) the official that you sought advice from was appropriate (relevant to the field of inquiry); has to be a
“reasonable choice”.
o Can’t be lawyers (they could just give you a letter saying that you are almost
“permitted” to do a crime)
o Reasonable reliance: So, depends on the context. Works well in the regulatory field
because there are people who you can call for that information all the time.
4) Not only do you have to reasonably rely, your reliance ALSO has to be reasonable! You have to make
some assessment, as the accused, that this is legitimate.
R v Molis (1980) [knowledge-mistake of law]
- Facts: when first began manufacturing the drug it was not restricted - but was added to the act by regulation that was
properly published - said he did not know it was illegal and that he had exercised due diligence in ascertaining the law
- Reasons: defence of due diligence does not apply - due diligence did not change the nature of the law - the law is the
same [even with respect to regulatory offences, a reasonable mistake of law is no excuse]
Take Away
- if one makes a reasonable and concerted effort to determine the law, but doesn't and they are wrong about it,
they cannot use the defence of due diligence (not available for mistake of law cases)
- there is no such thing as being duly diligent
- Young: believes this demonstrates how drug laws are not based on science, did not go through Parliament
- Exceptions to the Ignorance of Law is No Excuse:
o officially induced error
o Mistake as to civil law (ie. ”colour of right”; you believe something is your property so you take it)
o Impossibility [related to ascertaining subordinate legislation; regulatory offenses]
o sometimes can characterize/construct mens rea broadly so that it includes legal knowledge (In Doherty- willfully
breaching probation; Willful was interpreted to mean wanting to breach probation. Assumed knowledge of the
law.)
Recklessness [applies to consequences]
- some subjective awareness of the prohibited conduct or consequence will be enough

- distinct from negligence because it requires some awareness of the prohibited risk by the accused and it is not sufficient
to conclude that a reasonable person would have been aware of the risk
- recklessness requires that the accused is subjectively aware of the possibility of the prohibited act, whereas
knowledge requires that the accused be aware of the probability of the prohibited act
- recklessness is an unjustified taking of a risk that you have an awareness of - an unjustifiable risk
- reckless standards: foreseeing, probability, possibility, likelihood
- need to account for two things:
o did the accused foresee the risk
o was the running of the risk justifiable?
 objective standard - justifiable from a societal point of view
- court will use their understanding of the social value you are engaging in to decide the threshold of foresight
- property damage - there is a definition of what "willful" means [basically recklessness]
- identify when recklessness is applicable when bringing in mens rea, and you have to balance the level of
foresight needed on social standing of the act [subjective standard]
- recklessness is not sufficient form of fault to convict a person under party liability. This is appropriate because an aider
and abettor’s involvement with the crime will be more peripheral and involves less physical conduct that the principal;
this lesser form of physical involvement should be counterbalanced by a higher fault requirement.
21
Mistake of Law v Mistake of Fact
- mistake of law is no defense

- general rule is that factual mistakes go to the culpable aspects of actus reus whereas knowledge of the law is not a part of
the actus reus - thus SCC says they do not care if you did not know as it is not a part of the offence
- there are 3 instances where mistake of law can exculpate [be a defense]
o Knowledge of the law is being construed as part of the mens rea: when MR is interpreted broadly which will
trigger knowledge of the law [i.e. offences that mention "colour of right," theft, arson, mischief] you cannot be
convicted if you believe subjectively that you have a legal entitlement to teh object
 mistake of law as a defence works here because it has to do with the MR
o Regulatory offenses: impossibility is a defence - if it is impossible to find the law [driving on airstrip] This only
applies to offences found outside of the code
o Officially Induced Error: created in Jorgensen where a person who considered their behavior could be illegal -
consulted an appropriate public official - and relied on advice obtained in an objectively reasonable manner to
make this claim:
 Claim a mistake of law "I thought law was x"
 Say you sought legal advice
 the official must be appropriate - relevant to field of inquiry and must be one whom a
reasonable individual in the position of the accused would normally consider responsible for
advice about the particular law
o defense lawyers CANNOT be used
 must have reasonably relied upon that advice to your detriment
 not an excuse for culpability but government is estopped from convicting you
Summary of Mens Rea:
Direct Intent - I want to kill you

Oblique Intent - I am pointing the gun at your head and pull trigger
Recklessness - I am playing Russian roulette and have one bullet and six rounds and shoot four times
Negligence - I have a gun and I am twirling it on my finger without the safety on
- Intention vs. Knowledge

o Generally, intent is the highest level of MR.
o But, Knowledge may sometimes be equated with intent, not a clear line. (Buzzanga) where knowledge or
intention is sufficient.
o Default state is recklessness. It’s enough to prove that while it wasn’t intended, you knew it would happen.
- Recklessness – Chance  Probability (except with murder)
o General principle of recklessness  “the conduct of one who sees the risk and takes the chance” (Sansregret)
 Foresight of probability of risk, or possibility of (from risk to chance)
o Exception  for murder, recklessness is raised to the foresight of a probability (rather than a chance) as set in
Cooper
- Willful Blindness
o General Principle  where a person who has become aware of the need for some inquiry declines to take the
inquiry because,
 1. He does not wish to know the truth (it will be distasteful) or
 2. To permit plausible deniability (attempt to cheat admin of justice)
o Converts suspicion into knowledge, is equivalent to knowledge.
o Briscoe (proper application of WB)
Negligence  based on a deterrent rationale

Recklessness  based on a denunciation rationale
22
Constitutional Dimensions
Introduction
- generally in criminal law there is a constitutional requirement of perfect symmetry of mens rea requirements with actus
reus requirements
o there are departures from this symmetry
 through objection
 reading it out entirely
- departures are generally Crown arguments used to reduce the amount of mens rea proof required [specific to
circumstances]
o when departing they try to either remove mens rea completely or change the mens rea to "ought to have known"
instead of knew
- charter basically gave ruling that constitution only requires subjective fault with high stigma and high penalty
cases
Absolute Liability vs Strict Liability vs True Crimes
- True Crimes - mens rea and actus reus are necessary

o MR must be proven beyond a reasonable doubt - mere negligence is excluded
- Offences that require some state of mind (mens rea) as an element of the crime. These offences are usually implied by the
use of language within the charge such as "knowingly", "willfully", or "intentionally".
- Strict Liability - offences where there is no necessity for the prosecution to prove the existence of MR; the doing of the
prohibited act prima facie imports the offence leaving it open to the accused to avoid liability by proving that he took all
reasonable care
o it's not a criminal code offence
o it is a provincial statute
 “if the statute is silent, this is the default/presumptive mens rea for a regulatory offense (Sault. Ste.
Marie)
 Once the crown proves AR beyond reasonable doubt, the accused can advance a due diligence offence
(Sault. Ste. Marie)
o there is an aspect of deterrence for denunciation
o strict liability category - guilt relies on lack of reasonable care taken by defendant except for when statute
explicitly states MR [willfully, intent, knowingly, intentionally etc.) then would require that MR
- Absolute Liability - situations here merely doing the prohibited acts imposes liability (only needs the AR) the accused is
not open to exculpate himself by showing that he was free of fault
o public welfare offences [i.e. regulatory offences]
Objective Mens Rea for Murder- Removing 230 and Restricting 229(c)
229. Culpable homicide is murder…( a&b removed)
(c) where a person, for an unlawful object, does anything that he knows or ought to know is likely to cause
death, and thereby causes death to a human being, notwithstanding that he desires to effect his object without causing
death or bodily harm to any human being.
23
230. Culpable homicide is murder where a person causes the death of a human being while committing or attempting to
commit high treason or treason or an offence mentioned in section 52 (sabotage), 75 (piratical acts), 76 (hijacking an aircraft),
144 or subsection 145(1) or sections 146 to 148 (escape or rescue from prison or lawful custody), section 270 (assaulting a
peace officer), section 271 (sexual assault), 272 (sexual assault with a weapon, threats to a third party or causing bodily harm),
273 (aggravated sexual assault), 279 (kidnapping and forcible confinement), 279.1 (hostage taking), 343 (robbery), 348
(breaking and entering) or 433 or 434 (arson), whether or not the person means to cause death to any human being and whether
or not he knows that death is likely to be caused to any human being, if
(a) he means to cause bodily harm for the purpose of
(i) facilitating the commission of the offence, or
(ii) facilitating his flight after committing or attempting to commit the offence,
and the death ensues from the bodily harm;
(b) he administers a stupefying or overpowering thing for a purpose mentioned in paragraph (a), and the death
ensues therefrom; or
(c) he wilfully stops, by any means, the breath of a human being for a purpose mentioned in paragraph (a), and the
death ensues therefrom.
Various historic considerations were given doctrinally to restrict 229c:

