TABLE OF CONTENTS

CHECKLISTS 4
1. ACUS REUS / MENS REA SYMMETRY 4
CRIMINAL NEGLIGENCE: 9
2. MANSLAUGHTER  MURDER 11
MURDER CHECKLIST 2 15
3. NEGLIGENCE (PENAL) 19
4. DEFENCES 22
5. INTERPRETATION 26

1. THE NATURE OF CRIMINAL LAW (INTRODUCTION) 28

1.1 CLASSIFICATION OF OFFENCES (AS PER CODE) 28
1.2 TYPES OF OFFENCES 28
1.3 FOUNDATIONS OF CRIMINAL LAW 29
1.4 THE RULE OF LAW 30
1.5 THE “HARM” PRINCIPLE, ARBITRARINESS AND VAGUENESS 30
1.6 DEFENCE TECHNIQUES 32
1.7 THE OAKES TEST 32
1.8 SECTION 7 CHALLENGES 33
1.9 EVIDENTIARY AND PERSUASIVE BURDENS 33
1.10 TYPES OF FACTS 34
1.11 CATEGORIES OF OFFENCES IN CANADA 34
1.12 CASES 34
1.12.1 MALMO-LEVINE AND CAINE 34
1.12.2 R V. CLAY SCC (2003) 35
1.12.3 R. V. OAKES (1986), 24 C.C.C. (3D) 321, (S.C.C) 36
1.12.4 R V. ASKOV (1990) 38
1.12.5 REFERENCE RE SS. 193 AND 195.1 (THE PROSTITUTION REFERENCE) (1990) 38

2. THE ELEMENTS OF CRIME 39

2.1 ACTUS REUS AND MENS REA 39
2.2 DEFINITIONS (HOW TO DEFINE WORDS FOUND IN THE CRIMINAL CODE) 41
2.3 PRINCIPLES 42
2.4 JUDICIAL DECISION MAKING 42
2.5 ARGUING ACTUS REUS 43
2.6 CASES (INTERPRETING ACTUS REUS) 43
2.6.1 R. V. SKOKE-GRAHAM ET AL. (1985) 43
2.6.2 R. V. LOHNES (1992) SCC 46
2.6.3 HUTT V. R. (1978) SCC 47

1
2.7 ARGUING MENS REA 49
2.8 ULTERIOR INTENT 49
2.9 CASES 50
2.9.1 R. V. SLOAN (1994) ONT. C.A. 50
2.9.2 R. V. CLARK (2003) SCC 51
2.9.3 R. V. BUZZANGA AND DUROCHER (1980) ONT. C.A. 52
2.9.4 R. V. STEANE (1947) CCA 56
2.9.5 R V WALLE [2012] SCC 41 57

3. ACTUS REUS: OMISSION AND CAUSATION 59

3.1 AFFIRMATIVE ACTION 59
3.2 ARGUING OMISSION CASES 59
3.3 CASES 59
3.3.1 DUNLOP AND SYLVESTER V. R. (1979) SCC 59
3.3.2 R. V. THORNTON (1990) ONT. C.A. 61
3.3.3 THE KING V. LEWIS (1903) ONT. C.A. 62
3.4 CONTEMPORANEOUS FAULT 63
3.5 CASES 64
3.5.1 FAGAN V. COMMISSIONER OF METROPOLITAN POLICE 64
3.5.2 MILLER (1981) 65
3.6 ARGUING CAUSATION CASES 65
3.7 CASES 66
3.7.1 R. V. SMITHERS (1977) SCC 66
3.7.2 R. V. BLAUE (1975) CA 68
3.7.3 R. V. REID (2003) NSCA 69

4. CAPACITY AND VOLUNTARINESS 70

4.1 AUTOMATISM 71
4.2 CASES 72
4.2.1 R. V. RABEY (1980) SCC 72
4.2.2 R. V. PARKS (1992) SCC 73
4.2.3 R. V. STONE (1999) SCC 76
4.2.4. R V MAYBIN (2012) SCC 24 77
4.3 MENTAL DISORDER 79
4.4 THE M'NAGHTEN RULE 80
4.5 CASES 81
4.5.1 R. V. ABBEY (1982) SCC 81
4.5.2 R. V. OOMMEN (1994) SCC 82
4.6 INTOXICATION 83
4.7 CASES 85
4.7.1 DAVIAULT V. THE QUEEN (1994) SCC 85

2
5. ACTUS REUS - CONSENT 86
5.1 ASSAULT 86
5.1.1 R. V. LEMIEUX 87
5.1.2 R. V. JOBIDON 88
5.1.3 R. V. EWANCHUCK 90
5.1.4 R. V. CUERRIE 92

6. MENS REA I: BASIC PRINCIPLES AND THE CHARTER 93

6.1 CONSTITUTIONALIZATION OF FAULT 93
6.2 DEPARTURES 94
6.3 CASES 95
6.3.1 R. V. SAULT ST. MARIE 95
6.3.2 REFERENCE RE S.94(2) OF MOTOR VEHICLE ACT (BRITISH COLUMBIA) 95
6.4 CONSTRUCTIVE HOMICIDE 99
6.4.1 R. V. VAILLIANCOURT 99
6.4.2 R. V. MARTINEAU 102
6.4.3 R. V. DESOUSA 104
6.4.4 R V SHAND 108
6.5 CRIMINAL NEGLIGENCE AND PENAL NEGLIGENCE 111
6.5.1 R. V. CREIGHTON 112
6.5.2 R V BEATTY, (2008) SCC 115
6.5.3 R V A.D.H. 121
6.6 CRIMINAL NEGLIGENCE AND RECKLESSNESS 126
6.6.1 R. V. SHARP 126
6.6.2 R. V. BARON (TRIAL) 127
6.2.3 R. V. BARON (APPEAL) 128
6.2.4 R. V. TUTTON AND TUTTON (SCC) 129
6.2.5 R. V. CANHOTA 134

7. DEFENCES 135
7.1 PROVOCATION 136
7.1.1 R. V. HILL 136
7.1.2 R. V. LY 138
7.1.3 R. V. YOUNG 139
7.2 NECESSITY AND DURESS 140
7.2.1 R. V. PERKA 140
7.2.2 R. V. RUZIC 141

8. RECKLESSNESS AND MISTAKES 143

8.1 MISTAKE OF LAW 143
R V BRISCOE [2010] 1 SCR 143

3
8.1.1 R. V. BLONDIN 144
8.1.2 R. V. CURRIE, 1975, ONT. CA 146
8.1.3 R. V. LEGACE (2003, ONT. CA) 146
8.1.4 R. V. JORGENSEN 147
8.1.5 R. V. CAMPBELL (1972) 148
8.1.6 R. V. MOLIS (1980) 149
8.1.7 R. V. LADUE (1965) 149

MURDER 150
MURDER CHECKLIST 150

CHECKLISTS

1. ACUS REUS / MENS REA SYMMETRY

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?

4
2) Circumstances  Interpretive problems?
3) Consequences  1. Factual causation: But-for test
o Not insignificant / beyond de
minimis range (Smithers)
o Direct or Indirect
 2. Legal causation
o Which factual cause is most
culpable?
o No causation if:
 Not reasonably
foreseeable, but Thin Skull
Rule applies (Smithers)
 Culpable intervention of 3rd
party – Reid
 Not broken by religious
beliefs of victim (Blaue),
or by something that just
accelerates the inevitable
(eg. Negligent doctor).
 Interpretive problems?
 Accused must have had knowledge or
must have been willfully blind
 If mens rea specified:
 Interpretation of words such as
willful, with intent, knowingly,
intentionally, means to…
 If “reckless” specified – objective
or subjective?
 If mens rea implied:
 Direct Intent/Purpose –Acted with
purpose and desired the
consequences
 Oblique Intent – You didn’t desire
the consequences, but you knew
the consequence would result
from your action (foresaw the
certainty of consequences)
 Recklessness – The consequences
were not the intention of your
actions, but you foresaw the
probability, possibility, or
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 specific – oblique intent; the
crown can argue that the
5
 consequence was foreseeable

 If general – can be read up to

direct intent; crown will have
difficulty disproving a
exculpatory story

Notes: 249.2 (New Section)

Part VIII of code: Offences Against Person; broadly has to do with the protection of people from physical
and mental harm as a result of others actions and inactions.

Definition: Operate – mean, in respect of a motor vehicle, to drive the vehicle; for vessels or aircraft
generally it means to be involved in the direct control or motion

249(1): The root of all charges is to operate a vehicle “in a manner that is dangerous to the public”, having
regard to all circumstances and conditions at the time.

 (2) Hybrid offence punishment (up to 5 years, or summary conviction)

 (3) Bodily harm raises punishment to indictable and max 10 years.

 (4) Death raises punishment to indictable and max 14 years.

249.1(1): Flight from a police officer in a vehicle.

 (2) Hybrid offence punishment

 (3) Bodily harm or death definition

 (4) Indictable punishment 14 for harm, life for death

 Defense will push to read in reckless or oblique, as negligence is not explicit in any part of the section

 However, crown can argue that the suggestion in Sharp is that for licensed activities we can lower the
mens rea requirement to penal negligence because the actor is fixed with the knowledge required.

 Furthermore the crown can suggest a departure from the starting point because there is enough mens
rea in the act itself to qualify for departure; this is as a result of it being licensed and the degree of
inherent dangerousness

 sentencing argument?

6
 Refer to discussion of the two possible tests for penal negligence below.

Oakes Issues:

In Oakes there was a reverse onus on the accused to prove that by simple possession he did not have the
intent to traffic the drug. This reverse onus was found to be unconstitutional when considering the higher
order principle of presumption of innocence. By reference due to the penalty it also violated the right to
life and liberty of s.7. As part of the Oakes test there was no rational connection between basic
possession and the assumption that it was for the purpose of trafficking.

Section 1 Analysis (the Oakes test)

1. Is the limit prescribed by law (does the law set out a limit)?

2. Is it a pressing and substantial objective?

3. Proportionality Test

a. Is there a rational connection between the objective proposed and the restriction that
occurs

b. Does the restriction minimally impair the rights.

c. Are the proportional effects beneficial, that is the negative effects caused by limitation
are less than the positive effect

Preamble:

The normal method, from first principles, of examining an offense is to break it into its act, circumstance
and consequences and related actus reus and mens rea. The difficulty with this offense, and any driving
offense, is that it cannot easily be broken down into its constituent parts in a logical manner. Another
accepted method of examining an offense in a common law system is to look at the jurisprudence on the
matter. The problem in this case is that the provision is new and there is no jurisprudence on this specific
offense. As a proxy for this offense it seems acceptable that we could turn to other driving offenses and
their jurisprudence under section 249. We can draw parallels to the new offense from those that already
exist.

Sharp and Hundal (from Hundal): Section 249 of the Criminal Code should be based on an objective
standard.  That is to say that a driving offence should be one of penal negligence. This standard is appropriate
for several reasons and were raised in Sharp:

7
 (a) The Licensing Requirement: In driving, and licensed activities generally, consideration of subjective
intent is generally not necessary given the standards of physical, mental well-being and knowledge
required to obtain a license of any substantial nature. A driver, whose conduct was objectively
dangerous, should not be acquitted because he or she was not thinking about their manner of driving
at the time of the accident. Drivers choose to use their vehicle. As a result they place themselves in a
position where they must be responsible. It is unnecessary then to examine if the specific intent of an
individual as the minimum level of intent is established by the choice and fixed knowledge of driving.
(b) The Automatic and Reflexive Nature of Driving: Given the almost natural and automatic response that
driving becomes it is very difficult to fix any individual with specific intent. Driving is as much a part
of our daily lives as say typing. We make a choice to do it, but beyond that we do not think about
how it is done.
(c) The Wording of Section 249: “operates a motor vehicle in a manner that is dangerous” almost
automatically engages the notion of an objective standard. There is no way to measure “a manner that
is dangerous” without comparison to an objective level of conduct. This, is also a level that is readily
open for juries to examine.
(d) Statistics: There is the policy objective of reducing highway accidents.  There are thousands of deaths
every year in Canada related to driving offenses. Parliament and the courts therefore have a
compelling reason to enforce an objective standard. Furthermore the very nature of driving as an
almost reflexive skill makes it very difficult to determine the state of mind of an individual while
driving. This objective test should be qualified by two elements. First, it is certainly subject to any
reasonable doubts the defendant can raise. The departure must amount to a marked and substantial
one, and the accused may offer an explanation of his actions. Such as involuntariness. In short the
trier of fact must be satisfied that the reasonable person in similar circumstances would have been
aware of the risk and dangerousness of the act. Secondly the question of what objective standard we
should utilize is raised. This issue is examined in more detail below.

 apply to the facts

Penal Negligence:

Penal negligence is based on an objective test. It is triggered by words such as “ought to have known” or
in this case ___________.

Historically the law developed the notion that absolute liability offences could not result in imprisonment
(Sault St. Marie and Motor Vehicle Reference). In essence the concept of mens rea was given
constitutional standing in penal offences. The question following these cases was what level of fault
would be sufficient.

If we consider the words of HLA Hart “unless people have the capacity and a fair opportunity to adjust
their behaviour to the law its penalties ought not to apply” we reach an impasse. A purely objective
standard does not consider the capacity or features of an individual and as a result does not align itself
with Hearts notion of justice and a fault requirement.

This discordance was framed well in Creighton. In a 5-4 judgment for the majority McLauchlin was of the
view that a purely objective test [regarding the foreseeability of bodily harm] would suffice. This would
not take into account individual frailties and would be subject only to limitations of capacity. In dissent
Lamer suggested the use of a qualified objective test [regarding the foreseeability of death] was
necessary. This test would consider the capacities and features of an individual and their efforts to

8
overcome those shortcomings. Lamer left open for consideration the limits of the subjective qualities that
would be used.

In the case at hand…

Will a purely objective test v. a qualified test make a difference?

Will foresight of death v. foresight of bodily harm make a difference?

CRIMINAL NEGLIGENCE:

Criminal negligence as defined in s.219 of the code was initially developed to deal with motor vehicle
accidents. Due to the fact that driving is a licensed activity it was suitable for the section to be based on
an objective standard of fault as the license fixed the individual with the required knowledge (Sharp).
However, with the introduction of both the Charter and the extended use of criminal negligence outside
of licensed activities questions were raised as to the constitutional validity of an objective test. In any
criminal case we want to find a level of fault that is commensurate with the penalty.

This reached its apex in the Tutton case. In a 3-3 split of the court McIntyre took the position that a
qualified objective test would be suitable. This test would take into account the circumstances and
frailties of the individual. An exhaustive list of these has not been compiled, suffice to say that it appears
that shortcomings one cannot change will be considered. This position is also justified based on the
historical use of an objective standard for criminal negligence and has been used in Baron and Canhota.
This amounts to saying that criminal negligence is equivalent to penal negligence.

On the other hand Wilson put forward the view that a subjective awareness of the risks should be
required. This subjective awareness could generally be inferred from a marked and substantial departure
and would be rebuttable by the defendant if they met a subjective evidentiary burden. This amounts to a
self deprecating defence. Such a rebuttal would become more difficult the more dangerous the activity.
This position has found support in the appeal for Baron.

In the case at hand…

Combined Negligence:

From the first part of this question we can see that a driving offence, after the decisions in Sharp and
Hundal, is likely to be interpreted as an offence of penal negligence using some form of objective
standard. The questions that remain are why does the offence of criminal negligence exist, what purpose
does it serve, and what if any difference would it make to the analysis here?

Historically criminal negligence as defined in s.219 of the code was developed to deal with motor vehicle
accidents. Due to the fact that driving is a licensed activity it was suitable for the section to be based on
an objective standard of fault as the license fixed the individual with the required knowledge (Sharp).
However, with the introduction of both the Charter and the extended use of criminal negligence outside
of licensed activities questions were raised as to the constitutional validity of an objective test.

9
This question of validity relates back to the fundamental principle of responsibility or culpability at
iterated by HLA Hart. In any punishment that can result in incarceration we want to obtain some minimal
level of fault. If we suspend for a moment the fact that jurisprudence suggests we use the negligence
standard in this case and assume that we use the standard of criminal negligence we engage a debate that
reached its apex in the Tutton case. In a 3-3 split of the court McIntyre took the position that a qualified
objective test would be suitable for criminal negligence. This test would take into account the
circumstances and frailties of the individual. An exhaustive list of these has not been compiled, suffice to
say that it appears that shortcomings one cannot change will be considered. This position is also justified
based on the historical use of an objective standard for criminal negligence and has been used in Baron
and Canhota. This amounts to saying that criminal negligence is equivalent to penal negligence. On the
other hand Wilson put forward the view that a subjective awareness of the risks should be required. This
subjective awareness could generally be inferred from a marked and substantial departure and would be
rebuttable by the defendant if they met a subjective evidentiary burden. This amounts to a self
deprecating defence. Such a rebuttal would become more difficult the more dangerous the activity. This
position has found support in the appeal for Baron.

The underlying reason for this debate is essentially our lack of moral comfort when limiting the liberty of
a person who may not have had the chance or ability to reform their actions. In most cases such a debate
is merely academic. An analysis using either position will achieve the same result. However, when the
facts engage with the fuzzy boundaries of what we feel is acceptable we begin to have doubts.
Objectively these situations usually arise when there is a sympathetic fact scenario under which the courts
feel the need to depart from the normal standard (Buzzanga, Baron). In the case at hand the facts…

 show that subjective test will result in doubt

 show that objective test will result in guilt

As shown above the facts in this scenario engage the question of fault when viewed subjectively. We
begin to feel uncomfortable with the notion of an objective test when the result of the subjective test is
not the same. We begin to feel that the punishment does not accord with the fault.

 does the punishment under criminal negligence increase, and if so what does this suggest
about what parliament thinks criminal negligence is

This leads us to one final question, and that is should this matter? Should morality and law be one and
the same? This has been the source of great debate for centuries. Hart suggested that morality and law
were not necessarily interconnected, but that we may consider the compatibility or incompatibility of a
rule with moral values as a criterion of the rule’s legal validity. Within criminal law this seems especially
pertinent as we are dealing with the freedom and lives of our fellow men and women. I would suggest
that when our moral compass is alerted, as in this case, that we should not be bound strictly by
jurisprudence but should have the capacity and freedom to weigh the merits of argument as they are
presented and from a more fundamental starting point. This is not to say that the rules as they exist do
not function, but rather that there are limits to rules. We should be prepared to admit such limits exist
and be ready to engage difficult questions head on instead of using the existing rubric.

10
Quotes (Hundal):

Marc Rosenberg: "sometimes it is the very failure to advert to the circumstances which renders the conduct
so dangerous" - The Mens Rea Requirements of Criminal Negligence

HLA Hart “unless people have the capacity and a fair opportunity to adjust their behaviour to the law its
penalties ought not to apply”

2. MANSLAUGHTER  MURDER

1) Homicide s.222 Definition: “when directly or indirectly, by any means, causes the death of a
human being”
 Did someone die?
 Did the accused cause the death?

Causation:
 1. Factual causation: But-for test
o Not insignificant / beyond de minimis range (Smithers)
o Direct or Indirect
 2. Legal causation
o Which factual cause is most culpable?
 Foreseeable – causation to any deviations from normal?
 Contemplated Risk Of Offence – causation to other risk s?
 Voluntary Intervention – causation to interventions?
o No causation if:
 Not reasonably foreseeable, but Thin Skull Rule applies (Smithers)
 Culpable intervention of 3rd party – Reid
 Not broken by religious beliefs of victim (Blaue) per s.224, or by
something that just accelerates the inevitable (eg. Negligent doctor)
per s.224/225/.

2)  Culpable or non-culpable?
Manslaughter  Only culpable homicide is a criminal offence of manslaughter
 before you prove murder, you must prove manslaughter
 s.222(5) - Four ways for homicide to be culpable:
 (a) by means of an unlawful act (e.g. assault, firearms) – at minimum

11
  Need to do the entire element checklist for the unlawful act
 (b) by criminal negligence - s.219, s. 220 is criminal neg causing
death
 (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.
 Note s.220 (Criminal negligence causing death) is the same as culpable homicide
by criminal negligence
 Discuss issue of voluntariness here (see 4. Defenses)

Unlawful Act Manslaughter

 Unlawful act can’t be absolute liability (Motor Vehicle Reference)
 Prove the unlawful act first and separately
 McLachlin (Creighton majoriy)
 Purely Objective Test (foreseeability of Harm)
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 (foreseeability of Death)
o Marked and substantial departure
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?

Criminal Negligence Causing Death

 Act or Omission?
o If Omission: find legal duty (stretch for duty in Thornton)
o 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

12
 c. Duty to rectify a peril of your own making
3. Was duty breached?
 Marked and substantial departure from the reasonable person (Sharp; criminal
negligence is penal negligence?)
 Foreseeability or foresight of serious bodily harm (McLauchlin in Creighton)
though we can argue for foresight of death (Lamer in Creighton)
 Objective test (Baron Trial)
 Subjective test (Baron Appeal)
 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
 Evidentiary burden to show that, subjectively, the accused shouldn’t be
held to the objective standard of reasonable person

3) Murder  Mens Rea requirement (based on subjective test)

s.229:
(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 Shand]
 this proves 2nd degree murder. Parole standard at 10 years (can be set up to 25
years by judge).
s.230

13
  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 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) - 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) - while committing or attempting to commit an offence under section
264 – harassment; 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) while committing or attempting to commit a terrorist activity.
 s. 231(6.1) - using explosives for the benefit of, at the direction of or in
association with a criminal organization.
 s. 231(6.2) - while committing or attempting to commit an offence under

14
 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 the excuse of provocation, and
under extreme intoxication
Provocation - s.232
 1. Would an ordinary person be deprived of self control as a consequence of
the provocation
o Dickson (Hill) – (pure objective) no further jury instruction needed;
jury will adjust the test
o Wilson (Hill) – (qualified objective) 1. Consider the gravity of the
provocation by considering the unique features and frailties of the
accused. 2. Would the reasonable person, analogously provoked,
have lost control? (Also Thibert)
 2. Did the provocation actually deprive the accused of self-control?
 3. Was the accused’s response sudden and before there was time for the
passion to cool?

Intoxication – negates mens rea.  Daviault

Once mens rea is proven, defence could still raise

 Insanity (s. 16)
 Duress/Normative involuntariness - Justification and Excuses – necessity and
duress

MURDER CHECKLIST 2

STEP ONE: Is it a homicide?

1. Causation
a. Smithers Test (Blaue and Reid Qualifications)
i. Factual – But For
1. Outside de minimus – minimally significant, substantial not required.
2. Thin skull rule applies.
3. Inexnoerable link- Vaillancourt link between predicate offense.
(para 34-38 predicate offenses, para 32 is link)
ii. Legal – Multiple Causes – But For Test
1. Foreseeability – deviations from norm
2. Risk theory – within the risks contemplated by offence.
3. Voluntary intervention- Maybin Test
a. Operating cause and a substantial cause, or,
b. If 2nd cause is so overwhelming as to make original would
merely part of history – death does not flow from original
wound.

15
STEP TWO: Culpable or Non-Culpable – define culpable as sec. 222(5).
1) By means of an unlawful act: Take a detour and have a separate unlawful act/assault issue look
at mid-term checklist:
a. Actus Reus; if omission, go to criminal negligence.
iii. Is the Act Voluntary?
1. Voluntary Intoxication (does not apply to involuntary intoxication)
a. Is it a general intent crime or specific intent crime
b. Specific Intent – intoxication can negate mens rea
c. General: Leary Rule – no application s. 33(1).
i. Bodily integrity crimes, intoxication not applicable.
d. General: Daviault Defence (contrary to Legislation)
i. Expert Evidence – toxicologist.
ii. Reverse onus – burden on accused to prove on
balance of probabilities.
iii. Akin to automatism (not voluntary)
2. Automatism, (stone, parks, rabbey)
a. Trigger is reasonable to engage automatism
i. Reverse Onus, Toxocolgy report, corroboration
ii. External or Internal Trigger?
iii. Continuing Danger? Policy not to allow this claim?
3. Sec 16 Insanity
a. Mental Disorder/Insanity Test
i. disease of the mind
ii. Incapacitate person or:
iii. Incapable of appreciating nature and quality of act
(do they understand the act, circumstance,
consequence?)
b. incapable of knowing diff b/w right and wrong, do they know
it is morally wrong?
b. Circumstance (mens rea); objective foreseeability of bodily harm
i. wilfully blind, knowingly. Can we Depart?
c. Consequence (mens rea);
i. consent/knowledge of consent. Can we Depart?

2) Criminal negligence
a. Marked and substantial departure
i. Reasonable person, similar circumstance.
ii. Is there a duty ? Was it Breached? Sections 215 to 217
- Parent and child until age 16, or longer if disabled/incapable
(Necessities of life)
- Husband and Wife (common law)
- Any incapable person you have charge of
- If providing medical treatment must use reasonable skill knowledge
and car (unless necessity)

16
 - If person undertakes act they are must continue if an omission to not
act will be dangerous to life
- Work supervision: duty to take steps to prevent bodily harm to that
person and other who may be effected because of that work
b. Mens rea of objective, or subjective, or objective-subjective foresight
ii. Tutton – 3 options – discuss all 3.
c. Exculpatory Claim , Capacity questions:

3) By causing that human being, by threats or fear of violence or by deception, to do anything

that causes his death, or

4) By wilfully frightening that human being, in the case of child or sick person.

STEP THREE: Murder

1) Where the person who causes the death of a human being
a. Means to cause his death, or
b. Means to cause him bodily harm that he knows is likely to cause his death, and is
reckless whether death ensues or not.
2) Sec 229(a)(i)(ii) we don’t have to analyze, mens rea is straight application of facts to the standard
– can we draw an inference. But we must state the mens rea accurately. Change word “means
to” to (intends) to.
a. Crown Arguments
b. Defence Arguments
3) 229c has a constitutional requirement for it to be valid – ‘ought’ must be read-out to satisfy
constitutional requirement.
i. Culpable homicide is murder if for an unlawful object the accused did
something that he knew would likely cause death even if he did desire to
commit the crime with no bodily harm or death.

STEP FOUR: 231 – First Degree Murder.

1) Only use subsections that are applicable – just put in the 2 or 3 that may apply don’t include such
as terrorist.
a. Planned and deliberate
b. Contract killing
c. Murder of peace officer – doesn’t have to be deliberate
d. Hijacking, sexual assault, or kidnapping – doesn’t have to be deliberate
e. Criminal harassment – stalking – doesn’t have to be deliberate. (s.264)
f. Terrorist attack
g. Explosives in association with criminal organization (s.81)
h. Intimidation – s.423(1)
i. All murder that is not first degree is second degree.
1. Crown Arguments
2. Defence Arguments
a. At this point we have done all the analysis we need to get
first degree murder.

17
STEP FIVE: PARTY LIABILITY

1. S 21(1)
a. Actus Reus
i. Prove that AR that they rendered aid, assistance or encouragement to the
killing, and something more than passive acquiescence and mere presence
ii. Or for manslaughter: prove that the accused did or omitted to do something
for the purpose of aiding the principle to commit the offence
1. If the accused did something with the subjective intent to assault
could be guilty of manslaughter if there was objective foreseeability
that the victim would be harmed.
2. Manslaughter:
a. If a reasonable person in all the circumstances would have appreciated that bodily harm
was the foreseeable consequence of the dangerous act which was being undertaken”
(Jackson, 136 at 391)
b. Follows from fault element of manslaughter which was objective foreseeability of bodily
harm (Creighton note 59)
3. Murder:
a. “Must intend that death ensue or intend that he or the perpetrator cause bodily harm
of a kind likely to result in death and be reckless whether death ensues or not” R v
Kirkness at 127
i. The MR have subjective foresight of death
4. Wilful Blindness can be substituted as the knowledge requirement  R v Briscoe para 22-24
a. An accused will be guilty of aiding and abetting murder if the accused
i. Purposely aids and abets
ii. And knows or is wilfully blind that the victim will die.
iii. Accused must intend to ait and abet and also have the requisite fault of
knowledge or WB of death for murder.
iv. If the accused intends to assist or abet, but does not know, then
manslaughter might be possible.

STEP SIX: DEFENCES

1. PROVOCATION
1) Test for provocation – Hill Case
a. Ordinary person be deprived of self-control?
i. Age, Sex, Race if it relates to insult or act.
b. Did the accused in fact act in response to those “provocative” acts; whether or not
reasonable person would?
i. Subjective Test.
c. Was the accused’s response sudden and before there was time for passion to cool?
i. Determined through facts.
2) 2 ways provocation won’t apply.

18
 a. If you are discharging a legal right
b. Whether the accused incited the other in order to provide the accused with the
conditions of his own defence.

STEP SEVEN: OTHER DEFENCES

1) Intoxication
a. Is it a general intent crime or specific intent crime (see above)
2) Automatism and Sec 16 insanity
a. See Above.

3) Duress (Ruzic): not applicable to murder Moral Involuntariness

a. Harm to person or another
b. Reasonable person would and accused felt threat was real
c. No legal alternative
d. No means of escape

4) Necessity and NORMATIVE INVOLUNTARINESS (Perka, drugs)

a. Can’t save for murder, can lower to manslaughter.
b. Normative involuntariness:
i. Immanent or urgent peril or danger? Would a reasonable person in same
circumstance also believe in threat?
ii. No legal alternative
iii. Proportional? Breaking the law cannot be greater harm than was avoided
iv. Illegal activity does not negate defence

3. NEGLIGENCE (PENAL)

1) Penal  Indicated by words: “ought to have known,” etc.

Negligence
(crimes with  Or argued on basis that objective standard supplies sufficient fault requirement as
objective fault) per Sault st. Marie & Motor Vehicle Reference

 McLachlin (Creighton majority)

 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

19
 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

o 3. Duty to rectify peril of your making

 Consequences (Tutton):

 McIntyre:

20
  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 Creighton 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

21
4. DEFENCES

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

 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

22
  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

 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

23
 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

24
 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

 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)

25
  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

5. 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
Place” right or by 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.
the Avails” Must be parasitic (Grilo)

 reverse evidentiary burden to show you are not living off avails (Grilo)

26
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?

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

27
1. THE NATURE OF CRIMINAL LAW (INTRODUCTION)

1.1 CLASSIFICATION OF OFFENCES (AS PER CODE)

There are two types of offence, summary (minor) and indictable (major). There is also a mix of both called
hybrid.

Summary Conviction
6 months or $2000 generally
Trials are always held in the Ontario Court of Justice (Provincial Court)
90% of cases start and end here. It's fast.
Idictable
Serious offenses.
 starts with a charge document in provincial court (as per handout example)
a) Very Serious
 s.469
 moved to high court asap, and in theory must be tried by jury
 the judge/case in lower court thus becomes a screeber/preliminary for the case
b) Minor
 s. 553
 forced to stay in lower court, almost the same as summary but higher charges
c) Electable Indictables
- the accused has a choice on how to be tried, almost everyone stays where they are as
it is cheaper/faster and you can appeal to higher courses
- sophistication of argument and jury are reasons to move forward with a case
sometimes you have a complex argument or want a jury
i) Judge (Superior - Federal)
ii) Judge (Superior - Ontario)
iii) Current court/judge
Hybrid
The wave of the future, you can be punished on either summary or summary. Crown gets the
discretion here.

28
1.2 TYPES OF OFFENCES

1. True Crime:
 this is what the criminal code concerns itself with, indictable offenses
 composed of 2 major components
i. Actus Reus  the wrong act
 this is what is discussed in the criminal code
ii. Mens Rea  the state of mind
 this is the hard part, as it is inferred from conduct
 the best mens rea is as a result of a confession as the defendant gives us
their state of mind so we can see why confession as part of police
investigation is important
 Three types of true crimes:
1. Commission: Crimes of action “a willed muscular contraction”. Must be voluntary.
2. Omission: Failures to act.
3. Status: Possession of contraband, member of illegal organization.

2. Structural Liability
 a regulatory form of crime
 also composed of two components
1. Actus Reus
2. Neglegence – absence of state of mind
3. Absolute Liability
 a second regulatory form of crime
 has only one component
o Actus Reus
 no mens rea or other factors come into play, wrong act = guilty

Under our system of law you can’t imprison someone for absolute regulatory crimes. In essence because
the state of mind is dismissed and because it would violate s. 7 of the Charter of Human Rights.

1.3 FOUNDATIONS OF CRIMINAL LAW

There are 3 primary sources for criminal law:

a) The criminal Code

 contains 350+ iterated offenses

29
  enacted by federal government according to their ability to create
substantive and procedural law under 91.27 of the BNA
 implemented by the provinces
 exception is the Narcotics Control Act which is implemented by the
federal government
b) The 1867 Constitution – The British North America Act (BNA)
 sets up the division of power between the federal and provincial (and municipal)
governments
 section 91 giving substantive and procedural law rights to the federal government
 section 92 giving administration privileges to the provincial government
 defines jails as:
o provincial detention centers (for sentences < 2yrs)
o federal penitentiaries (for sentences >=2yrs)
 divides policing
o provinces are in charge of policing but most can’t afford it so they hire the
RCMP (federal) to do the job
o Quebec, Ontario, Newfoundland are the only provinces to have their own
police forces
c) The 1982 Constitution (Charter of Rights and Freedoms)

1.4 THE RULE OF LAW

No punishment without a defined offence that exists before the event in question. Laws must be
sufficiently clear so that people can act on them.
This rule has 3 impacts:
1. Enforces the presumption that laws only act on the future, not retroactively
2. Enforces the principle of strict construction (words are non-ambiguous).
3. Ensures that vagueness is avoided

The above are how we challenge the rule of law, we say it is retroactive, ambiguous or vague.

 In 1955 we introduced the concept of the “rule of law”. That is to say that there will be no
punishment without an offence defined in the criminal code.
 This creates a set of normative and substantive rules we can refer to as at least a basis for the
law.
 Since 1955 it is in the realm of the legislature to create the laws.
 This creation is usually the result of public or political pressure revolving around a specific issue.
 Note that section 8.3 of the Criminal Code says that the crimes as defined are a closed entity,
except where edited by the legislature, but that the defenses to these crimes can always evolve.

30
  The criminal code is a starting point for all crimes and it is the point where we can first look to
start an investigation.