 Blackmore- 229c never applies when unlawful objective is assault.
o Assault is usually the way you kill somebody. So now, instead of saying you assaulted somebody, it becomes
murder that you likely should have foreseen they would have died.
o 229c would end up getting rid of 229a.
o This doesn’t really work because this would make every act of assault which ends in a death; murder.
 R v Tennant and Naccarato (1975)- Didn’t like removing an “unlawful object”
o the most important thing is the unlawful object and the act that you are doing must be distinct
o The unlawful object and the acts that cause death are distinct.
o The idea of 229c is the idea that you escalated the risk of death; whenever you are involved in some unlawful
plan and you do something for the plan that escalates the risk of death, we’re going to consider that a culpable
murder (though not a traditional murder) because you’re already engaged in a culpable act. Because at
minimum, you shouldn’t have increased the dangerousness of this act.
 R v Vasil (1981)
o The unlawful object has to be an indictable offense
o “Doing anything” for the object doesn’t have to be a crime, but it has to be dangerous. Courts always define
dangerousness as reasonable foreseeability of bodily harm (dangerousness is measures on an objective
standard).
o Vasil chose a method which escalated the risk of death (poured gasoline on furniture)
o 229c will only apply if he knew there were children in the house. Can’t show foresight of death unless he knew.
 R v Shand (2011) – “ought to have known” should be read out of 229c
o Though dangerousness is assessed on in an objective sense (what a reasonable person would consider
dangerous), the foreseeability of the distinct act actually causing death is based on a subjective standard (relates
to the person’s circumstances, etc.)
s. 230 was read out of CCC in Vaillancourt and Martineau
 s.7 of the Charter requires that certain stigma offenses and high penalty crimes require a minimum subjective mens rea
or fault element.
o 230a (felony murder) was struck out in Martineau because it substituted the intent to commit the underlying
offence and to cause bodily harm for the constitutionally required mens rea of subjective knowledge of the
likelihood of death.
o 230d (felony/constructive murder) struck down in Vallaincourt. The section provided for a murder offense
when death results from the use or possession of a firearm while committing a long list of offences, on the
limited basis that it did not even guarantee that there would be objective foreseeability of death in a case, for
example, when a firearm accidentally discharged during a robbery.
24
R v Sault Ste. Marie City (1978) [categories of offences]
- Dickinson said there are three categories of offences [distinct from crime]
o offences in which mens rea consisting of some positive state of mind such as intent knowledge or recklessness must
be proved by the prosecution either as an inference from the nature of the act committed or by additional evidence
 these are criminal offences
 a presumptive mens rea element is read in
o offences in which there is no necessity for the prosecution to prove the existence of mens rea
 these are strict liability cases which relieve crown of proving mens rea - instead defence must prove
that they were not negligent
 these offences are within the regulatory field - must show you were duly diligent
 here the subjective fault element is removed
o absolute liability offences
 you have liability for committing the act
 however if the word willfully or knowingly is in the offence this can become an offence in number one
- in this case the SCC imposed a persuasive burden on the accused to establish a new defence of due diligence to
strict liability offences
o if the accused did not establish this defence it would be presumed to have been negligent in allowing the actus
reus
 this reverse onus was made because they believed the accused was in a better position to prove due
diligence
Reference re Motor Vehicle Act (British Columbia) S 94 (2) (1985)
- Facts: motor vehicle act provided for minimum periods of imprisonment for the offence of driving on a highway or
industrial road without a valid driver's licence or with licence under suspension
o provided that the offense was one of absolute liability - guilt was established by proof of driving not whether the
driver knew of prohibition or suspension
- Issue: Does absolute liability violate s. 7 of the charter? OR does absolute liability combined with imprisonment violate
the charter
- Decision: appeal should be dismissed - Motor Vehicle Act is of no force or effect
- Reason: Majority states that even having imprisonment available as a punishment for an absolute offence violates
s 7 and renders the section of legislation of no force or effect unless it can be justified by s.1
 does not find that this section is saved by s.1 as it does not "minimally impair" the impugned right
o Wilson [concurring] discusses the objectives of imprisonment and how they are not served by imprisoning
people without a chance to defend themselves
o dissent argues you should defer to parliament however majority diagrees
 "Ajudication under the Charter must be approached free of any lingering doubt as to its legitimacy" [para
15]
Take Away
- creates principle that you cannot have imprisonment without fault [because it violates principle of fundamental justice]
o therefore cannot have an absolute liability regulation with the minimum punishment being jail time
 HOWEVER not clear that absolute liability in and of itself does [only if it violates life, liberty, security]
- court discusses substantive v procedural review of fundamental justice [para 16-21]
o clear that this division has no value - fundamental justice is relevant to all aspects of the system - purposive
approach is the correct approach
 must be understood in light of the interests it was meant to protect
- natural justice and fundamental justice are not synonymous [para 25]
- explains how to argue a principle of fundamental justice [para 64]
o Whether any given principle may be said to be a principle of fundamental justice within the meaning of s.7 will rest
upon an analysis of the nature, sources, rationale and essential role of that principle within the judicial process and
in our legal system as it evolves
- administrative expediency is not a sufficient argument when violating s.7
* Note:
25
- Principles of fundamental justice [Malmo Levine]
o must be legal not philosophical - must be precise - must be a societal consensus of its fundamental nature
R v Vaillancourt (1987) [Felony/Constructive Murder]
- Facts: V was convicted of second-degree murder resulting from a robbery of a pool hall - he had a knife and thought that
his friend also had a knife when in fact he had a gun - explicitly told his friend in advance that he did not want guns
involved - during robbery partner shot and killed someone
o charge falls under s.230(d) which negates any necessity for mens rea of killing to be proven before a conviction
can be entered
o Constructive murder
- Issue: is it contrary to s.7 because it imposes absolute criminal liability?
- Reasons: states that it is a principle of fundamental justice that there must be at least a minimal mental state
requirement before criminal liability can be imposed
o there cannot be a conviction in the absence of proof beyond a reasonable doubt of at least objective
foreseeability
o court struck down "felony" or constructive murder provisions that allowed an accused committing some other
serious offence [ex robbery or sexual assault] to be convicted of murder "whether or not the person means to
cause death to any human being and whether or not he knows that death is likely to be caused"
o OBITER: all crimes of murder require a subjective fault element to be proven because of the limits on freedom
that their punishments impose
o DISSENT: It was harsh but that was the way parliament wanted it to be
Take Away
- all crimes with significant stigma attached require proof of the mens rea element of objective foresight of death
[para 28]
o necessary that accused has subjective knowledge that death is likely to result before can be convicted of
murder
- there can be no conviction for murder without subjective foresight of death[reaffirmed in Martineau]
- forced subjective element into murder cases - whereas manslaughter is objective liability
o this has translated to there being a consistent argument about whether one can depart from the subjective
approach
o ACID TEST for 213 (aka 230)“ Would it be possible for a conviction for murder to occur under s. 213 despite the
jury having a reasonable doubt as to whether the accused ought to have known that death was likely to ensue? If
the answer is “Yes”, then the section is prima facie in violation of ss. 7 and 11(d)”
- struck out s 230 - felony murder offences
o that a person committing a serious offence such as robbery was guilty of murder if death resulted from the use
or possession of a weapon
- SCC has held that section 7 of the Charter requires proof of subjective fault for a limited number of offences
o here established that because of its stigma and mandatory life imprisonment, the offence of murder requires
proof that the accused intended to cause death or knew that death was likely to occur
- relevant criteria: stigma, punishment -> the higher each is the more we will be compelled to constitutionalize the offence
- parliament can substitute proof of one element for proof of another - however there must be an inexorable link between
the two [para 32]
- because of the stigma attached to the conviction of murder, the principles of fundamental justice requires a mens rea
reflecting the particular nature of that crime, namely one referable to causing death - the mental element required by s.213
(d) of the Code is so remote from the intention specific to murder that a conviction under the paragraph violates
fundamental justice. Due to the stigma attached to murder, the Crown must prove subjective knowledge that death was
likely to result
R v Martineau (1990) [Felony Murder-Reaffirms Vallaincourt]
- Facts: M and friend were out with weapons [pellet gun and rifle] they knew they were going to commit a crime - M
thought they were only going to commit a "B&E" - accomplice shot and killed couple living at trailer - M charged under
s.230(a) of the Criminal code "Constructive Murder"
26
o homicide is murder if it is committed during a break and enter and a death ensures when a person means to
cause bodily harm to commit the crime or get away - even if he doesn't wan to kill the person or think that it is
likely that they will die
 required fault of predicate offence and harm caused but not fault tied to mens rea of murder
- Reasons:
o following decision in Vaillancourt - states that he believes that all murders should require subjective intent
 decides this section and all of s.230 should be deemed contrary to the Charter [only needed predicate
offence]
o Sopinka agrees with majority but not with idea that all instances of murder require subjective intent to be
proven in order to obtain a conviction
o Dissent - states policy considerations in the legislation indicates that these crimes should be considered murder
as deterrent
 given that these people are doing other offences when you take those actus reus requirements into
account these people should be labelled as murderers - taking steps to harm people
Take Away
- there can be no conviction for murder without subjective foresight of death [affirms obiter of Vallaincourt]
- struck out the section that provided that a person was guilty of murder if he or she meant to cause bodily harm for the
purpose of facilitating a serious offence
- lays out Principles of Fundamental Justice [para 11]
o punishment must be proportionate to the blameworthiness of the offender
o those causing harm intentionally should be punished more than those causing harm unintentionally
o maintain proportionality between stigma and punishment
- since s.213 (aka. 230) of the Code expressly eliminates the requirement for subjective foresight it infringes s.7 and 11(d)
of the Charter
- 3 Principles of Fault demonstrating which Mens Rea should be use for a crime (ie. which is the constitutional
requirement):
o The general principle that criminal liability for a particular [actus reus] consequence is not justified except
where the actor possesses a culpable mental state in respect to that consequence
 (R v DeSousa) demonstrates the culpable mental state can be objective foreseeability → a departure
from symmetry
o The principle that punishment must be proportionate to the moral blameworthiness of the offence
 The higher the penalty the high the required Mens Rea
o The principle of a morally based system of law that those causing harm intentionally be punished more severely
than those causing harm unintentionally.
R v Shand (1990) [severed words "ought to have known"- 229c]
- Facts: S accompanied 2 friends to drug dealer's home with intention of stealing weed - at one point S produced a gun and
one of the persons in the home was shot and killed - one companion says gun went off accidentally other said it was
purposeful - drug dealer told police he heard gun accidentally discharge as S struck him on the head with it but then
testified otherwise
o charged with 229 (c) [use of an unlawful object that causes death, notwithstanding his desire to cause death]
 if you are engaged in an unlawful enterprise you can be charged for murder if death was likely
 "where a person, for an unlawful object, does anything that he knows, or ought to know is likely to
cause death, and thereby causes death to a human being, notwithstanding that he desires to effect
his object without causing death or bodily harm to any human being"
o S did not testify but conceded that he was guilty of manslaughter and possession of a loaded restricted firearm
 S challenged constitutionality of provisions of code allowing for murder conviction in the absence of
intent to cause death or bodily harm - also alternatively argued that judge improperly instructed the
jury on the offence
- Decision: nothing vague or overbroad about criminal code provisions - crown obliged to establish that S intended to
pursue and unlawful object other than to cause death knowing that death was likely
 his unlawful object was indictable offence requiring mens rea [committed a dangerous act in
furtherance of the unlawful object and that he had subjective knowledge that this dangerous act was
likely to result in death]
27
o the sentence was not unfit given past history - him leaving the crime scene and him hiding the gun - and avoiding
arrest
Take Away
- 229 (a) is a subjective standard for mens rea

- 229 (a) is a more stringent mens rea for murder - section 229 (c) does not apply when the unlawful objective is assault
[para 108]
o 229c cannot operate when your intent is to harm somebody
 seek to make section 229 (c) an exception to the rule through historical analysis
 there was a concern that the Crown would try to put all murder cases into this offence to be
able to rely on an objective standard however clear that it is only in distinctive cases
- for 229 (c) to work you must be pursuing an unlawful objective that leads to death which was reasonably
foreseeable
o ex: Vasil (1981) refines the elements
 unlawful object has to be indictable [provincially or federally] the further act that causes death does not
have to be unlawful just "doing anything" but it DOES have to be dangerous
 dangerousness is defined as reasonable foreseeability of bodily harm
o 229 (c) - do "anything" that is not necessarily criminal but dangerous and raises
possibility of bodily harm while doing an illegal act
 objective was to damage furniture but raised the danger to further the object
and this is distinctive
 229 (c) only applies if Vasil knew there were children in the house
 He chose a method that was dangerous (fire to destroy furniture)
- the dangerous act must be distinct from the unlawful object [have design to do something and you detour from
that and raise risk of harm to someone else]
o does not work when death is the only thing the person is pursuing [para 136]
- TEST: factual determination of mens rea [i.e. did they know the gun was loaded]
- constitutionality question: once "ought to have known" is severed, it is constitutional
- [para 185] the judges are upholding 229c under the constitution because: WE don’t need an intent to kill to call it
murder, because when you combine the fact that you’re engaging in a dangerous activity, the fact that you foresee and
create a risk of death, it’s enough to make you guilty under 229c.
o Young - kind of like an “I told you so”.
R v DeSousa (1992) [Departing from full mens rea]
- Facts: Accused involved in a fight where bystander was injured on the arm when a bottle allegedly thrown by the
accused broke against the wall [glass piece hit bystander] accused charged with s.269 - unlawfully causing bodily harm -
accused brought motion to have s.269 declared of no force and effect on the ground that it infringed on s.7
o S. 269 "Everyone who unlawfully causes bodily harm to any person is guilty of an indictable offence and liable to
imprisonment for a term not exceeding ten years"
o before hearing evidence trial judge quashed indictment - found s.269 created criminal responsibility for causing
bodily harm by way of unlawful act, which could include an offence of absolute liability and - as the section
allowed possibility of imprisonment - it went against s.7 not justified under s.1
o CofA overturned the judgement
- Issues: whether the trial judge followed an appropriate procedure in dealing with the motion contesting the
constitutionality prior to hearing evidence? Whether s. 269 violates s.7
- Decision: S. 269 does not violate s.7 of the Charter
- Reasons: Issue #1: decision whether to rule on the application or to reserve until the end of the case is a discretionary
one regarding two policy considerations
o criminal proceedings should not be fragmented by interlocutory proceedings
o second constitutional challenges discourage adjudication without factual foundation
 trial judge should not depart from these policies - however where an apparent meritorious Charter
challenge which is not dependent on facts the trial judge could make an exception
 therefore trial judge did not err in disposing motion
28
o irrelevant whether facts would establish a mental element compatible with
constitutional mens rea requirements - since Court has not adopted "constitutional as
applied" approach
o Issue #2: to be brought within s.260 an accused must have committed an underlying unlawful offence AND have
caused bodily harm to another person as a result of that offence
 mental element has 2 requirements:
 1) first mental element: underlying unlawful offence [federal and provincial offences none
with absolute liability or which have constitutionally insufficient mental elements]
 2) additional fault requirement of s.269 must be satisfied
o term "unlawfully" requires that underlying act [crim or non crim] be at least
objectively dangerous [reasonable person would inevitable realize that the
underlying unlawful act would subject another person to the risk of bodily harm]
 ensures that all prosecutions contain at least a fault requirement based on an
objective standard
 as s.269 neither has stigma or criminal sanction requiring a demanding mental element it
complies with requirements of s.7 - no requirement that intention extend to the consequences of
unlawful acts in general
 punishing those who cause injury through avoidable unlawful action
AR MR
Act: unlawful act [has to be some offence] Voluntariness
another example of a predicate offence to prove
269 need to identify what is the unlawful act that
caused bodily harm and do mens rea element
Consequence: cause bodily harm intent or recklessness
- this case works to distance itself from M & V and the subjective requirement
- perfect symmetry is not a constitutional requirement
o mens rea for unlawfully causing death is going to be objective forseeability of bodily harm
- [para 21] - fault requirement is an essential requirement a provision should not be interpreted to lack any element of
personal fault unless the statutory language mandates such an interpretation in clear and unambiguous terms
- para 19 and 20
o unlawful part has to be an offence under a provincial or federal law
 something unlawful is something objectively dangerous - reasonable foreseeability of unlawful harm
- does not require a subjective intent because it lacks stigma and high penalty
- para 32
o foresight must be proven when the consequence is an essential element - here causing bodily harm is an
afterthought the true culpability is within the unlawful harm element therefore bodily harm is not essential
- provided that there is a sufficiently blameworthy element in the actus reus to which a culpable mental state is
attached, there is no additional requirement that any other element of the actus reus (in this case, consequence) be
linked to this mental state or a further culpable mental state [para 33]
o essentially if there is an actus reus element that is paramount or the "culpable element" the element that defines
the wrongdoing then the mens rea only needs to be demonstrated for the essential actus reus [para 36]

 once you say act itself is dangerous consequence is not an essential element
Constitutional Dimensions: Penal Negligence
Criminal Negligence
(219) (1) Every one is criminally negligent who
(a) in doing anything, or
(b) in omitting to do anything that it is his duty to do,
Shows wanton or reckless disregard for the lives or safety of other persons.
(2) "duty" - for the purposes of this section, "duty" means a duty imposed by law
29
220. Causing death by criminal negligence - Every person who by criminal negligence causes death to another person is guilty
of an indictable offence and liable
(a) where a firearm is used in the commission of the offence, to imprisonment for life and to a minimum punishment of
imprisonment for a term of four years; and
(b) in any other case, to imprisonment for life
221. Causing bodily harm by criminal negligence - Every one who buy criminal negligence causes bodily harm to another
person is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years
 Traditionally, coming out of 50s and 60s, subjective orthodoxy was the position. This lead to Dickson saying that mere
negligence is a creature of civil law and has no rule to play in criminal. Stayed that way until Charter, ironically.
 Odd thing about Charter was; in cases dealing with charter (Vaillancourt and Martineau), they give rulings that “the
Constitution only requires subjective fault when there’s high stigma and high penalty”; may not have realized that they were
sending a message that if there’s not high stigma, civil negligence may have a role to play.
Penal Negligence: Penal negligence is not a crime, but the concept of what negligence means in criminal law. In the criminal
code, this standard of negligence is trigged by words such as “ought to have known”. It is generally accepted that this is judged by
the objective standard; as developed in Creighton; it is a marked and substantial departure from the actions of a reasonable
person. The question from Creighton is how many subjective factors or limitations will we allow in the definition. Lamer argues
for a modified objective test. McLachlin argues for an objective test subject to limitations of capacity.
Criminal Negligence (s.219): Historically this section was created (In 1955) for the driving offences as no convictions were
being laid under manslaughter, because of its stigma. So we have 219 and 220. Within licensed activities it is generally accepted
that the objective standard will suffice (Sharp) as one is fixed with a level of knowledge for the activity. In these cases criminal
negligence is penal negligence. However, s.219 can be used outside these realms and the question then is should it be judged
based on an objective or subjective standard. This comes to a head in Tutton. McIntyre argues for an objective standard and is in
favour of criminal negligence always being penal negligence. Wilson argues for a subjective test.
Manslaughter: The use of either penal negligence 222(5)(a) as per Creighton or criminal negligence 222(5)(b) as per Tutton to
found a charge of manslaughter is at the root of the debate. By definition Manslaughter is a crime of high stigma and penalty and
requires a subjective mens rea as per Martineau. However, criminal negligence by historical creation is a creature of objectivity.
The Battle Lines:

McIntyre: Objective standard for criminal negligence (Tutton)
Wilson: Subjective standard for criminal negligence (Tutton)
Lamer: Qualified objective standard for penal negligence (Creighton)
McLauchlin: Objective standard for penal negligence subject to limits of capacity. (Creighton)
Introduction
 Negligence has a role in punishment when it’s accompanied by an attitude of disregard and indifference- failure to show
contrition; criminal law cant create a standard of fault called “negligence with a bad attitude”. Adding negligence into
Criminal law (with 222) is all about trying to figure out that “thing”; but they don’t have the terms to explain it/ capture
that idea. But the reality is, every time there’s an allegation of negligence, they’re constantly looking for something
beyond ordinary simple negligence.
- the courts are always trying to figure out the "something more" (how do courts punish an attitude of no remorse?)
- Young feels its the single most significant issue in criminal law
- there is a general aversion to simple negligence
o want to punish you for who you are and this is defined by what you are aware of - awareness becomes the
corner stone of choice and choice is the corner stone of character
o
 those that choose harmful outcomes deserve to be punished
 failure to act like a reasonable person is not punishing you for who you are but it is punishing
you for who you should be - want to punish evil people not stupid people
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- Negligence/ carelessness is morally ambiguous; someone who’s careless might be awkward, mentally deficient.
However, many people recognize that there’s a culpability of inadvertence: you should try to avoid harm. And you’re
failure to use what you have according to your capabilities and exercise responsibility to eachother, this is sometimes
sufficient to criminal law. Sometimes criminal law will fix standards of behavior.
- Objective liability is fine, if you extend the idea of subjective knowledge: assessment of who you are to know if you
COULD have had awareness. (capacity)
- Note: Criminal negligence is a conduct-based offence (McIntyre J, Tutton), which is not punishable unless it causes
consequences (bodily harm or death).
How Does It Operate?
- not a lot of explicit references in criminal code to negligence. More likely to be found in new offences.
- sometimes the word "careless" is used
- seen the invocation of negligence standard with words "ought to have known"
o as long as it does not apply to murder this is an objective standard - the only question would be does the
constitution accept it
- issue with section 219/220
o see the word negligence but also see the word reckless which is a trigger for a subjective standard
 do you need to have foresight of consequence for criminal negligence?
o difficult because criminal negligence was introduced for driving offences [1955] [didn't like charging people
with manslaughter under s 222 (5) (b)
1) Penal  Indicated by words: “ought to have known,” etc.

Negligence  Or argued on basis that objective standard supplies sufficient fault requirement as per Sault
(crimes with st. Marie & Motor Vehicle Reference
objective fault)  McLachlin (Creighton majoriy)
 Purely Objective Test
o Marked and substantial departure from the community standard
o Objective foreseeability of serious bodily harm: reasonable person in
circumstances of accused
o No adjustment for individual frailties
o Subject to limitations of incapacity
 Lamer (Creighton dissent)
 Qualified Objective Test
o Marked and substantial departure
o Objective foreseeability of death
1. Would a reasonable person be aware of the likely consequences?
2. If the accused was unaware, is this because she lacked the capacity or simply
because she was negligent?
I. Lacking capacity due to religion, age, education, etc.
II. If negligence, then conviction.
3. If lacking capacity, would a reasonable person with her particular capacities
have made herself aware of the risks? Done something to overcome her
shortcomings?
4) Criminal S. 219: (1) Every one is criminally negligent who

Negligence (a) in doing anything, or
(b) in omitting to do anything that it is his duty to do,
shows wanton or reckless disregard for the lives or safety of other persons.
 Either (a) or (b): Marked and substantial departure from the reasonable person (Sharp and
Barron)
 (b) = legal duty
o 1. Duty of relationship
o 2. Duty to complete an undertaking once started
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o3. Duty to rectify peril of your making (Barron)
 Consequences (Tutton):
 McIntyre:
 Qualified Objective test; we take into account the circumstances and the relevant
facts (youth, education; shortcoming one can’t change)
 Debateable here if we will go with objective or qualified objective, but it appears to
be qualified objective post Crieghton, as per Lamer.
 Unreasonable belief won’t exonerate (religion)
 Appears to be the direction we are headed
 Wilson:
 Subjective awareness of the risks.
 Often mens, and subjective awareness can be inferred from the marked and
substantial departure, but rebuttable, as the risk taking becomes more dangerous
it becomes less rebuttable
 Evidentiary burden to show that, subjectively, the accused shouldn’t be held to the
objective standard of reasonable person; this is a self deprecating defence
Case Law
R v Barron [crim neg-manslaughter]
- Fact: guys drunk decide to streak at a party - one guy gets shy – horseplay and they accidentally push him down the
stairs - guy dies
o kid is charged with manslaughter without specifying subsection – all four subsections are triggered; matched up
under either crim neg and unlawful act.
- Issue: is this manslaughter by an unlawful act? [assault; application of force without consent] or is this manslaughter by
crim neg?
- Reasons: trial judge says there could be implied consent, so not unlawful act (this was before Jobidon)
o Criminal negligence: [para 32] "there had long persisted in Canada a somewhat heated, albeit academic, debate,
even at the SC level whether to be criminally negligent of a crime an accused had to subjectively advert to risk of
harm involved in his or her conduct"
 CA calls it an objective liability standard but state this standard requires a "substantial departure"
 combination of minimal force and momentary inadvertence (leaving the kid after he’d hurt him) was
sufficient to be a regular departure of standard of care, but not substantial
 merely civilly negligent (a little bit negligent, but not grossly)
Take Away
- first indication of wanting to add something more to civil negligence

o "wanton requires a significant or marked departure from the standard of the reasonable person"
R v Tutton (1985) and R v Tutton (1989) [crim neg-manslaughter]
- Facts: parents of 5 year old diabetic - believed in faith healing but their religious convictions did not prevent them from
seeking and acting on medical advice - as a result of intentional withholding of prescribed insulin upon the belief that the
child had been cured
o were charged with causing their son's death through criminal negligence [denied necessaries of life without
lawful excuse]
o Court of Appeal set aside convictions and directed new trials
o S 202 (now 219)
- Issue: What is the mens rea requirement for manslaughter by criminal negligence – subjective intent or objective intent?
- Decision: Held - appeal should be dismissed
- Reasons:
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o Wilson: the imposition of criminal liability in the absence of proof of a blameworthy state of mind, either as an
inference from the nature of the act committed or by other evidence, does not sit comfortably with the principles
of penal liability and fundamental justice
 a serious criminal offence absent language to the contrary should not be interpreted as an
absolute liability offence
 presumption should be to favor degree of mental blameworthiness
 "wanton or reckless disregard for the lives or safety of other persons" signifies more than gross
negligence in an objective sense
 requires some degree of awareness or advertence to the threat to the lives or safety of others or
alternatively a wilful blindness to that threat
 the fact that one is grossly negligent infers a mental blameworthiness
 malice or intent in the sense of the mind is not an element of s.202
 criminal negligence prohibited under s.202 is advertent negligence
o McIntyre : an objective test must be used in determining criminal negligence - it is the conduct of the accused not
his intention or mental state
o Lamer (foreshadowing Creigton): application of objective norm must make generous allowance for factors
particular to the accused
- Ratio: No clear definitive test resulted
Take Away
- need to have been marked and substantial departure - according to Lamer crim neg is objective liability
- says objective liability can be fit in, but because of fear of punishing somebody for being somebody they aren't we have to
make a generous allowance for the accused
- this statement by Lamar remains his standpoint throughout
o Young feels this is the way to resolve the issue of penal negligence
- it is a split decision whether criminal negligence is subjective or objective liability
o Lamer has general allowance to objective test
o Wilson feels should be an subjective test
- two judges look at same cases and find opposite conclusions - prof feels this is demonstrative of law as a whole
- young feels the explanation is: you are an idiot
- issue still around: criminal negligence a crime of objective liability or penal negligence
Criminal Negligence Closing Thoughts
- most commentators believe the case JF v R resolved the issues presented in Tutton - however the comments were merely
obiter
- JF says neither failure to provide necessaries or criminal negligence require intention or subjective foresight - need to
prove "ought to have seen"
- feels this is stupid - go back to Wilson move someone to subjective fault and lack of awareness - seems innocent then you
can return it to a subjective standard
o Wilson wants you to infer fault from conduct and situation - inference of awareness
 Mens rea will flow from being wanton. This looks like the objective test, but the inference of
awareness allows is rebuttable if accused for any reason (ie. bee sting)
 [para 28]
 the only claims of defense for objective are involuntariness and mistake of fact.
 Penal negligence is the concept of hos to apply objective liability in criminal law.
R v Creighton (1993) [manslaughter]
- Facts: A group of experienced cocaine users inject one another with an "eight ball" of cocaine of undertermined
potency/quality - woman begins to convulse - accused leaves apartment for 6 hours and returns to find her dead
o charged with s. 222 (5) manslaughter by means of an unlawful act
- Decision: Appellant convicted and SCC affirms conviction while also affirming constitutionality of s. 222 (5) (a)
o Could’ve argued manslaughter by crim neg; if you leave somebody to die, you’re liable
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- Issue: Is the mens rea required for manslaughter subjective or objective? If it is objective how much weight should be
given to the personal characteristics of the accused? Is the objective standard contrary to s.7 of the Charter?
- Reasons: McLachlin agrees that the test is objective and that only objective mens rea is required for manslaughter -
finds that the common law requirement of "objective foreseeability of the risk of bodily harm" is constitutional
o “The test for manslaughter, of objective foresight of bodily harm rather than of death, does not violate
principles of fundamental justice under s. 7. Jurisprudential and historic considerations confirm such a
test. The mens rea requirement is entirely appropriate to the stigma associated with the offence of
manslaughter. The Criminal Code confines manslaughter to non-intentional homicide. By the very act of calling
the killing manslaughter the law indicates that the killing is less blameworthy than murder”
o McLachlin disagrees with Lamer's additions to the objective test and feels that they essentially make it a
subjective test
o asserts that the reasonable standard should not be concerned with "frailties" of the accused's character and that
policy demands a single uniform legal standard
 standard: what a reasonable prudent persron would have understood in teh circumstances - therefore
situations of greater danger will require grater expertise in the standard of care
o Three part test for conviction of manslaughter (after proving death, of course):
o *Note: This is a “predicate” situation. You have to do a separate analysis of the unlawful act.
 Establish actus reus (unlawful act) - the activity must constitute a marked departure of the care of a
reasonable person in the circumstances
 Establish the mens rea - the activity must have been done while there was objective foresight of bodily
harm (not death) that can be inferred from the facts - the standard is of the reasonable person in the
circumstances of the accused
 Establish capacity - given the personal characteristics of the accused were they capable of appreciating
the risk of harm flowing from their conduct?
- Ratio: objective mens rea is all that is required for a conviction in manslaughter
o objective standard is whether a reasonable person in the circumstances would have foreseen the risk of harm
from their actions - if satisfied mens rea has been proven
 you should not incorporate personal characteristics into the reasonable standard
 only if a capacity issue arises
Take Away
- all is required for manslaughter is foreseeability of non-trivial bodily harm - do not need mens rea for causing death - just
need foreseeability of harm
o just need voluntariness for the unlawful act - do not need to foresee death
o as long as bodily harm was objectively foreseeable the fact that you caused death is irrelevant - no mens rea
attached to death at all
- split court again
o McLachlin - objective test not concerned with "frailties" - unless you can demonstrate capacity issues
 Mclachlin’s “capacity” seems a lot like voluntariness.
o Lamer - objective test taking into some consideration for personal characteristics
 says would reasonable person be aware - yes - was accused unaware because they did not have capacity
to be aware could they have taken steps to prevent this - if yes then culpable
- becomes the standard
o perfect symmetry is not necessary (double barrelled departure; only have to prove mens rea for the predicate
offense)
 The stigma of manslaughter is appropriate
 Dangerous conduct
- * Note: Nothing in this case gives guidance on when to use penal negligence.
R v Beatty (1998) [dangerous driving]
* 5 years after Creigton