1.5 THE “HARM” PRINCIPLE, ARBITRARINESS AND VAGUENESS

Three ways that the state can make criminal law, based on:

 Harm to others
 Core moral values
 Paternalism

These are the ways that we use the aspects of the rule of law as a challenge.

The Harm Principle (retroactive)- R v Malmo-Levine; R v Caine

“The only purpose for which power can be rightfully exercised over any member of a civilized community
against his will is to prevent harm to others”
- JS Mill

“That the only purpose for which power can be rightfully exercised over any member of a civilized
community, against his will, is to prevent harm to others. His own good, either physical or moral, is not a
sufficient warrant.” (p 237, Malmo)

Liberalism (Mills) p. 106

1789, first modern constitutional document from France determines that the state has no authority
except to punish those that cause harm to others. The state has limited power when harm is not an issue.
John Stuart Mill goes on to write about this further. Most of the Western world relies on this definition.

Legal Moralism (Devlin) p. 116

The state has the right to protect the moral individuality of the society, this fits perfectly with drug laws as
they do not fit the harm principle, but morally they degrade us. This raises the question of what morality
are we protecting in this pluralistic society there is no single moral code. Moralism is today usually recast
as “core values” that can be protected, without the harm principle, by parliament and legislature, thus
legal moralism becomes “core values”.
p. 238
“The principle that moral offences should be regulated because they are immoral”

“There are acts of wickedness so gross and outrageous that, self-protection apart, they must be
prevented as far as possible at any cost to the offender, and punished, if they occur, with exemplary
severity”

31
Legal Paternalism p. 124
The harm principle is not complete because we do have paternalism as a basis for laws (ie. seat belts,
fighting (which used to be legal if consent was involved)

Arbitrariness

In order for a law to be arbitrary and unconstitutional, the harm the law creates is worse than the harm the
law is protecting – the term often used is “gross disproportionality”

 An arbitrary law will not pass muster

 Issue of gross disproportionality of the law in reference to that which it wishes to achieve
 If a law is so far reaching that its impact goes far beyond its intent it is arbitrary

Vagueness
A vague law is one that is too broad or ill defined such that it is hard to discern the corrective steps on
must take to avoid the actions it impugns. In short, a vague law is contrary to the rule of law as it lacks
definition.

There are two times when one will generally use vagueness
1) to attack a law directly calling it vague
2) very important when we get to section 1, if a law is too vague is can’t be a reasonable one under
section 1

1.6 DEFENCE TECHNIQUES

Negative Defences (denial of the act)

1. Failure of proof
 argue that there isn’t sufficient evidence to make the charge stick
2. Offence Modification
 you want to narrow the meaning of the definition in the Criminal Code
 the courts will want to maintain or widen the definition
 if you can succeed in redefining the issue then you move back to failure of proof under
the new definition(s)
Affirmative Defences (denial of the intent)
3. Justification
 this is the standard affirmative defence
 burden is on the accused to show justification
4. Non-Exculpatory Public Policy
 acquittal based on violation of normative public policy
 full burden rests on the accused here to show violations

32
1.7 THE OAKES TEST

The Oakes test was developed in R. v. Oakes (1986). The goal of the test is to determine if a law if
successfully challenged under another section of the Charter is worth saving under section 1. To save a
law under section 1 the law must meet a two stage test as follows:
1. There must be a pressing and substantial objective
2. The means must be proportional
a. The means must be rationally connected to the objective
b. There must be minimal impairment of rights
c. There must be proportionality between the infringement and objective

1.8 Section 7 Challenges

A section 7 challenge is usually brought in an effort to reform the law or hold the judiciary and legislature
responsible for a bad law. It is one of the primary methods of law reform. Section 7 is related to life,
liberty and the right to freedom of expression. It is a classic section to appeal under in criminal cases
because criminal sanctions (ie. Jail) are a clear impediment to liberty.

Step 1: Determine the liberty or right which has been limited by the law you wish to challenge.
This can be argued on may fronts some examples include:
 Arbitrariness
 Vagueness
 Contrary to “rule of law”
 Fundamental choice (lifestyle)
 Freedom of Expression
Step 2: If we can argue and convince a judge that s. 7 has been violated we use s. 52 to invalidate the law
that creates the s. 7 violation.
Step 3: The crown has a chance to salvage a bad law using s. 1 (subject to Oakes Test)
Step 4: Notwithstanding clause can be used by courts to exempt any law.

1.9 EVIDENTIARY AND PERSUASIVE BURDENS

Evidentiary Burden
 some defences required the accused to meet an evidentiary burden

33
  this is simply to point out some evidence, even if it’s is the crowns evidence, that gives
the defence claim an element of reality
 one does not have to testify, but this is a problem as the accused is often the only one
 we never impose more than a civil burden on the accused, we would never impose the
burden of beyond a reasonable doubt
 procedural defences, self defence, claims of capacity
 the wave of the future is to shift more evidentiary burden towards the accused in the
above situations, specifically capacity claims
Persuasive Burden
 Also known as the legal burden, this rests on the Crown
 To displace this burden the proof must be “beyond a reasonable doubt”
 ie. the presumption of innocence places a legal burden upon the prosecution to prove
all elements of the offence (generally beyond a reasonable doubt) and to disprove all
the defences
 Exceptions: (Stone, Daviault where a persuasive burden rests with the accused)

1.10 TYPES OF FACTS

Adjudicative Facts:

The facts of the case. Who, what, where, when, why and how?

Legislative Facts:

The public policy relating to the case at hand. This subject is much harder to argue because there is
no correctness and one can’t be exhaustive. It is a best effort to present the current state of science and
public opinion on the matter.

1.11 CATEGORIES OF OFFENCES IN CANADA

State Public Administration Property Security of Psychologica Liberty

Order of Justice Person l Security

Alarming Dueling Resisting Arrest Arson Assault Defamatory Kidnapping

the queen Libel

34
1.12 CASES

1.12.1 MALMO-LEVINE AND CAINE

FACTS:
 A variety of marijuana charges have been laid against the defendants.
 The argument is that these charges and the law against possession of marijuana are
unconstitutional (counter to s. 7 of the charter).
ISSUES:
 Have the rights of the defendants been impeded by the laws, and do the laws serve justice?
DECISION: There is no infringement on the right to life, liberty and security of the person in the Narcotic
Control Act and the appeal for acquittal is dismissed.
REASONING:
Defence
Primarily based on Non-Exculpatory Public Policy
 Imprisonment constitutes a deprivation of liberty and therefore there can be no imprisonment
without fault. If the Narcotic Control Act wishes to imprison, then it must do so in accordance
with the principles of fundamental justice.
 The Harm Principle: No law shall be enacted unless designed to protect others from harm. Harm
also has to be “serious and substantial”, not de minimis.
 Gross Disproportionality Principle: A law is considered arbitrary unless it prevents more harm
than it causes.
 s.7 violations in light of the above
Crown
 The Harm Principle is a political principle, not a principle of fundamental justice. It is too vague
and not manageable. Many laws do not follow the harm principle such as cannibalism. Offences
are about protecting the sanctity of human life.
 Paternalism Argument: Government must create laws to protect against personal harm such as
seatbelt laws.
 Harm argument: Marijuana’s harm is not trivial as it is a carcinogen. There is no state interest in
depriving this right.
 Gross Disproportionality. The law is not arbitrary in the law because marihuana can cause some
negative effects in some people i.e. lethargy.
IMPLICATIONS:
When will something be a principle of fundamental justice?
Three criteria for fundamental justice (in order to measure parliament laws)
1. It has to be a legal principle
2. There has to be a sufficient societal consensus that this principle is fundamental
3. The principle must be manageable and applicable
After this case there are very few ways in which to challenge parliaments plenary power to create laws.
IMPORTANT QUOTES:

P 133 “harm must be shown to the court’s satisfaction to

be “serious” and “substantial” before Parliament
can impose a prohibition….Once it is

35
 demonstrated… that the harm is not de minimis…”

P 143 “government responses “so extreme that they are

per se disproportionate to any legitimate
government interest””

1.12.2 R V. CLAY SCC (2003)

FACTS: Defendant was caught selling hemp seeds from his store in London, ON
ISSUE: The constitutionality and validity of the possession laws fro marijuana
DECISION: Smoking marijuana is not a fundamental lifestyle choice; the law is in proportion to its goals.
Appeal dismissed.
REASONING:
Defence
 Privacy argument: Charter guarantees right to privacy by infringing on his lifestyle choice of
smoking marijuana.
 Overbreadth Argument: Similar to Malmo-Levine and Caine, the law is arbitrary and
disproportionate in its punishment.
 Statutory Interpretation Argument: THC content was not tested in the seedlings to be above the
requisite 0.3 percent requirement.
 it is not clear with our marijuana laws what we are trying to protect
 there are two fundamental arguments in the case
 can there be a paternalistic law which can result in incarceration, or reframed is it within
parliaments right to create an indictable offence when there is no real harm to others
 can there be a law like this when in comparison other substances of similar nature are
legal

1.12.3 R. V. OAKES (1986), 24 C.C.C. (3D) 321, (S.C.C)

 The leading case on tests of section 1 of the constitution

FACTS: Accused found in his car on the side of the highway with 8 vials of hashish oil and $600 cash.

ISSUE: Is the reverse onus in trafficking cases contrary to a presumption of innocence, the principles of
fundamental justice, and s.7 of the Charter?

36
DECISION: The shift in onus violated both Oakes's section 11(d) rights and indirectly his s.7 rights, and
could not be justified under section 1 of the charter. Moreover, there was no rational connection between
basic possession and the presumption of trafficking,

REASONING: In applying the Oakes test, originated here, to the facts the Court found that section 8 does
not pass the rational connection test as the "possession of a small or negligible quantity of narcotics does
not support the inference of trafficking.

IMPLICATIONS:

 We now have the Oakes test for analysis of the limitations clause (Section 1) of the Canadian
Charter of Rights and Freedoms that allows reasonable limitations on rights and freedoms
through legislation if it can be demonstrably justified in a free and democratic society

 Onus likes with the crown to prove mens rea and actus reus.

 When looking at constitution/charter we must look at the “purposive intent”

IMPORTANT QUOTES:

Presumption of The presumption of innocence is a hallowed principle lying at the very heart of
Innocence: criminal law. Although protected expressly in s. 11(d) of the Charter, the presumption
of innocence is referable and integral to the general protection of life, liberty and
security of the person contained in s. 7 of the Charter (see Re B.C. Motor Vehicle Act,
1985 CanLII 81 (SCC), [1985] 2 S.C.R. 486, per Lamer J.) The presumption of
P 29 innocence protects the fundamental liberty and human dignity of any and every person
accused by the State of criminal conduct. An individual charged with a criminal
offence faces grave social and personal consequences, including potential loss of
physical liberty, subjection to social stigma and ostracism from the community, as well
as other social, psychological and economic harms. In light of the gravity of these
consequences, the presumption of innocence is crucial. It ensures that until the State
proves an accused's guilt beyond all reasonable doubt, he or she is innocent. This is
essential in a society committed to fairness and social justice. 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.

Burden of Proof lies The presumption of innocence has enjoyed longstanding recognition at common law.
on the Crown to In the leading case, Woolmington v. Director of Public Prosecutions, [1935] A.C. 462
prove guilt beyond a (H.L.), Viscount Sankey wrote at pp. 481-82:
reasonable doubt.
 

Throughout the web of the English Criminal Law one golden thread is always to be
P 30 seen, that it is the duty of the prosecution to prove the prisoner's guilt subject to what I
have already said as to the defence of insanity and subject also to any statutory
exception. If, at the end of and on the whole of the case, there is a reasonable doubt,
created by the evidence given by either the prosecution or the prisoner, as to whether

37
 the prisoner killed the deceased with a malicious intention, the prosecution has not
made out the case and the prisoner is entitled to an acquittal. No matter what the
charge or where the trial, the principle that the prosecution must prove the guilt of the
prisoner is part of the common law of England and no attempt to whittle it down can
be entertained.

P 57 In general one must, I think, conclude that a provision which requires an accused to
disprove on a balance of probabilities the existence of a presumed fact, which is an
important element of the offence in question, violates the presumption of innocence in
s. 11(d). If an accused bears the burden of disproving on a balance of probabilities an
essential element of an offence, it would be possible for a conviction to occur despite
the existence of a reasonable doubt. This would arise if the accused adduced sufficient
evidence to raise a reasonable doubt as to his or her innocence but did not convince the
jury on a balance of probabilities that the presumed fact was untrue.

P 69-70- Oakes Test 69.     To establish that a limit is reasonable and demonstrably justified in a free and
democratic society, two central criteria must be satisfied. First, the objective, which the
measures responsible for a limit on a Charter right or freedom are designed to serve,
must be "of sufficient importance to warrant overriding a constitutionally protected
right or freedom": R. v. Big M Drug Mart Ltd., supra, at p. 352. The standard must be
high in order to ensure that objectives which are trivial or discordant with the principles
integral to a free and democratic society do not gain s. 1 protection. It is necessary, at a
minimum, that an objective relate to concerns which are pressing and substantial in a
free and democratic society before it can be characterized as sufficiently important.

70.         Second, once a sufficiently significant objective is recognized, then the party
invoking s. 1 must show that the means chosen are reasonable and demonstrably
justified. This involves "a form of proportionality test": R. v. Big M Drug Mart Ltd.,
supra, at p. 352. Although the nature of the proportionality test will vary depending on
the circumstances, in each case courts will be required to balance the interests of
society with those of individuals and groups. There are, in my view, three important
components of a proportionality test. First, the measures adopted must be carefully
designed to achieve the objective in question. They must not be arbitrary, unfair or
based on irrational considerations. In short, they must be rationally connected to the
objective. Second, the means, even if rationally connected to the objective in this first
sense, should impair "as little as possible" the right or freedom in question: R. v. Big M
Drug Mart Ltd., supra, at p. 352. Third, there must be a proportionality between the
effects of the measures which are responsible for limiting the Charter right or
freedom, and the objective which has been identified as of "sufficient importance".

1.12.4 R V. ASKOV (1990)

38
  Establishes whether an accused's rights under the Canadian Charter of Rights and Freedoms,
Section 11(b) "to be tried within a reasonable time" has been infringed.

 This limit is set at 9 months for due process.

1.12.5 REFERENCE RE SS. 193 AND 195.1 (THE PROSTITUTION REFERENCE) (1990)

 Leading decision on the right to freedom of expression under section 2(b) of the Canadian Charter of
Rights and Freedoms, and on prostitution.

FACTS: The government referenced the Supreme Court to give its opinion on whether the prohibition
against solicitation of prostitution was in violation of the Charter right to “freedom of expression”.

DECISION:

 The Court held that the criminal code provision that prohibited communication for the purpose
of engaging in prostitution was in violation of the right to freedom of expression however it could
be justified under s.1 of the Charter and so it was upheld (using Oakes test).

 Void for vagueness principle: a law is invalid if it does not give fair notice, encourages arbitrary
and erratic arrest/convictions, and offend several important values.

 All judges agreed that there is void for vagueness problem with current prostitution law:

1. Law is in and of itself vague

2. If a law violates Charter right, the Crown will go to s1.

 For Crown, flexibility is not vagueness. The question is whether the impugned section of the
code can be given sensible meanings by the Court which it managed to define.

 One can ask then, do we agree with these definitions?

REASONING: The majority found that the purpose of eliminating prostitution was a valid goal and that the
provision was rationally connected and proportional to that goal. Accordingly, the provision was upheld.

2. THE ELEMENTS OF CRIME

4 methods of escaping conviction on a criminal charge:

a) Failure of proof

39
 b) Offence-modification
c) Excuse or justification
d) Procedural

2.1 ACTUS REUS AND MENS REA

All Criminal offences are comprised of two basic elements:

a) the actus reus (ie the criminal act)
b) the mens rea (ie the criminal state of mind)

The actus reus must contain one or more of the following:

a) an act, omission or event
b) that occurs in specific circumstances
c) that results in designated consequences

The mens rea must contain one of the more of the following:
a) an intention to commit the actus reus
b) knowledge of the circumstances that constitute the actus reus
c) an awareness of the risk of the harmful consequences

We start with a symmetry between the Actus and Mens, which can be broken down easily in a chart. We
will move from this to non-symmetry. Every section of the Criminal Code can be broken down in this way.
Note that one often has to read in the Mens Rea based on the type of offence.

Actus Reus Mens Rea

Act  Voluntary?  Deliberate

 Interpretation of verbs (Defense: restrict  Voluntary

meaning, Crown: broaden meaning)

 If “act” is an omission, ask:

 Was it contemplated by the

provision

 Was there a legal duty?

1. Undertaking of an Act you must

complete.

40
 2. Caretaker.
3. Causal duty to rectify a situation
that you created.
 Was duty breached?
Circumstances  Interpretive problems?
Results  Causation :
Factual
 “But For” Test: “But For” the
defendants actions would the result have
occurred?
Legal (when multiple causes/parties)
Did an event that was beyond “de
minimus” start a chain of events?
Limits of Legal Causation:
Foreseeability (CND): Attribute status of
legal cause to deviations from the normal
foreseeable course of events.
Voluntary Intervention: If an intervening
cause is a voluntary and culpable
intervention by a third party then attribute
the status of legal cause to this
intervention (the chain of causation has
been broken).
 Interpretive problems?
 Knowledge
 Wilful Blindness
If mens rea specified:
 Interpretation of words such as
willful, with intent, knowingly,
intentionally, means to…
 If “reckless” specified – objective
or subjective?
If mens rea implied:
 Direct Intent/Purpose –Acted with
purpose and desired the
consequences
 Oblique Intent – You didn’t desire
the consequences, but you knew the
consequence would result from
your action (foresaw the certainty of
consequences)
 Recklessness – The consequences
were not the intention of your
actions, but you foresaw the
probability, possibility, or
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
41
 the actus reus

2.2 DEFINITIONS (HOW TO DEFINE WORDS FOUND IN THE CRIMINAL CODE)

If you don’t know how to interpret something in the Criminal Code (and even if you do) look at the
definitions at the front of the sections.
One of the key things we do in criminal law is interpret the meaning of words. How do we do this?
Forming a Definition
I. Dictionary
II. Construction of Typology : make up a meaning of our own
III. Case law
IV. Go to the purpose: legislative history, debates at time of enactment

2.3 PRINCIPLES

Abstract standards that are used to design, explain and evaluate the concrete rules. They are the
organizing ideas which underlie a set of related rules. Principles do not permit the deduction of an
answer in a particular case (that is the function of rules); however, principles can be used to modify the
rule such that it can provide an answer.

Higher Order Principles

Principles that in themselves have substantive content
1. presumption of innocence
2. no one should profit from wrongdoing
3. the rule of law or principle of legality
4. the responsibility/culpability principle (Hart)
5. the harm principle

Lower Order Principles

Used for offense modification generally and for Actus Reus approaches.
1. Historical – learn how to do legislative historical research it will provide evidence of intent
and purpose of the legislature.
2. Textual – looking for an internal consistency within the provision in question (this is as per
above using ejusdem generic”; is there an inconsistency in taking common usage
3. Doctrinal – the accretion of judicial precedent, important, but it is not the end all and be all,
but it can be a great shortcut

42
 4. Prudential (Policy) – the search for legislative intent of policy in order to avoid giving
interpretation that would thwart the purpose of the enactment, that is, argue that it is best
for public policy without directly saying so
5. Structural – going beyond the internal consistency of the provision to ensure that the
interpretation is consistent with other code provisions or even provisions in other statutes;
make the text in question consistent with other parts of the law. NOTE: favourite argument
of Young

Note: There are many shortcuts to lower order principle argument. For example:
“ejusdem generis” or “of the same kind” implying that when a general word is preceded by
specific terms the generic term will take on the flavour/color of the specific terms.

2.4 JUDICIAL DECISION MAKING

Utilizing the principles above the Crown must prove all elements of the crime to convict the accused.

The Judge must make the guilty/innocent decision by:

1. Ascertaining the facts
2. Defining the elements (giving them meaningful content, statutory interpretation)
3. Applying the law, as s/he has defined it, to the facts.

2.5 ARGUING ACTUS REUS

Actus Reus: must contain one or more of:

A. An act, omission, or event.
B. That occurs in specified circumstances.
C. That results in specified consequences.

Without relying on other methods how do we argue the Actus Reus?

Step A: Attack the technical Rule
1. Failure of Proof: Not enough evidence to convict beyond a reasonable doubt.
2. Offence Modification: Use the Lower Order Principles to narrow or expand the definition of the
Act.
3. Floodgates Argument: To argue for or against definition as it stands or as you have defined it.
Note that you can widen the definition, then argue that’s of no validity because it would open
the floodgates. Or narrow the definition and show that the floodgates would not open.
4. Statutory Purpose: Use a purposive approach to the statute.
5. Common Law: Look at how the common law has applied the statute.

Step B: Support with public policy reasons

43
 When you have argued a position always follow the technical rule with a reason that it is good
public policy.

2.6 CASES (INTERPRETING ACTUS REUS)

2.6.1 R. V. SKOKE-GRAHAM ET AL. (1985)

 Keywords: cause disturbance, wilfully, anything, religious worship

FACTS:
 Church practice was changed from kneeling to standing at communion.
 The accused members protested new standing rule by kneeling
 Otherwise they respected the service.
 Convicted at trial, now appealing the right of Parliament to govern religious services.
ISSUES:
 Whether s.172 (3) is intra vires the Parliament of Canada, pursuant to s.91(27) of the
Constitution Act, 1867.
 Whether the courts below have applied the proper legal standard in determining whether the
accused’s conduct violated s 172(3).
CHARGE: Criminal Code s.172(3): Everyone who, at or near a meeting (for religious worship), willfully does
anything that disturbs the order or solemnity of the meeting is guilty of an offence punishable on
summary conviction.
DECISION: The accused can not be found in violation of s.172(3) of the Criminal Code.
REASONING:
Dickson (for majority):
 Wants to define the word “disorder”: Something had to have happened.
 “Where the impugned acts are brief, essentially passive and peaceful in nature and are
voluntarily desisted from upon request, as they were in this case, then there is no crime.”
 According to the dictionary there is a case for disorder, but Dickson clearly doesn’t like this and
wants to modify the word in the criminal code and uses:
 Structural Argument: Parliamentary intent: s.172 is under the heading Disorderly Conduct in the
Criminal Code, which is under the heading of “Sexual Offences”. Disturbance refers to indecent
images, exposure, in a church, not refusing to kneel. Heading of Disorderly Conduct is useful to
determine the meaning of “disturb”; interpreted to mean create “disorder”.
 Prudential Argument: Possible results of such an interpretation would extend the Criminal Code
to trivial situations, making mild annoyances indictable.
Wilson J:
 Wants to define “anything”
 Prudential Argument: We cannot broaden the meaning of the word “anything” to include
inaction, this would make too many activities prohibited.
 Historical Argument: Parliament changed the term “anyone who speaks foul language” to
“anyone who does anything”, indicating a desire to broaden the range of actions prohibited.
However, the accused did not perform any action at all, rather it was inaction of not kneeling.

44
  Structural Argument: Compare the defence with “Cause Disturbance”. There is no disturbance
without disorder, because when there is no context, prohibiting merely creating disorder would
infringe on liberty. In this case, we have the context: a religious service. Since we know where
we are, specific location, then disorder isn’t required, only disturbance.
IMPLICATIONS:
You can see the tools of principle at work in this judgment as the judges make standard Actus Reus
arguments.
IMPORTANT QUOTES:

P 66/67 66.              It seems to me that all Parliament intended to do in enacting s. 161(3) of the
1953-54 Code was to use general rather than specific words to cover the types of things
Determines that which were considered capable of disturbing the order or solemnity of a meeting. I do
“disturbance” must not believe they were seeking to expand the scope of the provision to cover peaceful
cause an externally acts of defiance of religious authority. I am reinforced in this view by the fact that s. 161
manifested disorder. of the 1953-54 Code (like s. 172 of the present Code) is one of a series of offences
falling under the heading "Disorderly Conduct". I believe, therefore, that the word
"anything" must be read down so as to extend only to things in the nature of profane
discourse, rude or indecent behaviour or making a noise. Where, as in this case, the
Also important is appellants' acts were peaceful and orderly I would be reluctant to find that an offence
the context of the had been committed even if the acts did disturb the order or solemnity of the service to
place. the minimal extent found by the trial judge.

Disturbance of the order or solemnity of a meeting

67.              There has been a fair measure of judicial debate as to the nature and extent
of the disturbance which must be caused by an accused charged under one of the
"Disorderly Conduct" provisions of the Criminal Code. By way of illustration s. 171 of
the Code which deals with causing a disturbance in a public place or a dwelling house
has been interpreted in New Brunswick as requiring some externally manifested
disturbance on the part of observers or passersby (R. v. C.D. (1973), 13 C.C.C. (2d) 206
(N.B.C.A.)), but has been perceived in Nova Scotia as requiring only that the accused's
act cause an emotional disturbance in the mind of observers (R. v. Swinimer (1978), 40
C.C.C. (2d) 432 (N.S.C.A.)). Given that s. 171 is aimed at acts creating disturbances in
public places or dwelling houses without reference to any specific context in which the
observer is disturbed, the reasoning of Hughes C.J.N.B. in R. v. C.D., supra, is probably
correct in its assessment that in the absence of any actual "activities in the nature of a
disorder" on the part of observers the act cannot be said to be the type of disorderly
conduct at which the provision is aimed. Otherwise, anyone in any given situation
would act at the risk of causing some unmanifested emotional upset or "disturbance" to
another person.

P 72- definition of I expressed the view earlier that there were strong policy grounds for limiting the scope
the word “anything” of the word "anything" in s. 172(3). I think such a limitation is required in order to avoid
 if broad then a weakening of the authority of the criminal law by its application to trifles. While it

45
 courts must refine it may be true that the only acceptable definition we can give of a crime is an act which is
in light of what it prohibited by the legislature with penal consequences, when the legislature employs
believes it should be. language as broad as it has here, I think it is open to the Court to refine it in light of what
it perceives to be the degree of public condemnation any impugned conduct would be
likely to attract. I believe also that an interpretation of "anything" which would make the
criminal law available as a tool for the enforcement of liturgical practice or the
settlement of liturgical disputes may represent an extension of the arm of the law into
areas which a substantial segment of the public (although apparently not the informants)
would find unacceptable. For these policy reasons, therefore, as well as for reasons
arising from the legislative context and history of s. 172(3), I find that the conduct
impugned here is not caught by the subsection. 

P 76- pith and As with all questions of characterization for constitutional purposes it is a matter of
substance of the ascertaining the "pith and substance" of the legislation.
legislation must be
found

P 77- disturbance is The appellants argue that they have been convicted of the act of kneeling in church and
contextualised by that such an act is not capable of being the subject of a criminal offence. I agree,
context. however, with His Honour Judge MacLellan that the actus reus here is not the act of
kneeling but doing so in a certain context i.e. where it was known that to do so would
disturb the solemnity of a religious service. Just as an act which is guilty in one context
may be quite innocent in another, so also an act which is innocent in one context may be
guilty in another. To use a simple example, it may be an offence to use foul and abusive
language in a courtroom but it may be inoffensive to do the same thing in a noisy tavern
or in the privacy of one's own home. While it is, in my view, sound to interpret the
Criminal Code in such a way that the appellants' conduct is not characterized as
criminal, it is a much more radical step to assert that the Criminal Code could not
characterize the appellants' conduct as criminal where the result of such conduct is to
disturb the carrying on by their fellow parishioners of their religious services. I would
be hesitant, indeed, to accept such a submission.

2.6.2 R. V. LOHNES (1992) SCC

 Keywords: cause disturbance, public place, shouting, obscene language

FACTS: The accused, sick of the loud noise the man across the street makes with his lawn equipment,
steps out onto his front porch to shout obscenities at the neighbour.
CHARGE: Criminal Code s.175 (1)(a): “Everyone who not being in a dwelling house, causes a disturbance in
or near a public place by fighting, screaming, shouting, swearing, singing or using insulting or obscene
language… is guilty of an offence punishable on summary conviction.”
DECISION: The accused cannot be found in violation of s.175(1)(a)
REASONING:
McLauchlin J dissects the elements of the charge.

46
Not being in a dwelling house:
Was outside his front door.
Fighting, screaming, shouting, swearing, singing:
Was screaming out loud.
Causes a disturbance:
 Textual Argument: the word disturbance requires a different definition than disturb since many things
disturb people but aren’t a disturbance. A disturbance is different in that it is interfering with an
ordinary and customary conduct.
 Structural Argument: from Skoke-Graham et. al., s.175(1)(a) is under the heading of Disorderly
Conduct, meaning parliament intended it to prohibit causing public disorder, not mere emotionally
upsetting behaviour.
 Structural Argument: The French version of s.175(1) uses the word “tapage” which in translation
includes disorder caused to a group of people.
 Prudential Argument: In s.175(2)(a) of the Criminal Code, the police can infer disturbance from
evidence “relating to the conduct of a person or persons”, meaning that Parliament had in mind the
effect of the shouting on persons other than the accused, i.e. the neighbourhood residents.
 Policy Argument: Free speech is not quite freedom of speech, in that it must be exercised within
reason. The Criminal Law can’t to step in at the stage of foreseeability of mental annoyance, as this
would create an unjust intrusion.
IMPORTANT QUOTES:

P 18- definition of I conclude that the weight of the authority, whether viewed from the point of view of
“disturbance” under theory or result, suggests that before an offence can arise under s. 175(1) of the
s 175(1) Criminal Code, the enumerated conduct must cause an overtly manifested disturbance
which constitutes an interference with the ordinary and customary use by the public of
the place in question.  This may be proved by direct evidence or inferred under s.
175(2).  It is not necessary that there be a separate disturbance secondary to the
disturbing act; the act itself may in some cases amount to a disturbance and "cause" it in
this sense.  Finally, the principle of legality, alluded to in the judgment of Wilson J. in
Skoke-Graham suggests that only conduct which may reasonably be expected to cause
such a disturbance in the particular circumstances of the case falls within s. 175(1)(a)
(see p. 000, below).

P 29- policy reason Given the intrusion on public liberty and the uncertainty in the criminal law which such
for this definition of a rule would introduce, it is arguable that some external manifestation of disorder in the
“cause and sense of interference with the normal use of the affected place should be required to
disturbance” transform lawful conduct into an unlawful criminal offence.

P 30- continued Conclusion on the Ambit of Section 175(1)(a)

definition of
 
disturbance
            The weight of the authorities, the principles of statutory construction and policy
considerations, taken together, lead me to the conclusion that the disturbance
contemplated by s. 175(1)(a) is something more than mere emotional upset.  There
must be an externally manifested disturbance of the public peace, in the sense of

47
 interference with the ordinary and customary use of the premises by the public.  There
may be direct evidence of such an effect or interference, or it may be inferred from the
evidence of a police officer as to the conduct of a person or persons under s. 175(2). 
The disturbance may consist of the impugned act itself, as in the case of a fight
interfering with the peaceful use of a barroom, or it may flow as a consequence of the
impugned act, as where shouting and swearing produce a scuffle.  As the cases
illustrate, the interference with the ordinary and customary conduct in or near the public
place may consist in something as small as being distracted from one's work.   But it
must be present and it must be externally manifested.  In accordance with the principle
of legality, the disturbance must be one which may reasonably have been foreseen in the
particular circumstances of time and place.

2.6.3 HUTT V. R. (1978) SCC

 Keywords: solicitation, public place, prostitution

 Court is trying to move away from dragnet policing that infringes on peoples rights.
FACTS:
 An undercover police officer picks up a girl in an unmarked car
 All interaction takes place inside the car
 She states she is a working girl
 They drive to a hotel parking lot where she is arrested
CHARGE: Criminal Code s.195.1 [en. 1972 c.13, s.15]: “Every person who solicits any person in a public
place for the purpose of prostitution is guilty of an offence punishable on summary conviction.
DECISION: The accused is not guilty under s.195.1
REASONING:
Breaking down the components of the Actus Reus:
“solicits”:
Shorter Oxford Dictionary definition of solicit: “To accost and importune (men) for immoral
purposes.” Importune means “persistent”. The woman was not persistent, she merely asked the
officer if he wanted a girl and the officer immediately said yes, making the relationship more one
of cooperation than solicitation.
Structural Argument: Solicitation is part of “Disorderly Houses, Gaming, and Betting”, implying that
solicitation is not relevant to hotel parking lots.
Purposive Argument: Soliciting is intended to prevent a public inconvenience and the solicitation did
not cause public inconvenience since the transaction was fast.
“public place”:
Prudential Argument: Calling a parked car in back of a hotel a public place would open the floodgates,
implying that inviting someone into your home would make it a public place.

IMPLICATIONS: The definition of the word “solicit” is restricted so far as to make it useless. After this the

48
prostitution law is unenforceable as it’s easy to solicit now, it just can’t be pressing. This leads later to the
institution of the communication methods to bolster the law again.
IMPORTANT QUOTES:

P 6 – definition of “public place” includes any place to which the public have access as of right or by
public place invitation, express or implied.

I am most strongly of the opinion that this officer’s automobile was not such a public
place but was, on the other hand, a private place of which he had the sole control. To
interpret the words otherwise would mean that if I were to invite anyone to enter my
own home then that home would be a public place. In my view, the determination
that the officer’s car was not a public place would have been sufficient to dispose of
the appeal and it must be allowed.

P 21- looking at the Section 195.1 is enacted in Part V which is entitled “DISORDERLY HOUSES,
purpose of the GAMING AND BETTING”. Offences in reference to all three of these subject-
offence. matters are offences which do contribute to public inconvenience or unrest and again
I am of the opinion that Parliament was indicating that what it desired to prohibit was
a contribution to public inconvenience or unrest. The conduct of the appellant in this
case cannot be so characterized.

2.7 ARGUING MENS REA

Criminal law assumes free will, and therefore blame must be placed only on conduct of choice. Mens Rea
is the proxy by which we assess blame. Symmetrically actus reus and mens rea must be concurrent.

Mens Rea: must contain one or more of:

A. Intention to commit the actus reus
o Courts assume the Criminal Code provisions imply voulntariness
B. Knowledge of the circumstances that constitute the actus reus
o Knowledge means wilful blindness to the consequences
C. An awareness of the risk of harmful consequences
o Awareness is:
1. direct intent (purpose)
 Reserved for use in homicide.
2. oblique intent (foresight of consequence)
 Equally culpable when compared to direct intent
 To prove oblique intent replace the accused with a reasonable person
in his position. Would a reasonable person be able to foresee the
consequences?
3. recklessness (foresight of possibility of outcome)

49
  When there is no standard in the code the crown will try to read down
an offence to reckless.
4. negligence (reasonable person would foresee outcome)

The Courts must determine what the accused was thinking. When a specific mens rea is not included in
the provision, the court must either apply a mens rea standard established by Common Law or establish a
new standard.
In determining a subjective state of mind we often use an objective approach to evidence. We apply that
objective standard back to the accused to infer the subjective state of mind. The Crown will always argue
that the reasonable foreseeability of “the reasonable man” and is very high. A defence will have to
counter that and attempt to lower the standard.

2.8 ULTERIOR INTENT

Formulation: doing X with intent to…

 there is a purpose underlying your action. Ulterior intent is an excellent method for defense to force the
crown to prove direct intent. At a minimum it will be oblique intent.

Reading Down: Specific Ulterior Intent

 When you see that the ulterior intent is very specific there is no way they will read up to Direct
Intent. It is too easy to avoid.
 Ie: theft… “with the intent to deprive the owner”
 It is easy to say that one didn’t want to deprive the owner, that they just needed the item. The
loss by the store never entered my mind. But it’s easy to still imply oblique intent; that it was
foreseeable that the owner would be deprived.
Reading Up: General Ulterior Intent
 When you have a very broad ulterior intent:
 Break and Enter with the intent to commit indictable offense.
 We can read this up to Direct Intent as the only way out to defeat the generality of the ulterior
intent must be a very persuasive argument. ie. I had to get in the house to use the washroom.

2.9 CASES

R2.9.1 R. V. SLOAN (1994) ONT. C.A.

 Keywords: public place, wilful, indecent act

 Interpretation of both Mens and Actus. Facts drive the analysis.
FACTS:
 a woman is arrested for giving fellatio in a parking lot
 diversion allows the male to escape and go to “john school” to
learn downside to being a “john”

50
  isolated parking lot, late night
 the straight prostitution limits by Hutt causes increased charges in
other areas related to prostitution
CHARGE: Criminal Code s.173(1)(a): Every one who wilfully does an indecent act in a public place in the
presence of one or more persons is guilty of an offence punishable on summary conviction.
ISSUES: Is an empty parking lot a public place?
DECISION: Accused is acquitted.
REASONING:
 judges, 3 verdicts, 3 though processing
 Facts drive the interpretation. This was a sympathetic situation.
Galligan:
 (Mens Rea) The word wilful attaches to all the circumstances; there was no evidence that Sloan
had intended to be in the presence of others so the case should be acquitted. They either a)
could not foreseeability of others being there or b) never intended others to be there.
Goodman:
 (Actus Reus) The place was not a public place. The late night, the distant corner in his view
converts it into a non-public place. This is debatable, but based on Hutt it is similar thinking that
the car is private.
Osborne:
Disagrees that the Actus Reus and Mens Rea are missing and analyses “wilful”:
 Historical Argument: wilful is dangling at the end and would apply to all acts. In the modern
version is more directly modifies the act and ambiguously to the circumstances
 Purposive argument compares 173.1(a) to 173.1(b) which attached the words “with intent to
offend” suggesting that the intent isn’t required in 1(a) otherwise it would be explicitly stated as
well.
IMPLICATIONS:
What if this was caught on video tape and not by a third party? How would that change our
interpretation of Actus Reus and Mens Rea?

IMPORTANT QUOTES:

P 9- no intention; MR The gravamen of the offence is the wilful commission of an indecent act in the
argument by Galligan presence of one or more persons. There was no intention on the part of this
appellant to perform a sexual act in the presence of any person other than the
driver of the car. I am unable to accept that surreptitious surveillance can turn
what is essentially an act done in private to one which takes place in public.

P 41/42- statutory What is now s. 173(1)(a) of the Criminal Code appeared in s. 205 of the Criminal
change; definition of Code, 1892, S.C. 1892, c. 29, in this form:
wilful MR in offence-
Osbourne 205. Every one is guilty of an offence and liable, on summary conviction
before two justices, to a fine or fifty dollars or to six months' imprisonment
with or without hard labour, or to both fine and imprisonment, who wilfully, .
..

51
 (a) in the presence of one or more persons does any indecent act
in any place to which the public have or are permitted to have
access;

The language of the 1892 version of the offence, set out above, seems to me to
support the conclusion that, at that time, the Crown was required to establish that
the accused wilfully did an indecent act in a public place in front of one or more
persons. "Wilfully", in the 1892 section, modified all of those elements of the
offence. In 1953-54 amendments of the Criminal Code the word "wilfully" was
moved to a position where it clearly continued to modify the alleged indecent act,
and perhaps more importantly, where it no longer modified the place of the doing
of the indecent act (the public place requirement), or the doing of the indecent act
in front of one or more persons (the presence requirement). In my opinion, this
statutory change altered the mens rea requirement of the offence.

P 46- Osbourne I think, therefore, that "wilfully" in s. 173(1)(a) modifies the doing of the
indecent act. The Crown does not have to establish that the indecent act was
wilfully done in a public place in front of one or more persons.

2.9.2 R. V. CLARK (2003) SCC

 Keywords: public place, indecent act, wilful, intent to offend

 Shows the value and necessity of intent for the purposes of blame.
FACTS:
 A man in his living room with the windows open masturbating
 His neighbours see this, and go to the effort of making sure (getting binoculars) and calling the
police.
 The police arrive and see what is happening and charge him
 It is found (and upheld on appeal) that he had “converted” his living room into a public space by
not closing the blinds.
 The court of appeal makes a typical mistake and re-interprets the facts.
 Courts of appeal can only override findings of fact if there is a palpable overriding reason/mistake
in the lower courts.
CHARGE: Criminal Code s.173(1)(a): Every one who wilfully does an indecent act
(a) in a public place in the presence of one or more persons, or
(b) in any place, with intent thereby to insult or offend any person,
is guilty of an offence punishable on summary conviction.
ISSUES: Is a private home a public place and if so how did this occur? Did the accused intend to offend his
neighbours?
DECISION: Accused is acquitted of both charges.
REASONING:

52
  Because the accused was not aware of being watched, he could not have intent so (b) is
dismissed.
 This rest of the decision hinges on the definition of what public means. They accept that to be
public it must be related to physical access.
 Strong Structural Decision: that the addition and amendment of 213 was given “open to public
view”, but 173 was not similarly amended. Thus (a) is dismissed on this matter.
 He argues that his living room is not a public place based on the fact that the other party was the
one who converted it (by using binoculars).
 Compared French and English versions and both relate to physical access.
 The court wants to reject the old case law
IMPLICATIONS: To prove indecent exposure we just must show intent. The courts will rarely make a
judgment which would not allow us to deal with a social problem (such as indecent exposure). There
must be physical access in order for something to be considered a public space.

2.9.3 R. V. BUZZANGA AND DUROCHER (1980) ONT. C.A.

 Keywords: promotes hatred, communicates, identifiable group

 Establishes equivalency of Oblique and Direct intent for the purposes of most crimes.
FACTS:
 charged with hate literature crime, which by the code must be targeted at an identifiable group
 crown has to call an expert to show that French Canadians are an identifiable group
 recruited children to hand out pamphlets
 problem was that the accused were part of the identifiable group, they were trying to incite
hatred in their peers to galvanize a cities attention
CHARGE: Criminal Code s.282.1(2) now 319: Every one who, by communicating statements, other than in
private conversation, wilfully promotes hatred against any identifiable group is guilty of:
(a) an indictable offence and is liable to imprisonment for two years; or
(b) an offence punishable on summary conviction.

ISSUES: Does the satirical nature of the flyers and self promotion within their own minority constitute
“wilfully” promoting hatred?
DECISION: As a general rule, a person who foresees that a consequence of his act is certain to result, even
if the original act is for some other purpose, intends that consequence.
REASONING:
The court examines the mens rea of:
“wilfully”:
 Textual Argument: The definition of wilfully in sources consulted is usually “intentionally”
but can also be “recklessly” and “voluntary”.
 Structural Argument: s.386 (now 429) defines “wilful” as “recklessness”, but if parliament
had meant the same thing here they would have said so.
 Prudential Argument: This provision was debated as a measure to prohibit breach of the
peace, as opposed to pamphlet distribution. Since it is a pamphlet, there is much less
possibility of an immediate riot resulting. Since such a situation would be more volatile,
parliament could lower the standard of mens rea to convict, but not in this situation.

53
 Therefore, “wilful” must mean intent, not reckless or accidental.
 “wilful” the required mens rea and the Crown can not substitute a lower standard of mens rea to
convict.
IMPLICATIONS: Since direct intent and oblique intent are equally culpable, the Crown will never have to
prove direct intent. That is, claiming you didn’t intend to actually kill someone is not a valid defence if you
acted without an objective standard of foresight.
IMPORTANT QUOTES:

P 25: interpretation The word "wilfully" has not been uniformly interpreted and its meaning to some
of the word wilful. extent depends upon the context in which it is used. Its primary meaning is
"intentionally", but it is also used to mean "recklessly": see Glanville Williams,
Criminal Law, The General Part, 2nd ed. (1961), pp. 51-2; Glanville Williams,
Textbook of Criminal Law (1978), p. 87; Smith and Hogan, Criminal Law, 4th ed.
(1978), pp. 104-5. The term "recklessly" is here used to denote the subjective state
of mind of a person who foresees that his conduct may cause the prohibited result
but, nevertheless, takes a deliberate and unjustifiable risk of bringing it about: see
Glanville Williams, Textbook of Criminal Law, pp. 70 and 76; Smith and Hogan,
Criminal Law, 4th ed., pp. 52-3.

P 26- wilful is The word "wilfully" has, however, also been held to mean no more than that the
intentional. accused's act is done intentionally and not accidentally. In R. v. Senior, [1899] 1
Q.B. 283, Lord Russell of Killowen, C.J., in interpreting the meaning of the words
"wilfully neglects" in s. 1 of the Prevention of Cruelty to Children Act, 1894
(U.K.), c. 41, said at pp. 290-1: " 'Wilfully' means that the act is done deliberately
and intentionally, not by accident or inadvertence, but so that the mind of the
person who does the act goes with it."

P 31/30- parliaments As previously indicated, the word "wilfully" does not have a fixed meaning, but I
intention in am satisfied that in the context of s. 281.2(2) it means with the intention of
definition of wilful. promoting hatred, and does not include recklessness. The arrangement of the
legislation proscribing the incitement of hatred, in my view, leads to that
conclusion.

Section 281.2(1), unlike s. 281.2(2), is restricted to the incitement of hatred by

communicating statements in a public place where such incitement is likely to lead
to a breach of the peace. Although no mental element is expressly mentioned in s.
281.2(1), where the communication poses an immediate threat to public order,
mens rea is, none the less, required since the inclusion of an offence in the Criminal
Code must be taken to import mens rea in the absence of a clear intention to
dispense with it: see R. v. Prue; R. v. Baril (1979), 46 C.C.C. (2d) 257 at pp. 260-1,
96 D.L.R. 577 at pp. 580-1, 8 C.R. (3d) 68 at p. 73. The general mens rea which is
required and which suffices for most crimes where no mental element is mentioned
in the definition of the crime, is either the intentional or reckless bringing about of
the result which the law, in creating the offence, seeks to prevent and, hence, under
s. 281.2(1) is either the intentional or reckless inciting of hatred in the specified
circumstances.

54
P 39- direct intent Having concluded that proof of an intention to promote hatred is essential to
and oblique intent constitute the offence under s. 281.2(2), it is necessary to consider the mental
attitude which must be established to constitute an intention to promote hatred. The
state of mind connoted by "intention", where an intention to bring about a certain
result is an element of the offence, has been the subject of much discussion, and
writers on jurisprudence, as well as Judges, have not always been in agreement as
to its meaning. Some eminent legal scholars hold the view that a consequence is not
intended unless it is desired, recognizing that a consequence may be desired not as
an end in itself but desired in order to accomplish some other purpose: see Salmond
on Jurisprudence, 8th ed. (1930), pp. 393-6 (but cf., the view of P. J. Fitzgerald, the
editor of the 12th edition, pp. 367-9; Holmes, The Common Law, pp. 52-3;
Glanville Williams, Textbook of Criminal Law, p. 51). Other eminent legal
scholars hold that the test of intention is not whether the actor desired the relevant
consequence, but whether he decided or resolved to bring it about, even though it
may have been distasteful to him:

P 40 There are cases which appear to provide support for the proposition that where an
intention to produce a particular consequence is essential to constitute the offence,
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:

P 41 There is, however, substantial support for the proposition that in the criminal law a
person intends a particular consequence not only when his conscious purpose is to
bring it about, but also when he foresees that the consequence is certain or
substantially certain to result from his conduct:see Glanville Williams, Criminal
Law, The General Part, 2nd ed. (1961), p. 38; Walter Wheeler Cook, Act, Intention,
and Motive in the Criminal Law (1916-17), 26 Yale L.J. 645 at pp. 654-8; Rollin
Perkins, A Rationale of Mens Rea, 52 Harv. L. Rev. 905 at pp. 910-1 (1938-39).

Smith and Hogan, the learned authors of Criminal Law, 4th ed., state at p. 51, that
the authorities referred to by them:

... suggest that in the criminal law generally, though not universally, a person
intends a consequence if it is his purpose to achieve it or if he knows that the
achievement of some other purpose is certain, or "morally" certain, to produce the
consequence in question.

55
P 43 In R. v. Lemon; R. v. Gay News Ltd., supra, Lord Diplock, however, defined
intention in much wider terms. He said that where intention to produce a particular
result is a necessary element of an offence, no distinction is to be drawn in law
between the state of mind of one who does an act because he desires to produce that
particular result, and the state of mind of one who, when he does the act, is aware
that it is likely to produce that result but is prepared to take the risk that it may do
so in order to achieve some other purpose.

P 45- Intention as to I agree, however (assuming without deciding that there may be cases in which
consequence. intended consequences are confined to those which it is the actor's conscious
Foresight of the purpose to bring about), that, as a general rule, a person who foresees that a
certainty of a consequence is certain or substantially certain to result from an act which he does in
consequence. Direct order to achieve some other purpose, intends that consequence. The actor's
intent is rare. foresight of the certainty or moral certainty of the consequence resulting from his
conduct compels a conclusion that if he, none the less, acted so as to produce it,
then he decided to bring it about (albeit regretfully), in order to achieve his ultimate
purpose. His intention encompasses the means as well as to his ultimate objective.

P 50- wilful means The learned trial Judge's view of the meaning of "wilfully" inevitably caused him to
reckless in this focus attention on the intentional nature of the appellants' conduct, rather than on
instance. the question whether they actually intended to produce the consequence of
promoting hatred. I observe that even if, contrary to the view which I have
expressed, recklessness satisfies the mental element denoted by the word "wilfully",
recklessness when used to denote the mental element attitude which suffices for the
ordinary mens rea, requires actual foresight on the part of the accused that his
conduct may bring about the prohibited consequence, although I am not unmindful
that for some purposes recklessness may denote only a marked departure from
objective standards. Where the prosecution, in order to establish the accused's guilt
of the offence charged, is required to prove that he intended to bring about a
particular consequence or foresaw a particular consequence, the question to be
determined is what was in the mind of this particular accused, and the necessary
intent or foresight must be brought home to him subjectively: see R. v. Mulligan
(1974), 18 C.C.C. (2d) 270 at pp. 274-5, 26 C.R.N.S. 179; affirmed 28 C.C.C. (2d)
266, [1977] 1 S.C.R. 612, 66 D.L.R. (3d) 627.

P 52- objective Since people are usually able to foresee the consequences of their acts, if a person
approach as to does an act likely to produce certain consequences it is, in general, reasonable to
inferring intent. assume that the accused also foresaw the probable consequences of his act and if
he, nevertheless, acted so as to produce those consequences, that he intended them.
The greater the likelihood of the relevant consequences ensuing from the accused's
act, the easier it is to draw the inference that he intended those consequences. The
purpose of this process, however, is to determine what the particular accused
intended, not to fix him with the intention that a reasonable person might be
assumed to have in the circumstances, where doubt exists as to the actual intention
of the accused.

56
 2.9.4 R. V. STEANE (1947) CCA

 Keywords: duress, ulterior intent, aiding and abetting

 Example of defence and analysis of ulterior intent.
FACTS:
 Steane is captured by Nazis and forced to distribute propaganda on the radio to save his family.
 Looks like a case where court must push towards Direct Intent
 Unfair to evaluate Steane as a reasonable person.
 Steane is under pressure/torture/POW
 Court feels uncomfortable applying “reasonable person” test in such a situation.
 Today we have duress as a defense as Actus Reus and Mens Rea are practically given.
 In 1947 such defences were underdeveloped.
 Thus they have to find a way to acquit Steane some other way based on his sympathetic
situation.
CHARGE: Defence (General) Regulations Reg. 2A, 1939 (1): doing acts likely to assist the enemy with
intent to assist the enemy.
ISSUES: Is Steane’s duress in the situation a mitigating factor and defence? OR Is ulterior intent (saving
his family) as culpable as intent?
DECISION: Steane is acquitted.
REASONING:
 The jury cannot assume the existence of criminal intent because the act was not done of free
will.
 The Crown must prove the criminal intent because the act was done either subject to the power
of the enemy, or with a corresponding innocent intent (of protecting his family).
IMPLICATIONS: This case establishes situations in which ulterior intent is a defence. However, there are
also cases in which ulterior intent is culpable and oblique intent can be substituted. It may be hard to
distinguish the two. For example if Steane decided the radio broadcasts would make him famous and
save his family. Is there then an oblique intent and contemplation of the consequences?

IMPORTANT QUOTES:

Intent is important. Specific intention is a necessary ingredient and the jury have to be satisfied that a
particular act was done with that specific intent, although the natural
consequences of the act might, if nothing else were proved, be said to show the
intent for which it was done.

If no intent, then but if on the totality of the evidence there is room for more than one view as to
acquittal the intent of the prisoner, the jury should be directed that it is for the prosecution
to prove the intent to the jury’s satisfaction, and if, on a review of the whole
evidence, they either think that the intent did not exist or they are left in doubt as
to the intent, the prisoner is entitles to be acquitted. … But, we repeat that where

57
 a particular intent must be laid and charged, that intent has to be proved.

Duress no guilty In our opinion it is impossible to say that where an act was done by a person in
intent. subjection to the power of others, especially if that other be a brutal enemy, an
inference that he intended the natural consequence of his act must be drawn
merely from the fact that he did it. The guilty intent cannot be presumed and must
be proved. The proper direction to the jury in this case would have been that it
was for the prosecution to prove the criminal intent, and that while the jury would
be entitled to presume that intent if they thought that the act was done as the
result of the free uncontrolled action of the accused, they would not be entitled to
presume it, if the circumstances showed that the act was done in subjection to the
power of the enemy, or was as consistent with an innocent intent as with a
criminal intent, for example, the innocent intent of a desire to save his wife and
children from a concentration camp. They should only convict if satisfied by the
evidence that the act complained of was in fact done to assist the enemy, and if
there was doubt about the matter, the prisoner was entitled to be acquitted.

2.9.5 R V WALLE [2012] SCC 41

KEYWORDS: common sense inference, shooting, gun, manslaughter

Example of “common sense inference” as to determining intent.

FACTS:

 Walle shot and killed a man.

 Was found guilty of manslaughter, was appealed, and then found guilty of second-degree
murder. Appealing that now in the SCC
 Argues that he did not have the MR for murder, and that the judge should not have used the
“common sense inference” to determine his intent.
 Claims that the gun misfired accidentally.

CHARGE: Charge of Murder 2nd degree

ISSUES: Can the trial judge have used common sense inference to determine his MR?

DECISION: Appeal dismissed, charge of murder remains.

REASONING:

Moldaver J

 Common sense inference is the right method of determining the accused MR based on the facts
and circumstances.
 Defense argues that you cannot use common sense inference when there are factors that
suggest that you are not reasonable. However court rejects this.

58
  Common sense can be used even when the accused is impaired.
 Cannot completely rely on this approach, but as long as the jury brings it back to the accused
mind, they can use the common sense inference as a tool.
 Has to be related to the accused, taking in all the circumstances, (e.g., that the man was drunk)

IMPLICATIONS:

IMPORTANT QUOTES:

P 36- common sense ..applied the “common sense inference”- that a sane and sober person intends the
inference reasonable and probable consequence of his acts- to the facts of this case

P 65- must bring In the end, what is critical is that the jury be made to understand, in clear terms,
back to the accused, that in assessing the specific intent required for murder, it should consider the
look at it entirely whole of the evidence that could realistically bear on the accused’s mental state at
the time of the alleged offence. The trial judge should alter the jury to the
pertinent evidence.

P 66/67- need to be After the jurors have been alerted to the pertinent evidence, they should be told
beyond a that if, after considering the whole of the evidence, they believe or have a
reasonable doubt. reasonable doubt that the accused did not have one or the other of the requisite
intents for murder at the time the offence was committed, then they must acquit
the accused of murder and return a verdict of manslaughter.

If, however, there is no evidence that could realistically impact on whether the
accused had the requisite mental state at the time of the offence, or if the
pertinent evidence does not leave the jury in a state of reasonable doubt about
the accused’s intent, then the jury may properly resort to the common sense
inference in deciding whether intent has been proved.

3. ACTUS REUS: OMISSION AND CAUSATION

3.1 AFFIRMATIVE ACTION

In general there is no legal duty to prevent harm or duty to report crime. We do not have assist others,
even if it would cause no harm to ourselves. We have an aversion to charging people for omissions.

There are 3 arguments against affirmative action laws:

1. Inability to differentiate between safe/unsafe affirmative action
 In Europe there is a duty to act (affirmative action). They simply say “a duty to act
where it would cause no harm to the interceding party”. This is conversely our
American defense, in that we say we can’t determine when such an action would be
safe to the interceding party.

59
 2. Limits personal freedoms
 The problem with affirmative action is that you never know when they will arise. They
are an imposition on our freedom because we couldn’t plan on it. We can’t plan for
emergencies. Such affirmative actions cause an imposition that we can’t avoid.
3. One can’t enforce benevolence.

Young: finds it reprehensible that our law allows such callous disregard. He agrees with argument (2)
above, but says fine, it is an imposition, but the law should say we have the duty.

3.2 ARGUING OMISSION CASES

Voluntary Omission:
A. Interpretation
 Does the offence contemplate omission by commission?
B. Is there a duty of care?
There are three duties which arise at common law:
4. 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.
5. Caretaker or Relationship of Care
 Ie. 215. Duties of care as a caretaker (paternal) relationships.
6. Causal duty to rectify a situation that you created.
 Ie. 263. Duty to put protective barriers around excavation
C. Was the duty of care breached?
 If you don’t help the person who falls in the hole you created, you breached the duty.

3.3 CASES

3.3.1 DUNLOP AND SYLVESTER V. R. (1979) SCC

 Keywords: aiding a abetting, omission liability

 Classic case examining omission liability and aiding/abetting.
FACTS:
 The accused were newly initiated members of a biker gang in Quebec.
 Members of the gang, perhaps including the accused gang-raped a woman in a field
 The accused hold that they arrived later and were in the same area, but did not participate in the
rape.
CHARGE:
Criminal Code s.21(1): Everyone 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.

60
ISSUES: Can the accused be held liable merely because they were present?
DECISION: The court can not find the defendants guilty if there is no prior knowledge and no action.
REASONING:
 This case actually hinges on an important evidentiary decision.
 The court must compare the victims’ claim of rape and the accused claim of mere presence.
 Mere presence at the scene of a crime is not sufficient to argue culpability. Something more is
needed. For example, if the defendants had known there was a rape, it could be argued that
their presence with prior knowledge of the rape was implicit encouragement.
 The evidence only shows presence and passive acquiescence. There is no evidence that the
accused rendered aid, assisted, or encouraged the offence, and there was no positive act or
omission that facilitated the crime.
IMPLICATIONS:
 Where there is no knowledge that an offence is being committed, the presence of accused at the
scene of the crime cannot be a circumstance which could be evidence of aiding and abetting.
 One has party liability for situations you can control and for ones statutory duties. In order to get
a conviction on a omission case you have to point out the source of this authority or explicit duty.
 Consider:
o Kulbacki (1967) – adult lets 16 year old drive car and crash
o Nixon (1990) – police officer lets inmate get beaten in station house
 Looking ahead, there is a common law duty to rectify any situation in which you were the author
of the situation or have the authority to change it.
 For 21.2, its objective unless its murder, in which case its subjective and you strike the “ought to
know”
IMPORTANT QUOTES:

P 31 Mere presence at the scene of a crime is not sufficient to ground culpability

P 34- Hawkins But the fact that a person was voluntarily and purposely present witnessing the
from R v Coney commission of a crime, and offered no opposition to it, though he might reason-ably
be expected to prevent and had the power so to do, or at least to express his dissent,
might under some circumstances, afford cogent evidence upon which a jury would
be justified in finding that he wilfully encouraged and so aided and abetted.

P 43- presence can Presence at the commission of an offence can be evidence of aiding and abetting if
be aiding and accompanied by other factors, such as prior knowledge of the principal offender's
abetting intention to commit the offence or attendance for the purpose of encouragement….A
person cannot properly be convicted of aiding or abetting in the commission of acts
which he does not know may be or are intended: per Viscount Dilhorne in D. P. P.
v. Maxwell[14], at p. 1144. One must be able to infer that the accused had prior
knowledge that an offence of the type committed was planned, i.e. that their
presence was with knowledge of the intended rape.

P 36- difference Two Canadian cases make the distinction between presence with prior knowledge,
between prior and accidental presence…This jury should have been instructed that if they found
knowledge and that the appellant was no more than passively acquiescent at the time of the shooting

61
 accidental presence and that she had no reason to expect that there would be any shooting until it actually
occurred, then s. 69 did not apply.

3.3.2 R. V. THORNTON (1990) ONT. C.A.

 Keywords: omission liability, legal duty

 A result oriented case. The courts clearly want Thornton to go to jail.

FACTS:
 A man, who is knowingly HIV positive, gives his blood to a blood bank.
 He knows about the consequences of donating the blood and that he would endanger the public.
 Clearly punishes commission and omission
A. doing an unlawful act
B. failing to discharge a legal duty
 The only question left; is there a duty to support the omission liability.
CHARGE:
Criminal Code s.180(1)(a) [s.176(1)(a)]: Every one who commits a common nuisance and thereby
endangers the lives, safety, or health of the public is guilty of an indictable offence and liable to
imprisonment for a term not exceeding two years.
In s.180(2)(a): For the purposes of this section, every one commits a common nuisance who does an
unlawful act or fails to discharge a legal duty and thereby endangers the lives, safety, health, property, or
comfort of the public.
ISSUES: Can a legal duty arise out of common law or must it be in a statute?
DECISION: He is guilty of common nuisance; but this decision though morally correct is poorly decided
judicially. Overturned by SCC 3 in 1993.
REASONING:
“unlawful act”:
 There is no law in the Criminal Code that prohibits donating infected blood.
“duty imposed by law”:
 Common Law duties prohibiting the donation of tainted blood: In the Criminal Code, s.219, “duty
imposed by law” forms part of the definition of Criminal Negligence. Therefore, cases in which
the defendant is accused of Criminal Negligence can be used to define “duty imposed by law”.
Example is Donoghue v. Stevenson: Neighbour Principle.
“endangers the…public”:
 Since screening tests are imperfect, there is a chance infected blood would get through.
Endanger does not necessarily mean damage; it means the possibility of damage. Donating HIV-
infected blood is high risk.
 While there is no general duty to prevent harm in the Criminal Code, the common law does
indicate such a duty.
 The court finds that, despite his testimony, he was fully aware of what would happen
IMPLICATIONS:
The SCC overturned this as the duty at common law is to broad and endangers the whole criminal act.

62
IMPORTANT QUOTES:

P 18 (court of That brief reference to jurisprudence in civil matters shows that there is deeply
appeal)- duty to embedded in the common law a broad fundamental duty which, although subject to
not harm many qualifications, requires everyone to refrain from conduct which could injure
another. It is not necessary to decide in this case how far that duty extends. At the very
least, however, it requires everyone to refrain from conduct which it is reasonably
foreseeable could cause serious harm to other persons. Accepting, as I have said, that a
"legal duty" within the meaning of that term in s. 180(2) includes a duty arising at
common law, I think that the common law duty to refrain from conduct which it is
reasonably foreseeable could cause serious harm to other persons is a "legal duty"
within the meaning of that term in s. 180(2).

P 20 (court of Counsel for the Crown referred to a number of cases where, at common law, the courts
appeal)- duty to held that the exposing of others to the risk of becoming infected by a contagious disease
not contaminate constituted a common nuisance.
others with
disease

3.3.3 THE KING V. LEWIS (1903) ONT. C.A.

 Keywords: relationship of care, breach of common law duty, omission liability

 Christian Scientist allows child w/ diphtheria to die – reasonable person test, must prove
understanding of circumstances.

FACTS:

 A Christian Scientist had a sick child

 They admitted that the child was sick enough that they would have taken it to a doctor if not for
their religion.
 The child ended up dying.

CHARGE:

Criminal Code s.210: Every one who as parent, guardian or head of a family, is under a legal duty to
provide necessaries for any child under the age of sixteen years, is criminally responsible for omitting,
without lawful excuse, to do so while such child remains a member of his or her household, whether such
child is helpless or not, if the death of the child is caused or if his life is endangered or his health is, or is
likely to be, permanently injured by such omission.

Replaced by s.222(5)(b): A person commits culpable homicide when he causes the death of a human
being:

B. by criminal negligence.

63
ISSUES:

Is the parent under a duty of care to provide medical treatment for the child?

If so did they breach that duty?

DECISION: Since the accused had full awareness of the seriousness of his child’s illness and still did not
provide care, he is found guilty of criminal negligence.

REASONING:

 There is a duty to provide “necessities” to children.

 Does necessity include medicine? (we’d never ask that now) but at the time medicine was still
emerging, but the court still feels it is accessible to all.
 You can be convicted of manslaughter by omission via s.215 in not providing the necessities of
life.
 There is a duty to protect the child.
 Did you breach the duty.
 The reasonable person standard is applied. This cuts out any “differences” within people. It will
not allow any unique duties.
 Religious belief is not a lawful excuse for omission. You can’t insert religious beliefs into the
“reasonable person” standard.
 The only real excuse is physical or monetary inability, which is a lawful excuse.
 Neglect is the omission of such steps that a reasonably prudent person would take.
 Convictions can be very strong. So why do we not accord them the same issues that arise from
physical or monetary issues?

IMPLICATIONS:

Young: who is not spiritual, believes that convictions warrant just as much consideration as physical acts.
In the case above he seriously doesn’t believe that parents of a dead child should be punished. They
clearly didn’t want it to happen.

3.4 CONTEMPORANEOUS FAULT

In commission liability cases the actus reus and mens rea of an event must occur at the same time for
them to incur the fault necessary for criminal sanction.

Continuing Act Theory of Liability

The question this raises is when and how far can we extend the temporal nature of the actus reus such
that it attains mens rea and when can we apply this concept of temporal stretching?

The concept is most easily applied in cases involving causation such as those triggered by “… causes…” ie
causing harm. In such a case we can stretch the actus reus up to the consequence, a defined period in
time, and if the mens rea arises in that time frame we can insert it into the act.

64
3.5 CASES

3.5.1 FAGAN V. COMMISSIONER OF METROPOLITAN POLICE

 Keywords: continuing act theory, contemporaneous fault, omission liability

 Examines an instance in which the temporal nature of the act can be stretched to a point at which we
can infer the mens rea was present.

FACTS:

 Person is asked to pull over by a police office.

 He pulls onto the cops foot, and when asked to move the car does not.
 He turns off the ignition, waited, then later moved.
CHARGE: Assault 265. (1) A person commits an assault when
A. without the consent of another person, he applies force intentionally to that other
person, directly or indirectly;
B. he attempts or threatens, by an act or a gesture, to apply force to another person, if he
has, or causes that other person to believe on reasonable grounds that he has, present
ability to effect his purpose; or
C. while openly wearing or carrying a weapon or an imitation thereof, he accosts or
impedes another person or begs.
ISSUE: Did Fagan commit assault on the officer?
DECISION: Fagan is responsible for the crime.
REASONING:
 Fagan says, the code doesn’t contemplate omission, so you have me on nothing because what I
did, was nothing.
 You can’t convict on assault for omission.
 The actus reus and the mens rea don’t occur at the same time.
 We can stretch the act in time best when we know the consequence. We can stretch the
temporality of the actus reus up to the consequence and if at some point the mens rea arises
that is enough.
 The law that Fagan is charged under is assault, and this crime does NOT contemplate omission,
so we can’t use an omission argument here.
 In this case, we can stretch his act of driving the car onto to cops foot to the point at which he
consciously stopped the car and stayed on the cops foot and developed mens rea.

IMPORTANT QUOTES:

Not necessary for AR and MR to be at the same That although the elements of actus reus and mens
time rea were necessarily present at the same time in an
assault, it was not necessary for the mens rea to be
present at the inception of the actus reus: it could
be superimposed on an existing act provided it was

65
 a continuous act.

3.5.2 MILLER (1981)

FACTS:

 Squatters go into an abandon building.

 One squatter falls asleep with a cigarette and lights a fire.
 The squatters wake up, see the fire, and move on to another room.
PROBLEM:
 When the fire was started it was an accident.
 When they woke up and found the fire they had performed only an act of omission.
APPLICATION:
 They apply the temporal stretching of time like in Fagan.
 The law in miller “contemplates” omission, but barely.
 We could also use a common law duty to rectify the danger one created. We can find liability
from omission because the law contemplates this argument.