- Facts: accused charged with dangerous operation of a motor vehicle causing death under s 294 (4) - accused truck for
no apparent reason crossed solid centre line into path of oncoming vehicle killing three occupants - was being driven
properly prior to the accident - no mechanical failure and no intoxicants - accused not sure what happened but must have
fallen asleep
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o question was whether this momentary negligence was sufficient to constitute dangerous operation of a motor
vehicle causing death
 trial judge said they could not support a finding of a marked departure from the reasonable
standard of care
 court of appeal ordered a new trial finding that it could only be viewed as a objectively
dangerous and a "marked departure"
o determining question became whether there was an explanation for the accused's
conduct that would raise a reasonable doubt that a reasonable person would have been
aware of the risks in the accused's conduct
- Decision: Appeal should be allowed and acquittals restored
- Reasons:
o Majority: penal negligence is aimed at punishing blameworthy conduct - need to be concerned with the
offender's mental state
 modified objective test established in Hundal remains appropriate test for negligence-based criminal
offences
 The test for the required mens rea of dangerous driving is a modified objective test - you must
take all of the surrounding circumstances into consideration in order to determine if the
accused committed a "marked departure" from what a reasonable person in the same
circumstances would have done.
 onus on Crown to prove actus reus and mens rea of offence
 trier of fact must be satisfied beyond a reasonable doubt that objectively the driving was in a
manner that was "dangerous to the public having regard to all the circumstances, including the
nature, condition and use of the place at which the motor vehicle was being operated and the
amount of traffic that at the time was or might reasonably be expected to have been at that
place"
o it is the manner of the driving not the consequence at issue
 accused personal characteristics are not relevant
 applied to facts: was dangerous therefore acturs reus is met however mens reas is not - no evidence of
deliberate intention to create danger no evidence of improper driving before - objectively insufficient
o Dissent: feel the "marked departure" requirement applies to both the actus reus and the mens rea of the offence
 argues that momentary lapse may be part of a larger pattern that establishes the marked departure
 if they determine the actus reus is a marked departure the mesn rea will be inferred from the driving
patter - absent excuses presented
 in cases of momentary lapse of attention the Crown does not have to prove that the accused subjectively
intended to drive in a manner that constitutes a marked departure from the norm and endanger lives
 here actus reus was not made out - as a whole was not a marked departure
Take Away
- Young does not feel this is representative as it is another (like Hundal) driving case - all driving cases are penal
negligence (because licencing of driving sets a standard of care)
R v ADH (2013) [unlawful act causing death]
- Facts: accused gave birth in toilet left child in toilet thinking child dead left them in toilet - she was alive and healthy - she
fully cooperated with police - was charged with unlawfully abandoning a child under the age of 10 years old and thereby
endangering his life s. 218
o trial judge says actus reus component is there however decided that subjective fault was required for mens rea
and that Crown had not proven beyond a reasonable doubt that the person intended to abandon child - her fear
and confusion explained subsequent behavior - found not guilty
- Decision: Held appeal should be dismissed
- Reasoning:
o Majority: for s.218, subjective fault is required
 words abandon expose and willful suggest a subjective fault requirement - denote an awareness of risk
involved
 also nothing in it shows an intention to impose a minimum and uniform standard of care
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o Dissent: a common sense approach dictates that the offence is duty-based and that penal negligence is the level
of fault required to establish guilt as regards the proscribed consequences
 if the people to whom the provision applies have a pre-existing and ongoing legal duty to take charge of
children who fall below the age of 10 it hardly seems reasonable that they should be judged against a
subjective mens rea standard when failure to provide necessaries is a penal negligence standard
[objective]
 argues it is a penal negligence standard here as well - objectively here the woman still would have been
acquitted as she thought child was dead
Take Away
 because the actus reus of 218 is so broad, they balance it with a specific mens rea: want to LIMIT CRIMINALITY. This is
generally true.
Excuses
Introduction
 Justification is about wrongfulness (“it looks like I did something wrong, but it’s actually good”- self defense), in contrast,
defense is about saying; yes it’s wrongful, but you should be blamed.
 An excuse is a realistic assessment of human weaknesses. It acknowledges instinct (ie. being compelled by human
instinct)
o There must be some external or internal disabling conditions
o ie. an inability to control behaviour
 Because we don’t really understand what limits our capacity, we never really liked excuses.
 Excuse is analogized to voluntariness

Provocation
Defence of Provocation:
232 (1) Culpable homicide that otherwise would be murder may be reduced to manslaughter if the person who committed it
did so in the heat of passion caused by sudden provocation
(2) A wrongful act or an insult that is of such a nature as to be sufficient to deprive an ordinary person of the power of self-
control is provocation for the purposes of this section if the accused acted on it on the sudden and before there was time for his
passion to cool
(3) For the purposes of this section the questions,
(a) whether a particular wrongful act or insult amounted to provocation, and
(b) whether the accused was deprived of the power of self-control by the provocation that he alleges he received,
are questions of fact, but no one shall be deemed to have given provocation to another by doing anything that he had a legal
right to do, or by doing anything that the accused incited him to do in order to provide the accused with an excuse for causing
death or bodily harm to any human being
(4) Culpable homicide that otherwise would be murder is not necessarily manslaughter by reason only that it was
committed by a person who was being arrested illegally, but the fact that the illegality of the arrest was known to the accused
may be evidence of provocation for the purpose of this section.
R v Hill (1986) [provocation]
- Facts: convicted of 2nd degree murder for fatal stabbing – 16 yrs old - testified that he reacted to victim's uninvited
homosexual advances- relied on defence of provocation and self defence. CA ordered new trial because trial judge failed
to charge jury that objective "ordinary person" accounted age and sex of the accused
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- Issues: how the objective test for the provocation defence was to be formulated and the extent to which characteristics
peculiar to the individual accused could be taken into account
- Decision: Held, appeal should be allowed
- Reasons: Majority: it was not necessary to direct the jury that the ordinary person means an ordinary person of same
age/sex
o the trial judge is not bound to tell the members of the jury what specific attributes they are to ascribe to
the ordinary person
o test of provocation involves assessment of what actually occurred in mind of the accused - trial judge must make
clear they are assessing whether he acted as a result of provocation - trial judge did not err in failing to specify
that the ordinary person is deemed to be of same sex/age
 Judy cannot conceptualize a sexless of raceless person. They are going to ascribe basic characteristics
without having to be told
 All the jury has to look to are the characteristics that form part of the insults.
 neither necessary or wise to make this a mandatory component of jury charges
 don’t want to put “old heads on young shoulders”
o the judge's charge on the subjective prong of the provocation defence would not have misled the average juror
when viewed in the context of the charge as a whole
o Lamer dissenting: feels that age is a relevant consideration - feels judge erred in excluding age as a relevant
factor
o Wilson dissenting: feels that if the accused's physical characteristics and circumstances are relevant in placing
wrongful act or insult in its proper context then they should play into the objective standard
o Le Dain dissenting: accused's age was relevant to the standard of self-control- should have been drawn to the
attention of the jury
Take Away
 What do court’s incorporate in objective defense cases? (approach to objective defense and mens rea are different)
o ordinary person standard [objective]
 if alleged provocative conduct will not cause this ordinary person to lose "the power of self-control"
there can be no application of defence
o what happened in the accused's mind [subjective]
 needs to have acted on the sudden before his passion cooled
 insult needs to be sufficiently grave, taking into account the characteristics of the accused.
- two pronged test for provocation defence:
o How grave was the insult [subjective]?
 Take into account the accused’s person characteristics.
 What would have occurred in the accused’s mind
o Would the reasonable person faced with a similar insult have reacted in this way [objective]?
 Contextualised objective standard, but level of self control stays the same (except for AGE)
- YOUNG: Dickson has a lot of positive assumptions about the common sense of the jury
- **PUSH THE WILSON STANDARD if there’s something about the accused that would effect the gravity of the insult
R v Thibert (1996) [provocation]
- Facts: accused charged with first degree murder for the killing of his wife's lover - testified he thought about killing the
victim then decided not to but brought rifle anyways - he went to talk with his wife [after seeing his wife with the victim
earlier] - corners wife in parking lot victim comes out - victim says "come on big fellow shoot me" several times - eyes
were closed gun discharged - used defence of provocation
o trial judge left the defence with the jury but did not instruct the jury that the Crown had onus of disproving
provocation beyond a reasonable doubt
- Issue: did the trial judge err in leaving the defence of provocation with the jury?
- Decision: appeal should be allowed
- Reasons: defence of provocation in s. 232 of Criminal Code contains both an objective and subjective element and both
must be satisfied if the defence is to be invoked
o objective element requires that there be a wrongful act or insult of such a nature that it is sufficient to deprive an
ordinary person of self control
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 "ordinary person" = same age, sex, share factors that would give insult special significance; also may
concern past relationship between parties
o subjective element requires accused act upon that insult on the sudden and before there was time for his passion
to cool
 to be sudden must strike a mind unprepared for it, takes the understanding by surprise
o trial judge properly left the defence of provocation with the jury
 evidence indicates that confrontation was unexpected as he had tried to avoid contact with the victim -
although the victims actions were not prohibited by law they could constitute insulting behavior
o in light of TJ's failure to instruct the jury that the onus rested upon the Crown to establish beyond a
reasonable doubt that there had not been provocation, there must be a new trial on the charge of second
degree murder
o Dissent: threshold for leaving the test with the jury has not been met in this case - the defence should not have
been left with the jury
Take Away
- provocation does not necessarily have to be prohibited by law - needs to be insulting behavior?
- In the objective element or test of provocation, the “ordinary person” must be of the same age and sex and share with D
those other factors that would give the act or insult a special significance, and have experienced that same series of acts or
insults as D. The past history and relationship between V and D is also relevant.
- Courts DO NOT like it when you cause the conditions of your own defense
R v Tran (2010) [provocation-suddenness requirement]
- Facts: estranged wife involved with another man - accused entered his estranged wife's home unexpected/uninvited and
discovered wife with boyfriend - viciously attacked them both - killing boyfriend by repeatedly stabbing him - trial judge
accepted defence of provocation and acquitted accused of murder but convicted him of manslaughter - CA = 2nd degree
- Issue:
- Decision: The appeal should be dismissed
- Reasons: the conduct at issue does not amount to an "insult" within the meaning of s.232 nor does it meet the
requirement of suddenness
o cannot in law be sufficient to excuse a loss of control in the form of a homicidal rage and constitute and excuse
for the ordinary person
o there was nothing sudden about the discover and nothing that it struck his mind unprepared for it
Take Away
- provocation is a partial defence exclusive to homicide which reduces the conviction from murder to manslaughter
- the "ordinary person" standard is informed by contemporary norms of behavior, including fundamental values
- the proper approach is to take into account some, but not all, of the individual characteristics of the accused
o there is an important distinction between contextualizing the objective standard, which is necessary and proper,
and individualizing it, which would only serve to defeat its purpose
- requirement of suddenness serves to distinguish a response taken in vengeance from one that was provoked
Necessity
Introduction [para 62, Perka]