3.6 ARGUING CAUSATION CASES

Whenever you see a consequence built into the actus reus, usually to raise the charge, we have to prove
that the person caused the result. This is normally quite simply. However, in complicated situations we
must ascribe moral responsibility.

Factual Causation:

“But For” test:

Would the result have occurred “but for” the defendants actions? This tells us only the necessary
conditions to the event. Not the sufficient causations. Normally this is answered in the affirmative.

Legal Causation:

 Legal causation arises when there are multiple causes/parties involved.

Legal causation is an attempt to ascribe blame and moral responsibility to the strongest cause. This is just
a policy decision. However the law has 3 tests:

66
 Foreseeability (CND): Attribute status of legal cause to deviations from the normal foreseeable
course of events.

Risk Theory (UK): 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: If an intervening cause is a voluntary and culpable intervention by a third

party then attribute the status of legal cause to this intervention (the chain of causation has been broken).

Test from Maybin

 Test for analyzing intervening causes:

o 1) Reasonable foreseeability: Was the general nature of the intervening act reasonably
foreseeable?

o 2) Independence: Was the intervening act sufficiently independent and overwhelming to

sever the impact of the accused’s actions?

3.7 CASES

3.7.1 R. V. SMITHERS (1977) SCC

 Keywords: foreseeability, but for, thin skull, contribution

 A classic case of foreseeability and its limits. Establishes the “but for”, “de minimus” and intervention
tests.
 Fight, faulty epiglottis causes death - guilty because of contributing cause of death, thin skull rule (take
victim as you find him).
FACTS:
 Smithers is in a hockey game and is provoked by another player.
 He waits after the game to fight the player (Cobb)
 He punches Cobb a once and Cobb goes down.
 Cobb chokes on his own vomit due to the malfunction of his epiglottis.
CHARGE: s.222 Manslaughter.
ISSUES: Does the malfunctioning of the epiglottis relieve Smithers of causation as it was not foreseeable?
DECISION: Attackers, like defendants in tort, must take their victims as they lie. Smithers is guilty of
manslaughter as his attack was a factual and legal cause of death.
REASONING:
Factual Causation:
 The but for test indicates that the death would not have occurred but for the kick to the stomach
by Smithers.
Legal Causation:

67
  Causation test: contribution that is beyond de minimis; the kick must be a contributing link
beyond the de minimus range; that is it just has to be a non-insignificant contributing factor
 The fact that the malfunctioning epiglottis occurred is dismissed due to thin skull.
 Causation is therefore dismissed
 There is no significant intervention, and legal causation only arises when there are competing
causes, in this case there is only one cause and we just need to show factual causation
IMPLICATIONS:
 clearly Smithers is civilly responsible, but where do you draw the line for criminal liability?
 It would seem that manslaughter is a little harsh for one kick, even if we want to punish kicking,
there needs to be a proportionality between fault and punishment.

IMPORTANT QUOTES:

P 21 It is important in considering the issue of causation in homicide to distinguish between

Causation causation as a question of fact and causation as a question of law. The factual
and factual determination is whether A caused B. The answer to the factual question can only come
casuation from the evidence of witnesses. It has nothing to do with intention, foresight or risk.

P25- intent I should like to adopt two short passages from a Case Note on R. v. Larkin[5] by G.A.
for death is Martin, as he then was, which appeared in (1943), 21 Can. Bar. Rev. 503 at pp. 504-5:
not
necessary in There are many unlawful acts which are not dangerous in themselves and are not
manslaughte likely to cause injury which, nevertheless if they cause death, render the actor
r guilty of culpable homicide, e.g., the most trivial assault, if it should, through
some unforeseen weakness in the deceased, cause death, will render the actor
guilty of culpable homicide.

In the case of so-called intentional crimes where death is an unintended consequence the
actor is always guilty of manslaughter at least. The act of the accused in R. v. Larkin fell
within the class of intentional crimes because he was engaged in committing an assault
upon Nielsen, and the fact that he caused a different type of harm to that which he intended
did not free him from criminal responsibility…

The Crown was under no burden of proving intention to cause death or injury. The only
intention necessary was that of delivering the kick to Cobby. Nor was foreseeability in
issue. It is no defence to

[Page 520]

a manslaughter charge that the fatality was not anticipated or that death ordinarily would
not result from the unlawful act.

68
3.7.2 R. V. BLAUE (1975) CA

 Keywords: voluntary intervention, chain of legal causation, personal choice

 A classic case of voluntary intervention and its limits.

 Johohovah’s Witness stab victim refuses transfusion and dies - An unreasonable or unexpected
intervention by the victim will not break the chain of causation, some see this as application of thin
skull rule.

FACTS:
 A girl, in the process of a break and enter is assaulted and stabbed.
 She is rushed to hospital, but due to religious beliefs refuses a necessary transfusion.
 She dies due to her refusal.
CHARGE: s.222 Manslaughter
ISSUE: Did the victims’ voluntary refusal to accept a transfusion interrupt the chain of events?
DECISION: Guilty. A break in the chain of legal causation by a third party must be both voluntary and
culpable. The victims intervention will not break the chain. In this case the victims act was found to be
voluntary, but not culpable.
REASONING:
 The victim made a culpable and conscious choice. We won’t allow people to take their lives, but
she, at least in part, acted contrary to this principle.
 However, the result also fell directly from the defendants actions.
 Note we can’t hold someone responsible for not taking greater care.
 We don’t expect people to throw up their hands and say “I’ll take death”
 It was an unforeseeable event that broke the chain.
 When we’re trying to assert that the victim was unreasonable the court suddenly has problems
with “reasonable person”.
 They court starts to hum and haw about the reasonable standard because they don’t like the
argument.
 “but for” the defendants action the events would not have occurred, and the court is unwilling to
recognize a break in the chain of events
 A chain will be broken if there is a voluntary and culpable break in the chain, this omission is
certainly not culpable, it may be voluntary, but the court views religion as non-voluntary
IMPLICATIONS:
This would seem to be decided incorrectly.
 It implies that medical malpractice does not break the chain of events.
 It implies that when choice is involved the initial act is still culpable which is counter-intuitive.
Medical intervention itself certainly doesn’t break the chain, unless they re-open an issue that was healed,
or there is malpractice.

Young: Smithers is civilly wrong, Blau is a rapist not a murderer. Both cases are decided incorrectly. You
can’t expect your victim to behave rationally/reasonably. As a result voluntary and culpable is improper
to attribute to the victim because victims will act unreasonably; they have been victimized and are in crisis

IMPORTANT QUOTES:

69
 (1415) P E- whose …It the thought the deceased’s decision not to have blood transfusion was
standards of being an unreasonable one, then the chain of causation would have been broken.
reasonable do you use? At once the question arises- reasonable by whose standards?

(1415) p G/H- thin skull
doctrine
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 judgement
means the whole man, not just the physical man. It does not lie in the mouth
of the assailant to say that his victim’s religious beliefs which inhibited him
from accepting certain kinds of treatment were unreasonable. The question
for decision is what caused her death. The answer is the stab wound. The
fact that the victim refused to stop this end coming about did not break the
causal connection between the act and death.

3.7.3 R. V. REID (2003) NSCA

 Keywords: chain of causation, factual causation, intervening act

 Headlock and kick, victim unconscious, CPR attempts cause victim to aspirate and die. Retrial requited
– judge did not properly instruct jury on intervening act, only cause – when there is an intervening act,
it is insufficient to examine causation alone.
FACTS:
 Some drunken friends have a scuffle, and on individual is kicked down on the ground an choked
briefly.
 He is found unconscious and efforts are made to revive him
 It is later found that revival attempts resulted in aspiration and killed him
 He was otherwise simply unconscious with no other major injuries
CHARGE: s.225: Where a person causes to a human being a bodily injury that is of itself of a dangerous
nature and from which death results, he causes the death of that human being notwithstanding that the
immediate cause of death is proper or improper treatment that is applied in good faith.
ISSUES:
 What is the proper language to use in instructing the jury regarding factual causation (that is how
do you speak about the “but for” test)?
 Was there a problem with the way the judge instructs the jury regarding causation and what
would constitute an intervening act that would break the chain of causation?
DECISION: New trial ordered.
REASONING:
Issue 1:
 The court of appeal does not like the charge to the jury of “not de minimus” as they don’t like
instruction in Latin.
 They want both positive and non-latin instruction.
 However, they won’t reverse the conviction based on this, in the end contribution, not de
minimus and not insignificant are all the same.
Issue 2:

70
  The court finds that the charge to the jury on the subject of legal causation was not sufficient.
 The judge did not bring home the idea of what was a significant intervening act, they were not
aware of what causes would break the chain, they just had a list of events.
The Supreme Court suggest that in instructing the jury we should:
a) Review all the evidence
b) Give them examples of what is a significant intervening act that would break the chain of legal
causation
Young: would add that the principle should be distilled as well
c) Does the act amount to factual causation?
d) Ask them to consider the legal causation and intervening act.
IMPLICATIONS:
These cases do well with juries, because they are sympathetic cases. Juries do not have to give reasons
and judges have to twist their reasons in result oriented and fact driven scenarios where they want to
make a “moral” judgement.

4. CAPACITY AND VOLUNTARINESS

All acts and omissions must be voluntary. Voluntary conduct presupposes a choice to act, so involuntary
conduct is always a valid defence, since a consciousness of the crime is required to convict. Unless there
is the capacity, and a fair opportunity or chance to adjust behaviour to the law its penalties ought not to
be applied.

The question of voluntariness runs deeper than consciousness. Mens Rea is about consciousness.
Voluntariness is about the Actus Reus itself and the very consciousness of self action. This is related to a
hugely problematic split between the mind and body.

“unless people have the capacity and a fair opportunity to adjust their behaviour to the law it’s penalties
ought not to apply”

- HLA Heart in Punishment and Responsibility

“Fair Opportunity” Claims

An external factor will be to blame (ie. a swarm of bees attacks you in a car). You were deprived of the
“fair opportunity” to act voluntarily. This hinges on the ability to blame another factor.

Responsibility for your own misfortune.

Courts are going to reject any claim you make if they think you set yourself up for the claim. That is, if you
are the author of the misfortune.

4.1 AUTOMATISM

71
The problem with voluntariness and the limits of “fair opportunity” arise when there are no external
factors to explain the involuntariness. There are two ways this proceeds:

1) Insane Automatism:
 The cause is an underlying metal or organic issue for which the person should be found
not criminally responsible by reason of mental disorder and thus committed to a
corrective institute (s 16).
 You only want to raise this defence for serious offences because its consequences are
still serious (an average of 7 years in an institution).
 The trial judge now decides what to do. Dispositions can include outpatient and
automatic dismissal.
 Usually only raised in serious offences. Insanity is and must be marked by an inability to
appreciate your actions and the impact to others
2) Non-Insane Automatism; the cause cannot be found in internal or external factors. This usually
arises when there is:
A. Physical blow
B. Psychological blow
 We have problems dealing with this as it is so easy to spoof, and so hard to
prove/disprove
 According to Rabey the blow must be of major significance according to an
objective standard

Steps to Non-Insane Defence (post Stone)

1) You must assert the claim (say you are pursuing non-insane automatism)
2) Mandatory expert testimony threshold
3) If it is psychological blow, it must be shown that it was an objectified “reasonable” blow
(upholding Rabbey).
4) Corroborating evidence from bystanders, if they exist.
5) Motive must be examined. If there is a pre-existing interpersonal conflict court will not buy the
defence.

Defence Note: In cases it is very important to have an independent third party to contradict the police
testimony. The courts will almost always favour the police evidence over an accused unless you can prove
them wrong. You will not win by arguing and tricking them, the police are professional witnesses.

4.2 CASES

4.2.1 R. V. RABEY (1980) SCC

 Keywords: automatism, non-insane, insane, psychological blow, physical blow, disease of mind
 Example of a non-insane automatism case.
 Male university student and rock. Classic form of automatism is physical blow automatism (more
straightforward) – this is a case of a psychological blow. Majority imposes a sort of reasonable person

72
 standard for psychological blows to draw the line between non-insane automatism and a “disease of
the mind.”
FACTS:
 Rabey is a classic nerd with poor social skills.
 He is infatuated with a girl he knows.
 He finds a note she wrote calling him a “nothing”
 He confronts her, and she says he is “just a friend”
 He snaps and hits her on the head with a rock he had taken from the geology lab.
CHARGE: s.267 assault with a weapon or causing bodily harm.
ISSUES: Was Rabey’s state of mind during the attack such that he was aware of his actions?
DECISION: New trial ordered.
REASONING:
These cases end up becoming the battle of experts.
Expert for Rabey:
 Rabey is a normal prior to the event and went into a severe disassociative state
3 Foundations for insanity that he says are not expressed:
i. Psychosis (loosing contact with reality)  No
ii. Nerosis (soft psychiatry, unreasonable behaviour ie OCD)  No
iii. Personality Disorder (lack of empathy)  No
Expert for Crown:
 Possible that he had prior or existing psychological issues.
 He has a disease of the mind; Nerosis.
 He wasn’t in a dissociative state.
 He was in a rage state and this would be voluntary.
Majority
 With two opposing views what can the judge do?
 Let the testimony of the accused and all others influence the decision, and the trial
 The judge objectifies the test for non-insane automatism.
 They ground the concept of loosing control to a reasonable standard, but that the psychological
impact on Rabey was not enough (merely part of normal life).
 The person of reasonable firmness would not be upset by this.
 “In my view, the ordinary stresses and disappointments of life which are the common lot of
mankind do not constitute an external cause constituting an explanation for a malfunctioning of
the mind which takes it out of the category of a disease of the mind”.
 Thus in the absence of evidence they assume that there is a mental disorder and refer it back to
the judge for a new trial.
 This is a policy consideration. We can’t let this guy off the hook, he committed an assault causing
bodily harm, but we equally can’t see committing him to an institution.
 By referring it back the SCC has essentially forced him to plead out.
Minority (Dixon)
 Everyone is presumed sane in the absence of proof (this runs counter to the majority decision of
metal disorder in the absence of proof).
 All acts must be voluntary and there is a burden for evidentiary burden if they want to raise
involuntary. Which is easy given the facts.

73
  No one should be sent to a mental hospital unless they truly have a mental disorder. We can’t
just send him there because we don’t know what else it could be.
 Dixon is smart, and he says there is a competing policy here.
 The key error pointed to by Dixon is that we have objectified the test for non-insane automatism
in a bad way.
 The defence of automatism should be available whenever you don’t cause the situation to
yourself
 There are no special rules that trigger the defence.
 However, there is a moral problem with all of this. We know something went wrong and are
wary to simply wash our hands of it.
RATIO: A psychological blow must be one that is more severe than a daily stressor.

4.2.2 R. V. PARKS (1992) SCC

 Keywords: sleepwalking, automatism, non-insane, insane

 Somnambulism is found to be an example of non-insane automatism.
 Iterates the test for internal/external cause of non-insane automatism.
 Sleepwalks and kills in-laws. Court examines “disease of the mind” and argues non-recurring nature
of somnambulism makes it non-insane. Court says shock has to be significant to get off on
automatism defence. Dissent argues court should impose preventive powers to protect public.
FACTS:
 While asleep, accused drove 23 miles to his mother-in-law’s house to kill her and his father-in-
law.
 Immediately after the incident, he confessed to the police and showed remorse.
 Expert witnesses all give credence to the claim.
CHARGE: 267 (Assault causing bodily harm), 229 (Murder 2)
ISSUES: If Parks was actually asleep is this a defence of non-insane automatism?
DECISION: Parks is found innocent.
REASONING:
 The Defence only need call attention to evidence that may indicate involuntariness (evidentiary
burden).
 Although automatism is a defence, the burden of proof of the voluntariness of the act is on the
Crown.
 Insane automatism requires a verdict of insane, but non-insane automatism requires a verdict of
acquittal.
 You don’t automatically get this defense, you must show impairment of either:
Cognitive
Not understanding the nature of your act.
Normative
Not knowing the difference between right and wrong.
Expert Evidence:
5 doctors (for accused and crown) say the same thing:
o aggression is quite rare
o people can do seemingly crazy things (such as driving) while sleeping

74
 o if there is aggression, then repetition is rare
o sleepwalking is not a recognize disease of the mind (as per DSM 4)
Tests (Laforet)
There are 2 basic tests we use and continue to use to distinguish insane and non-insane automatism:
Internal/External Cause Theory
 G. Arthur Martin; …caused by some internal defect, disease, or discernable neurological
disorder. Unfortunately most neurological problems are not discernable, so it is hard to
separate this from passing instances.
Recurrence Factor
 Pure policy. However, prediction of recurrence is a major problem. The SCC has
recognized that this is a policy issue that can’t be predicted. However it has to be so that
we can make an effort to keep dangerous offenders off the street.
Majority
 These tests don’t get us very far.
 Did Parks have an internal or external problem?
 There is no drug or way to identify or get rid of sleepwalking, so as far as we know there is no
internal cause.
 To a degree there may be an external cause, but we don’t know what it is beyond “bad sleep
hygiene”
 The family history is raised, but glossed over. Which is strange, as a family history would suggest
genetics. And this would go against Rabbey.
 Therefore we fall to recurrence.
 All doctors say no recurrence, so it’s an easy decision.
 Judges make note that this is a one time offer that may change on a different set of facts.
 There is no suggestion that this is binding case on sleepwalking, they may completely change their
minds based on new understanding/facts.
IMPLICATIONS:
 The tests for internal/external cause and recurrence only get us so far. Cases such as this hinge
on policy. This must be inferred to be a one-time decision that may change on another set of
facts.
 How can we differentiate Parks from Rabey?
o Motive (of Parks is empty)
o Lack of cover up (Parks called immediately while still at the scene)
o Lack of control over sleepwalking. (Whereas in Rabbey we feel we can control our
temper better)
IMPORTANT

75
  Two tests for insanity

o Two issues

 (1) Must have a disease of the mind or a mental disorder that is not a
psychiatric concept, a policy legal concept fueled by psychiatric evidence
 (2) Must have no/minimal chance of reoccurrence (part of the internal
cause idea. If it is an internal cause then it is most likely to reoccur)

 Never seen 16 go ahead without psychiatric analysis

 Has got to be a disease that affects you in a very specific way.
 No person is criminally responsible for an act committed or
an omission made while suffering from a mental disorder that
rendered the person incapable of appreciating the nature and
quality of the act or knowing it was wrong
o (NOTE Stone adds in an extra element of policy to this insanity test. Judge makes the
determination if you have a mental disorder based on policy)

IMPORTANT QUOTES:

P 46- continuing The continuing danger theory holds that any condition likely to present a recurring danger to
danger and the public should be treated as insanity.  The internal cause theory suggests that a condition
internal cause stemming from the psychological or emotional make-up of the accused, rather than some
external factor, should lead to a finding of insanity.  The two theories share a common
concern for recurrence, the latter holding that an internal weakness is more likely to lead to
recurrent violence than automatism brought on by some intervening external cause.

P 47- difference It would appear that the internal cause approach has gained a certain ascendancy in both
between Canadian and English jurisprudence.  The theory was the basis for deciding Rabey, where
something the distinction was described by Martin J.A., at pp. 477-78, as follows:
transient like
 
concussion
                  In general, the distinction to be drawn is between a malfunctioning of the mind
arising from some cause that is primarily internal to the accused, having its source in his
psychological or emotional make-up, or in some organic pathology, as opposed to a
malfunctioning of the mind which is the transient effect produced by some specific external
factor such as, for example, concussion.  Any malfunctioning of the mind, or mental disorder
having its source primarily in some subjective condition or weakness internal to the accused
(whether fully understood or not), may be a "disease of the mind" if it prevents the accused
from knowing what he is doing, but transient disturbances of consciousness due to certain
specific external factors do not fall within the concept of disease of the mind. . . .  Particular
transient mental disturbances may not, however, be capable of being properly categorized in
relation to whether they constitute "disease of the mind", on the basis of a generalized
statement, and must be decided on a case by case basis.

P 51- Recurrence is but one of a number of factors to be considered in the policy phase of the
disease of the mind inquiry.  Moreover, the absence of a danger of recurrence will not

76
 recurrence automatically exclude the possibility of a finding of insanity.

4.2.3 R. V. STONE (1999) SCC

 Keywords: automatism, non-insane, evidentiary burden, provocation

 Develops current guidelines for non-insane automatism defence.
 Kills verbally abusive wife. Good discussion of automatism issues. Discusses shift in evidentiary
burden to accused to prove non-mental-disorder automatism – important elements to examine are
internal cause, potential for recurrence, and policy considerations. Evidentiary threshold for accused is
discussed. Upholds Rabey, where we objectify automatism saying the shock has to be significant in
order to be able to get off on an automatism defense.
FACTS:
 A wife baits his husband (Stone)
 They are trapped in the car, and they pull over.
 The baiting rises to a frenzy.
 Stone hears a “wooshing” sound and “wakes up” to find he’s stabbed his wife 47 times.
 He puts the body in the back of the truck and flees to Mexico.
 To that we say “guilty” but he left the body in a clearly open place, which counters this, as guilty
people and with the guilty mind usually do a better job of hiding the facts.
 He has a dream in Mexico and remembers the killing and comes home to confess.
CHARGE: s.229 Murder
ISSUES: Was Stone provoked? Was his mental state such that he was not aware of his actions? Can mere
insult trigger automatism?
DECISION: Manslaughter (suggesting the Jury considered that Stone was provoked)
REASONING:
 They want everything to be pushed into section 16.
 If only we had another method to control non-insane after acquittal through some form of
treatment we would have this emasculation of the defence.
 In the future this becomes very hard to show any non-insane automatism. The courts have
pushed it away. They don’t want cases like Rabbey and Parks.
 APA quoted as saying there is no such thing as non-insane automatism, there must be a cause.
So essentially only external blow will work. The court doesn’t go quite so far but says if you claim
non-insane and can’t show an external factor, we will consider non-insane but only in the most
rare of cases.
IMPLICATIONS: Burden of proof is now clearly on the accused to prove non-insane automatism. The SCC
doesn’t want to see these cases.

4.2.4. R V(2012) SCC 24

77
Keywords: Manslaughter, Causation, Punching in the head during barroom altercation, third party
intervener
FACTS:
 At a bar, accused brothers punched victim in the head repeatedly.
 Bouncer arrived and struck the victim in the head.
 Medical evidence was inconclusive about which blow caused death.
CHARGE: Manslaughter; s 222 (5) (a)
ISSUES: Did the intervening act absolve the accused from responsibility for manslaughter?
DECISION: Guilty. Appeal dismissed.
REASONING:
Majority: Karakatsanis
 General nature of intervening at was reasonably foreseeable to Maybin.
 The intervening act was not sufficiently independent- it was part of a chain of events that Maybin
started.
 The injuries caused by the bouncer were not “overwhelming” enough to make the effect of
Maybins injuries merely a part of the history
 The bouncer was not independent of Maybin’s assault.
 Test for analyzing intervening causes:
o 1) Reasonable foreseeability: Was the general nature of the intervening act reasonably
foreseeable?
o 2) Independence: Was the intervening act sufficiently independent and overwhelming
to sever the impact of the accused’s actions?

IMPORTANT QUOTES:

P 16- legal causation Legal causation, however, is a narrowing concept which funnels a wider range of
factual causes into those which are sufficiently connected to a harm to warrant a
legal responsibility…Legal causation, which is also referred to as imputable
causation, is concerned with the question of whether the accused person should be
held responsible in law for the death that occurred.

P 14- causation in In Smithers, this Court pronounced the test for causation in manslaughter as “a
manslaughter contributing cause of death, outside the de minimis range”

P 15- factual In Nette, this Court affirmed the validity of the de minimis causation standard
causation “but for expressed in Smithers for culpable homicide.  Writing for the majority, Arbour J.
test” noted that causation in homicide cases involves two aspects:  factual and legal
causation.  Factual causation is “an inquiry about how the victim came to his or her
death, in a medical, mechanical, or physical sense, and with the contribution of the
accused to that result” (Nette, at para. 44).  The trier of fact usually asks:  “But for”
the action(s) of the accused, would the death have occurred?  Factual causation is
therefore inclusive in scope.

P 21/22- intervening In a homicide trial, the question is not what caused the death or who caused the
causes death of the victim but rather did the accused cause the victim’s death.  The fact

78
 that other persons or factors may have contributed to the result may or may not be
legally significant in the trial of the one accused charged with the offence. (22] The
fact that the bouncer’s act may have been a novus actus interveniens, or an
intervening act, is part of the analysis of whether legal causation has been
established and whether the appellants should be held legally accountable for the
death.

P 30- intervening act An intervening act that is reasonably foreseeable will usually not break or rupture
the chain of causation so as to relieve the offender of legal responsibility for the
unintended result.  This approach posits that an accused who undertakes a
dangerous act, and in so doing contributes to a death, should bear the risk that other
foreseeable acts may intervene and contribute to that death.  Because the issue is
whether the actions and consequences were reasonably foreseeable prospectively, at
the time of the accused’s objectively dangerous and unlawful act, it accords with
our notions of moral accountability.  This approach addresses the question:  Is it
fair to attribute the resulting death to the initial actor?

P 31 -has to be Courts have sometimes couched the principle of foreseeability in different terms,
unusual or asking whether the intervening act is so “extraordinary” or “unusual” that the
extraordinary to not accused should not be held responsible for the consequences of that act. 
be foreseeable

P 38- general nature …it is the general nature of the intervening acts and the accompanying risk of harm
needs to be that needs to be reasonably foreseeable.  Legal causation does not require that the
foreseeable accused must objectively foresee the precise future consequences of their conduct. 
Nor does it assist in addressing moral culpability to require merely that the risk of
some non-trivial bodily harm is reasonably foreseeable.  Rather, the intervening
acts and the ensuing non-trivial harm must be reasonably foreseeable in the sense
that the acts and the harm that actually transpired flowed reasonably from the
conduct of the appellants.  If so, then the accused’s actions may remain a significant
contributing cause of death.

P 47- if original an intervening cause shields the accused from responsibility only if the accused’s
cause is still act is “merely the setting in which another cause operates” (p. 43).  Or, put another
operative and way, only if the intervening cause “is so overwhelming as to make the original
potentially fatal, and wound merely part of the history” leading to the victim’s death (p. 43).  Ultimately,
a part of the setting, the court articulated the standard as:  “. . . if at the time of death the original wound
then the causation is still an operating cause and a substantial cause, then the death can properly be
chain has not been said to be the result of the wound” (pp. 42-43). 
broken and the
original wound is
still the cause of the

79
death.

P 49- voluntary and Whether an intervening act is independent is thus sometimes framed as a question
culpable of whether the intervening act is a response to the acts of the accused.  In other
intervention, if the words, did the act of the accused merely set the scene, allowing other circumstances
third party is simply to (coincidentally) intervene, or did the act of the accused trigger or provoke the
responding to the action of the intervening party?
acts of the accused,
then it does not
break the chain.

S 59/60- conclusion [59] In this case, then, the trial judge could have found that the bouncer acted in
direct and virtually immediate reaction to what the appellants did; that the
bouncer acted after asking who had started the fight; and that his act was responsive
and not coincidental conduct.  It was open to the trial judge to find that the
bouncer’s act was closely connected in time, place, circumstance, nature and effect
with the appellants’ acts and that the effects of the appellants’ actions were still
“subsisting” and not “spent” at the time the bouncer acted (Tower, at para. 26).  The
evidence could support the conclusion that the blow delivered by the bouncer was
not so “overwhelming” as to make the effect of the original assaults merely part of
the history so that it can be said that the original assaults were not “operative” at the
time of death (Smith).  I conclude that it was open to the trial judge to find that the
assault of the bouncer was not independent of the appellants’ unlawful acts and that
the appellants’ actions remained a significant contributing cause of the victim’s
death.  Arguably, the dangerous and unlawful acts of the appellants were not so
remote to suggest that they were morally innocent of the death.

7.      Conclusion

[60] Courts have used a number of analytical approaches to determine when an

intervening act absolves the accused of legal responsibility for manslaughter. 
These approaches grapple with the issue of the moral connection between the
accused’s acts and the death; they acknowledge that an intervening act that is
reasonably foreseeable to the accused may well not break the chain of causation,
and that an independent and intentional act by a third party may in some cases
make it unfair to hold the accused responsible.  In my view, these approaches may
be useful tools depending upon the factual context.  However, the analysis must
focus on first principles and recognize that these tools do not alter the standard of
causation or substitute new tests.  The dangerous and unlawful acts of the accused
must be a significant contributing cause of the victim’s death.

80
4.3 MENTAL DISORDER

Psychopathy is a mental illness, not necessarily insanity. Psychopaths are not necessarily looking to kill
people, but are only more likely to kill people when triggered. This is not a genetic characteristic but a
nurtured characteristic and therefore not considered a valid defence. However, the accused must be fit
to stand trial according to:

s.2 definition “unfit to stand trial”

Unable on account of mental disorder to:
A. Understand the nature or object of proceedings
B. Understand the possible consequences of the proceedings.
C. Communicate with counsel.

Medical expert witnesses are a fundamental part of trials of this nature and in determining fitness to
stand trial and mental disorder.

If you have mental disorder you are:

1. Incapable of appreciating nature and quality of your act
2. Incapable of knowing between right and wrong

The problem with Mental Disorder is the same as Non-Insane Automatism. There is a mercenary nature
of psychiatrists. Our knowledge of mental disorder is problematic again.

4.4 THE M'NAGHTEN RULE

 Persons acting under the influence of an insane delusion are punishable if they knew at the time
of committing the crime that they were acting contrary to law.
 Every man is presumed sane and to have sufficient reason to be held responsible for his crimes.

 A person under a partial delusion is to be considered as if the facts with respect to which the
delusion exists were real.

 To establish a defense on the ground of insanity each element of it must be clearly proved that:

I. at the time of committing the act,

II. the accused was laboring under such a defect of reason, from disease of the mind, as not
to know the nature and quality of the act he was doing

OR

III. if he did know the nature and quality of the act, the accused was laboring under such a
defect of reason, from disease of the mind that he did not know he was doing what was
wrong.

81
 UNLESS:

IV. the accused was conscious that the act was one that he ought not to do

AND

V. if the act was at the same time contrary to the law of the land,

THEN

VI. the accused is punishable.

4.5 CASES

4.5.1 R. V. ABBEY (1982) SCC

 M'Naghten Test is the foundation for s.16, though we have modified it. We have changed
“knowledge” to “appreciation”.

 Delusion of some undefined immunity from prosecution does not bring accused within either arm of
the insanity test: (a) incapable of appreciating the nature and quality of the act or of knowing that it
was wrong (actus reus) and (b) incapable of appreciating the nature and quality of his act (mens rea) of
the offence. The evidence was clear that the accused knew that his act was wrong according to law and
his inability to appreciate the penal consequences was irrelevant to the question of legal insanity.

FACTS:
 Abbey suffers from hypomania (frantic).
 He goes down to Peru, and acts strangely (liking dew off trees etc)
 He comes back from Canada with 150g of Cocaine
 He says he was compelled by a cosmic force to do this.
 He believes he was cosmically protected by this force even if his actions are wrong.
 He was aware that his actions were wrong.
CHARGE: NCA s.5, possession and trafficking of cocaine
ISSUES: Were Abbey’s delusions of cosmic protection and force consistent with a delusion or insanity that
would negate punishment?
DECISION: A mental disorder does not exist when there is a lack of the emotional appreciation for the
results of your actions to yourself. The accused can not be found insane under s.16(2).
REASONING:
 M'Naghten Test is the foundation for s.16, though we have modified it. We have changed
“knowledge” to “appreciation”. Appreciation meaning that we understand the implications as
well as knowledge of what we are doing. This is much more active than knowledge, which is
where we set the bar in s.16.
 In short, if you can’t appreciate the physical consequences of your action you can’t form the
requisite mens rea for an offence.

82
  In Canada, the fact that a person who is psychopathic cannot ‘emotionally appreciate’ the nature
and quality of the act cannot be used as a mental disorder defence. Only a lack of intellectual
appreciation can be considered a mental disorder.
 Abbey may have been unable to appreciate the nature of his act, but he was aware that it was
wrong.
 The only thing that will get you into s.16 is the incapacity to understand what the physical
situation is.
 We will not focus on a loss of volitional control.
 If you knew it was cocaine, and you knew it was illegal, that’s all we’ll need.
 After Abbey they changed it from legally wrong to morally wrong.
 Everything turns on how the illness impacts your perceptions of reality.
 This is problematic. Our focus is on what we do to others. But we don’t look at the reflection on
the defendant.
IMPLICATIONS:
 Even though Abbey though he was protected under his delusions from prosecution, which
certainly lead to his flaunting of the law, he is found guilty. However, that delusion goes to the
core of his actions.

4.5.2 R. V. OOMMEN (1994) SCC

 Paranoid delusions inspire murder – making him believe specific act was justified broadens the s. 16
Mental Insanity claim, requiring understanding the specific act was wrong to ascertain capacity, rather
than just general ability to discern right from wrong. (difficult to tell what implications of this are
going to be).

FACTS:
 Suffers from paranoid psychosis
 He brings a friend into his home.
 She becomes part of the conspiracy, and he believes that she is a worker for a union out to get
him.
 He makes a pre-emptive strike and kills her.
CHARGE: s.229 Murder
ISSUES: Does a lack of capacity to understand reality a mental disorder?
DECISION: s.16 mental disorder. Remanded to a mental institution.
REASONING:
 The crux of the issue becomes rational choice.
 The Crown argued that he knows right from wrong morally, even if he couldn’t apply it.
 Given s. 16 by definition, it looks like this is a correct approach.
 However the SCC redefines the inquiry.
 Focus is not on general capacity, but rather that the act was wrong in the given circumstances.
You must have the abstract concept, and the ability to apply it.

83
  As a result, the more your delusion deviates from normality, the less likely it is you made a
rational choice.
 “the crux of the inquiry is whether the accused lacks the ability to make a rational choice based
on their delusions”
 Because the defendant believed people were out to kill him, he was not in a position to decide
rationally what to do and if a pre-emptive/defensive strike was the required response.
 We will not, as with a rational response, ask what other options there were because to that
person there were no other options.
 If you’re cognitive impairment makes it impossible for you to be rational then you will fall into s.
16
IMPLICATIONS:
 The court, in comparison to Abbey, appears to be opening the definition of insanity slightly.
Under these rules Abbey would probably fall under s.16 as well as he wasn’t making a rational
choice based on his delusions.

4.6 INTOXICATION

Alcohol and drugs impair judgment and decision-making ability. While historically intoxication is not a
defence, in the 19th century it began as a way to negate the mens rea element of a crime. The alcohol
renders the accused morally innocent, in that there is no mens rea attached to the actus reus. In order to
address the situations in which intoxication can negate mens rea we created an artificial divide in crimes:

Types of Crimes:

1. General Intent: Don’t require purpose or planning.

A. The actus reus is enough to assume intent and knowledge of the consequences.
Deliberate action is required but purpose is not.

B. Intoxication cannot negate the mens rea unless it is not self-imposed.

2. Specific Intent: A product of preconception and a deliberate goal.

A. Require a mens rea of the consequences and a further intent or purpose.

B. Intoxication can negate the mens rea especially if extreme. This is done via a
substituted mens rea approach substituting the mens rea of drinking for the mens rea of
the impugned act.

Examples:

Specific Intent Crimes

 Murder
 Attempted Murder

84
  Break and Enter with Intent
 Theft
 Robbery
 Aiding/Abetting

General Intent

 Manslaughter
 Rape
 Assault

History of Intoxication Rule

R v. Beard
Historically there was no rule against intoxication, now we have:
Insanity arising from intoxication is recognized.
If the specified intent cannot be formed then they can be acquitted.
We have the new concept of specific/general intent for intoxication (and only for intoxication)

Specific intent crimes will have the intoxication go to the jury.

General intent crimes will exclude intoxication (unless it was not self imposed)
R v. George
Applies the Beard rules in Canada
George was charged with robbery
Robbery is Theft and Assault
Theft is a specific intent crime (Acquittal if intoxicated)
Assault is a general intent crime (Intoxication not considered)
In theory the more mens rea there is the more you are required to think.
The more mens rea that is required, the more it is likely to be specific intent.
Thus with intoxication we have an additional step in deconstructing a crime. We perform the actus
reus, mens rea break down, then look at mens rea to decide if it’s general or specific.
Clearly the court wants to allow exclusion for intoxication, but not for murder so assault becomes
general.
R v. Leary
 Full adoption of Beard
 Leary is also the first time we see dissent from judges regarding what specific/general intent
means.
R v. Bernard
 Post charter case
 Sexual assault charge, which is general intent.
 Court divides 3 ways and can’t agree on Leary rule
 Leary rule is seen as contrary to s. 7 of the charter which demands fault.
 Leary is seen as imposing absolute liability.
 McIntyre: Traditionalist view, and likes the policy considerations of Leary.

85
  Wilson: If we have intoxication approaching insanity then it should be a factor in the
considerations as an exception.
 The court wants to move towards an Australian position. That is, intoxication should be another
factor of no special import.
Implications
 The way the above was justified was through “substituted mens rea”.
 The mens rea of the crime doesn’t have to exists, there just had to be a generic recklessness in
drinking and causing the situation to start with.
 This is essentially the attachment of a free floating pre-existing bad thought to the mens rea
aspect of the crime.

4.7 CASES

4.7.1 DAVIAULT V. THE QUEEN (1994) SCC

 Cory J. opens the door to intoxication excuse for general intent offences (in cases of extreme
intoxication akin to automatism). Sopkina J. dissents holding that Leary rule must stand and voluntary
intoxication is sufficient mens rea for general intent offences. S. 33.1 of the Code follows Sopinka’s
judement. S33.1 maybe unconstitutional, disagreement has yet to be resolved by the SCC.

FACTS:
 Daviault goes to a friends house for a drink.
 She is partially paralyzed.
 He drinks a 40oz bottle of brandy.
 His BAC is estimated at .4 - .6
 He rapes his friend.
CHARGE: Sexual Assault
ISSUES: Does voluntary intoxication negate the intent required for a general intent crime?
DECISION: Acquitted. However, later a rule is overridden by a statute that may be unconstitutional as it
overrides a constitutional decision (33.1).
REASONING:
 The majority believes that the rule in Leary offends the charter s. 7 because people without
mens rea are being convicted.
 They believe that the substituted mens rea technique is contrary to general principles and we will
only allow substitution when the element substituted element inexorably leads to the result.
That is, if drinking always caused violence (a sufficient condition) then we could perform
substation.
 The presumption that people are reckless in drinking is not definite enough, there is some
correlation, but it is not fair to substitute in all cases
 There will be a defence of extreme intoxication for general intense crimes but ONLY when the
defence shows, on a balance of probabilities, that there was extreme intoxication
 Overall follows the Wilson decision and Australian direction in Bernard
 General offences can be negated by extreme intoxication
IMPLICATIONS:

86
  Post Daviault: Section 33.1 is then enacted due to public outcry over allowing Daviault and allow
a drunken rapist to go free. This section essentially imports the Leary rule directly into the
criminal code. As such general intent crimes cannot be negated by intoxication at all. This
statute may be unconstitutional but has not be challenged yet.
 Generally the requirement that there must be mens rea is strictly applied in situations where
there is high stigma.
 We will basically argue these cases by looking at case history to see what the crime in
characterized (general or specific).
 If there is no case history, then we look at the mens rea of a case and argue that it is strong
enough to be either general or specific (depending on if we are the crown or defence). Specific
intent crimes can have intoxication go to the jury/judge (using a substituted mens rea approach).
General intent crimes cannot.

5. ACTUS REUS - CONSENT

5.1 ASSAULT

Everything changed in 1983 because we were taking rape out of criminal code, and were going to change
this into assault in general.

There are 3 tiers of assault and sexual assault now.

 s. 265 starts it all
Assault (Sexual Assault)
266 (271)  straight assault
267 (272)  circumstances and consequences are added
268 (273)  severity increases again, bodily harm

Knowing that most cases will turn on the issues of consent, the decision will focus on the victim in
determining their motive in the acts, that is

Shield Laws
Rape Shield Laws (Seaboyer Application): If you want to ask about past sexual incidents you must make an
application.
Psychiatric history (O’Connor Application): If we want to disclose psychiatric history we must make an
application.

Voir Dire
A pre-trial is normally used to identify evidentiary issues. This establishes all the contentious positions.

87
Nullification of Consent
There are situations for regular assault and sexual consent will be nullified as per:

265.3 (Regular Assault Nullification)

For the purposes of this section, no consent is obtained where the complainant submits or does not resist
by reason of
A. the application of force to the complainant or to a person other than the complainant;
B. threats or fear of the application of force to the complainant or to a person other than the
complainant;
C. fraud; or
D. the exercise of authority.

273.2 Sexual Assault Nullification

No consent is obtained, for the purposes of sections 271, 272 and 273, where
A. the agreement is expressed by the words or conduct of a person other than the complainant;
B. the complainant is incapable of consenting to the activity;
C. the accused induces the complainant to engage in the activity by abusing a position of trust,
power or authority;
D. the complainant expresses, by words or conduct, a lack of agreement to engage in the activity; or
E. the complainant, having consented to engage in sexual activity, expresses, by words or conduct,
a lack of agreement to continue to engage in the activity.

Chase – The test for sexual Assault

The Chase case determines the test for separation between sexual assault and regular assault. This is
rarely a situation of contention. Nonetheless we have a test for usage.

The test for sexual versus straight assault:

 The part of the body touched.
 The nature of the contact.
 The situation in which it occurs.
 The words and gestures accompanying the act.
 All other circumstances surrounding the contact.
 Threats which may have accompanied the force.
 The intent or purpose of the person committing the act.

5.1.1 R. V. LEMIEUX

 Confirms that consent can be implicitly read in to a crime even if it doesn’t exist explicitly.
FACTS:
 Classic entrapment
 A staged break and enter is set up by the police with the help of an aid.
 The police get the permission of the

88
IMPLICATIONS:
 Even when consent is not written in the crime, it is often read in.
 This makes sense, as when you consent to something you create an agreement between
individuals and the state has no interest.
 This leads us right to Jobidon as we have an explicit limit of consent: If nontrivial bodily harm is
intended and caused then consent is negated.

5.1.2 R. V. JOBIDON

 A revolutionary change in the law.

 Consent is being read out of a charge, not into the charge like in Lemieux
 Consensual fist-fight resulting in death. Majority disallows consent defence in this situation and
situations where the fighting is violent and has no social utility. Dissent says convict based on the
nature of consent rather than social utility in the eyes of the judge and public policy.
FACTS:
 Jobidon gets in a fist fight at a bar.
 The fight is broken up and they agree to move it outside.
 They continue the fight outside, but his opponent is killed by a punch and he doesn’t recognize
this.
DECISION: Jobidon is responsible for his actions even though there was consent, it is limited.
REASOING:
 There has been a historical acceptance that there are limits to consent.
 Utility or value to the act is cited as an important factor, in this case there is very little social
value.
For Jobidon
Structural

 S. 265(1)(a) - person commits an assault when "without the consent of another person" he applies
force intentionally to that other person, directly or indirectly.
 S. 265(3) - no consent is obtained where the complainant submits or does not resist by reason of,
inter alia, threats or fear of the application of force or fraud.

 there are other offences where consent is negated in the act

 when consent is removed, they will explicitly do so ie s.14
 consent is not explicitly removed by the code
Legislative History
 the court has been careful not to intercede in issues where people are dumb enough to consent
to fist fights and so forth
Doctrinal
 Contracting case law on this subject
 Heavily steeped in UK jurisprudence
 The British offense is a common law offense, we have a statute, parliament has spoken.
Against Jobidon

89
  As a result of the arguments above the court really has to twist and turn to get common law back
into the picture.
 The court wants to use it to illuminate, and actually replace the words, or insert, into the statute.

Public policy
 consent to a fist fight limited in s. 265 for public policy reasons. (It is not in the public interest that
adults should willingly cause harm to one another without a good reason).
Social Value
 limitation on consent demanded by s. 265 does not affect validity of freely giving consent to
participate in rough sporting activities, so long as the intentional application of force to which one
consents is within the customary norms and rules of the game. Unlike fist fights, sporting activities
and games usually have a significant social value.
Limited to violent fighting
 restricting the limits on effectiveness of consent to cases involving adults means that the ordinary
school yard scuffle, where boys or girls immaturely seek to resolve differences through fighting,
will not come within the scope of the limitation.

Sopinka (minority)
 Wants to stay away from social policy, and would examine it based on consent. The trial judge
found that consent given by deceased did not extend to a continuation of the fight once he had lost
consciousness. The accused knew he was unconscious, therefore consent was vitiated.
IMPLICATIONS:
 A huge sea change in the laws, saying that consent is limited and can be read out of the code
where the judiciary sees fit. This is not an incremental change. It has a huge scope.

IMPORTANT QUOTES:

P 36- death from The offence of assault is a foundation offence upon which other offences against the
assault leads to person are constructed.  Of course assault is also unlawful.  It therefore follows from
manslaughter s. 222 that when an assault is committed and causes the death of a person, the assailant is
thereby criminally liable for manslaughter.  It also follows that if consent acts as a defence
to assault, it will indirectly act as a defence to a charge of manslaughter based on assault.

P 68- consent to    Section 14 nullifies consent to the infliction of death in a broad and open-textured
death is not fashion.  It provides:
allowed.
 

               14.  No person is entitled to consent to have death inflicted on him, and such
consent does not affect the criminal responsibility of any person by whom death may be
inflicted on the person by whom consent is given.

                  A final argument made by the appellant is that by enacting s. 14 of the Code,
Parliament reflected its intention to negate consent solely in situations where death was
intended to be caused.  With other situations, and with forms of conduct like the fist fight
between Jobidon and Haggart where that consequence was not intended, consent should

90
 be given full legal effect.  In other words, the appellant suggested a version of the
interpretative principle expressed by the maxim expressio unius est exclusio alterius.  But
this argument also fails.

P 121- Law is All criminal law is "paternalistic" to some degree -- top-down guidance is inherent in any
paternalistic prohibitive rule. 

P 110- public Foremost among the policy considerations supporting the Crown is the social uselessness
policy on fist of fist fights.  As the English Court of Appeal noted in the Attorney General's Reference, it
fighting is not in the public interest that adults should willingly cause harm to one another without
a good reason.  There is precious little utility in fist fights or street brawls.  These events
are motivated by unchecked passion.  They so often result in serious injury to the
participants. 

P 125- consent is Vitiates consent between adults intentionally to apply force causing serious hurt or non-
vitiated when hurt trivial bodily harm to each other in the course of a fist fight or brawl. 
or harm is applied.

P 126/127- Stated in this way, the policy of the common law will not affect the validity or
sporting games is effectiveness of freely given consent to participate in rough sporting activities, so long as
an exclusion the intentional applications of force to which one consents are within the customary norms
and rules of the game.  Unlike fist fights, sporting activities and games usually have a
significant social value; they are worthwhile.  In this regard the holding of the
Saskatchewan Court of Appeal in R. v. Cey, supra, is apposite.

                  The court's majority determined that some forms of intentionally applied force
will clearly fall within the scope of the rules of the game, and will therefore readily ground
a finding of implied consent, to which effect should be given.  On the other hand, very
violent forms of force which clearly extend beyond the ordinary norms of conduct will not
be recognized as legitimate conduct to which one can validly consent.

P 148- Sopinka- It appears clear from the findings of the trial judge that the accused had an honest belief in
consent is vitiated consent but that consent extended only until Haggart "gave up or retreated".  The extent of
after man is the consent given by Haggart did not, therefore, extend to being struck once he had been
unconscious. knocked unconscious.  The accused knew that Haggart's consent did not extend beyond
consciousness.

91
5.1.3 R. V. EWANCHUCK

 Burden shifts to accused to prove consent.

 Movement towards explicit clear consent in sexual cases.
FACTS:
 In the course of a “job interview” the accused invites the victim into his trailer.
 He touches her and is told no.
 He waits, then initiates touching again.
 This is repeated until she has the nerve and is allowed to leave.
CHARGE:
DECISION: The
REASONING:
How much are we going to consult the victim and perpetrators in making these decisions?
Core of Case
 p. 107: “The accused cannot rely on the complainant’s silence or ambiguous conduct to initiate
sexual contact.”
 Previously the burden was on the victim to protect their sexual integrity.
 Now the burden is on the accused.
 Consent will not be inferred from a lack of resistance.
 p. 107: “Moreover, where a complainant expresses non-consent, the accused has a corresponding
escalating obligation to take additional steps to ascertain consent.”
 What the law now requires is an explicit conversation to determine if the sexual conduct is
consented to. But this is hard to apply to normal situations.
 The extent of consent is still not really known. However, the fact is there has to be some testing of
the waters, but if a no is raised, it must extend.
 There is now a simple removal of implied consent in sexual assaults. This is unique to 273 and is
not replicated in 275.

Actus reus of sexual assualt established by:
1. proof of touching,
2. the sexual nature of the contact and
3. absence of consent
Mens rea of sexual assualt established by:
1. intention to touch
2. knowing of, or being reckless of, or
wilfully blind to, a lack of consent. (mens
rea for the circumstance).

Actus Reus
 touching
 Clearly this occurred and was voluntary.
 sexual nature of contact
 This is our first example of departure, the court will never say this is important.
 absence of consent

92
  This will be measured subjectively using the complainants testimony.
 If the complainant said there was no consent this is proved.
 The judge can override this, but it is not clear when, and thus far it has never
occurred.
Mens Rea

 willful blindness in relation to circumstance, and recklessness in relation to consequences.

 This whole case hinges on the mens rea, that is “mistaken belief” in consent.
 Again this is measured subjectively based on what the accused actually thought and whether
they honestly believed.
 The only belief that can vitiate consent is a belief in explicit positive consent
 Consent may be vitiated by Force, Fear, Fraud, Authority Abuse as per s. 265(3)
 Evidentiary burden goes to the accused to show consent.
 If there is a communication in the negative, there can be no further initiation unless there is a
very clear statement showing a change of mind in the positive.

Test
 An accused cannot rely upon his purported belief that the complainant's expressed lack of
agreement to sexual touching constituted invitation to more persistent or aggressive contact.
 Accused cannot rely on the mere lapse of time or the complainant's silence or equivocal conduct to
indicate that there has been a change of heart and that consent now exists, nor can he engage in
further sexual touching to "test the waters".
 Was there an air of reality in the interim periods that resembled consent: trial judge ought to have
considered whether anything occurred between communication of non-consent and subsequent
sexual touching which the accused could honestly have believed constituted consent – “air of
reality”

IMPLICATIONS: We now have the new test for explicit positive consent.

5.1.4 R. V. CUERRIE

 Fraud which goes to the core of the charge and changes the decision that would have been made,
based on an objective standard, will vitiate consent.
FACTS:
 Currie has HIV
 He has unprotected sex with at least 2 partners.
 One of them contracts the disease.
CHARGE: Sexual Assault
ISSUES: What type of of fraud which will vitiate consent to sexual intercourse - BC CA said it is that
which goes to the “nature and quality of the act” or the identity of the offender.
DECISION: The accused is responsible for the omission to disclose his STD status.
REASONING:
 Historically, fraud will vitiate consent and fraud can be lack disclosure.

93
  1888: they reverse the common law. They say that there is no fraud if you don’t tell someone
about an STD because it does not go to the nature and quality of the act. The act is still sex and
this was consented to. Thus the only thing that can vitiate consent now is misrepresenting the
actual act.
 1984: they dropped the words “nature and quality” and now we have to decide whether that
means that we have returned to the pre 1888 view that fraud of any nature will vitiate consent.
 The problem is that there are many “lies” that occur in normal sexual relations. We can’t allow
all of them to be swept up and criminalized.
 Sexual assault is supposed to be about an unwanted intrusion.
L’Hereaux Dube:
 We’ll allow any type of fraud and we’ll limit it in court and in sentencing as to the degree and to
clean up the bad cases. She wants to open the doors entirely.
Cory:
 We should only allow fraud which fundamentally changes the event and in itself changes the
decision that would have been made. He founds this on dishonest deprivation, and it is
reformulated as fraud that exposes the victim to a risk of bodily harm.
McLauchlin:
 Narrow ruling, fraud related to STD’s will vitiate consent. Is concerned with a large change. She
wants ambiguity to be restricted and says the code is not clear (even though it really is).
McLauchlin is concerned that people might not get tested, but this is probably false, people will
get tested for personal health reasons.
IMPLICATIONS:
 Justice Cory’s decision is really where we have ended up. That is, fraud which exposes the victim
to a risk of bodily harm will vitiate consent.
 This basically means that one must use condoms to negate the risk of bodily harm, then one
could in theory still lie. Though the results if the condom broke would be hard to decide. If we
look back to Thorton, though the risk though small, the impact could be huge (the life of a
person) so it may still be an offence that sticks.

6. MENS REA I: BASIC PRINCIPLES AND THE CHARTER

6.1 CONSTITUTIONALIZATION OF FAULT

 Fundamental principle underlying the mens rea concept: in criminal law there should normally
be no responsibility without personal fault. Without the concept of moral culpability, there
would be little protection against the powers of the state.
 Fault requirement differs from crime to crime in Canada. There are no general definitions of
various forms of fault. “Intent” or “wilful” appear in some, but by no means all offences.
 There are two general standards that we measure fault against:

94
 o Subjective standard: whether the accused was actually aware of a risk – aware state
of mind, guilty mind; a personalized standard.
o Objective standard: whether the accused failed to measure up to the external
standard of the reasonable person, irrespective of awareness; carelessness,
inadvertence (if the reasonable man would have foreseen the consequences of his
act, the mental element is proven).
 Any crime that has high stigma and high punishment will have a minimum requirement for fault.
However, very few crimes will meet this stigma and punishment threshold.
 Subjective fault required by SCC for:
o Murder (Martineau)
o Attempted murder, access
o Accessory liability to an offence 21(2) constitutionally requiring a subjective test
o And war crimes and crimes against humanity.
o There is also obiter recognition that theft requires subjective awareness (Vaillancourt
and Martineau).
 With Vaillancourt and Martineau we have the high watermark for crimes of high stigma and high
punishment. Murder cannot be proved on anything less than subjective fault and intent.
 The Canadian courts had, for a long time, adhered to the subjective standard. Now, a low level
objective standard is pervasive in public welfare offences, and, while the subjective approach
is still required for many crimes, for a significant number of crimes, there are now less
demanding standards of fault.

6.2 DEPARTURES

 This is where we are going to start departing from the starting point of symmetry.
 We are going to start dividing the actus reus into culpable and non culpable aspects.
 Only items that are the essence of the crime will require fault.
 What aspects of the actus reus become culpable?
 This will depend on previous cases, or if no previous case exists our own insight into what aspects
comprise the core elements of the crime. This is often done using structural arguments and
relation to other sections of the code.
 Departure will allow us to either reduce the mens rea requirement, or if there is enough mens
rea in other aspects of the crime to drop that aspect of the crime altogether
 Departures will always be argued by the crown and will be based on primarily policy and textual
arguments; they want to eliminate some aspects to make their jobs easier; the defence will never
want this.

So what is the core of this act?

One of the best ways to do this is to think of examples, for each aspect of the crime imagine a situation
and see if changing that situation changes the culpability of the act ie:
I thought is was my house  would negate the moral blame of the event
I thought it was a garage  would negate the moral blame of the event
I looked at my watch and it wasn’t “night”  still blameworthy, he was still creeping around.

95
Example:
Unlawful Act Causing Manslaughter  Caused Death
Part 1: Unlawful Act i.e. Trafficking
 Full analysis of Actus/Mens for the subsidiary unlawful act
Part 2: Additionally we add foreseeability of bodily harm
 Issue 1: bodily harm is used as the standard not death
 Issue 2: foreseeability is an objective test (instead of subjective)

So we have two departures now from a high fault, subjective level of constitutional levels of fault. First,
death was caused and we only ask about bodily harm. Secondly, with death we still only ask the objective
question of foreseeability instead of the subjective question of foresight.

6.3 CASES

6.3.1 R. V. SAULT ST. MARIE

 Creates 3 categories of offences: True Crime, Strict Liability and Absolute Liability.

IMPLICATIONS:
The definition of 3 categories of offences:
1. True Crime; Offences requiring proof of Mens Rea
Example: Everything in the Criminal Code
 The mens rea, consisting of some positive state of mine 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.
2. Strict Liability
Example: Regulatory Offences
 The proof of mens rea is not necessary. The doing of the act prima facie imports
the offense.
3. Absolute Liability
Example: motor vehicle offences
 Accused cannot exculpate himself.

6.3.2 REFERENCE RE S.94 (2) OF MOTOR VEHICLE ACT (BRITISH COLUMBIA)

 Absolute liability offences that contain even the possibility of imprisonment are found to be
unconstitutional
 Offends s. 7 and only can only be salvaged if protected under s. 1; not salvageable here
 Elevates mens rea from presumed element to a constitutionally required element, fundamental
justice is substantive
 Due diligence is the minimum standard of fault required by the Charter for any type of offence
threatening liberty interest.

96
ISSUE: A combination of Absolute Liability and a mandatory minimum sentence caused the court to want
to examine this law in light of the Charter.
REASONING:
 A law that has the potential to convict a person who has not really done anything wrong offends
the principles of fundamental justice.
 From this, and Clay and Cain we are seeing that for a criminal charge the court wants to see mens
rea and fault.
 The court is in the early days of Charter reviews. They want to entrench their ability to review
under the Charter. They essentially state that the Court has the full right to review the
procedures and substantive elements of legislation despite arguments that say the judiciary
should not have such a power given that it they are not elected and should not hold a position
supreme to the legislature.
 This means that the court, under “fundamental justice” feels it has the right to make substantive
justice claims.
 The principles of “fundamental justice”, if we go back to Clay/Caine is:
o Legal Principle
o Enforceable/Workable
o Consensus
 “The history of liberty has largely been the history of observance of procedural safeguards” –
Justice Frankfurter USA
 However, in this case they try to prove fundamental justice and mens rea has been with us from
time immemorial. This is just fiction. Their cases are terrible examples.
 In the end, and despite a weak argument, they raise mens rea to a principle of fundamental
justice.
 If it is a fundamental principle, then the lack of mens rea in s.94(2) is contrary to s.7 of the
Charter
 Administrative expediency will never be a reason to save a criminal law from s.1
IMPLICATIONS:
 Mens Rea is now a constitutional element and a principle of fundamental justice.
 Now the question is what level of fault will be sufficient for laws?

IMPORTANT QUOTES:

P 73 A law enacting an absolute liability offence will violate s 7 of the Charter only if and to
the extent that it has the potential of depriving life, liberty or security of the person.

P 69-70 Absolute Liability and Fundamental Justice in Penal Law 

69.              It has from time immemorial been part of our system of laws that the
innocent not be punished. This principle has long been recognized as an
essential element of a system for the administration of justice which is
founded upon a belief in the dignity and worth of the human person and on
the rule of law. It is so old that its first enunciation was in Latin actus non
facit reum nisi mens sit rea.

97
  

70.              As Glanville Williams said:

There is no need here to go into the remote history of mens

rea; suffice it to say that the requirement of a guilty state of mind (at
least for the more serious crimes) had been developed by the time of
Coke, which is as far back as the modern lawyer needs to go. "If one
shoot at any wild fowl upon a tree, and the arrow killeth any
reasonable creature afar off, without any evil intent in him, this is
per infortunium."

(Glanville Williams, Criminal Law, The General Part, 2nd ed. (London, 1961), at p.
30.)

Fundamental 61.              Consequently, my conclusion may be summarized as follows:

Justice  
Principles 62.              The term "principles of fundamental justice" is not a right, but a qualifier of
the right not to be deprived of life, liberty and security of the person; its
function is to set the parameters of that right.
 
63.              Sections 8 to 14 address specific deprivations of the "right" to life, liberty
and security of the person in breach of the principles of fundamental justice,
and as such, violations of s. 7. They are therefore illustrative of the
meaning, in criminal or penal law, of "principles of fundamental justice";
they represent principles which have been recognized by the common law,
the international conventions and by the very fact of entrenchment in the
Charter, as essential elements of a system for the administration of justice
which is founded upon the belief in the dignity and worth of the human
person and the rule of law.
 
64.              Consequently, the principles of fundamental justice are to be found in the
basic tenets and principles, not only of our judicial process, but also of the
other components of our legal system.
 

Absolute Liability Plus Mandatory Imprisonment

 
107.            The real question, as I see it, is whether s. 7 of the Charter is violated by the
attachment of a mandatory imprisonment sanction to an absolute liability
offence. Clearly a s. 7 right is interfered with here in that a person convicted
of such an offence automatically loses his liberty.

98
  
108.            In what circumstances then may the citizen be deprived of his right to
liberty? Clearly not if he was deprived of it through a process which was procedurally
unfair. But is s. 7 limited to that?

The 5 goals of a Punishment and Fundamental Justice

penal system.  
126.            It is now generally accepted among penologists that there are five main
objectives of a penal system: see Nigel Walker, Sentencing in a Rational
Society, 1969. They are:
 
(1) to protect offenders and suspected offenders against unofficial
retaliation;
 
(2) to reduce the incidence of crime;
 
(3) to ensure that offenders atone for their offences;
 
(4) to keep punishment to the minimum necessary to achieve the
objectives of the system; and
 
(5) to express society's abhorrence of crime.
 
Apart from death, imprisonment is the most severe sentence imposed by the law and is
generally viewed as a last resort i.e., as appropriate only when it can be shown that no
other sanction can achieve the objectives of the system.
 
127.            The Law Reform Commission of Canada in its Working Paper 11,
"Imprisonment and Release", in Studies on Imprisonment (1976), states at
p. 10:
 
Justice requires that the sanction of imprisonment not be disproportionate to the offence,
and humanity dictates that it must not be heavier than necessary to achieve its objective.

Absolute L with Because of the absolute liability nature of the offence created by s. 94(2) of the Motor
punishment is Vehicle Act a person can be convicted under the section even although he
unconstitutional was unaware at the time he was driving that his licence was suspended and
. was unable to find this out despite the exercise of due diligence. While the
legislature may as a matter of government policy make this an offence, and
we cannot question its wisdom in this regard, the question is whether it can
make it mandatory for the courts to deprive a person convicted of it of his
liberty without violating s. 7. This, in turn, depends on whether attaching a
mandatory term of imprisonment to an absolute liability offence such as this
violates the principles of fundamental justice. I believe that it does. I think
the conscience of the court would be shocked and the administration of
justice brought into disrepute by such an unreasonable and extravagant
penalty. It is totally disproportionate to the offence and quite incompatible

99
 with the objective of a penal system referred to in paragraph (4) above.
 
129.            It is basic to any theory of punishment that the sentence imposed bear some
relationship to the offence; it must be a "fit" sentence proportionate to the
seriousness of the offence. Only if this is so can the public be satisfied that
the offender "deserved" the punishment he received and feel a confidence in
the fairness and rationality of the system. This is not to say that there is an
inherently appropriate relationship between a particular offence and its
punishment but rather that there is a scale of offences and punishments into
which the particular offence and punishment must fit. Obviously this cannot
be done with mathematical precision and many different factors will go into
the assessment of the seriousness of a particular offence for purposes of
determining the appropriate punishment but it does provide a workable
conventional framework for sentencing. Indeed, judges in the exercise of
their sentencing discretion have been employing such a scale for over a
hundred years.
 

130.            I believe that a mandatory term of imprisonment for an offence committed

unknowingly and unwittingly and after the exercise of due diligence is grossly
excessive and inhumane. It is not required to reduce the incidence of the offence. It is
beyond anything required to satisfy the need for "atonement". And society, in my
opinion, would not be abhorred by an unintentional and unknowing violation of the
section. I believe, therefore, that such a sanction offends the principles of fundamental
justice embodied in our penal system. Section 94(2) is accordingly inconsistent with s. 7
of the Charter and must, to the extent of the inconsistency, be declared of no force and
effect under s. 52. I express no view as to whether a mandatory term of imprisonment
for such an offence represents an arbitrary imprisonment within the meaning of s. 9 of
the Charter or "cruel and unusual treatment or punishment" within the meaning of s. 12
because it is not necessary to decide those issues in order to answer the constitutional
question posed.

6.4 CONSTRUCTIVE HOMICIDE

By first principles there should be some mens rea related to the end result that is death.
Constructive Homicides depart from this in that they have an objective standard that isn’t related to the
death. They generally take another act as an element to raise the stigma of the offence.

1. Manslaughter
2. 229(c) – Unlawful object (plan) murder; in the course of another unlawful objective and death
ensues in what was one ought to have known (objective foreseeability).
3. 230 – Constructive Murder; Similar to 229(c) it is death related to another unlawful act and lists
a. Mean to cause bodily harm to facilitate crime or escape.
b. Administer a stupefying thing to facilitate crime or escape (specific to historic use of
chloroform)

100
 c. Willfully stop the breath of someone to facilitate crime or escape (specific to historic
problems with rape)
d. (Only added by Canada) You have a gun on your possession and someone dies as a
consequence.

This is known as “dangerous consequence liability”. It was a misplaced hope that we could prevent
deaths by preventing the underlying crimes, or my making the underlying crimes more “safe”.

Note: 230 d is gone, but a-c still remain in the code just as a relic that could in theory be added by using a
notwithstanding clause in case there is a spree of problems that parliament needs to control.

6.4.1 R. V. VAILLIANCOURT

 Finds s. 230 (d) unconstitutional

 s. 230 (d) does not even have a requirement for objective foresight of death
 We cannot label someone a murderer unless the conduct is sufficiently morally repugnant to our
value system to warrant the imposition of social stigma
 Objective foreseeability of death is required, and 230(d) does not meet this
FACTS:
 Valliancourt during a bank robbery is concerned about the risk of a gun his partner has.
 In a previous crime the gun had gone off.
 He therefore asked his partner to give him the bullets.
 He then gets rid of the bullets.
 Regardless, the partner has other bullets and the gun goes off and kills someone.
 According to 230 this is elevated to murder.
CHARGE: 230(d): Constructive Homicide: You have a gun on your possession and someone dies as a
consequence.
ISSUE: Is this charge under 230(d) constitutional?
DECISION: s. 230(d) is unenforceable in that it violates ss. 7 and 11(d) (presumption of innocence) of the
Charter of Rights.
REASONING:
 The court, based on the facts, doesn’t see this as intentional killing so it doesn’t like the
attachment of murder to the act.
Lamer
 Is pushing for subjective foresight.
 Doesn’t want to recognize the defendants argument that symmetry of mens rea and actus reus is
a constitutional minimum.
 The court wants to avoid this as it impacts other constructive murder offences and they don’t
want to talk about those.
 There can be departure from this symmetry.
 Similar to the old way of applying intoxication we substitute another act and its mens rea for the
mens rea attached to death. That is the foreseeability of death is completely replaced (usually by
foreseeability of harm)

101
  “Proof that the accused performed on of the acts in subs a-d (of 230) is substituted for proof of
subjective foresight, or even objective foreseeability, of the likelihood of death”.
 Turns to international sources to see what they do with respect to 230(d). Which doesn’t exist in
any other surveyed common law jurisdiction.
 Recognizes that Motor Vehicle act elevated mens rea to a constitutional element. But the
question of what is required for mens rea is unknown.
 He leans towards the idea that “subjective fault” is the bare minimum. However he shies away
from this and accepts that an “objective fault” will be enough for this case only.
 High penalty and high stigma crimes will have a “subjective” level of fault.
 He provides examples where 223(d) could result in conviction with less than objective
foreseeability.
 The combination of 21(2) and 223(d) sets the bar too low, this allows for conviction of murder
without even the objective foreseeability of death.
IMPLICATIONS: As a result of Lamer, what crimes will be deemed high penalty and high stigma and thus
constitutionally subjective levels of fault?
 Murder
 Attempted Murder
 21(2) and Murder

IMPORTANT QUOTES:

P 26 However, in Re B.C. Motor Vehicle Act, 1985 CanLII 81 (SCC), [1985] 2 S.C.R. 486,
this Court rejected that argument and used s. 7 to review the substance of the legislation.
As a result, while Parliament retains the power to define the elements of a crime, the
courts now have the jurisdiction and, more important, the duty, when called upon to do
so, to review that definition to ensure that it is in accordance with the principles of
fundamental justice.