- should be recognized as an excuse - does not imply vindication of deeds of the actor
- the criterion is the moral involuntariness of the wrongful action
o involuntariness is measured on the basis of society's expectation of appropriate and normal resistance to
pressure
- negligence or involvement in criminal or immoral activity does not disentitle the actor to the excuse of necessity
o actions or circumstances which indicate that the wrongful deed was not truly involuntary do disentitle
- the existence of a reasonable legal alternative similarly disentitles - to be involuntary the act must be inevitable,
unavoidable and afford no reasonable opportunity for an alternative course of action that does not involve a breach of
the law
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- the defence only applies in circumstances of imminent risk where the action was taken to avoid a direct and
immediate peril
- where the accused places before the court sufficient evidence to raise the issue, the onus is on the Crown to meet
it beyond a reasonable doubt
R v Perka (1998) [necessity]
- Facts: large volume of cannabis seized from ship in Canadian waters off of Vancouver Island - accused [crew and officers]
claimed they were forced, due to poor weather & ship conditions, to take refuge off the coast of island - acquitted at trial
due to defence of necessity - CA ordered new trial holding crown should have been able to call rebuttal evidence
- Issue: Is the defense of necessity a justification or an excuse?
- Decision: New trial should be held
- Reasons: make a distinction between whether it is a justification or an excuse - should be an excuse - the act must be
involuntary there was no choice to act in a different way
o the trial judge's charge to the jury did not adequately address the question of whether a reasonable
alternative existed [e.g. they could have just dumped the drugs]
o Dissent: shouldn't take "justification" off the table - in a situation that lacks "imminent peril" the defence should
still be available
Take Away
- demonstrates the acceptance of the necessity defence

- distinction between justifications and excuses (necessity can be either depending on the circumstances):
o justification: challenges the wrongfulness of an action which technically constitutes a crime - the actions are
considered rightful and not wrongful
 e.g. breaks speed limit to get to ER
 when necessity is framed as a justification it is problematic - subjectifies criminal law and
second guesses Legislature
o excuse: concedes the wrongfulness of the action but asserts that the circumstances under which it was done are
such that it ought not be attributed to the actor whose "criminal" actions we disapprove but in appropriate
circumstances will not be held liable
 when necessity is framed as an excuse it is much less open to criticism - it rests on human weakness in
emergency situation and the objectivity of criminal law is preserved
 Normative Involuntariness: on an objective standard, any reasonable person would have been deprived of the
possibility to act rationally and you were deprived of an alternative
 Test for Necessity:
1. The situation must be urgent and immiment
2. Compliance with the law is demonstrably impossible (ie. was there a reasonable legal alternative?)
3. Response must be somewhat proportionate (works better in a duress scenario)
 How do we factor in the fact that people claiming necessity are still actually criminals?
o Cannot cause the conditions of your own defense!!
o Dickson: Courts look carefully that the peril was not foreseeable in undertaking.
Duress
Duress [struck down - now use common law principle]

Criminal Code, R.S.C 1985
(17) A person who commits an offence under compulsion by threats of immediate death or bodily harm from a person
who is present when the offence is committed is excused for committing the offence if the person believes that the threats will be
carried out and if the person is not a party to a conspiracy or association whereby the person is subject to compulsion, but this
section does not apply where the offence that is committed is high treason or treason, murder, piracy, attempted murder, sexual
assault, sexual assault with a weapon, threats to a third party or causing bodily harm, aggravated sexual assault, forcible
abduction, hostage taking, robbery, assault with a weapon or causing bodily harm, aggravated assault, unlawfully causing bodily
harm, arson, or an offence under sections 280 to 283 (abduction and detention of young persons)
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R v Ruzic (2001) [duress]
- Facts: unlawfully importing 2kg of heroin into Canada [contrary to s. 5(1) of the Narcotic Control Act, and of possession
and use of a false passport contrary to s.368 of the Criminal Code - admitted to both offences claimed she was acting
under duress [man in Belgrade threatened to harm mother - couldn't go to police because corrupt]
o argued that s. 17 was contrary to the Charter under s.7 was successful
- Issue: is the necessity of "immediacy" and "present" in the defence of duress unconstitutional?
- Decision: it is unconstitutional
- Reasons: although moral involuntariness does not negate the AR or MR of an offence, it is a principle, like physical
involuntariness, that deserves protection under s. 7 of the Charter
o “moral blameworthiness” is a principle of fundamental justice.
 only voluntary conduct - behavior that is the product of a free will and controlled body, unhindered by
external constraints - should attract the penalty and stigma of criminal liability
o s. 17 breaches s.7 of the Charter because it allows individuals who acted involuntarily to be declared criminally
liable
 immediacy and presence requirements taken together clearly preclude threats of future harm
o the common law of duress recognizes that the accused in a situation of duress not only enjoys rights, but
also has obligations towards others and society
o future TJ's should instruct jury on components clearly: including need for close temporal connection
o the Crown must show beyond a reasonable doubt that the accused did not act under duress
Take Away
 s. 17 was codified, and common law duress only applied to parties of perpetrators.
 S.17 was horribly limited. If a statutory defense is too restrictive, it can be challenged (Vaillancourt)
- principle of fundamental justice: only voluntary conduct, behavior that is the product of a free will and controlled body
should attract penalty and stigma of criminal liability
- there is a requirement of proportionality between the threat and the criminal act to be executed - accused is expected to
demonstrate some fortitude and to put up a normal resistance to the threat
o take conditions of common law excuse and attach it to s.17: replace “immediate threat” with “safe avenue to
safety”
o additionally must deprive the accused of any safe avenue of escape in the eyes of a reasonable person
o This is a modified objective test (very Wilson-ish, in that you have to think of situational context)
- Common Law Duress Test:
o acts solely as a result of threats of death, or serious bodily harm to herself or another person.
o the threats were of such gravity or seriousness that the accused believed that the threats would be carried out.
o the threats were of such gravity that they might well have caused a reasonable person placed in the same
situation as the accused, to act in the same manner as she did.
 To put that another way, would a person of reasonable firmness, sharing the characteristics of the
accused, such as her age and her background, have responded to the threats.
o the accused must not have had an obvious safe avenue of escape.
R v Hibbert (1995) [duress – party liability]
 Duress cannot be used for party liability. (ie. x with intent to do y); or probably ulterior intent crimes.
 In party liability “purpose” is read to mean “intent”. Because the intent requirement is not a purpose requirement, it can’t
be negated.
 Duress effects purpose; your purpose is to save yourself.
 In Hibbert, party liability mens rea is: intent and knowledge: you as party must have “foresight of certainty” that
the crime will be committed and that the principle desired that outcome (Also applicable re Ryan)
Incapacity
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Introduction
 The easiest part of capacity, is mental disorder.

 Capacity is tied directly to voluntariness
 Cannot be charged with crime if you are mentally incompetent of forming the mens rea, under s.16.
 There is a lot of stigma associated with mental disorder.
o Young: the stigma is unwarranted, because mentally disturbed people don’t commit the most crimes. However,
Harper wants to keep them locked up because they’re unpredictable.
 Mental Health court has now been created
o If you’re mentally disturbed and charged with a “minor offense” in most usban centred, they’ll divert you.
 The insanity claim should only be brought for serious offenses.
o If you’re found criminally responsible, you’ll be out sooner. It’s hard to get out of a facility.
 Laypeople don’t believe in the insanity defence.
 Temporary Insanity is not very successful. The real crazy people are caught in “fitness hearings”.
 It is morally wront to prosecute someone who you know is not criminally responsible. Swain changed this; the Crown can
raise s.16. but only at the end of the case (after reasonable doubt is proven). It is their obligation.
o Swain - “The principles of fundamental justice require that D have the right to control his/her own defence. The
decision whether to raise the insanity (mental disorder) defence is part and parcel of the conduct of D's overall
defence. The ability of P to raise insanity (mental disorder) over and above D's wishes interferes with D's control
over the conduct of his/her defence. It could interfere with other defences being advanced by D and irreversibly
damage D's credibility. P may only raise the issue of insanity (mental disorder) after the trier of fact has concluded
D was otherwise guilty of the offence charged. If D is then found insane (not criminally responsible) at the time of
the offence, a verdict of not guilty by reason of insanity (not criminally responsible on account of mental disorder) is
entered.”
 After Swain, the defense was no longer technically “insanity”, but rather “Not Criminally Responsible by Virtue of
Mental Disorder”
 * Refers to the mental state at the time of offense, not trial
o Swain amended the code to introduce the notion of temporary insanity
Case Law
Rabey v R (1980) [insane v non-insane automatism-external cause]
 Facts: Accused read letter from victim’s purse about her interest in another student; stewed on it for 24 hours. Then
meets up with her, is rejected, dissociated and attacked her. The defence of “non insane automatism” was raised.
 Decision: the accused’s state of automatism was the result of a disease of the mind and a defence of non-insane
automatism is not applicable.
 Reasoning: The Court of Appeal found that the TJ erred in determining that the psychological blow which the appellant
suffered was an “externally originating cause” for his dissociative state, and therefore not sufficient to create a “disease of
the mind” as contemplated by the statute.
o Automatism appears to mean simply: “… the mind in its normal state does not control…”- action without
conscious volition - as opposed to a diseased mind necessarily.
 SCC disagrees: Martin: Ordinary stresses, the common lot of mankind, do not constitute an external cause - are not
worthy of causing non-insane automatism, he must have a mental disorder – therefore s.16.
Take Away
 They don’t really want to say Rabey is insane. Rabey had no history of mental illness and since the incident, no signs
have emerged, so if you label him with having a mental disorder, he will be put into the “insane” category. Historically
an insanity claim was not desirable b/c asylums are not nice places.
 Martin objectifies the test for psychological blow automatism: would the external factor be shocking enough to
cause the reasonable person to dissociate?
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o When you’re confronted with a psychological blow, it will only constitute psychological blow automatism if a
reasonable person faced with same comment would dissociate. If not, they will deem you to have a psychological
disorder.
 Court was so sceptical about claim, that they simply “deemed” him to have a disease of the mind.
 Parks comes after this, and gets an acquittal. Courts have to go back; psychological blow automatism is too inclusive.
R v Stone (1999) [psychological blow automatism]
 Facts: Driving with wife. Has a bad marriage. She starts insulting him, largely about sexual prowess. He explodes (all he
remembers is “whooshing” sound) and kills her.
o Judge charges jury under provocation, non-insane automatism.
 Issue: Should the judge have instructed the jury on non-insane automatism?
 Decision: The jury decides on manslaughter. The judge did not direct the jury on non-insane automatism (only s.16).
o Guy appeals on non-insane, psychological blow automatism
 Reasons: [para 73]
 Majority: They reconfigure the defense to make it more like s.16, where there is a persuasive burden on you to prove
your claim.
o Provocation seems to be the applicable claim here. How can The Def prove that mere words caused the reaction?
o The accused must rebut the presumption of voluntariness with an evidentiary burden (old law)
 What should the burden of proof be?
 The legal burden the create for ALL claims of automatism must reflect POLICY
 The legal burden must be on the Def to prove involuntariness on a balance of
probabilities.
 [187] To discharge the burden, 1- you need an assertion of involuntariness (does this
mean the accused must testify?!), 2- if it’s psychological blow, and; 3- if no physical blow, it
must be something shocking (reasonable person; Rabey Rule).
 4- Need corroboration of bystanders or a documented medical history (Rabey)
o Factors: you can look at motive,
 5- Must have medical evidence – a psychiatrist
 Dissent: Traditional way of approaching claim is raising evidence (evidentiary burden) that you’re acts were
involuntary.
o Once you do that, automatism is before the jury. And it’s for the Crown to demonstrate that the origins are a
disease of the mind, and under s. 16.
o And, if the accused shows this, they don’t need to show an “external blow”
Take Away
 Death blow for psychological blow automatism; restructure offense

o Restricts claim severely.
 The Stone framework now applies to ALL claims for non-insane automatism, “psychological blow” or not.
 They make the common law defense equivalent/ consistent with the s. 16
 Young: bad thing about case is that it probably violates the Charter, by reversing the burden, however they say it’s
justified by s.1
o Inconsistent with the fact that it’s all policy, not about principle
o They’re trying to make it easier for the Crown to convict
 Once there’s evidence that a reasonable jury can find involuntariness on a balance of probabilities, the judge
makes a determination whether to use psychological (external) blow automatism or insanity (s.16). (usually the
job of a jury).
o Both claims will not be both left before the jury.
 [para 198] This case is all about the belief that there is no such thing as psychological blow automatism; The Canadian
Psychiatric Profession says that all automatism stems from mental disorder.
 1- External Cause and 2- Recurrence test for Mental Disorder (Parks)
o Change in recurrence test: No longer ask whether the violent response is going to recur after being triggered,
but rather is the alleged trigger likely to occur?
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R v Luedecke (2008) [psychological blow/mental disorder automatism]
 Facts: Parasomnia (sudden, unexplained arousal from sleep.) called sexomnia: People who have sexual relations in
unconscious state. They’re at a party. He gets to party and falls asleep next to woman Court of appeal Post-stone
applies Stone. Stone puts nail in coffin of psychological blow automatism.
o Charged with sex assault
 Decision: Acquitted, based on old approach in Parks.
o Court of Appeal applies stone and send them back to trial
 Reasoning: Had family history. Other girlfriends with which this happened. Sleep deprivation was considered the
external factor, as well as drinking. Expert qualifies sexomnia.
o The evidentiary burden was discharged because of above criteria.
o When you act involuntarily, you’re presumptively suffering from a disease of the mind (Stone)
o “1- trial judge must begin with premise that automatism is a disease of the mind and look to evidence tto determine
whether it convinces him that the condition is not. This is in direct contrast with Parks, where the non mental
disorder claim succeeded because the Crown failed to prove the internal cause. 2- Although stone accepts the
multifactored approach to the policy component, it refocuses the continuing danger aspect. After stone, in
evaluation the risk of repetition, judges must not limit the inquiry only to the risk of further violence, must examine
the risk of occurrence of the factors or events.”
Take Away
 Judges must consider the following: 1- Presumption of mental disorder, and 2- when you get to the recurrence, consider
possibility of triggers recurring not the possibility of violence happening again.
 Pushes a lot of people in s.16 inappropriately.
R v Abbey (1982) [mental disorder-NCR]
 The clearest cases of insanity never see court b/c they are not fit to stand trial; send them to an institution and bring
them back every 6 months – potentially forever. Now there’s a cap to how long they can be kept pending trial. They
can still keep holding people as involuntary psychiatric patients, but the trial option is eventually foreclosed.
 By the time people actually get to trial, there’s a little more nuance. The Swain case made it so the crown cannot lead
evidence of mental disorder, it’s up to the defence to raise; the accused can be stigmatized and it can be prejudicial.
The accused has a right not to be called “insane” unless he wants it. However, if state of mind is raised at all, the
crown can bring it up.
 Ethical rule: if you as a Crown believe the accused is disordered, you MUST raise it after a finding of guilt or innocence.
You will then raise it on behalf of the accused: mentally disordered people don’t do well in prison.
Key element for s.16: mental disorder, Disease of the Mind
It is a Legal test, not medical and it is based on policy
Classic psychoses easy – Only difficult question is: were you psychotic at the time of crime?
 How to qualify Psychosis:
o Did the accused:
1. Appreciate Nature and Quality – summarized at para 19 and 20 in R v Abbey – appreciate – requires a certain
degree of analysis beyond what you are doing: the physical act and physical consequences nature and quality – simply
knowing what you’re doing – analysis and estimation – through 20 – restatement of need for mens rea (appreciating
the nature and quality of the act).
2. Know the difference between right and wrong – knowing that it’s illegal in Abbey, has been overturned in Chaulk –
knowing is knowing that the community would view your actions as morally wrong.
R v Oommen (1994) [modern restatement of s.16 test]
 Facts: Shot his girlfriend 9-13 times and was convicted of 2nd degree murder and sentences to life. It was set aside on
appeal based on an error of interpretation at trial re insanity provision s. 16 (1). It was brought before the SCC.
Oommen claims he believed the victim was part of a group conspiring to kill him. He felt he was obliged to kill her to
protect himself.
 Decision: Appeal dismissed, Court of Appeal decision affirmed, new trial ordered.
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 Issue: Should the accused be exempted from criminal responsibility because a mental disorder at the time of the act
deprived him of the capacity for rational perception and hence rational choice about the rightness or wrongness of the
act.
 Reasoning: “A person may have adequate intelligence to know that the commission of a certain act, e.g., murder, is
wrong but at the time of the commission of the act in question he may be so obsessed with delusions or subject to impulses
which are the product of insanity that he is incapable of bringing his mind to bear on what he is doing and the
considerations which to normal people would make the act right or wrong. In such a situation the accused should be exempt
from criminal liability”.
Take Away

Intoxication
 Historically, being intoxicated was not a defense, Bbcause it was a part and parcel of life. And then Beard case came
about. And bear sets out three rules that became statutory-ish.
o 1) if you go insane because of drunkenness, it’ll be a s.16 (insanity) defense
o 2) evidence of drunkenness that makes it impossible to form the specific intent (specified by the section),
should be considered.
 They interpreted this as “specific intent” crime: did the intoxication effect mens rea. However, if it’s not
specific intent, and it’s called general intent, they don’t consider any discussion of intoxication.
 R v George: a robbery by a drunk guy. Robbery is amalgam of two other crimes: theft and assault.
o Mens rea for assault is deliberate force (voluntary) and knowledge of consent. That’s not a lot of thought, just
about controlling your body. Not about purpose you’re working towards; it’s GENERAL intent.
o Mens rea for theft is pretty comprehensive: it’s not how much mens rea, it’s the quality of it. Must digest, analyse
and think; it’s SPECIFIC intent, becayse there is a lot of mens rea requiring contemplation. If you have a lot of
mens rea, you have to consider intoxication.
o Because of intoxication, you knock out theft (don’t have the mens rea for specific intent) but you’re left with
assault.
 Intoxication is never a defense for assault or sex assault.
 GENERAL INTENT DEF:
o done to achieve an immediate end and not done accidentally. Intention applied to the acts, considered apart
from their purpose.
 SPECIFIC INTENT: doing acts with the intention of furthering or achieving a legal purpose. Product of conception and
deliberation.
 R v Leary: Is sex assault specific or general: decision; general. So can’t use intoxication for sex assault.
o Dickson says he cant distinguish which crimes are distinguished as general;
 So he uses AUS’s Connor case: no rules: intoxication will be taken into account as a factor in determining
mens rea in any case.
 R v Bernard: All assaults are general. When you’re said you can’t consider mens rea, you’re saying that you’re just going to
convict someone on actus reus (absolute liability).
o And then Wilson does kind of what she does in Tutton: most of the time we can infer mens rea from fact of your
actions, but we will allow you to rebut this presumption by introducing intoxication for specific intent, and still
looking at intoxication for general intent only when it’s akin to insanity or automatism.
 The real way to deal with specific intent in general is doctrinal. You hope there’s a case that decided it.
 Offenses you may come across where it’s SPECIFIC intent
o Murder
o Attempted murder
o Theft
o Parties
 GENERAL intent
o Manslaughter
o All assaults.
o All sexual assaults.
44
o All crimes against the person.
 The Main Specific Intent crime is murder, though it doesn’t require a lot of foreseight. That’s not why it’s a specific
intent crime.It’s specific intent because of it’s serious nature; the fixed penalty.
 Most Specific Offenses have a general intent to fall back onto. Ie. murder- manslaughter; robbery- assault; etc.
Daviault v the Queen (1994) [Intoxication]
 Facts: The appellant brought a 40 ounce bottle of brandy to the wheelchair bound victim’s home. She fell asleep; he
finished off the bottle then raped her.
o The appellant was acquitted at trial for sexual assault, but the Quebec Court of appeal overturned, and
substituted a verdict of guilty.
o The appellant challenges the precedent in Leary which was used to justify the decision at the appeal court level:
that voluntary intoxication can never negate the mens rea required for an offence of general intent.
 Decision: appeal allowed, Court of appeal’s decision set aside, new trial ordered.
 Reasoning: Leary rule violates the Charter
 This is a case about voluntariness

 Chronic alcoholics can legitimately use intoxication as a defense: it’s a condition that causes black-outs and impairs
cognitive functioning
 Causing the conditions of own defense was, historically, translated into principle doctrine that can be applied.
o Traditionally, you must have mens rea when committing actus reus, but with drunken people, the courts simply
said that the guilty state of mind came earlier when they sat down to drink
o In Beard, courts divided crimes into general intent crimes (very little mens rea). and specific intent crimes
(require a lot of mens rea/ contemplation)
 Beard also restricted use of defense to self-induced intoxication.
o no one knew how to apply this distinction, so in Daviault, they got rid of distinction, but government overruled
Daviault with a legislation.
 Does not completely reject the Leary rule that allows the mens rea for drinking to be transferred to the mens rea of the
actus reus, however:
o Instead, the persuasive burden is on the accused to prove on a Balance of probabilities that they were so
drunk they couldn’t have performed.
 He proposed that normal levels of intoxication should not be treated any different from sober individuals; however,
those who were so intoxicated that it would be akin to automatism or insanity could rely on a defense of intoxication on
the balance of probabilities.
Self-Induced Intoxication
 Parliament Reinstates
33.1 (1) 33.1 after
When defence the above—case
not available It isand
not rejects thetosuggestion
a defence an offence in Daviault
referred to inthat the Leary
subsection (3)rule
that is
the accused,
unconstitutional
by reason of self-induced intoxication, lacked the general intent or the voluntariness required to commit the offence,
where the accused departed markedly from the standard of care as described in subsection (2).
45
(2) Criminal fault by reason of intoxication — For the purposes of this section, a person departs markedly from the
standard of reasonable care generally recognized in Canadian society and is thereby criminally at fault where the person,
while in a state of self-induced intoxication that renders the person unaware of, or incapable of consciously controlling,
reinstatement was return to Leary, and there’s only one real case of importance after Daviault: Bouchard: all that 33.1
does is take assault crimes, and move them back to Leary rule.
o However, you can use Daviault defense, when you’re outside of crimes of violence.
 Bottom line: intoxication is generally raised as a defense in crimes against the person. 33.1 is about preventing
people from allowing extreme intoxication to apply only to crimes that aren’t against the person.
 So ANY GENERAL INTENT INTOXICATION DEFENSE WILL HAVE TO INCLUDE A CHARTER CHALLENGE!
R v Bouchard-Lebrun
 Enactment of 33.1 did not entirely revive the Leary rule

 Deviault is still the state of law, however heavily restricted by s 33.1; ie. Daviault will allow an accused to plead extreme
intoxication to a property charge.
 Note: 33.1 does not limit the scope of s.16; they are mutually exclusive
General Information - HERE ADD HANDOUTS

- most offences are regulatory
- pre 1990 need to check revision
History
- historically was common law offences however not efficient way to administer normative standards
o started to create statutes - crimes were open ended where every crime has potential for imprisonment
- criminal code revised in 1990
- summary conviction offence is the most minor offence [generally not jail]
- most serious are indictable offences
o 469 are your most serious charges [homocide, murder, treason]
- some are hybrid offence where can be punished by either indictable or summarily
Example of Elemental Analysis
Legal Reasoning
- jurisprudence is obsessed with question of how judges arrive at decisions - is there a correct answer to a legal question
- within legal reasoning there are limits as to what you can and cannot argue in law
o ex: cannot argue good motive
 motive is an ethical appraisal of whether our action was right or wrong - people have different ideas of
what a good or bad motive is
- Young feels that legal reasoning and jurisprudence is just about closure - law must close off various debates and we need
to have mechanisms to ensure that the courts can reach a result
Judicial Decision Making
- ideally there are certain principles that govern interpretation so that judges aren't just making things up and relying on
subjective whim
o previously referred to as "legal science" and there were no appeals because "judges didn't make mistakes"
 not a current ideology
- legal realism
o there is no correct answer as demonstrated in R v Steward wearing a Fuck Iran pin]
 charged under section 163 [obscenity provision] crown proceeded by indictment as it was a hybrid
offence - did this because they did not like him
- legal idealists
o say language is ambiguous but we can towards principles that animate our legal system and if you rely upon
principles you will be able to reach a result that most people will agree with
46
Five Modes of Argument
Historical
- legislative history to provide evidence of intent and purpose [evolution of offence]
- statutory provision may have been in the criminal code since the beginning
- always trace the evolution of teh section and look for changes [ex Stoke-Graham]
Textual
- looking for internal consistency within the provision in question
- working with the language of the section
- esjusdem generis is a pure textual argument - textual arguments are dictionary/common usage
Doctrinal
- the reference to precedent
- may not need to interpret the word because the court already has done it
- find out what a high court with binding authority already said regarding it - has someone already reinterpreted it?
Prudential
- policy based [last argument to add in]
- want an interpretation that advances government objective [trying to make it consistent with parliament intent]
o found in Hansard or ministry debates
 purposive interpretation for what the court wants to hear should be at the forefront of the argument
Structural
- Young's favourite type of argument
- presupposes that parliament made codes to be in existence, gain meaning in your section by looking at what otehr
sections have done
o have to know the code and other federal statutes to be able to do them
 point to other sections to aid in examination of yours
Methods of Escaping Conviction on a Criminal Charge
Assault
- s.265 [building block for a lot of manslaughter cases]

o physical assault has three tiers
 common assault [application of force] [everyone who commits an assault is guilty]
 increased assault [use a weapon or causing bodily harm as a consequence]
 aggravated assault [severe harm]
- Sex Assault has been placed directly within assault
o different issues usually arise within a sex assault case
 issues of identity
 consent
 if person did not knows that there was no consent then it is a mistake of fact defence
o can only use this defence if you attempt to acquire consent
- consent is defined by parliament as a "voluntary agreement" - need communication of consent not implied
- s. 265 sub 3 provides 4 circumstances where consent becomes ineffective
o force
 "I'm going to beat you if you don't let me beat you"
o fraud
o exercise of authority
o threat of force?
- consent will not be valid in sex assault if:
o agreements expressed by a third party
o claimant is incapable of consenting
o abuse of power or trust
o complainant expresses a lack of agreement or lack of agreement to contiue
 "consent is vitiated when these things appear"
- Rape Shield Law [s. 276] - does not allow you to look at victims sexual history
47
Methodology for Proving Murder
First, you must establish a Homocide 222(1)