P 27 This Court's decision in Re B.C. Motor Vehicle Act stands for the proposition that
absolute liability infringes the principles of fundamental justice, such that the
combination of absolute liability and a deprivation of life, liberty or security
of the person is a restriction on one's rights under s. 7 and is prima facie a
violation thereof. In effect, Re B.C. Motor Vehicle Act acknowledges that,
whenever the state resorts to the restriction of liberty, such as imprisonment,
to assist in the enforcement of a law, even, as in Re B.C. Motor Vehicle Act, a
mere provincial regulatory offence, there is, as a principle of fundamental
justice, a minimum mental state which is an essential element of the offence.
It thus elevated mens rea from a presumed element in Sault Ste. Marie,
supra, to a constitutionally required element. Re B.C. Motor Vehicle Act did
not decide what level of mens rea was constitutionally required for each type
of offence, but inferentially decided that even for a mere provincial
regulatory offence at least negligence was required, in that at least a defence
of due diligence must always be open to an accused who risks imprisonment
upon conviction. In Sault Ste. Marie, Dickson J. stated at pp. 1309-10:

102
 Where the offence is criminal, the Crown must establish a mental element, namely, that
the accused who committed the prohibited act did so intentionally or
recklessly, with knowledge of the facts constituting the offence, or
with wilful blindness toward them. Mere negligence is excluded
from the concept of the mental element required for conviction.
Within the context of a criminal prosecution a person who fails to
make such enquiries as a reasonable and prudent person would
make, or who fails to know facts he should have known, is innocent
in the eyes of the law.

It may well be that, as a general rule, the principles of fundamental justice require proof
of a subjective mens rea with respect to the prohibited act, in order to avoid punishing the
"morally innocent".

P 28 I will therefore, for the sole purpose of this appeal, go no further than say that it is a
principle of fundamental justice that, absent proof beyond a reasonable doubt of at least
objective foreseeability, there surely cannot be a murder conviction.

P 35- the acid test The question is, therefore, can Parliament make this substitution without violating ss. 7
of constitutionality. and 11(d)? As I have discussed earlier, if Parliament frames the section so that, upon
“out to have proof of the conduct, it would be unreasonable for a jury not to conclude beyond a
known” is dropped, reasonable doubt that the accused ought to have known that death was likely to ensue,
cannot have then I think that Parliament has enacted a crime which is tantamount to one which has
objectiveness when objective foreseeability as an essential element, and, if objective foreseeability is
dealing with sufficient, then it would not be in violation of s. 7 or s. 11(d) in doing so in that way. The
murder. This is acid test of the constitutionality of s. 213 is this ultimate question: Would it be possible
revised in for a conviction for murder to occur under s. 213 despite the jury having a reasonable
Martineau. 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). I should
add in passing that if the answer is no, then it would be necessary to decide whether
objective foreseeability is sufficient for a murder conviction. However, because in my
view the answer is yes and because I do not want to pass upon the constitutionality of s.
212(c) in this case, I will not address that issue.

Para 12- talking This eliminates the requirement of actual subjective foresight and replaces it with
about eliminating objective foreseeability or negligence.
the subjective
requirement in ©

6.4.2 R. V. MARTINEAU

103
 Anything less than subjective foresight of death is unacceptable because of stigma and penalties
associated with murder.
 The court wants a strong division between manslaughter and murder.
FACTS: : Accused and companion robbed a trailer and companion shot and killed two people when leaving.
Accused was 15 at time and had no intent to shoot victims.
CHARGE: 230(a) and (d)
DECISION: : 230(d) then 230(a) were both held unconstitutional, thus accused’s appeal was allowed and a
new trial ordered.
REASONING:
Lamer (majority)
 The whole issue is about the label of murder versus manslaughter.
 Principles that support the decision for “subjective foresight” as the minimum requirement:
1. The stigma attached to the offence, and the available penalties require a mens rea
reflecting the particular nature of the crime;
2. The punishment must be proportionate to the moral blameworthiness of the offence; and
3. Those causing harm intentionally must be punished more severely than those causing
harm unintentionally.
 In short Higher Stigma or High Penalty crimes will require a higher level of foresight.
 This casts doubt on 229(a-c) of the code in they don’t meet the subjective standard.
L’Heureax-Dube (dissenting)
 There isn’t a huge difference between subjective and objective fault.
 Our concept of subjective is based on the objective standard, and we have nothing else to run
on. 9/10 times we will import the objective onto the person and pretend it’s subjective.
 The stigma argument is overemphasized. The punishment need not be proportional to the mens
rea alone, but rather to the combination of physical and mental elements.
 In this case the parties were morally wrong for several reasons. There is easily a case for
blameworthiness.
IMPLICATIONS:
 All murder must be based on “subjective foresight”.
 230(a) is overturned.
 Is this subjective mens rea murder specific or can it be extended?

IMPORTANT QUOTES:

P 11- 4 principles of The effect of s. 213 is to violate the principle that punishment must be proportionate to
fundamental justice the moral blameworthiness of the offender, or as Professor Hart puts it in Punishment
and Responsibility (1968), at p. 162, the fundamental principle of a morally based
system of law that those causing harm intentionally be punished more severely than
those causing harm unintentionally.  The rationale underlying the principle that
subjective foresight of death is required before a person is labelled and punished as a
murderer is linked to the more general principle that criminal liability for a particular
result is not justified except where the actor possesses a culpable mental state in
respect of that result:  see R. v. Bernard, 1988 CanLII 22 (SCC), [1988] 2 S.C.R. 833,
per McIntyre J., and R. v. Buzzanga and Durocher 1979 CanLII 1927 (ON CA),
(1979), 49 C.C.C. (2d) 369 (Ont. C.A.), per Martin J.A.  In my view, in a free and
democratic society that values the autonomy and free will of the individual, the stigma

104
 and punishment attaching to the most serious of crimes, murder, should be reserved for
those who choose to intentionally cause death or who choose to inflict bodily harm
that they know is likely to cause death.  The essential role of requiring subjective
foresight of death in the context of murder is to maintain a proportionality between the
stigma and punishment attached to a murder conviction and the moral
blameworthiness of the offender.  Murder has long been recognized as the "worst" and
most heinous of peace time crimes.  It is, therefore, essential that to satisfy the
principles of fundamental justice, the stigma and punishment attaching to a murder
conviction must be reserved for those who either intend to cause death or who intend
to cause bodily harm that they know will likely cause death.

P 12 In sum then, I am of the view that a special mental element with respect to death is
necessary before a culpable homicide can be treated as murder.  That special mental
element gives rise to the moral blameworthiness that justifies the stigma and
punishment attaching to a murder conviction.  For all the foregoing reasons, and for
the reasons stated in Vaillancourt, I conclude that it is a principle of fundamental
justice that a conviction for murder cannot rest on anything less than proof beyond a
reasonable doubt of subjective foresight of death.

P 31/32- definitions   Definitionally, a standard of subjective foresight to ground criminal responsibility

of subjective dictates that:
foresight and
 
objective
foreseeability . . . the trier of fact must determine what was actually going on in the mind of this
particular accused at the time in question.  This is variously stated
as a requirement of awareness, conscious thought, advertence or
simply a requirement that the person was actually thinking.

                                                                        . . .

What is vital is that this accused given his personality, situation and circumstances,
actually intended, knew or foresaw the consequence and/or
circumstances as the case may be.  [Stuart, Canadian Criminal
Law (2nd ed. 1987), at pp. 121, 123.]

   In The Common Law, Holmes discussed objective foreseeability, at pp. 53-54, as

follows:

If the known present state of things is such that the act done will very certainly cause
death, and the probability is a matter of common knowledge, one who does the act,

105
 knowing the present state of things, is guilty of murder, and the law will not inquire
whether he did actually foresee the consequences or not.  The test of foresight is not
what this very criminal foresaw, but what a man of reasonable prudence would have
foreseen.  [Emphasis added.]

6.4.3 R. V. DESOUSA

 One of the first cases after Martineau that asks how far subjective fault extends outside Murder.
 We are seeing departure at work as we allow the mens rea for the actual crime to be objectified and
replaced by the mens rea from the underlying act.
 To satisfy s. 7 of the charter you need the mens rea of the unlawful act (need objective foresight of
bodily harm) + the consequence needs to be objective
 Lower stigma does not necessitate subjectivity.
 You do not need mens rea for every element of the actus reus; no constitutional requirement of
symmetry as long as main element(s) proven.
FACTS:
 A small fight breaks out in a bar.
 He throws a bottle, and it shatters against the wall.
 The shattered glass hits a lady and cuts her arm.
 This is a definite opportunity to make a constitutional charge, as the act of throwing was not with
clear foresight of the harm.
CHARGE: s.269; unlawfully causing bodily harm
ISSUE: Does mens rea have to attach to every aspect of the crime?
DECISION: The accused is guilty.
REASONING:
The mental element of s.269 is composed of two separate requirements:
1. The mental element of the underlying offence.
2. “unlawful” in s.269 requires that the unlawful act be at least objectively dangerous
(objective foreseeability of bodily harm).
 There is no mens rea for the consequence since this is not a high stigma or high punishment offence
(from Martineau).
 In cases if simple penal negligence, the test is whether a reasonable person would inevitably realize
that the underlying unlawful act would subject another person to the risk of bodily harm.
 There is no constitutional requirement that intention, either on an objective or on a subjective basis,
extend to the consequences of unlawful acts in general (in this case – causes. The mens rea
requirement is completely dropped from the consequence of causing bodily harm. There must be an
element of personal fault in regard to a culpable aspect of the actus reus, but not necessarily in
regard to each and every one of its elements
 DeSousa argues that foreseeability is not enough, foresight must occur.
 The problem is that the culpable mental state for the consequences doesn’t exist. To have that there
must be subjective foresight.

106
 What DeSousa starts is that the starting point for symmetry is just that, a starting point.
 We are going to divide the actus reus into blameworthy (culpable) and non-blameworthy (non-
culpable) aspects.
 We need a mental element in regard to the blameworthy aspects. That is, what are the core
elements of the wrongdoing?
 The blameworthy wrongdoing will require mens rea. There after you can substitute in that mens rea
for the consequences of the offences.

IMPORTANT QUOTES:

P 33- if the AR Provided that there is a sufficiently blameworthy element in the actus reus to which a
is so culpable mental state is attached, there is no additional requirement that any other
blameworthy element of the actus reus be linked to this mental state or a further culpable mental
then it does state…provided that the actor is already engaged in a culpable activity, foresight of
not matter consequences is not required in order to hold the actor responsible for the results of
that there is his or her unlawful activity.
no MR for the
consequences
of the act.

P 36, 37, 38 (36) A number of Criminal Code offences call for a more serious charge if certain
can have crim consequences follow.  To require intention in relation to each and every consequence would
responsible for bring a large number of offences into question including manslaughter (s. 222(5)), criminal
equally negligence causing bodily harm (s. 221), criminal negligence causing death (s. 220),
reprehensible dangerous operation causing bodily harm (s. 249(3)), dangerous operation causing death
acts. (s. 249(4)), impaired driving causing bodily harm (s. 255(2)), impaired driving causing death
(s. 255(3)), assault causing bodily harm (s. 267(1)(b)), aggravated assault (s. 268), sexual
assault causing bodily harm (s. 272(c)), aggravated sexual assault (s. 273), mischief causing
danger to life (s. 430(2)) and arson causing bodily harm (s. 433(b)).  As noted by Professor
Colvin, "[i]t would, however, be an error to suppose that actus reus and mens rea always
match in this neat way" (E. Colvin, Principles of Criminal Law (2nd ed. 1991), at p. 55).

                 (37) Conduct may fortuitously result in more or less serious consequences

depending on the circumstances in which the consequences arise.  The same act of assault
may injure one person but not another.  The implicit rationale of the law in this area is that it is
acceptable to distinguish between criminal responsibility for equally reprehensible acts on the
basis of the harm that is actually caused.  This is reflected in the creation of higher maximum
penalties for offences with more serious consequences.  Courts and legislators acknowledge
the harm actually caused by concluding that in otherwise equal cases a more serious
consequence will dictate a more serious response.

                  (38) There appears to be a general principle in Canada and elsewhere that, in the
absence of an express legislative direction, the mental element of an offence attaches only to
the underlying offence and not to the aggravating circumstances (Colvin, supra, at p. 57). 

107
 This has been confirmed by this Court in a number of cases including those which have held
that sexual assault requires intention simply in relation to the assault and not any aggravating
circumstance (see R. v. Chase, 1987 CanLII 23 (SCC), [1987] 2 S.C.R. 293, and R. v.
Bernard, supra, at pp. 888-89).  To require fault in regard to each consequence of an action in
order to establish liability for causing that consequence would substantially restructure current
notions of criminal responsibility.  Such a result cannot be founded on the constitutional
aversion to punishing the morally innocent.  One is not morally innocent simply because a
particular consequence of an unlawful act was unforeseen by that actor.  In punishing for
unforeseen consequences the law is not punishing the morally innocent but those who cause
injury through avoidable unlawful action.  Neither basic principles of criminal law, nor the
dictates of fundamental justice require, by necessity, intention in relation to the consequences
of an otherwise blameworthy act.

P 21 It is axiomatic that in criminal law there should be no responsibility without personal fault.  A
fault requirement was asserted to be a fundamental aspect of our common law by this Court in
R. v. City of Sault Ste. Marie, 1978 CanLII 11 (SCC), [1978] 2 S.C.R. 1299, and as a matter
of constitutional law under s. 7 of the Charter in Re B.C. Motor Vehicle Act, 1985 CanLII 81
(SCC), [1985] 2 S.C.R. 486.  As a matter of statutory interpretation, 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.  Unlike most offences, the mental element
of s. 269 is composed of two separate requirements.  The first requirement is that the mental
element of the underlying offence of s. 269 be satisfied.  The second requirement is that the
additional fault requirement supplied by the wording of s. 269, discussed more fully infra,
also be satisfied.

P 22- the Thus, the concept of "unlawful" as it is used in s. 269 does not include any underlying offence
underlying of absolute liability.  The inclusion of such offences would be contrary to the general canons
“unlawful” act of criminal interpretation quite apart from any Charter considerations (see particularly R. v.
cannot be an Prue, 1979 CanLII 227 (SCC), [1979] 2 S.C.R. 547, at p. 553, and Beaver v. The Queen,
absolute 1957 CanLII 14 (SCC), [1957] S.C.R. 531, at pp. 537-38 and 542-43).  Although not relying
liability act. on constitutional requirements in foreclosing the possibility of absolute liability offences
forming the predicate offences of s. 269, certainly principles of fundamental justice require no
less.

P 24-25 (b)  The Meaning of "Unlawful" in Section  269

Meaning of
 
unlawful:
applies to                (24)   In addition to the mental element required by the underlying offence, the
manslaughter wording of s. 269, and particularly the case law interpreting the term "unlawfully", imports an
as well. additional aspect to the mental element of s. 269.  The case law interpreting the use of this
term in similar provisions has focused on the offence most commonly known as unlawful act
manslaughter.  While manslaughter is not the offence at issue in this appeal, the case law
which seeks to interpret the term "unlawful" in that context is instructive.

108
                  (25) The leading English authority on the issue of the meaning of "unlawful" in
this area is R. v. Larkin (1942), 29 Cr. App. R. 18, where the Court of Criminal Appeal held at
p. 23 that:

Where the act which a person is engaged in performing is unlawful, then if at the same time it
is a dangerous act, that is, an act which is likely to injure another person, and quite
inadvertently the doer of the act causes the death of that other person by that act, then he is
guilty of manslaughter.

P 35
  There are many provisions where one need not intend all of the consequences of an action. 
As was pointed out in Hess, supra, there must be an element of personal fault in regard to a
culpable aspect of the actus reus, but not necessarily in regard to each and every element of
the actus reus.  The requirement of fault in regard to a meaningful aspect of the actus reus is
necessary to prevent punishing the mentally, and morally, innocent and is in keeping with a
long line of cases of this Court including Rees, supra, and Pappajohn, supra.  In many
offences, such as assault or dangerous driving, the offence is made out regardless of the
consequences of the act but the consequences can be used to aggravate liability for the
offence.  For example, both assault and assault causing bodily harm have identical mens rea
requirements and the element of causing bodily harm is merely used to classify the offence. 
No principle of fundamental justice prevents Parliament from treating crimes with certain
consequences as more serious than crimes which lack those consequences.

6.4.4 R V SHAND

FACTS:

 Shand goes with his two friends to a drug dealer’s home to steal weed.
 Shand produces a gun at some point and one of the persons in the home was shot and killed.
 The shot was claimed to be accidental.
 Shand admitted to manslaughter, possession of a loaded restricted firearm.

CHARGE:

 Breaking and entering with intent, armed robbery and second-degree murder.

ISSUE:

 Is 229(c ) unconstitutional because it permits a conviction for murder without proof of an intent
to cause serious bodily harm? Is it too vague or overboard?

DECISION:

 Appeal Dismissed.

109
REASONING:
Rouleau (Majority)

 Holds that the ruling by the Supreme Court in R v Martineau does not make s. 229(c)
unconstitutional, but rather only the "ought to know" section.

IMPLICATONS:
IMPORTANT QUOTES:

Definition of As stated in R. v. Vasil, at p. 490 S.C.R., the unlawful object must be "conduct
unlawful object in which, if prosecuted fully, would amount to a serious crime, that is an indictable
229 © offence requiring mens rea".

[128] Similar to the "unlawful purpose" in s. 21(2), the unlawful object is what the
accused set out to do -- his or her purpose or goal. Put otherwise, the unlawful
object is the end that the accused seeks to achieve. The accused may have more
than one object, his or her objects may change and new objects may be added
during the commission of the offence. However, any unlawful act an accused may
commit or seek to commit in order to achieve his or her object does not necessarily
constitute an unlawful object as required under s. 229(c). If, for example, you
intend to shoot someone, pointing a firearm constitutes an unlawful act, but would
not constitute an unlawful object for the purposes of s. 229(c).

[129] In accordance with the principles of statutory interpretation, s. 229(c) must be

interpreted so as not to make s. 229(a) redundant. Parliament created two separate
routes to establish murder and each must be given meaning. The difference between
ss. 229(a) and 229(c) is that s. 229(c) requires more than proof of an unlawful
object. The Crown must also prove that, when the dangerous act was committed,
the person knew that death was likely. As a result, where the intention is causing
the death of the victim or causing bodily harm to the victim knowing that death is
likely, s. 229(a) applies. This is because there is no need to carry out a further
analysis focusing on the state of mind of the accused when the dangerous act
causing death was committed. Because the two-part analysis prescribed by s. 229(c)
is not required in these circumstances, it is apparent that s. 229(a) and not s. 229(c)
applies. The situation is similar when s. 229(b) is at play, except that the attempt to
cause the death of a person or to cause bodily harm to a person knowing that death
is likely results in the mistaken death of another victim.

Unlawful object. [133] Since the phrase "ought to know" has now been removed from s. 229(c), the
provision is now more closely related to s. 229(a)(ii), and there is no longer a
concern that the objective foresight of s. 229(c) will subsume the subjective intent
requirement of s. 229(a). The notion that the two provisions should be kept clearly
distinct to ensure that the mens rea for murder was not overly relaxed has
disappeared.

[134] In the post-Vaillancourt period, the need to distinguish between the

dangerous act and the unlawful object was addressed by this court in R. v. Meiler,

110
 1999 CanLII 3728 (ON CA), [1999] O.J. No. 1506, 136 C.C.C. (3d) 11 (C.A.). As
explained, at para. 48 of that decision, "s. 229(c) contemplates some act or conduct
by the offender done to bring about some further unlawful object other than the
injury that causes the death. Put another way, the unlawful object must be a
different object than the assault upon the deceased that gives rise to the charge
under s. 229(c)". The requirement that the dangerous act be distinct from the
unlawful object is simply a requirement that there be an unlawful object, other than
the assault on the deceased, in pursuance of which the accused committed the act or
acts that caused the death.

[135] Approached in this way, s. 229(c) is distinct from s. 229(a)(i) or (ii). If the
accused intends to kill or cause serious bodily harm to the deceased, the conduct
will almost invariably come within either s. 229(a)(i) or (ii), and s. 229(c) will not
apply.

[136] I see no reason to draw the somewhat arbitrary distinction between the
unlawful object and the dangerous act in the manner suggested by the appellant.
Imposing such a requirement might well lead courts to make artificial and strained
[page520] definitions of the dangerous act and the unlawful object. Section 229(c)
requires that the unlawful object be something other than the harm that is foreseen
as a consequence of the dangerous act. In other words, if the accused's purpose --
the unlawful object -- was something other than to cause the death of the victim or
bodily harm to the victim knowing that death is likely, then it will be sufficiently
distinct from the dangerous act to engage s. 229(c). In contrast, if the unlawful
object was the death of the victim or to cause bodily harm to the victim knowing
death was likely, s. 229(c) would not apply. The requirement of distinctness would
not be met, as the unlawful object would be the very harm foreseen as a
consequence of the dangerous act.

Dangerous Act [145] The first requirement of s. 229(c) is that the dangerous act must be clearly
identified and defined. It must also be something that is done in furtherance of the
unlawful object, though it need not constitute an offence in itself: see Vasil, at pp.
482-83 S.C.R.

Mens Rea for [153] For the act to constitute murder, the appellant must have known that death
murder. was "likely". In this context, "likely" has to be understood as being something more
than an awareness of risk or a possibility or chance of death. It is not sufficient that
the accused foresee a danger of death: Cooper, at p. 155 S.C.R. In Cooper, Cory J.
also referred to R. v. Nygaard, 1989 CanLII 6 (SCC), [1989] 2 S.C.R. 1074, [1989]
S.C.J. No. 110, where the court had explained that there was only a "slight
relaxation" of the mens rea required for a conviction for murder under ss. 229(a)(i)
and 229(a)(ii). What is necessary is subjective knowledge that death is likely, which
must be present at some point during the acts committed by the appellant that
caused the death. (3) The constitutionality of s. 229(c)

111
Subjective foresight [169] Based on his explanation as to why he chose to go
from Lamer in beyond Vaillancourt, on the requirement of subjective foresight of death, and as to
Vaillancourt. how this would affect s. 229(c), I can only conclude that Lamer C.J.C. considered
the remainder of s. 229(c), after removal of the "ought to know" portion, to be
constitutional. Subjective foresight of death coupled with the unlawful object in s.
229(c) met the constitutional minimum. The specific intent to kill or to cause
serious bodily harm was not required.

Lamer’s actual [176] In this passage, Lamer C.J.C. seems to move freely between the concept of
passage in intent and the concept of subjective foresight. I have reproduced this paragraph in
Vaillancourt full and have italicized the relevant portions [at para. 11]:

A conviction for murder carries with it the most severe stigma and punishment of
any crime in our society. The principles of fundamental justice require, because of
the special nature of the stigma attached to a conviction for murder, and the
available penalties, a mens rea reflecting the particular nature of that crime. The
effect of s. 213 is to violate the principle that punishment must be proportionate to
the moral blameworthiness of the offender, or as Professor Hart puts it in
Punishment and Responsibility (1968), at p. 162, the fundamental principle of a
morally based system of law that those causing harm intentionally be punished
more severely than those causing harm unintentionally. The rationale underlying
the principle that subjective foresight of death is required before a person is labelled
and punished as a murderer is linked to the more general principle that criminal
liability for a particular result is not justified except where the actor possesses a
culpable mental state in respect of that result: see R. v. Bernard, 1988 CanLII 22
(SCC), [1988] 2 S.C.R. 833, per McIntyre J., and R. v. Buzzanga and Durocher
1979 CanLII 1927 (ON CA), (1979), 49 C.C.C. (2d) 369 (Ont. C.A.), per Martin
J.A. In my view, in a free and democratic society that values the autonomy and free
will of the individual, the stigma and punishment attaching to the most serious of
crimes, murder, should be reserved for those who choose to intentionally cause
death or who choose to inflict bodily harm that they know is likely to cause death.
The essential role of requiring subjective foresight of death in the context of murder
is to maintain a proportionality between the stigma and punishment attached to a
murder conviction and the moral blameworthiness of the offender. Murder has long
been recognized as the "worst" and most heinous of peace time crimes. It is,
therefore, essential that to satisfy the principles of fundamental justice, the stigma
and punishment attaching to a murder conviction must be reserved for those who
either intend to cause death or who intend to cause bodily harm that they know will
likely cause death. In this regard, I refer to the following works as support for my
position, in addition to those cited in Vaillancourt: Cross, "The Mental Element in
Crime" (1967), 83 L.Q.R. 215; Ashworth, "The Elasticity of Mens Rea," in Crime,
Proof and Punishment (1981); Williams, The Mental Element in Crime (1965); and
Williams, "Convictions and Fair Labelling", [1983] 42 C.L.J. 85. (Emphasis added)

Striking out the [185] We must recall that s. 229(c) is set apart from provisions that might seek to
“ought to know” label any foreseen death as murder. Like s. 229(a)(ii), it contains a "true" intent
requirement, intent in the sense of being the accused's purpose, object or desire.

112
 intent in 229 © and Section 229(a)(ii) requires a true intent to cause serious bodily harm and s. 229(c)
229(a)(ii) requires an intent to further the pursuit of an unlawful object, which is itself an
indictable offence requiring full mens rea. When the subjective foresight of death is
combined with an ulterior intent that is itself sufficiently culpable, together they
constitute a proper normative substitute for an intent to kill.

Death was likely to [152] Vague realization that death is possible will not be sufficient. Similarly, if the
occur and not dangerous act was done as a reaction, and out of panic, this may tend to show that
simply a risk or a the required subjective foresight of death was not present at the time that the act
possibility was committed.

6.5 CRIMINAL NEGLIGENCE AND PENAL NEGLIGENCE

Penal Negligence: The negligence standard in the criminal code which 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 qualified objective test. McLauchlin argues for an objective test subject to limitations of capacity.

Criminal Negligence (s.219): Historically this was defined for the driving offences as no convictions were
being laid under manslaughter. So we have 219 and 220. Historically this has been based on an objective
standard, but due to the stigma and penalty the Charter suggests we need a subjective standard of mens
rea. 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)

113
6.5.1 R. V. CREIGHTON

FACTS:
 Creighton delivers a dose of cocaine to a friend intravenously.
 She dies as a result of an overdose.
CHARGE: 222(5)(a) and 222(5)(c) Manslaughter by unlawful act and criminal negligence.
ISSUE: What level of objective/subjective test will suffice for the unlawful act and/or for criminal
negligence?
DECISION:
 For the underlying unlawful act of trafficking:

Actus Reus Mens Rea Culpable

Act Administering Voluntary Always

Circumstance 1 Cocaine Knowledge / Willful Blind Yes

Circumstance 2 Dangerous (necessary to Knowledge Yes

elevate into
manslaughter)

 Now the problem is, that this dangerousness, and objective standard of harm will be imported
 This is an easy case on the facts. But it is a difficult question of law.
 Subjectively it can be proven. However, subjectively it can also be shown that the accused had
reason to believe it was safe (as he had done it many times).
 Moving to an objective standard lets us go to a non-informed view.
 For the first time ever the courts iterate what negligence means in the context of criminal law. This
they call “penal negligence”.
 This is all about semantics.
Mens Rea
 Does the mens rea have to attach to the crime, or can it attach to the underlying act. That is can we
allow a deviation from our starting point of symmetry?
McLauchlin (majority)
 Feels that “objective standard of harm” is sufficient.
 Follows DeSousa – symmetry - as long as there is mens rea in the other components, you do no need
to achieve perfect symmetry to satisfy s. 7.
 What is important is that the mens rea attaches to the culpable/essential aspects of the charge.
 Symmetry is not a fundamental principle.
 Why will we allow departure from symmetry here:
o Stigma is appropriate (manslaughter is not a high stigma crime)
o The seriousness of the consequence (death of a person)
o The flexibility and level of sentencing, which allows us some room to play with mens rea.
o Thin-Skull, the harm and the consequence are one and the same.

114
 o Historical recognition of departure.
o The need for deterrence
 We have enough fault built into the act that we don’t need to worry about the mens rea of the
consequence.
Lamer (minority)
 Wants to read up the objective standard to “objective standard of death”
 He doesn’t just want to allow harm and death to slide into the same category.
 When one is engaged in a dangerous activity, and that death would flow from this is reasonable.
The Standard
 The level of negligence for criminal law must be “gross negligence”
 Was there a marked and substantial departure from the reasonable?
 The Test: Would a reasonable person would have objectively seen the consequences?
 If you’re involved in a dangerous activity, then clearly this would amount to gross negligence.
 If however, you were involved in a normal activity that spun out of control, then it is probably not
gross negligence.
 Thus the question is, how many features of the accused do we take into account?
 Criminal law is about subjective fault. However we’re allowing an objective test. So the question
this raises, in order to differentiate from civil law, is how many features of the accused we will
allow in. In essence an infiltration of subjectivity.
Lamer (minority)
 Wants to qualify the objective approach as much as possible with subjective qualities.
 The reason this is preferable, is because if we build from HLA Hart.
1. Would a reasonable person be aware that the consequences would result in
death/harm?
2. Was the accused unaware because he didn’t turn his mind to the consequences? (this is
the culpability of inadvertence, you must apply yourself)
3. Was the accused unaware because you lacked the capacity to turn your mind to the
consequences? (this is excusable as they can’t even meet the standard; ought implies
can and to convict someone when they couldn’t would be wrong)
 Thus lamer wants to ask “would the reasonable person, with the individuals personal set of
limitations, have foreseen the consequences”.
 This goes hand in hand with an awareness of shortcomings, such as needing glasses, which would
lead you to be more careful.
 What frailties will he include:
o Something one cannot escape and that one cannot overcome. We don’t want to punish
someone for his or her limitations.
o This will not include drugs/alcohol.
 Thus Lamer advocates a standard, but the fault that flows from it must be individualized. He is
not advocating a subjective standard.
McLauchlin (majority)
 Wants a purely objective test.
 The whole point of the objective test is a uniform standard.
 She is afraid that Lamer is opening a back door and allowing in a subjective test under the guise
of objectivity.

115
  We don’t want negligence being mixed up. The standard is dead set, there can be no
individualization.
 Her only limit to this would be mental incapacity. However she leaves not room for this. “mental
disability short of incapacity is not enough” is her only definition.
Application to Test
McLauchlin
 Objectively a person would see the harm and he should be convicted.
 Would the objective reasonable person foresee the harm?
 If we consider Creighton with his experience of drugs would not objectively see this, he would
feel it is safe. She doesn’t want the subjective knowledge brought in.
Lamer
 We don’t see how his test would apply, as he convicts based on a subject standard.
 Subjectively this could go either way as noted. A drug user should have additional awareness,
but a good drug user doesn’t see death, so he would be subjectively blind to it.
 Lamer goes with the feeling that a drug user should have additional awareness.
IMPLICATIONS:
 Outside of this people have gravitated towards Lamer’s judgment because it is workable and
defined better.
 The fact is that the objective standard exists and is in use.
 We now have a method for analyzing a new offense (if we have no
1. Break down the offense and all the aspects of the actus reus and mens rea.
2. Ask ourselves where the Court will allow departure to lower the burden.

6.5.2 R V BEATTY, (2008) SCC

 Dangerous operation of a motor vehicle causing death

 Penal negligence offense

FACTS:

 Beatty was driving, truck crossed the center line into the path of an oncoming vehicle
 All three occupants were killed
 Had a momentary lapse in attention

CHARGE: Dangerous operation of a motor vehicle causing death. S 249(4)

ISSUE: Does this momentary act of negligence was sufficient to constitute dangerous operation of a motor
vehicle causing death within the meaning of s249(4)?

DECISION:

 Acquitted need something more than a few seconds of lapse to constitute a marked and
substantial departure. His driving was not out of the

REASONS:

116
  Court determines that the modified objective test is the appropriate test to determine the
requisite MR for negligence-based criminal offences.
 A modified objective test for negligent driving is a marked departure; in the circumstances the
accused knew at the time, not taking into account personal characteristics, unless incapacity to
appreciate the risk.
 A modified objective test is the appropriate test to determine the requisite mens rea for
negligence based criminal offences

IMPLICATIONS:

 Penal Negligence:
o Modified Objective test based on Creighton
o Gross negligence marked departure
o Contextualize the circumstances, would a reasonable person have done it.
 Correct statement of the law is as follows: 
o 1.   The actus reus requires a marked departure from the normal manner of driving.
o 2.   The mens rea is generally inferred from the marked departure in the nature of
driving.  Based on the finding of a marked departure, it is inferred that the accused lacked
the requisite mental state of care of a reasonable person. 
o 3.   While generally the mens rea is inferred from the act constituting a marked departure
committed by the accused, the evidence in a particular case may negate or cast a
reasonable doubt on this inference.

IMPORTANT QUOTES:

(7) The modified objective test established by this Court’s jurisprudence remains
P 7/8 “the analysis is the appropriate test to determine the requisite mens rea for negligence-based
contextualized” criminal offences.  As the label suggests, this test for penal negligence
tutton and McIntyre “modifies” the purely objective norm for determining civil negligence.  It does
so in two important respects.  First, there must be a “marked departure” from the
(reasonable and
civil norm in the circumstances of the case.  A mere departure from the standard
exonerating mistake of expected of a reasonably prudent person will meet the threshold for civil
fact), “incapacity” negligence, but will not suffice to ground liability for penal negligence.  The
McLachlin. distinction between a mere departure and a marked departure from the norm is a
question of degree.  It is only when the conduct meets the higher threshold that
Penal test explained, the court may find, on the basis of that conduct alone, a blameworthy state of
mind.
have to bring it back to
the accused, analysis
[8] Second, unlike the test for civil negligence which does not concern itself
has to be
with the mental state of the driver, the modified objective test for penal
contextualized,
negligence cannot ignore the actual mental state of the accused.  Objective mens
allowances made for
rea is based on the premise that a reasonable person in the accused’s position
defences, incapacity
would have been aware of the risks arising from the conduct.  The fault lies in
and reasonable and the absence of the requisite mental state of care.  Hence, the accused cannot
exonerating mistake of avoid a conviction by simply stating that he or she was not thinking about the
fact. manner of driving.  However, where the accused raises a reasonable doubt
whether a reasonable person in his or her position would have been aware of the
risks arising from the conduct, the premise for finding objective fault is no
longer sound and there must be an acquittal.  The analysis is thus
contextualized, and allowances are made for defences such as incapacity and

117
 mistake of fact.  This is necessary to ensure compliance with the fundamental
principle of criminal justice that the innocent not be punished.