222. (1) Homicide — A person commits homicide when, directly or indirectly, by any means, he causes the death of a human
being.
(2) Kinds of homicide — Homicide is culpable or not culpable.
(3) Non culpable homicide — Homicide that is not culpable is not an offence.
(4) Culpable homicide — Culpable homicide is murder or manslaughter or infanticide.
(5) Idem — A person commits culpable homicide when he causes the death of a human being,
(a) by means of an unlawful act,
(b) by criminal negligence,
(c) by causing that human being, by threats or fear of violence or by deception, to do anything that causes his death, or
(d) by wilfully frightening that human being, in the case of a child or sick person.
(6) Exception — Notwithstanding anything in this section, a person does not commit homicide within the meaning of this Act by
reason only that he causes the death of a human being by procuring, by false evidence, the conviction and death of that human being
by sentence of the law.
Second you have to prove Culpable Homicide, Manslaughter.
 First issue is Causation; “he causes the death of a human being.” Then you look at s.222(5) to see what counts as
causing a homicide.
(5) Idem — A person commits culpable homicide when he causes the death of a human being,
(a) by means of an unlawful act, ALMOST ALL CASES TURN ON (a) or (b)
(b) by criminal negligence,
(c) by causing that human being, by threats or fear of violence or by deception, to do anything that causes his death [Like
Pointing a gun at someone and telling them to jump off a cliff], or
(d) by wilfully frightening that human being, in the case of a child or sick person.
 If you can establish any of the 4 categories, the charge would now be Manslaughter – we’ve proven causation and found
that your actions now fit into one of these categories – with a maximum sentence of life. The crown can stop there, and
they’ve got a conviction.
 But if the charge is not Manslaughter, but murder, you have to go to the next step. One way of looking at is that
manslaughter is murder without mens rea. (Not really but close – see Creighton – there is some mens rea).
Third, Now you have to supply the mens rea for Murder.
S.229 is the section that elevates Manslaughter to Murder. There are two types of mens rea built in:
(a) (i) – means = “oblique intent;” and
48
(a) (ii) “means to cause bodily harm” and knows it’s likely to cause death and “is reckless.” = Doubled Barrelled Mens Rea:
Foresight of Certainty to Cause Bodily Harm, accompanied with a Recklessness as to Cause Death. You foresee the certainty
to cause bodily harm and the likelihood of death. Substituted/ transferred Mens Rea
Sub (b) you don’t see much. Meant to kill one person, but killed another “by mistake.”
Dangerous Enterprise Liability – Objective Liability struck out of 229 (c)

* Tricky: Sub (c) is called “Unlawful Object Murder;” generally if you have an unlawful object/ pre-existing plan and you do
anything for that plan that you know is likely to cause death, that’s going to be called murder. If we take all the verbiage out, it
just means that if someone ends up dead while you’re engaged in an unlawful plan, the mens rea is going to be lowered to
recklessness.
Get Rid of Ought To – No Objective Liability in Murder (Vaillancourt)

Mens Rea for Murder has to be Subjective
(c) where a person, for an unlawful object, does anything that he knows or ought to know is likely to cause death, and thereby
causes death to a human being, notwithstanding that he desires to effect his object without causing death or bodily harm to any
human being.
229. Murder — Culpable homicide is murder
(a) where the person who causes the death of a human being
(i) means to cause his death, or
(ii) means to cause him bodily harm that he knows is likely to cause his death, and is reckless whether death
ensues or not;
(b) where a person, meaning to cause death to a human being or meaning to cause him bodily harm that he knows is likely
to cause his death, and being reckless whether death ensues or not, by accident or mistake causes death to another
human being, notwithstanding that he does not mean to cause death or bodily harm to that human being; or
(c) where a person, for an unlawful object, does anything that he knows or ought to know is likely to cause death, and thereby
causes death to a human being, notwithstanding that he desires to effect his object without causing death or bodily harm to any
human being.
So, if you prove murder, by elevating manslaughter, it is by default Second Degree Murder = Life with parole as early as
10 years (can be raised).
Fourth, you have to elevate 2nd Degree to First Degree Murder
S. 231 – Easiest part of the exercise – 8 events that push it up
49
231. (1) Classification of murder — Murder is first degree murder or second degree murder.
(2) Planned and deliberate murder — Murder is first degree murder when it is planned and deliberate. [Different than just mens rea]
(3) Contracted murder — Without limiting the generality of subsection (2), murder is planned and deliberate when it is committed
pursuant to an arrangement under which money or anything of value passes or is intended to pass from one person to another, or is
promised by one person to another, as consideration for that other's causing or assisting in causing the death of anyone or counselling
another person to do any act causing or assisting in causing that death.
(4) Murder of peace officer, etc. — Irrespective of whether a murder is planned and deliberate on the part of any person, murder is
first degree murder when the victim is
(a) a police officer, police constable, constable, sheriff, deputy sheriff, sheriff's officer or other person employed for the preservation
and maintenance of the public peace, acting in the course of his duties;
(b) a warden, deputy warden, instructor, keeper, jailer, guard or other officer or a permanent employee of a prison, acting in the course
of his duties; or
(c) a person working in a prison with the permission of the prison authorities and acting in the course of his work therein.
(5) Hijacking, sexual assault or kidnapping — Irrespective of whether a murder is planned and deliberate on the part of any person,
murder is first degree murder in respect of a person when the death is caused by that person while committing or attempting to commit
an offence under one of the following sections:
(a) section 76 (hijacking an aircraft);
(b) section 271 (sexual assault);
(c) section 272 (sexual assault with a weapon, threats to a third party or causing bodily harm);
(d) section 273 (aggravated sexual assault);
(e) section 279 (kidnapping and forcible confinement); or
(f) section 279.1 (hostage taking).
(6) Criminal harassment — Irrespective of whether a murder is planned and deliberate on the part of any person, murder is first
degree murder when the death is caused by that person while committing or attempting to commit an offence under section 264 and the
person committing that offence intended to cause the person murdered to fear for the safety of the person murdered or the safety of
anyone known to the person murdered.
(6.01) Murder — terrorist activity — Irrespective of whether a murder is planned and deliberate on the part of a person, murder is
first degree murder when the death is caused by that person while committing or attempting to commit an indictable offence under this
or any other Act of Parliament if the act or omission constituting the offence also constitutes a terrorist activity.
(6.1) Murder — criminal organization — Irrespective of whether a murder is planned and deliberate on the part of a person, murder
is first degree murder when
(a) the death is caused by that person for the benefit of, at the direction of or in association with a criminal organization; or
(b) the death is caused by that person while committing or attempting to commit an indictable offence under this or any other Act of
Parliament for the benefit of, at the direction of or in association with a criminal organization.
(6.2) Intimidation — Irrespective of whether a murder is planned and deliberate on the part of a person, murder is first degree murder
when the death is caused by that person while committing or attempting to commit an offence under section 423.1.
(7) Second degree murder — All murder that is not first degree murder is second degree murder.
50
Finally, Reduction of Murder to Manslaughter – 2 Qualified Defences – Provocation and Intoxication
This is the methodology for a defence team – not for acquittal but for a reduction
Provocation:
232. (1) Murder reduced to manslaughter — Culpable homicide that otherwise would be murder may be reduced to
manslaughter if the person who committed it did so in the heat of passion caused by sudden provocation.
(2) What is provocation — A wrongful act or insult that is of such a nature as to be sufficient to deprive an ordinary person of the
power of self-control is provocation for the purposes of this section if the accused acted on it on the sudden and before there was
time for his passion to cool.
(3) Questions of fact — For the purposes of this section, the questions
(a) whether a particular wrongful act or insult amounted to provocation, and
(b) whether the accused was deprived of the power of self-control by the provocation that he alleges he received,
are questions of fact, but no one shall be deemed to have given provocation to another by doing anything that he had a legal
right to do, or by doing anything that the accused incited him to do in order to provide the accused with an excuse for
causing death or bodily harm to any human being.
(4) Death during illegal arrest — Culpable homicide that otherwise would be murder is not necessarily manslaughter by reason
only that it was committed by a person who was being arrested illegally, but the fact that the illegality of the arrest was known to the
accused may be evidence of provocation for the purpose of this section.
Intoxication – Is largely common law, but there is a section – 33.1 that was put in to respond to Daviault: - we are not
really happy to reduce punishment because of self intoxication.
Self-Induced Intoxication:
33.1 (1) When defence not available — It is not a defence to an offence referred to in subsection (3) that the accused, by reason of
self-induced intoxication, lacked the general intent or the voluntariness required to commit the offence, where the accused departed
markedly from the standard of care as described in subsection (2).
(2) Criminal fault by reason of intoxication — For the purposes of this section, a person departs markedly from the standard of
reasonable care generally recognized in Canadian society and is thereby criminally at fault where the person, while in a state of self-
induced intoxication that renders the person unaware of, or incapable of consciously controlling, their behaviour, voluntarily or
involuntarily interferes or threatens to interfere with the bodily integrity of another person.
(3) Application — This section applies in respect of an offence under this Act or any other Act of Parliament that includes as an
element an assault or any other interference or threat of interference by a person with the bodily integrity of another person.
1995, c. 32, s. 1
1) Homicide s.222 Definition: “when directly or indirectly, by any means, causes the death of a
human being”
Pure Casual Q  Did someone die?
 Causation (deal with operative cause)
 Factual Causation? (“but for”)
 Legal causation?
** If the contribution is more than di minimis, case closed. But if there is
51
= HOMOCICIDE another potential cause, you have to use legal causation tools
(event vs. (reasonable foreseeability and culpable / voluntary and culpable)
crime)
> Establish causation whenever there is a crime with a consequence built into the actus
reus
> Homicide is committed upon proof of causation
2) Manslaughter  Culpable or non-culpable?
 Only culpable homicide is a criminal offence of manslaughter
> s.222(5): 4 ways for homicide to be culpable:
 (a) by means of an unlawful act (e.g. assault, firearms @ minimum)
> Unlawful act called a predicate
 Identify predicate
 Perform elemental analysis on predicate
> Vast majority will be unlawful act
> But if death b/c omission, move to (b)
 (b) by criminal negligence
> In this case return to 219, 220 (crim neg causing death) to examine
liability
> Here apply Tutton test (can mention Creighton/ De Sousa)
** Note s.220 (Criminal negligence causing death) is the same as
culpable homicide by criminal negligence
 (c) by causing that human being, by threats or fear of violence or by
deception, to do anything that causes his death, causing another person
to take their own life
 (d) by willfully frightening that human being, in the case of a child or
sick person, does not work for adults.
> (a) – (d) prove manslaughter at minimum
> Must prove manslaughter to prove murder
** NOTES:
– Discuss issue of voluntariness here
= CULPABLE – In dealing with predicate offences like manslaughter before you get to murder, you
HOMOCIDE/ might have to deal with an unlawful act.
LIABILITY – Analyze the unlawful act separately. Most manslaughter by unlawful acts is from
assault.
– Always deal with principle and party separately - two people will be committing the
crime. Don’t try to analyze both together.
3) 2nd Degree > How do you elevate manslaughter to murder? Mens Rea requirement
Murder Sec 229 discusses the elements that make manslaughter murder (2nd degree)
(a) When a person causes the death
(i) Means to cause the death (Direct or Oblique intent), or
(ii) Means to cause bodily harm that he knows is likely to cause his death and is reckless
whether death ensues or not (Recklessness)
(b) meaning to cause death or meaning to cause him bodily harm that he knows is likely
to cause his death, and being reckless whether death ensues or not, by accident or
mistake causes death to another human being, notwithstanding that he does not mean
to cause death or bodily harm to that human being; or
(c) where a person, for an unlawful object, does anything that he knows or ought to
know is likely to cause death, and thereby causes death to a human being,
notwithstanding that he desires to effect his object without causing death or bodily harm
to any human being. [“or ought to know” is problematic, as it calls for an objective
standard – read out to avoid constitutional infringement of s.7]
> (a) – (c) prove 2nd degree murder where parole standard at 10 years (can be set up to
25 years by judge).
** Notes
– s. 230 - declared unconstitutional (Vaillancourt ; Martineau ) - Constitution demands
subjective proof for murder
4) First Degree This is a sentencing issue:
Murder  Second degree: Life imprisonment - minimum parole 10 years (can be set higher by
52
judge)
 First degree - minimum parole 25 years
 s.231(2) - Murder is first degree murder when it is planned and deliberate.
 s.231(3) - Without limiting the generality of 231 (2), murder is planned and
deliberate when committed pursuant to an arrangement under which money or
anything of value passes or is intended to pass from one person to another, or is
promised by one person to another, as consideration for that other's causing or
assisting in causing the death of anyone or counseling another person to do any act
causing or assisting in causing that death.
 s.231(4) - Irrespective of whether a murder is planned and deliberate on the part
of any person, murder is first degree murder when the victim is
 (a) a police officer, police constable, constable, sheriff, deputy sheriff,
sheriff's officer or other person employed for the preservation and
maintenance of the public peace, acting in the course of his duties;
 (b) a warden, deputy warden, instructor, keeper, jailer, guard or other
officer or a permanent employee of a prison, acting in the course of his
duties; or
 (c) a person working in a prison with the permission of the prison
authorities and acting in the course of his work therein.
 s. 231(5) - Irrespective of whether a murder is planned and deliberate on the part
of any person, murder is first degree murder in respect of a person when the death
is caused by that person while committing or attempting to commit an offence
under one of the following sections:
 (a) section 76 (hijacking an aircraft);
 (b) section 271 (sexual assault);
 (c) section 272 (sexual assault with a weapon, threats to a third party or
causing bodily harm);
 (d) section 273 (aggravated sexual assault);
 (e) section 279 (kidnapping and forcible confinement); or
 (f) section 279.1 (hostage taking).
 s. 231(6) - Irrespective of whether a murder is planned and deliberate on the part
of any person, murder is first degree murder when the death is caused by that
person while committing or attempting to commit an offence under section 264
and the person committing that offence intended to cause the person murdered to
fear for the safety of the person murdered or the safety of anyone known to the
person murdered. (Criminal harassment)
 s. 231 (6.01) Irrespective of whether a murder is planned and deliberate on the
part of a person, murder is first degree murder when the death is caused while
committing or attempting to commit an indictable offence under this or any other
Act of Parliament where the act or omission constituting the offence also
constitutes a terrorist activity.
 s. 231(6.1) - Irrespective of whether a murder is planned and deliberate on the
committing or attempting to commit an offence under section 81 (using
explosives) for the benefit of, at the direction of or in association with a criminal
organization.
 s. 231(6.2) - Irrespective of whether a murder is planned and deliberate on the
committing or attempting to commit an offence under section 423.1.
(intimidation of justice system participant or journalist)
 s. 231(7) - All murder that is not first degree murder is second degree murder.
5) Defences > Murder can be reduced back to manslaughter under two circumstances (before mens
rea is proven):
 Provocation (s.232)
1. Provoking wrongful act or insult must be of such a nature that it would deprive
53
an ordinary person of power of self-control (OBJECTIVE TEST)
2. Accused must actually have been provoked (SUBJECTIVE TEST)
3. Accused must have acted on provocation suddenly and before time for his/ her
passion to cool
 Intoxication – negates mens rea (not a true defence) – defence argues Daviault and
Crown argues Leary/S.33.1/Sopinka.
Also Capacity – Mental Disorder – Insane Automatism (s. 16)

** Automatism methodology = Parks limited by Rabey (internal vs. external) modified
by Stone (2 stage test for insane vs. non-insane) expanded by Luedecke (policy)
Once mens rea is proven, defence could still raise

 Duress/Normative involuntariness - Justification and Excuses – necessity and
duress
Defences
1) Insanity (s. s. 16: s.16(1) No person is criminally responsible for an act committed or an omission made while
16) suffering from a mental disorder that rendered the person incapable of appreciating the nature and
quality of the act or omission or of knowing that it was wrong.
 Incapable of appreciating the nature and quality of the act
o Unable to appreciate the physical consequences; not penal consequences (Abbey)
 Incapable of knowing it was wrong
o Deprived of the opportunity to judge the rightness/wrongness of this particular act
(Oomen)
 Burden of Proof on the one who raises it (defence or accused)
 Don’t do this unless it’s a serious crime
2) Non-Insane External Blow?

Automatism or
Psychological Blow?
 Objectively verifiable shock? (Rabey)
 Expert opinion required
 External Verification by eyewitnesses
 Motive will vitiate finding of automatism
 Persuasive Burden on the Accused (Stone)
or
Sleepwalking (Parks)?
3) Intoxication  Specific Intent?  Consider intoxication as a factor vitiating mens rea

 General Intent?  Only consider intoxication if it’s sufficient to be akin to involuntariness or
insanity (Daviault)
o Persuasive burden on accused (Daviault)
o After Daviault however we have the development of s.33.1 which takes us back to the
Leary rule; that is intoxication cannot vitiate general intent crimes. The question
remains if this law is constitutional under s.7.
4) Duress Common Law Defence (For parties as per s. 21)

 Threat of death or bodily harm (Steane)
 No safe avenue of escape and legal alternative
o Objective test in accused’s shoes (Ruzic)
 Proportionality between the threat avoided and the criminal act committed
 Evidentiary burden on the accused
54
 S.17 of no force and effect after Ruzic
5) Necessity No realistic choice but to violate the law – normative involuntariness of circumstances
(Perka)
 Imminent Peril and Danger
 No legal or safe way out
 Proportionality between harm inflicted and harm avoided
o Judged on society’s standards of the reasonably tough person
 Available if involved in a criminal enterprise (Perka)
 Evidentiary burden on accused
7) Consent For Assault

 Implied consent in certain circumstances
o Sports
o No implied consent for sex assault
o No implied consent to death or bodily harm (Jobidon)
 No consent if intent + consequences of serious bodily injury
o Except in socially useful circumstances eg. Sports
o No implied consent to death or bodily harm (Jobidon)
 S. 265.3 – no consent if:
o Application of force to that person or someone else
o Threat or fear of force to complainant or someone else
o Fraud = a) deception b) deprivation = risk of serious bodily harm (Cuerrier)
o Authority
For Sexual Assault
 No implied consent (Ewanchuk)
 S. 265(3): no consent if:
o Application of force to that person or someone else
o Threat or fear of force to complainant or someone else
o Fraud = a) deception b) deprivation (risk of serious bodily harm)
o Exercise of authority
 S. 273.1(2): no consent if:
o Consent given by someone else
o Incapable of consenting
o Abuse of power or trust
o Expression through words or conduct a lack of agreement
o Expression through words or conduct disagreement to continue
 Honest Mistake of Consent
o Only if accused believes (subjectively) that complainant had communicated
consent (Ewanchuk and Cornejo)
o Must take reasonable steps to ascertain consent – reasonable person with
knowledge and in circumstances of the accused (Cornejo)
o Won’t work if you’re drunk or willfully blind (s. 273.2)
8) Mistakes  No knowledge of a culpable aspect of the actus

o Eg. Knowing it was a cop (McLeod)
 Lacking knowledge of the relevant specific facts of the crime
o Mere knowledge that something was illegal isn’t knowledge (Blondin)
o Lacking the relevant facts, not the fact that it’s illegal (Jorgenson)
Willful Blindness
55
 1. The accused’s suspicions were aroused (subjectively – Currie)
 2. Failed to make the relevant inquiries that a reasonable person would make (Blondin)
 How far the inquiries must proceed to exculpate accused (Legace)
Mistake of Law
 Generally, no excuse
o Even if based on a decision of the court (overturned) – Campbell
o Even if due diligence to discover the law (Mollis, Legace)
 Officially Induced Mistake of Law (Lamer dissent in Jorgenson)
1. mistake of law, not fact
2. Must get advice on the law
3. Advice must come from appropriate official source (reasonable person would
consider her an authority on subject)
4. Advice is reasonable in the circumstances
5. Advice is erroneous
o Persuasive Burden on the Accused
Interpretation
1) “Disrupts”  Causes a disorder (Skoke-Graham)

 Not the act itself, but what it causes other people to do (Lohnes)
2) “Public  S. 150: “public place” includes any place to which the public have access as of right or by
Place” invitation, express or implied;
 Access = physical access, not just visual (Clark)
 A car in a dark parking lot won’t do (Sloan)
3) “Living off  only if the accused wouldn’t have lived that way if she weren’t a prostitute. Must be
the Avails” parasitic (Grilo)
 reverse evidentiary burden to show you are not living off avails (Grilo)
4) “inciting  Not the same as “intending an uproar”

hatred”
5) “reasonable  9 months for prosecution to proceed (Askov)
time”
6) “omission”  No General Duty
 Mere presence is not enough (Dunlop)
 Existence of some common law duty, even farfetched (Thornton)
 Relationship creating duty (The King v. Lewis)
 Three Exceptions to no general duty:
1. Undertaking of an Act
 Ie. 217. Every one who undertakes to do an act is under a legal duty to
do it if an omission to do the act is or may be dangerous to life.
2. Caretaker or Relationship of Care (King v. Lewis)
 Ie. 215. Duties of care as a caretaker (paternal) relationships.
3. Causal duty to rectify a situation that you created.
7) “soliciting”  To accost and inopportune – persistency requirement (Hutt)
8) “wilfully”  Attach to act?

56
o Read ‘voluntarily’
o “wilful” must mean intent, not reckless or accidental. (Buzzanga)
Or
 Attach to consequences?
o Crown argues for oblique intent
o Accused argues for recklessness
57

Criminal I (Young) - 2013

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Criminal I (Young) - 2013

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Criminal Law 2013 Professor Young

INTERPRETING ACTUS REUS.................................................................................................................................................6

VOLUNTARY ACT [ACTUS REUS ISSUE]................................................................................................................................8

OMISSION AND CAUSATION [ACTUS REUS ISSUE].............................................................................................................9

CONSTITUTIONAL DIMENSIONS: PENAL NEGLIGENCE..................................................................................................27

GENERAL INFORMATION - HERE ADD HANDOUTS.........................................................................................................42

KEY ISSUE: DID THE ACCUSED CHOOSE HARM OR WRONGDOING

Actus Reus and Mens Rea Symmetry

Nature of Criminal Law

- Concept of criminal liability: fault justifies punishment

Limits of Criminal Law

- S. 7 of the Charter discusses fundamental principles of justice

R v Malmo Levine; R v Caine (2003)

R v Oakes (1986) [presumption of innocence & Burden of Proof]

* One of the earliest Charter cases (third?)

Interpreting Actus Reus

- Three methods of escaping conviction on a criminal charge:

R v Skoke-Graham (1985) [disturbance]

R v Lohnes (1992) [disturbance]

R v Hutt (1978) [soliciting]

- soliciting must be pressing and persistent

* case caused by Hutt

R v Jobidon (1991) [Consent to Assault]

- there are limits to consent

R v Parks [capacity issues, voluntariness issues]

- cannot read omission liability into an offence that requires an action

Legal Duties for Omission Liability

- s. 215 - duty to provide necessaries to your children and your spouse

Fagan v Commissioner of Metropolitan Police [omission; concurrence]

 “mere omission to act cannot amount to assault”

R v Miller (1985) [omission; concurrence]

 Unintentional act + intentional omission = criminal liability

Section 21 (1) Parties to an Offence – Every one is a party to an offence who

Dunlop and Sylvester v R (1979) [omission] [party liability]

R v Kulbacki (1966) [party liability]

 By lack of action, Kulbacki did encourage her to break the law.

Rex v Lewis (1903) [omission] [prayer situation]

What Should We Get From This Case

- not dealt with holistically - broke down into a series of questions

Common Law Principles for Determining "Legal Causation"

Criminal Code Sections Dealing With Causation in Homicide

R v Smithers (1977) [factual causation = legal causation]

What Should We Get From This Case

R v Blaue (1975) [causation-thin skull]

R v Maybin [key case for causation]

Actus Reus Mens Rea

Knowledge (Can be read down to "ought to have known" [objective])

Mens Rea and Murder

Intent [applies to consequences]

R v Buzzanga and Durocher (1979) [“wilfully”; hate speech]

- intent in criminal law will almost always be oblique intent

R v Steane (1947) [intention requires purpose, not just knowledge]

R v Walle (2012) [common sense inference]

- when is it inappropriate to draw common sense inference because person is unique

R v Briscoe [proper application of willful blindness]

R v Blondin (1970) [wilful blindness - mistake of fact]

- court said the knowledge must go to:

R v Jorgensen (1995) [knowledge- mistake of fact]

R v Molis (1980) [knowledge-mistake of law]

Recklessness [applies to consequences]

- some subjective awareness of the prohibited conduct or consequence will be enough

Mistake of Law v Mistake of Fact

- mistake of law is no defense