P 20 dangerous It is well established that dangerous driving is based on a form of negligent
driving is penal conduct. As is readily apparent from a reading of s. 249, an act of dangerous
negligence  operation of a motor vehicle necessarily falls below the standard of care
difference between civil expected of a reasonably prudent driver; among other things, it is expected that
negligence and penal a reasonably prudent driver will not drive “in a manner that is dangerous to the
neg. public” as proscribed by this provision.  The converse, however, does not hold
true.  An act of negligent driving will not necessarily constitute the offence of
dangerous driving.  The question raised on this appeal requires the Court to
reiterate the important distinction between civil negligence and negligence in a
criminal setting.  The latter has often been referred to as “penal negligence” so
as not to confuse the category of negligence-based offences in a criminal setting
with the particular offence of criminal negligence under s. 219 of the Criminal
Code which, of course, also forms part of this category.  This Court in Hundal
adopted what it called a modified objective test for determining the requisite
mens rea for negligence-based driving offences.

P 22-26 history of
mens rea, purpose of
fault, and relation to
mens rea and the
constitution (principles
of fundamental justice)

[33] The Court in Hundal, however, made it clear that the requisite mens rea
P 33 First may only be found when there is a “marked departure” from the standard of care
modification of the expected of a reasonable person in the circumstances of the accused.  This
objective test, the modification to the usual civil test for negligence is mandated by the criminal
setting.  It is only when there is a “marked departure” that the conduct
marked departure.
demonstrates sufficient blameworthiness to support a finding of penal liability. 
One aspect of driving, “the automatic and reflexive nature of driving”,
particularly highlights the need for the “marked departure” requirement in a
criminal setting.  Cory J. described this aspect as follows (at pp. 884-85):

Second, the nature of driving itself is often so routine, so automatic that it is

almost impossible to determine a particular state of mind of a driver at any
given moment.  Driving motor vehicles is something that is familiar to most
adult Canadians.  It cannot be denied that a great deal of driving is done with
little conscious thought.  It is an activity that is primarily reactive and not
contemplative.  It is every bit as routine and familiar as taking a shower or going
to work.  Often it is impossible for a driver to say what his or her specific intent
was at any moment during a drive other than the desire to go from A to B.

[37] The underlying premise for finding fault based on objectively dangerous

P 37- second conduct that constitutes a marked departure from the norm is that a reasonable

118
 person in the position of the accused would have been aware of the risk posed
modification to the by the manner of driving and would not have undertaken the activity.  However,
objective test there will be circumstances where this underlying premise cannot be sustained
allowances for because a reasonable person in the position of the accused would not have been
aware of the risk or, alternatively, would not have been able to avoid creating
exculpatory defences.
the danger.   Of course, it is not open to the driver to simply say that he or she
gave no thought to the manner of driving because the fault lies in the failure to
bring to the dangerous activity the expected degree of thought and attention that
it required.  As Cory J. explained (at p. 885 of Hundal):

 
It would be a denial of common sense for a driver,
whose conduct was objectively dangerous, to be acquitted on
the ground that he was not thinking of his manner of driving
at the time of the accident.
 

However, because the accused’s mental state is relevant in a criminal setting,

the objective test must be modified to give the accused the benefit of any
reasonable doubt about whether the reasonable person would have appreciated
the risk or could and would have done something to avoid creating the danger. 
On these occasions, even when the manner of driving viewed objectively will
clearly be dangerous, the accused cannot be convicted.

[38]                          We can readily appreciate the injustice of branding the

P 38- reasonably held driver in each of these examples as a criminal.  In the same vein, a reasonably
mistake of fact held mistake of fact may provide a complete defence if, based on the accused’s
reasonable perception of the facts, the conduct measured up to the requisite
standard of care.  It is therefore important to apply the modified objective test in
the context of the events surrounding the incident.  In Tutton, McIntyre J.
provided the following useful example in the context of a criminal negligence
charge (at p. 1432, repeated in Hundal, at pp. 887-88):

 
If an accused under s. 202 has an honest and reasonably held belief in the
existence of certain facts, it may be a relevant consideration in assessing the
reasonableness of his conduct.  For example, a welder, who is engaged to work
in a confined space believing on the assurance of the owner of the premises that
no combustible or explosive material is stored nearby, should be entitled to have
his perception, as to the presence or absence of dangerous materials, before the
jury on a charge of manslaughter when his welding torch causes an explosion
and a consequent death.

[39] It is important however not to confuse the personal characteristics of the

P 39- make sure do not accused with the context of the events surrounding the incident.  In the course of
confuse the factual the earlier debate on whether to adopt a subjective or objective test, Lamer J.
circumstances favoured an objective approach but, in an attempt to alleviate its potential
harshness, he would have made generous allowances for factors particular to the
surrounding the
accused, such as youth, mental development and education:  see for example,
incident (context) with Tutton, at p. 1434.  Under this approach, the young and inexperienced driver’s
the personal conduct would be measured against the standard expected of a reasonably
characteristics of the prudent but young and inexperienced driver.  This approach, however, was not
accused (lamer from favoured by other members of the Court.  As Wilson J. stated in Tutton, this
individualized approach “sets out a fluctuating standard which in my view

119
 undermines the principles of equality and individual responsibility which should
tutton) pervade the criminal law” (p. 1418).

[40] Some of the language used in Hundal nonetheless left uncertainty about the
P 40- McLachlin degree to which personal characteristics could form part of the circumstances
restates her test from which must be taken into account in applying the modified objective test.  (See
Creighton for example the references to “certain personal factors” at p. 883 and to “human
frailties” at p. 887.)  This remaining uncertainty was later resolved in
Creighton.  Short of incapacity to appreciate the risk or incapacity to avoid
creating it, personal attributes such as age, experience and education are not
relevant.  The standard against which the conduct must be measured is always
the same — it is the conduct expected of the reasonably prudent person in the
circumstances.  The reasonable person, however, must be put in the
circumstances the accused found himself in when the events occurred in order
to assess the reasonableness of the conduct.  To reiterate the example used
above, the reasonable person becomes the one who “without prior warning,
suffers a totally unexpected heart attack, epileptic seizure or detached retina” or
becomes the one who “in the absence of any warning or knowledge of its
possible effects, takes a prescribed medication which suddenly and
unexpectedly” causes him to drive in a manner that is dangerous to the public. 
By so placing the reasonable person, the test is not personalized and the
standard remains that of a reasonably prudent driver, but it is appropriately
contextualized.

[70]                          It follows that if the only evidence against the accused is

P 70-71 momentary evidence of momentary lapse of attention, the offence of dangerous driving is
lapse of departure is not established.  This, in my view, is as it should be.  The heavy sanctions and
insufficient to be stigma that follow from a criminal offence should not be visited upon a person
for a momentary lapse of attention.  Provincial regulatory offences appropriately
marked departure.
and adequately deal with this sort of conduct.

 
[71]                          In terms of the test for the offence outlined above,
momentary lapse of attention does not establish the marked departure from the
standard of care of a reasonably prudent driver required for the actus reus of the
offence.  As the case law teaches, one must consider the entire manner of
driving of the accused, in all the circumstances.  A moment of  lapse of
attention, in the context of totally normal driving, is insufficient to establish the
marked departure required for the offence of dangerous driving.  In order to
avoid criminal liability, an accused’s driving is not required to meet a standard
of perfection.  Even good drivers are occasionally subject to momentary lapses
of attention.  These may, depending on the circumstances, give rise to civil
liability, or to a conviction for careless driving.  But they generally will not rise
to the level of a marked departure required for a conviction for dangerous
driving.

 
[61] In the absence of language in this passage confining the requirement of
P 61-67 marked marked departure to the mens rea of the offence, it is reasonable to conclude
departure applies to that it was intended to apply to both the actus reus and the mens rea of the
both AR and MR

120
 offence.
McLauchlin citing
Hundal and  
Creighton [62] Any doubt on the matter was removed by the majority decision of this
explanation on the test. Court in Creighton, in which Cory J. joined.  At pp. 73-74, I wrote:

The foregoing analysis suggests the following line of inquiry in cases of

penal negligence.  The first question is whether actus reus is established. 
This requires that the negligence constitute a marked departure from the
standards of the reasonable person in all the circumstances of the case. . . .
 
The next question is whether the mens rea is established.  As is the case
with crimes of subjective mens rea, the mens rea for objective foresight of
risking harm is normally inferred from the facts.  The standard is that of the
reasonable person in the circumstances of the accused.  If a person has
committed a manifestly dangerous act, it is reasonable, absent indications to
the contrary, to infer that he or she failed to direct his or her mind to the risk
and the need to take care. However, the normal inference may be negated
by evidence raising a reasonable doubt as to lack of capacity to appreciate
the risk.  Thus, if a prima facie case for actus reus and mens rea is made
out, it is necessary to ask a further question: did the accused possess the
requisite capacity to appreciate the risk flowing from his conduct?  If this
further question is answered in the affirmative, the necessary moral fault is
established and the accused is properly convicted.  If not, the accused must
be acquitted. [Emphasis added.]
 
[63] This analysis, which defines the actus reus in terms of a “marked
departure” and the mens rea as the normal inference from that conduct, absent
excuse, was penned only a short time after Hundal, and concurred in by the
majority of the Court, including Cory J.   Justice Cory’s decision in Hundal was
cited and relied on in Creighton as a basis for this formulation.   It follows that
Hundal and Creighton should be seen as adopting the same test, and that any
ambiguity in the discussion of dangerous driving in Hundal should be resolved
in the manner suggested in Creighton.

[64] Requiring that the conduct alleged to constitute the actus reus of the
offence constitute a marked departure from the standard of a reasonable person
is consistent with the language of s. 249 of the Criminal Code.  Section 249(1)
(a) defines the actus reus in terms of operating a motor vehicle “in a manner
that is dangerous to the public, having regard to all the circumstances”, and goes
on to provide a non-exhaustive list of circumstances to be taken into
consideration.  In this context, dangerousness is properly understood as
requiring a marked departure from the conduct of a reasonable person, in the
circumstances. 

[65] If conduct not representing a marked departure is allowed to satisfy the

actus reus requirement for dangerous driving, then it becomes unclear how
Criminal Code dangerous driving is to be distinguished from a wide variety of
provincial motor vehicle offences, at the level of the actus reus.  Provincial
motor vehicle legislation exists in part to manage and minimize the risks
associated with the widespread use of motor vehicles. Thus in many cases,
conduct representing a violation of provincial motor vehicle legislation will be
“objectively dangerous” in comparison with strict compliance with the
provisions of the legislation. Yet it would stretch the meaning of s. 249(1)(a) to

121
 suggest that such conduct would be sufficient to establish the actus reus of
dangerous driving. The “marked departure” requirement provides a standard for
determining what is objectively dangerous in the context of s. 249(1)(a),
allowing relatively minor violations of provincial motor vehicle Acts to fall
clearly outside the scope of conduct that Parliament intended to criminalize.

[66] I add that this formulation mirrors the theory on which the criminal law is
founded — that the actus reus and mens rea of an offence represent two aspects
of the criminal conduct.  The actus reus is the act and the mens rea, or guilty
mind, the  intention to commit that act.  If the mens rea of the offence requires a
failure to take reasonable care which is inferred from the conduct of driving in a
manner that represents a marked departure from the norm, then the actus reus
must be the act of driving in a manner that represents a marked departure from
the norm.

 
[67] I therefore conclude that the correct statement of the law is as follows:

 
1.   The actus reus requires a marked departure from the
normal manner of driving.

2.   The mens rea is generally inferred from the marked

departure in the nature of driving.  Based on the
finding of a marked departure, it is inferred that the
accused lacked the requisite mental state of care of a
reasonable person. 
 
3.   While generally the mens rea is inferred from the act constituting a marked
departure committed by the accused, the evidence in a particular case may
negate or cast a reasonable doubt on this inference.

6.5.3 R V A.D.H.

 Duties tending to preservation of life

 What fault element should be used for child abandonment
 5 categories of penal negligence offences

FACTS:

 Woman gave birth to a child in Wal-Mart

 She abandoned it, thinking that it was dead.

ISSUES: How should court interpret the MR requirement for abandonment of a child in 218? Can it be
objective liability?

CHARGE: s218 abandonment of a child.

DECISION: Acquittal: 218 is a crime of subjective MR.

122
REASONING:

 Court seeks to establish the intent of Parliament in regard to the purpose of the section and the
application of statutory construction
 Presumed legislative intent was that it was subjective fault.
 Potential liability is very broad under the wording, one-way to limit the breath (so there is no
over breadth) of the statute, is to narrow the MR, raise the MR requirement. If it was objective
then could be too overbroad.
 Court also looks at the text, words “abandon, expose and willful” suggest subjective fault.
 The word likely, based on other offences in the code, refers to subjective fault.

IMPLICATIONS:

 Crown sets out 5 categories for types of offences which are objective fault
o Dangerous conduct
o Offences expressed in terms of careless conduct; eg carless storage of firearms
o Predicate offences: such as unlawful act manslaughter and unlawfully causing bodily
harm
o Offences based on criminal negligence, ss 219/220/221
o Duty Based offences
 Moldaver J sets out three reasonably well-established categories of duties to act
o General relationships of care and protection
o Specific undertakings to act
o Causal responsibility for dangerous situations

IMPORTANT QUOTES:

Thus, whether the fault element is assessed according to what the respondent
P 2/3 subjective test actually knew or by what a reasonable person would have known and done is an
is important she important issue in this case.
thought the child was
dead.
[3] In general terms, when a fault element is assessed subjectively, the focus is
on what the accused actually knew: Did the accused know that abandoning the
child would put the child’s life or health at risk? If, as the respondent believed,
the child was dead when she abandoned him, she would not know that her
abandonment of him risked putting his life or health at risk. Again to speak
generally, when assessed objectively, the focus is not on what the accused
actually knew, but on whether a reasonable person in those circumstances would
have seen the risk and whether the accused’s conduct is a marked departure
from what a reasonable person would have done. If a court were persuaded that
a reasonable person would have seen the risk of abandoning the child in these
circumstances and concluded that the accused’s conduct was a marked departure
from that expected of a reasonable person, the fault element would be
established even though the accused in fact did not see the risk.

P 15 penal   In this case, a penal negligence standard means that the Crown must prove two

123
negligence things to establish the fault element:  first, that the risk to the child resulting
from the respondent’s acts would have been foreseeable by a reasonable person
in the same circumstances and, second, that her conduct was a marked departure
from the conduct expected of a reasonable person in those circumstances. Penal
negligence is the fault element that applies to the offence of failing to provide a
child with the necessaries of life under s. 215 of the Code and the Crown
submits that the same standard of fault should apply here.

P 16 subjective [16] On the other hand, a subjective standard means, in the context of an offence
under s. 218 of the Code, that the fault element requires proof at least of
recklessness, in other words that the accused persisted in a course of conduct
knowing of the risk which it created.  Subjective fault, of course, may also refer
to other states of mind. It includes intention to bring about certain consequences;
actual knowledge that the consequences will occur; or wilful blindness — that is,
knowledge of the need to inquire as to the consequences and deliberate failure to
do so.

Perhaps the classic statement is that of Dickson J. (as he then was) for the Court
P 23 presumption in Sault Ste. Marie:
that parliament wants a
subjective intent.
In the case of true crimes there is a presumption that a person should
P 24 says that there are not be held liable for the wrongfulness of his act if that act is without
offences that do not mens rea . . . .
require subjective  
intent. . . . . Where the offence is criminal, the Crown must establish a
mental element, namely, that the accused who committed the prohibited
act did so intentionally or recklessly, with knowledge of the facts
constituting the offence, or with wilful blindness toward them. Mere
negligence is excluded from the concept of the mental element required
for conviction. Within the context of a criminal prosecution a person
who fails to make such enquiries as a reasonable and prudent person
would make, or who fails to know facts he should have known, is
innocent in the eyes of the law. [Citations omitted; pp. 1303 and 1309-
10.]

[24] Notwithstanding these many statements, the Crown in effect submits that

there is no such presumption of legislative intent because it has not always been
applied. The Crown notes that there are many offences in the Code that do not
require subjective fault and further that there is no absolute rule requiring
complete symmetry between the fault element and the prohibited consequences
of the offence. In my view, however, these points do not negate the existence of
the presumption of legislative intent. They show merely that the presumption
does not invariably determine the outcome of a full contextual and purposive

124
 interpretation of a particular provision.

[27] As for the role of the presumption of subjective fault in assessing

P 27 subjective fault competing interpretations, it sets out an important value underlying our criminal
is important in law. law. It has been aptly termed one of the “presumptive principles of criminal
Historical base for it to justice”: R. v. Beatty, 2008 SCC 5 (CanLII), 2008 SCC 5, [2008] 1 S.C.R. 49,
per Charron J., at paras. 22-23. While the presumption must — and often does
be subjective.
— give way to clear expressions of a different legislative intent, it nonetheless
incorporates an important value in our criminal law, that the morally innocent
should not be punished. This has perhaps never been better expressed than it
was by Dickson J. in Pappajohn, at pp. 138-39:

There rests now, at the foundation of our system of criminal justice, the precept
that a man cannot be adjudged guilty and subjected to punishment, unless the
commission of the crime was voluntarily directed by a willing mind. . . . 
Parliament can, of course, by express words, create criminal offences for which
a guilty intention is not an essential ingredient.  Equally, mens rea is not
requisite in a wide category of statutory offences which are concerned with
public welfare, health and safety.  Subject to these exceptions, mens rea,
consisting of some positive states of mind, such as evil intention, or knowledge
of the wrongfulness of the act, or reckless disregard of consequences, must be
proved by the prosecution.

P 59 predicate [59] A third category relates to so-called predicate offences. These are offences
offences, seen in such as unlawful act manslaughter and unlawfully causing bodily harm which
DeSousa, faults come in require the commission of an underlying unlawful act.  They have been found to
the predicate. require the mental element for the underlying offence but only objective
foresight of harm flowing from it:  see, e.g., R. v. DeSousa, 1992 CanLII 80
(SCC), [1992] 2 S.C.R. 944 (unlawfully causing bodily harm); R. v. Creighton,
1993 CanLII 61 (SCC), [1993] 3 S.C.R. 3 (unlawful act manslaughter).  Without
reiterating the detailed reasons given in those cases, I simply underline that
these offences are ones in which the commission of the predicate or underlying
offence has actual and serious consequences. As Sopinka J. said in DeSousa (at
p. 967) and McLachlin J. repeated in Creighton (at p. 55): “The implicit
rationale of the law in this area is that it is acceptable to distinguish between
criminal responsibility for equally reprehensible acts on the basis of the harm
that is actually caused.” This rationale has no application to s. 218; there is
neither a predicate offence nor any need to show that actual harm resulted from
the conduct in the child abandonment offence.

P 68 explains why it [68] The Crown submits that this reasoning applies equally to s. 218 because
is not a penal neg that offence, too, may be committed by a person who fails in a legal duty to take
offence, despite charge of a child. I do not accept this position.  While failure to perform a duty
heading. imposed by law on persons in particular relationships is the essence of the
offence created by s. 215, this is not at all the case with respect to child

125
 abandonment under s. 218.  This is why the reasoning of Naglik cannot apply to
s. 218. The child abandonment offence may be committed by “[e]very one”; it is
not restricted to persons in particular relationships or under specified, statutorily
created legal duties. The concept of duty in the child abandonment offence
becomes relevant only in relation to an omission and is found in the non-
exhaustive definition of “abandon” or “expose”.  Those terms include “a wilful
omission to take charge of a child by a person who is under a legal duty to do
so”: para. (a) of the s. 214 definition.  In my opinion, the reference to “legal
duty” in relation to omissions in this section simply gives effect to the common
law principle that criminal responsibility generally does not arise from an
omission unless there is a pre-existing legal duty to act: see, e.g., K. Roach
(2012), at p. 115; D. Stuart, Canadian Criminal Law: A Treatise (6th ed. 2011),
at p. 95. Therefore, the effect of the reference to duty in para. (a) of the s. 214
definition is to ensure that the offence applies to omissions by those with a legal
duty towards a child.  However, the child abandonment offence does not impose
any such duties and people with no duty may be liable, but only for positive acts
captured, for example, by the words “dealing with” in para. (b) of the s. 214
definition.

[88] Furthermore, it is worth recalling that a particular offence may well have

Moldaver J p 88 some mental elements that are assessed subjectively and others that are assessed
some offences have objectively.  In R. v. Hinchey, 1996 CanLII 157 (SCC), [1996] 3 S.C.R. 1128, at
elements which are para. 80, L’Heureux-Dubé J., for the majority, refused to accept that “an offence
must be either subjective or objective with no possible middle ground”.  In her
subjective and others
view,
are objective

the mens rea of a particular offence is composed of the totality of its

component fault elements.  The mere fact that most criminal offences
require some subjective component does not mean that every element
of the offence requires such a state of mind.  [Emphasis in original;
para 80.]

With that point in mind, one must be careful not to speak of a crime as requiring
simply subjective or objective mens rea.  Such conclusions “tel[l] only part of
the story”, and a “more precise approach” requires identifying each mental
element in relation to its coordinate physical element (Roach, at p. 164). 
Accordingly, the task before us is to identify the mental element for each of the
three physical elements of the offence of child abandonment — the act, the
circumstances and the consequences.

P 112 different [112] When one steps back to look at the broader picture, the understanding that
classes of legal duties one’s positive actions can give rise to a situational duty is a principle well
known to the common law.  As Professors Colvin and Anand have noted,

126
 historically there have been “three reasonably well-established categories of
duty to act” (Principles of Criminal Law (3rd ed. 2007), at p. 141).  The first is
well known and concerns “general relationships of care and protection”, such as
those captured by part (a) of the s. 214 definition.  The second concerns
“specific undertakings to act” (see, e.g., R. v. Nicholls (1874), 13 Cox C.C. 75;
The Queen. v. Instan, [1893] 1 Q.B. 450) and the third concerns duties arising
from “causal responsibility for dangerous situations” (see, e.g., The Queen. v.
Salmon (1880), 6 Q.B.D. 79; R. v. Coyne (1958), 124 C.C.C. 176 (N.B.S.C.
(App. Div.)); R. v. Miller, [1983] 1 All E.R. 978 (H.L.)).  See also Ormerod, at
pp. 70-75 (including “[p]arents and other relations”, “[v]oluntary undertakings”,
and “[c]reating a dangerous situation” as categories).  These three categories
map precisely to the three groups of individuals who I conclude come within the
ambit of s. 218.  While it is, of course, true that our criminal law does not
include common law offences, in my view, the wording of part (b) of the s. 214
definition reflects a specific statutory instantiation of the second and third of
these long-standing common law principles — much like ss. 216, 217 and 217.1
do — in this case with respect to young children.

6.6 CRIMINAL NEGLIGENCE AND RECKLESSNESS

The Problem

 This connects with penal negligence in that the definition of criminal negligence is debated. Is it
penal negligence (objective) or is it recklessness (subjective)?

 This question one of minimal mens rea. The difference between wanton and recklessness are hard to
define. All the cases on this subject are unclear. In short, we do not know what negligence is. We
want to determine if Criminal Negligence is subjective (Recklessness) or objective (Penal Negligence)

 The way we can define this is with reference to recklessness. Recklessness is the minimum content
for mens rea. We know it has to with foresight and prediction of the consequences. It is not
certainty, but likely. If it was certainty it would be oblique or direct intent. Normally we will read in
recklessness and the crown will be desperate to read it down to negligence. In recklessness we have
to foresee a risk. But we don’t know if it’s possibility, probability, likelihood.

 Negligence is the sister concept of recklessness. They are related in that they are about taking an
unjustifiable risk.

 Reckless: taking an unjustified risk related to a known risk. It is a subjective foresight that ones
conduct may bring about a consequence but nevertheless takes about an unjustified risk.

 Negligence: taking an unjustified risk. It is a an objective standard triggered by phrases such as

“ought to have know”

127
 To clarify this we must define “unjustified” which means that the gain is greater than the harm. Thus
asking about “unjustified” we ask the court to weight social utility. However, this takes us a long way
from the goal of justice (as in Jobidon).

Solution

 The level of the recklessness standard will move with the seriousness and social utility of the act as
well as the knowledge of the parties involved.

Examples:

1. A Surgeon will never be convicted on anything less than high probability approaching
certainty as he must be allowed on the grounds of social utility.

2. A person playing with guns will be convicted on a mere possibility as the social utility is
low.

6.6.1 R. V. SHARP

 For driving (and licensed activities) criminal negligence is penal negligence and is based on the
marked and substantial departure from the reasonable standard
FACTS:
 Sharp is driving with some friends and turns around when he hears a noise.
 Evidence suggests he was driving too quickly.
 He runs into a tree.
 4 passengers in the back seat are killed.
 A passenger in the front seat is injured.
 He was acquitted in a jury trial.
 This is an appeal by the crown.
ISSUES: Was the trial judges charge to the jury incorrect in that it suggested the necessity of a mental
element to the crime.
CHARGE: Criminal Negligence Causing Death s.220.
DECISION: Appeal dismissed. Acquittal upheld.
REASONING:
 The judge, though mistakenly using the word “deliberate” did not on a complete reading intend
the normal meaning of the word (that is was considered).
 His examples as to deliberate and non-deliberate show and understanding of the words that the
jury would have understood it to mean the objective standard. The judge uses the example of a
lit cigarette put down the drivers back. This would be involuntary. This is not negligence. The
converse is
 He correctly separates dangerous driving from criminal negligence and correctly imports a
volitional level of awareness as the requirement for negligence. That is a marked and serious
departure from the accepted norms that would have been recognized by the reasonable person
had they thought about it and regardless of the fact that the defendant did not, and need not
think about them.

128
  You have to be deliberately engaged in the activity, that is it is voluntary.
 There can be either recklessness (subjective).
 Driving is reflexive, not reflective.
IMPLICATIONS:
 Criminal negligence in driving (and other licensed situations) is penal negligence.
 This is not a good precedent for anything because it applies only to driving. There is something
about driving that makes it not amenable to normal mens rea because by it’s nature it is reflexive
not reflective.
 We could never in a driving case get subjective awareness.
 Further more, the licensing system means that there is a clear reasonable standard and everyone
should be fixed with that awareness by law.
 The same will apply to doctors who are also licenses.
 Most of the jurisprudence in Criminal Negligence is driver and doctors.
 In such situations the subjective test fails so it is implied through the objective test, and we start
to apply an attitude test, a disregard for life.

6.6.2 R. V. BARON (TRIAL)

 looking outside the licensed/driving realm

 Creates, unknowingly, an objective standard for Criminal Negligence outside licensed realms.
 criminal negligence was created for driving offences but it is not limited to them so how far can that
purpose go, and how does it define
 note when you talk about manslaughter there are 4 options if not specified
FACTS:
 Baron and some buddies are drinking at his grandmothers.
 Someone suggests they streak the girls in the basement.
 Fidanza (the deceased) and Baron disrobe and head for the basement.
 Fidanza changes his mind on the landing and Baron to egg him on gives him a push.
 Fidanza falls down the stairs and later dies of brain damage and internal bleeding.
ISSUES: Did the push amount to assault, and if not was there criminal negligence leading to death? What
is the correct standard with respect to Criminal Negligence causing death (Manslaughter) related to
comission?
CHARGE: Manslaughter
DECISION: Conviction
REASONING:
Because we have generic manslaughter there are 4 options we must analyze:
A. Unlawful Act (Assault)?
 No – there was implied consent as a result of them being friends (note that Ewanchuck
only limited implied consent in sexual assault).
B. Criminal Negligence

129
  The standard for criminal negligence is: “… the doer of the act is acting ‘recklessly’ if
before doing the act, he either fails to give any thought to the possibility of there being
any such risk, or, having recognized such risk, he nevertheless goes on to do it.”
 In the given case the judge finds that the steepness of the stairs, the lack of handrail and
the drunkenness of Fidanza lead to a dangerous situation that Baron should, on a
reasonable person (purely objective) test for a sober 16 year old, have recognized and
avoided.
 Note that there is an injection of subjective features but won’t admit it.
 He did not, and pushed his friend.
 Without saying it expressly the judge creates an objective standard for criminal
negligence outside of driving/licensed realm.
 Because we can show criminal negligence we can stop the analysis at 222(5)(b)
 Very strong objective standard, and very similar to Sharp.
IMPLICATIONS:
 Creates, unknowingly, an objective standard for Criminal Negligence outside licensed realms.

6.2.3 R. V. BARON (APPEAL)

 Looking outside the licensed/driving realm

 Overturns the objective standard for Criminal Negligence outside licensed realms and aims for a
subjective standard, but this is not argued well.
 The basis seems to be the social utility and implicit knowledge consent of the parties.
FACTS:
 Same as above.
 The interesting part of the previous case was that there was no via voce evidence.
 They took everything on record.
 Why would they have done this? Because maybe Baron was a little jerk.
ISSUES: Did the judge error in considering the force and momentary nature of the application of force?
CHARGE:
DECISION: Conviction overturned.
REASONING:
 The basis for the trial judges conviction because the lack of thought demonstrated a “wonton or
reckless” disregard for human life. Therefore there was a marked and substantial departure as
the defendant did not avert to the danger.
 Dangerous at common law is foreseeability, and at the top of the stairs this is possible. So why is
the appeal succeeding?
 The difference is the view of what constitutes a marked and substantial departure. The trial
judge is viewed as in error because the judge is relying on the advertence.
 The court of appeal wants something more than mere advertence. But it has trouble stating
what ‘more’ is necessary. This is where juries come in handy.
 Though there is clearly a departure from the normal standard, in light of the friendship, the
momentary inadvertent nature of the event and circumstances as the minimal level of force

130
 involved it is difficult to find that the action constitutes a marked departure from the reasonable
standard.
IMPLICATIONS:
 Most criminal negligence cases should go to a jury.
 However, the exception is in doctor or licensed situations for specialists.

6.2.4 R. V. TUTTON AND TUTTON (SCC)

 Now we’re moving further form licensed, we have moved passed commission to omission
 Not the court sat as 6 because someone was sick hoping they wouldn’t get a split court, but they did
FACTS:
 The Tuttons have a child with diabetes.
 They are instructed carefully on how to care for him.
 However, they believe that Jesus will cure him.
 In a dream the mother, twice, thinks the son is healed and takes him off insulin.
 The first time the boy is saved.
 The Tuttons are carefully warned.
 The second time around the boy is not so lucky and dies.
 The Tuttons at trial are convicted of manslaughter.
 The Court of Appeal overturns this and directs new trials.
 This is an appeal to the SCC of that decision to overturn the conviction and order new trials.
ISSUES: What is the correct was to charge the jury with respect to Criminal Negligence causing death
(Manslaughter) related to omission?
CHARGE: Criminal Negligence causing death (s.202) under the illegal act of legal duty to provide
necessities of live s.197
DECISION: Appeal dismissed, new trial will proceed.
REASONING:
Note: this is actually a 3-3 split.
 The debate centers heavily on whether the subjective or objective standard is correct for the
interpretation of criminal negligence causing death outside motor vehicle accidents.
 We have to show that the omission showed wanton and reckless disregard for life.
 She didn’t subjectively avert, but she did objectively.
 We now have the problem that we MUST differentiate between subjective and objective because
as opposed to theory in other cases this WILL make a difference in this case.
 The real question is will a religious belief be accepted as an excuse. Though we don’t need to go
this far it is the problem we are struggling with.
Court of Appeal
 Found that a subjective test should be used for omission crimes. We already have a view that
omissions are less blameworthy.
 There is nothing in the section to say the test should be different, but it makes sense given our
aversion to omission crimes in general.
 What we’re trying to do is examine the motive of a person; we are looking for the negative
attitude. The problem is we can’t examine everyone’s lives like that.
Majority (3 - McIntyre):

131
  There will be an objective test for criminal negligence.
 Test: Proof of conduct, which reveals marked and significant departure from standard which
could be expected of reasonably prudent person in circumstances, will justify conviction (R. v.
Barron), subject to defence of mistake of fact (new trial would deal with issue of whether or not
Tutton, within reason, believed her actions to be not dangerous given the circumstances).
 This is based mostly on the concept of the language in the code, which is ‘negligence’ and the
authorities such as the driving cases.
 Further more, even on an objective standard there are exculpatory claims using mistake of fact,
that is a reasonable belief that there was no danger to respond to. If you made a mistake and
were objectively reasonable about the mistake then the defendant will get the benefit of the
doubt.
 We will send it back for a new trial, the jury will have to address: “was Tutton on an objective
standard, guilty of negligence”
 This is viewed generally as an endorsement of a pure objective test.
Minority (3 - Wilson):
 She overstates McIntyres position and sees it as absolute, but it’s not what McIntryre said. He
advocates for an objective measure to the mens rea, not no mens rea at all.
 Bases decision on the word “reckless” and this is subjectively based
 para 42 “the section (202) can reasonably bear an interpretation which leaves room for the
mental element of awareness… conduct which shows a wanton or reckless disregard for the lives
and safety of others will by it’s nature constitute prima facie evidence of the mental element,
and in the absence of some evidence that casts doubt on the normal degree of mental
awareness, proof of the act and reference to what a reasonable person in the circumstances
must have realized will lead to a conclusion that the accused was aware of the risk or willfully
blind to the risk”
 This implies we will place an evidentiary and/or strategic burden on the defendant to show why
they shouldn’t use the objective standard
 That is we won’t make the crown prove the subjective, we will imply it from your act. The more
dangerous the act the more un-rebuttable the implication becomes.
 An endorsement of the subjective test by inference from the act, but with a rebuttable back door
that is based on a subjective test for mistakes.
IMPLICATIONS:
 We seem to be going to the objective standard for criminal negligence (McIntyre) even though
it’s a 3-3 tie. However, the reasonable belief will play a huge element within an objective
standard as we want to give a clear escape route.
 We are to narrow in our view of criminal justice, it doesn’t do anything except punish. It needs
to work closer with society.
 Imagine a new trial for Tutton. Whose view pervades?
McIntyre (objective + capacity):
o Conviction, religion is not part of the reasonable person
Lamer (qualified objective):
o We’re not sure what to take into account; he mentions youth, age, and education. Two
of these are immutable, the last is not. We don’t know if religion will come in. Is it
immutable, or is it like education, and if it is like education will it be allowed?
Wilson (subjective + mistake of fact):

132
 o There is the possibility that the subjective test for a mistake would let Tutton off as the
subjective test would take these into account. This would depend on the definition of
high risk and her training with doctors. Tutton can rely on Honest Mistake to an extent,
but religion could be used as a smoke screen. Tutton’s evidence will have to be
believed. Without her previous infraction and mistake this is more believable, it could
be hard given the prior visions and warnings.

IMPORTANT QUOTES:

p 19/20- definition of (19) As I have suggested above, the words of the section can reasonably bear an
reckless. Wilson interpretation which leaves room for the mental element of awareness or advertence to
a risk to the lives or safety of others or wilful blindness to such risk.  Conduct which
shows a wanton or reckless disregard for the lives and safety of others will by its
nature constitute prima facie evidence of the mental element, and in the absence of
some evidence that casts doubt on the normal degree of mental awareness, proof of the
act and reference to what a reasonable person in the circumstances must have realized
will lead to a conclusion that the accused was aware of the risk or wilfully blind to the
risk.

  (20) Professor Glanville Williams in his work Criminal Law: The General Part (2nd
ed. 1961) explained the minimal nature of the mental element for advertent negligence
and the important evidentiary use of objective standards in determining the subjective
state of mind of what he terms advertent negligence. He defined the requirement of
recklessness in advertent negligence as follows at pp. 53-55:

   If the actor foresaw the probability of the consequences he is regarded as reckless,

even though he fervently desired and hoped for the exact opposite of the consequence,
and even though he did his best (short of abandoning his main project) to avoid it.... 
Recklessness is any determination to pursue conduct with knowledge of the risks
involved though without a desire that they should eventuate.

P 23 possibility of (23) In recognition of the harshness of a uniform application of an objective standard
modified objective of criminal liability much of the recent work in criminal jurisprudence has canvassed
test LA Hart the possibility of introducing a subjective dimension into the objective standard in
Wilson judgement. order to relieve the harshness of imposing an objective standard on those who, because
of their peculiar characteristics, could not fairly be expected to live up to the standard
set by the reasonable person.  H. L. A. Hart was perhaps the first to explore this
possibility in his essay "Negligence, Mens Rea and Criminal Responsibility," in 
Oxford Essays in Jurisprudence (1961) (c. 2).  He recognized the dangers of the use
of an objective standard at p. 47:

If our conditions of liability are invariant and not flexible, i.e. if they are not adjusted to

133
 the capacities of the accused, then some individuals will be held
liable for negligence through they could not have helped their
failure to comply with the standard.  In such cases, indeed,
criminal responsibility will be made independent of any
'subjective element':  since the accused could not have conformed
to the required standard.

In response to this most legitimate fear, Professor Hart proposed the following two-
pronged test for criminal negligence:

(i)Did the accused fail to take those precautions which any reasonable man with
normal capacities would in the circumstances have
taken?

(ii)Could the accused, given his mental and physical capacities, have taken those
precautions?

P 27/28 Wilson (27) Attempts to introduce subjective elements into objective standards risk not only
idea of objective being overinclusive in the sense that they mandate a lowering of the objective standard
modified test of liability on a characteristic by characteristic basis, they also risk the danger of being
similar to Lamer. underinclusive for those accused who have idiosyncracies that cannot be articulated ex
ante into the necessarily limited list of personal characteristics which can be grafted on
to an objective standard. For example the characteristics listed by my colleague Lamer
J. would not relieve the harshness of the application of an objective standard for a
driver who because of a sudden injury or ailment drove a motor vehicle in a fashion
which showed a reckless or wanton disregard for the lives and safety of others.  It
would not matter that the particular accused was not capable of adverting or wilfully
closing his or her eyes to the prohibited risk; the conduct in itself would have breached
the objective standard.

   The limited range of personal characteristics which can be imported into a modified
objective standard is often justified by the notion that a thoroughly subjective approach
will allow those who deprive themselves of normal awareness through voluntary
intoxication or fits of temper to be exempted from criminal liability.  My answer to this
(it was also my answer in the cases of R. v. Bernard, supra, and R. v. Quin, 1988
CanLII 21 (SCC), [1988] 2 S.C.R. 825) is that greater attention must be paid to the
minimal levels of guilty knowledge that are required for conviction of many offences
of violence under the Criminal Code.  It is, in my respectful view, perfectly

134
 permissible for the trier of fact to reason from an objective standard and ask the
question: must not the accused have had the minimal awareness of what he or she was
doing?  The important point is that this question is rebuttable and leaves room for
acquitting an accused who for whatever reason lacked the minimal awareness that
would normally accompany the commission of high risk or violent acts.

P 43- McIntyre Negligence connotes the opposite of thought-directed action.  In other words, its
definition of existence precludes the element of positive intent to achieve a given result.  This leads
negligence. to the conclusion that what is sought to be restrained by punishment under s. 202 of the
Code is conduct, and its results.  What is punished, in other words, is not the state of
mind but the consequence of mindless action.  This is apparent, I suggest, from the
words of the section, which make criminal, conduct which shows wanton or reckless
disregard.

P 45  McIntyre idea The application of an objective test under s. 202 of the Code, however, may not be
of modified objective made in a vacuum.  Events occur within the framework of other events and actions and
test when deciding on the nature of the questioned conduct surrounding circumstances
must be considered.  The decision must be made on a consideration of the facts
existing at the time and in relation to the accused's perception of those facts.  Since the
test is objective, the accused's perception of the facts is not to be considered for the
purpose of assessing malice or intention on the accused's part but only to form a basis
for a conclusion as to whether or not the accused's conduct, in view of his perception
of the facts, was reasonable.  This is particularly true where, as here, the accused have
raised the defence of mistake of fact.  If an accused under s. 202 has an honest and
reasonably held belief in the existence of certain facts, it may be a relevant
consideration in assessing the reasonableness of his conduct.  For example, a welder,
who is engaged to work in a confined space believing on the assurance of the owner of
the premises that no combustible or explosive material is stored nearby, should be
entitled to have his perception, as to the presence or absence of dangerous materials,
before the jury on a charge of manslaughter when his welding torch causes an
explosion and a consequent death.

P 49- Lamer idea of I am of the view that, when applying the objective norm set out by Parliament in s. 202
test of the Criminal Code, R.S.C. 1970, c. C-34, must be made "a generous allowance" for
factors which are particular to the accused, such as youth, mental development,
education

6.2.5 R. V. CANHOTA

 Tries to define criminal negligence versus penal negligence

 We don’t have a problem with trained/licensed activities, as you are fixed with the knowledge due to
the licensing
FACTS:

135
  A child grandmother believes the child is infested with bad spirits but that she can exorcise them
using prayer and force feeding of water.
 The child is held down by the mother, and allegedly the mother, and the exorcism is performed.
 The child chokes to death with evidence of serious foul play and abuse.
 The mother is charged and found guilty of Criminal Negligent Manslaughter.
 There are two possibilities
o The mother is present and she is “party” to the manslaughter
o The mother was in a different room and was unaware of risk
ISSUES: Is subjective mens rea required?
CHARGE: Crim Neg. causing Death
DECISION: Appeal dismissed, guilty verdict upheld.
REASONING:
 At trial the judge finds the person was cable of understanding the situation save for her religious
beliefs but these are not included in the test. The qualified objective test is being used, however
mistakenly as religion would be included according to Lamer.
 The appeal is based on first, several findings of fact, which the C.A is want to dismiss as an appeal
never likes to overturn a finding of fact unless there is a clear mistake.
 Secondly the case centers on the test that should be applied to Criminal Negligence.
 The appellant holds forth that the subjective test should be used as the crime is one of omission
not commission.
 It is well recognized that omission crimes are less blameworthy, so this concept of using a more
strict standard would be in keeping.
 This is in keeping with Tutton in the lower courts, but not with the SCC which applied an
objective test.
 The C.A. here finds that there should be no distinction between omission and commission crimes
in Criminal Negligence cases.
 They find that the case law supports this position, and even further that on a reading of s.219
that the wording of the section does not contemplate a difference, and this is the authority.
 The court wants a uniform standard for criminal negligence.
IMPLICATIONS:
 The court just doesn’t go far enough.
 Lamer v. McLauchlin is the question. Qualified objective? Subjective? What exceptions will we
import? Is criminal negligence penal negligence?
 Objective with Incapacity (McLauchlin)?
 Objective with Mistake of Fact (McLauchlin + Wilson)?
 Qualified Objective (Lamer)?
 The writing is on the wall. It seems we will be using the qualified objective test for penal
negligence as per Lamer. The question remaining is what exceptions will we import?
 The case of Ubi suggests that we can introduce mental retardation as incapacity, but not s.16
level, but there is the worry that the internal cause will push it to s.16
 We’re seeing the tension in the law here, what is incapacity not worthy of s.16?

7. DEFENCES

Existing Defences

136
As it currently stands the major defences are:

1. Self –Defence (usually applies to murder)

2. Provocation
3. Necessity
4. Duress

Categories of Defences

There are generally 3 kinds of defences:

 Justifications – what appears to be a wrongful act is in fact an approved act. What one does in
the circumstances was in fact the right thing to do. It is a universal free standing negation of
moral guilt. We in fact applaud the decision. Justifications reflect social order. We are wary of
creating justifications as they are so exclusionary. The main one is self defence. We have the
right to self preservation. Cops are granted many justifications.

 Excuses – there is a moral culpability, the act was wrong, but it was excusable. There is a good
reason for the act. They do not reflect the social order, they are related to human frailty. There
is a slow growth of excuses as they are hard to prove, and our understanding of human capacity
is very limited. Overwhelming external conditions caused you to perform the act and the normal
person standard does not apply.

 Procedural Defences – we will not study these.

7.1 PROVOCATION
 Provocation is an excuse; it is developed after the mens rea and actus reus are proven.

 Is an interaction? You are looking at both the victim and defendant. The problem is under what
circumstances will we allow provocation to drop Murder to Manslaughter.
 If provocation is raised the burden is on the crown to disprove beyond a reasonable doubt.
Limitations:
1. If you have the right by law to be provocative, it can’t be used as a defense (ie cops saying
“you’re being arrested” this is provocation but they are allowed.
2. If you initiated the provocation you can’t claim it.

7.1.1 R. V. HILL

 Struggles to determine if provocation should be based on an objective or subjective test.

 The objective test holds the day but we are moving towards a subjective one.
FACTS:
A voluntary big brother is making an advance on Hill.

137
Hill is a minor (16 year old).
CHARGE:
ISSUE: What is the reasonable person test going to be?
DECISION:
REASONING:
 Iteration of 3 part test:
1. Would an ordinary person be deprived of control? (objective test)
2. Did this provocation actually deprive you of self control? (subjective test)
3. Was the response sudden before there was time for cooling of situation?
 We have further problem, an objective test and question is unworkable. We need to take into
account the context of the provocation and this means that we’re looking at things subjectively
in part. How far does this go?
 What is the purpose of saying that provocation is objective?
o We need a uniform standard of self control.
o Otherwise we would let hot-heads get away with murder, and the calm and collected
would never escape.
 People are provoked for strange reasons. They are provoked when they have an insecurity or
human frailty. This is not an objective standard.
 So we’re back to Lamer, we need to subjectify the law to some degree, but how far will that go?
 Example: what if someone has a phobia of red, and you walk in on them wearing a santa suit?
 Lots of people have human frailties, but where is the line between normal frailties we want to
protect, and absurd issues that are impossible to prove that are really insanity?
 We clearly need to accommodate some subjective features.
 Camplin is the UK version of Hill where they decided on a qualified objective test.
Dickson (majority)
 We’ll stick with the 3 part test.
 There are certain features such as age/sex/race that do no detract from the ordinary person. We
can therefore take these into account.
 However, this doesn’t need to be directed to a jury specifically. These things will naturally be
taken into account.
 We can rely on the collective wisdom of the jury to sort this out.
 Dickson doesn’t tell us.
 He just suggest that we read the code.
Wilson (minority)
 Wants to reformulate, and wants to adopt Camplin and subjectify the objective test.
 Would the reasonable person loose control?
A  how serious is the insult (pretend there is a scale from 1 to 10) to assess this one
must take into account the accused and their subjective features; telling a virile man he
is impotent is nothing, but telling an impotent person he is impotent is much worse
C  now ask the objective/reasonable test
 Taking into account individual features does not change the level of the objective test. We just
have to consider the circumstances.
 She would instruct the jury much more carefully: “would a reasonable person, similarly situation
and with similar features be insulted?”

138
  We have Lamer in Creighton. The objective standard exists, but it exists in the accused shoes.
That is the objective person that is similarity situated and similarly insulted. After which the
objective standard still applies.
IMPLICATIONS:
 Again we have a near 50/50 split.
 Remember we only use a defense if the crown has proven their case fully. These are not
justifications, but excuses.
 So whose judgment do we use? It seems thus far that Dixon holds the day, but we are moving
towards Wilson. On an exam we should cover both.

IMPORTANT QUOTES:

If there were no objective test to the defence of provocation, anomalous results

P 18/19 same idea of
objective test to
provocation, same penal
neg. But what
qualifications do you
choose in reasonable
person in penal neg for
defences?
could occur. A well-tempered, reasonable person would not be entitled to
benefit from the provocation defence and would be guilty of culpable homicide
amounting to murder, while an ill-tempered or exceptionally excitable person
would find his or her culpability mitigated by provocation and would be guilty
only of manslaughter. It is society's concern that reasonable and non-violent
behaviour be encouraged that prompts the law to endorse the objective standard.
The criminal law is concerned among other things with fixing standards for
human behaviour. We seek to encourage conduct that complies with certain
societal standards of reasonableness and responsibility. In doing this, the law
quite logically employs the objective standard of the reasonable person.

19.              With this general purpose in mind, we must ascertain the meaning of
the ordinary person standard. What are the characteristics of the "ordinary
person"? To what extent should the attributes and circumstances of the accused
be ascribed to the ordinary person? To answer these questions, it is helpful to
review the English and Canadian jurisprudence. Since Canadian courts have
relied heavily on English developments, I shall begin with the English cases.

Dickson J P 34-35 idea
of reasonable objective
person, relying on the
jury similar to McIntyre
in tutton in thinking about
relying on the jury to fill in
the blanks.
(34) What lessons are to be drawn from this review of the case law? I think it is
clear that there is widespread agreement that the ordinary or reasonable person
has a normal temperament and level of self-control. It follows that the ordinary
person is not exceptionally excitable, pugnacious or in a state of drunkenness.
35.              In terms of other characteristics of the ordinary person, it seems to
me that the "collective good sense" of the jury will naturally lead it
to ascribe to the ordinary person any general characteristics relevant
to the provocation in question. For example, if the provocation is a
racial slur, the jury will think of an ordinary person with the racial
background that forms the substance of the insult. To this extent,
particular characteristics will be ascribed to the ordinary person.
Indeed, it would be impossible to conceptualize a sexless or ageless
ordinary person. Features such as sex, age, or race, do not detract
from a person's characterization as ordinary. Thus particular
characteristics that are not peculiar or idiosyncratic can be ascribed
to an ordinary person without subverting the logic of the objective
test of provocation. As Lord Diplock wrote in Camplin at pp.
716-17:

139
 ...the "reasonable man" has never been confined to the adult male. It means an
ordinary person of either sex, not exceptionally excitable or pugnacious, but
possessed of such powers of self-control as everyone is entitled to expect that his
fellow citizens will exercise in society as it is today.

Wilson J (dissent)  P 81-
 state that we have to
look at the circumstances
and characteristics, does
not happen in a vacuum
81.              (1) In general, particular characteristics of the individual accused
and the circumstances in which the accused is found can be taken into account in
applying the objective "ordinary person" test at the first stage of the provocation
defence only for the purpose of placing the wrongful act or insult in its proper
context with a view to assessing its gravity. The underlying principles of equality
and individual responsibility cannot be undermined by importing the accused's
subjective level of selfcontrol into the "ordinary person" test set out in s. 215(2)
of the Criminal Code. The jury must be directed to consider any facts which
make the wrongful act or insult comprehensible to them in the same way as it
was comprehended by the accused and then, having appreciated the factual
context in which the wrongful act or insult took place, must measure the
accused's response to this insult against the objective standard of the ordinary
person similarly situated and similarly insulted.

7.1.2 R. V. LY

 Adopts Dixson’s objective approach from Hill. But it should be noted that many cases don’t employ
this. It isn’t a test that can be applied. What Dixon gives us is something that requires no work
because we just read the code.
FACTS:
 Ly suspects for several weeks that she is being unfaithful.
 She comes home late one night and he asks where were you.
 She says, none of your business.
 He is Vietnamese, and gives expert evidence that to be a Vietnamese man who has been shamed
this way would in Vietnam have removed himself from society and even killed himself.
 Ly is arguing that without understanding that he is Vietnamese and his reaction it can’t be
objective.
ISSUE: Ly pleads both provocation and insanity.
DECISION: Ly is guilty.
REASONING:
 None of Ly’s evidence is relevant, as per Dixon the features must be relevant to the insult. This is
not a cultural/racial insult.
 It is a very narrow reading of Wilson in Hill.
 The characteristics that we attribute to the person will only be those that are VERY relevant.
 According to Wilson in Hill this would be let in to contextualize the situation.
IMPLICATIONS:
 Dixon’s objective approach is being followed from Hill.

140
7.1.3 R. V. YOUNG

 Provocation is mixed with public policy, perception of the accused, normative judgements.
 The objective standard allows us to separate ourselves from difficult questions.
 Echoes of Rabey here in that it is a normal part of life to be dumped and should not result in the
death of any person.
FACTS:
 A man is dumped.
 He tries to get back together.
 They end up back at her house.
 Something may have occurred, but it is clearly prompted by his insecurity.
 He shoots her.
CHARGE: Murder
ISSUE: Can provocation reduce murder to manslaughter?
DECISION: No, provocation is not shown, Murder stands.
REASONING:
 There is something real to these cases in that the person is not rational.
 When are we going to allow provocation to reduce murder to manslaughter.
 In this case what are the reasons that Young is not given provocation:
o There is a lack of suddenness in this situation.
o He had time for his passions to cool. He removed himself from the provocative context.
o Policy consideration, in that being dumped, like in Rabey, is a normal matter, and we
can’t allow that to be provocation.
IMPLICATIONS:
Normative Judgements:
 These are extremely hard to make when we are outside the system. We are idealistic.
 Consider Milgram: He has an experiment on authority where he has a authority figure tell you to
shock a patient. The shock is fake but the people in the experiment don’t know that. 2/3 of
people go to the maximum shock level labeled ‘XXX’.
 In later presentations Milgram asks people if they would go that far, 0 say they would. So there
is clearly a normative gap between pretending you’re in the situation and actually being there.
It’s impossible to actually put ourselves there.
 Once you say that people are in a necessity situation it doesn’t seem that we can apply the
rational person test. We loose rational care at this point.

7.2 NECESSITY AND DURESS

 Necessity and Duress are essentially the same defence. They both rest on the concept of normative
involuntariness at common law. That is that the choice given is really no choice at all. Duress

141
 generally applies when a person is applying the force, necessity when nature applies the force; that is
duress of circumstances.

 Both are excuses.

 Duress is codified in s.17, but as we see in Ruzic it is not in line with our modern views of normative
involuntariness.

7.2.1 R. V. PERKA

 Introduces the test for normative involuntariness

FACTS:
 A boat-importing weed from the south to the US is caught in a storm.
 In an effort to save the boat and/or crew it pulls ashore in Canada.
 It runs aground and they must unload the boat near Vancouver.
 The crew are forced to unload the boat before it sinks.
DECISION: The defence of necessity must be assessed in a new trial.
REASONING:
Necessity was modernized and successful in Morgentaler.
Dixon
The Test:
It is impossible to comply with the law because of the urgency of the issue meeting:
1. There must be an urgent imminent peril.
2. Was compliance with the law impossible? and/or Was there a reasonable legal
alternative?
3. Proportionality between the good achieved and harm avoided.
4. No contributory fault.
 This test is objectified to a degree in order to make it hard to use.
 There are certain circumstances where we can’t justifiably find you guilty.
 pp. 34 is the critical one
 We get the concept of Normative Involuntariness:
o The excuse of necessity does not go to the voluntariness. One has control over their
actions. However, realistically his act is not “voluntary”. It is remorselessly compelled
by normal human instincts. This sort of involuntariness is called “moral or normative
involuntariness”.
 Ordinary involuntariness is a loss of a physical control.
 Normative involuntariness is not a loss of physical control, it is a loss of ability to choose
rationally.
 Some form of pressure leads to a lack of choices and an irrationality.
 “don’t blame me, I’m only human”
 This sounds like an objective claim. It suggests that the normal person would have reacted this
way.

142
  This goes back to H.L.A hearts formulation that “ought implies can”. That is to have criminal
liability we have to assume that one can meet the limitation we ought to meet.
 What about the fact that they were performing an illegal act?
o Who cares, that fact does not play to substantive nature of the excuse which is “ought
implies can”.
 However if we contributed to the fault we will not have it as an excuse.
Wilson
 Wants necessity to play a role as a justification.
 For example, breaking into someone else’s house in order to save a child.
IMPLICATIONS:
 Necessity is treated as an excuse.

7.2.2 R. V. RUZIC

 The problem is that s.17, the codified version of duress has restrictive immediacy and presence
requirements compared to the common law notion.
 The common law standard is a “safe avenue of escape”
 We are moving into the Lamer qualified version of the reasonable person as we take into Ruzic’s
background from Belgrade.
 We are looking at an old statutory defence of duress and it is not operating in tandem properly with
our modern definition of normative involuntariness and the common law definition of duress
 Lamers qualified objective test is gaining hold from the dissent in Creighton
FACTS:
 Ruzic is caught bringing drugs into Canada
 The problem is two fold.
 First, Ruzic was under threat of death to her mother back in Belgrade if she did not perform the
importation.
 Further to this police presence is more myth than reality and Belgrade.
 ISSUE: Is s.7 engaged by the defense of duress (s.17), and if so how can we bring it in line? Is
normative involuntariness a principle of fundamental justice as per Perka?
DECISION: Ruzic is not guilty via the defense of duress.
REASONING:
 The s.7 cases are designed to protect the morally innocent. We never convict a morally innocent
person.
 A person acting in a normative involuntariness is not morally innocent so s.7 isn’t really engaged.
Remember that the question of normative involuntariness is raised after a morally wrong act has
been proven, we merely excuse it.
 However, beyond mens rea we have, from Davio, that voluntariness is a principle of fundamental
justice.
 So then there must be a link between the concepts of physical involuntariness and normative
involuntariness. The foundation of both claims is that one doesn’t freely choose.

143
  Thus just as physical involuntariness is a principle of fundamental justice, so then will be
normative involuntariness.
 The problem is that the immediacy and presence requirements of s.17 are too narrow. One can
be normatively impaired by someone who is not present.
 The is an underlying common law interpretation of duress. This concept is broader that s.17. So
in the failure of s.17 we will turn to this definition.
 The key to the common law duress is “a safe avenue of escape”, the courts are to use an
objective-subjective approach. The situation must be examined from a similarly situated
objective person. This is Lamer in Creighton. It is the qualified objective test.
 Immediacy and Presence in s.17 are poor substitutes for safe avenue and is under inclusive.
 This historically falls from the development of battered women who don’t react to the immediate
threat, but react later when safe.
 Would the reasonable person then have seen a safe avenue? Yes – She could have turned to the
police.
 Would the qualified reasonable person have seen a safe avenue (using her background)? No –
The police mean nothing to her.
 The common law test:
1. Soley as the result of threats
2. Threats are of such gravity that they subjectively believe they will be carried out
3. The threats are such gravity that the reasonable person would have reacted the same
way. This is measured using a qualified objective manner. That is would the reasonable
person, in the same situation and with the same general unique features of the accused
(background)?
4. The accused must not have an obvious safe avenue of escape in the qualified objective
manner.
 The problem is that we don’t know what subjective factors to import. Age? Education?
Background?
IMPLICATIONS:
 Outside of penal negligence everyone is turning to Lamer’s qualified objective test.

8. RECKLESSNESS AND MISTAKES

 Wilful Blindness  Recklessness with respect to circumstances (subjective standard)

 So far we have dealt with recklessness as it applies to the consequences of a crime. Now we look at
how it applies to the circumstances. This is generally formulated at “Knowledge” or “Wilful
Blindness”.

8.1 MISTAKE OF LAW

 Legal mistakes are not an excuse in the law.

144
 A mistake about legal characterization of the offence will not excuse the defendant, however a
mistake of fact material to the crime will excuse the defendant.

 The problem is that everyone will plead mistake of fact. Therefore we introduce “wilful blindness”.
This is essentially that ones suspicion is aroused, based on a subjective test, and do nothing further to
investigate. Wilful blindness is one step short of actual knowledge as the person wants to be able to
deny knowledge.

 It is a rebuttable presumption that one is fixed with the knowledge of the illegal act. This may be
rebutted by showing that your belief of the facts would exculpate you.

The Test for Mistake of Law

 The question is if the facts were as the accused believed them to be would the accused be
innocent? (subjective standard)

o Yes  the defence works

o No  the charge stands

 This goes to the core of the law. If the believe would change the outcome and exculpate the
defendant then the claim works.

R V BRISCOE [2010] 1 SCR

 Keywords: party liability, wilful blindness, mens rea

FACTS:
 Accused was charged with first-degree murder, based on kidnapping and assault.
 Charged with party to an offence, aiding and abetting
 He drove and physically restrained the victim
 He did not kill or rape her, but he suspected that it might happen, although he did not know for
sure
 He did not ask or enquire.
ISSUE:
 Can wilful blindness be used as a substitute for knowledge in MR?
DECISION:
 Charge was guilty.
REASONING:
 “Purpose” MR under 21(1)(b) requires intent and knowledge
 It is distinct from recklessness
 The doctrine of willful blindness imputes knowledge to an accused whose suspicion is to the
point where he sees the need for further inquiries but deliberately chooses not to make those
inquiries.
 Wilful blindness does not depart from the subjective focus of the accused’s mind.
IMPLICATIONS:
 Can substitute wilful blindness for knowledge when it is a requirement for MR.

145
IMPORTANT QUOTES:

P 16- purpose has The mens rea requirement reflected in the word “purpose” under s 21(1)(b) has
two requirements two components: intent and knowledge….The Crown must prove that the accused
intended to assist the principle in the omission.

P 17 As for knowledge, in order to have the intention to assist in the commission of an

offence, the aider must know that the perpetrator intends to commit the crime,
although he or she need not know precisely how it will be committed. That
sufficient knowledge is a prerequisite for intention is simply a matter of common
sense.

P 22 – definition of …wilful blindness is distinct from recklessness…..while recklessness involves

wilful blindness knowledge of a danger or risk and persistence in a course of conduct which
creates a risk that the prohibited result will occur, wilful blindness arises where a
person who has become aware of the need for some inquiry declines to make the
inquiry because he does not wish to know the truth. He would prefer to remain
ignorant. The culpability in recklessness is justified by consciousness of the risk and
by proceeding in the fact of it, while in wilful blindness it is justified by the
accused’s fault in deliberately failing to inquire when he knows there is reason for
inquiry.

8.1.1 R. V. BLONDIN

 Introduces the concept of wilful blindness

 Introduces the test for mistake of law
 Introduces notion of correspondence between knowledge and class of offence.
FACTS:
 Blondin is coming from Japan with scuba gear.
 The heavy gear is noted and they take Blondin and the gear in and discover it is full of Hash.
 He denies knowledge of what the substance is.
 He denies knowing what hashish is.
 He eventually admits that he knew something fishy was up as he was paid to deliver the tanks.
 They ask who paid him or where he should deliver them, and he clams up.
ISSUE: Did Blondin have to have specific knowledge of the drug being charged? Or merely a narcotic? Or
merely something illegal?
DECISION: New trial ordered.
REASONING:

146
  He must know it is a narcotic, that is one must know the specific illegality, but not the substance.
Cocaine, Cannibus, either way it is the same illegality. But to take it as far as mere illegality of
any nature is not enough.
 They want a symmetry between the mens rea and actus rea to line up (there are echoes of Davio
here and the drinking cases; the court will not allow substituted mens rea).
 Merely knowing of an illegality is not enough as it could be anything and the illegality carries
different weight.
 The problem is we have a man who’s suspicion is aroused and we’re going to let him go
 The trial judge set the bar to high.
 An obiter becomes law; this birth of willful blindness.
 If you have your suspicions aroused and you do nothing to confirm or dispel the suspicion we
may fix you with knowledge that it was the illegality being charged.
 One can defeat this inference by showing you never considered that illegality. But otherwise it is
a rebuttable presumption.
 We’re back to ensuring that the culpable aspects of the crime must have mens rea, however
there can be departure.
 There are many examples of this departure historically.
The Test for Mistake of Law
 The question is if the facts were as the accused believed them to be would the accused be
innocent?
o Yes  the defense works
o No  the charge stands
Examples of Early Departure
R. v. Ladue
o The essence of the crime is the dead-ness of the person.
o The accused agues they did not know the person was dead.
o However, if he didn’t then it was still rape, and they graft it on.
R. v. MacLeod
o MacLeod jumps in and assaults a police office who is undercover.
o Charged with assault of a police officer.
o Court decides the essential element is the police officer as it is a separate offence.
o The fact he did not know the identity means he can’t be guilty.
IMPLICATIONS:
 The easiest way to deal with these cases is through attempt crimes. Any attempt is based on the
intent. The problem is that the crown does not know what the defence will argue, that is the
accused assertions are unknown.

8.1.2 R. V. CURRIE, 1975, ONT. CA

 Wilful blindness is based on the subjective test, it does not matter if the reasonable person would
have made further inquiry, what matters is that this person was not suspicious
FACTS:

147
 Appellant was paid $5 to cash a cheque by someone on the street.
He cashed the cheque and gave over the money.
The other man had actually stolen the cheque, and the appellant was charged with uttering a forged
document.
He was convicted at trial due to being wilfully blind.
ISSUE: Was the defendant actually wilfully blind (trial judge imposed objective standard - do you need a
subjective standard for wilful blindness)?
DECISION: Appeal allowed, accused acquitted
REASONS:
 Mens reus (willful blindness) is subjective. The trial judge said that he should have been
suspicious, ie reasonable person test. But this is not the standard in criminal law.
 Fact that a person ought to have known that certain facts existed does not constitute knowledge
for purpose of criminal liability
 Ratio: willful blindness is subjective, it does not matter if the reasonable person would have
made further inquiry, what matters is that this person was not suspicious (he did not think it was
a stolen cheque) – it has to be deliberate ignorance.
 Dissent: agrees willful blindness is subjective, but believes appellant knew it was suspicious and
intentionally did not inquire – therefore willful blindness was found and appellant should be
guilty.

8.1.3 R. V. LEGACE (2003, ONT. CA)

 Unclear how far you have to go to clear yourself of a suspicion.

FACTS:
 Selling car parts from a distributor who is under criminal investigation.
 Distributor assures him car parts are legitimate.
DECISION: Not guilty.
REASONING:
 When the car parts seller gets in trouble it was found that he dispelled the suspicion by calling
the distributor.
 Also, car parts were not being sold at unreasonably low prices to raise suspicion.
IMPLICATIONS:
 It is unclear how far you have to go to clear yourself of a suspicion and thus exposure to wilful
blindness.

8.1.4 R. V. JORGENSEN

 Detours into mistakes in law

 A very important case
 Introduces the notion and test for “officially induced mistake of law”
FACTS:
 Owns a large chain of smut film stores and he sells many videos.

148
  All the films are film board approved.
 Jorgenson holds that the crown must prove that he “knowingly” was aware of the content.
ISSUE: What did Jorgensen have to know was in the films? Can one raise mistake of law when the
mistake came from an official/government source?
DECISION: Acquittal.
REASONING:
Mens Rea
 You must know the circumstances or essence that constitutes the crime.
 So what is the factor Jorgensen must know?
 We don’t need to know the legal standard according to Butler. We just need to know that it is
about sex. The largest problem is that sex alone on tape is not criminal. So it’s not enough here.
 One has to know what makes indecent material a crime must exist, it can’t just be innocent
detail.
 You must know there is a depiction that makes them obscene.
 For example, we’d have to show that Jorgensen knew there was hardcore spanking involved.
 The court feels confident as it fits with the historical view that there must be a mens rea to
culpable aspects. It also fits for producers in which “knowledge” is no present in the code, as the
producer better know what is in the movie. Does this make the crime for producers absolute
liability? This would be unconstitutional as it can result in jail time. So they read it strictly. It is
therefore negligence. You “ought” to have known.
 By contrast the sellers, must “knowingly” be aware, and must be aware of the items which
trigger the crime. This protects innocent sellers that really didn’t know.
 They court concludes that “knowingly” was meant to be expansive.
 The crown is essentially crying that their job has become hard.
 This boils down to two views: due process or obstacle course.
The Film Board Role
Sopinka (for the majority):
 The conflict between two government boards will not be a reasonable excuse unless the
government boards are interrelated which none are save for with respect to gambling.
 In order to excuse Jorgenson we need normative involuntariness for an excuse. But to have this
excuse there has to be no real option.
 Thus the decision by the OFRB is just some evidence that it fits with community standards.
Lamer (minority):
 Wants to confirm the existence of the “officially induced error” defence.
 This defence exists in Ontario for all regulatory offences.
 Lamer wants to extend that to the criminal offences.
 In Cancoil Thermal it is used when a regulatory inspector says it is ok to take a guard off a blade
on a machine which later causes an injury.
 In a regulatory field the law is “available where an accused has relied upon”
 s.19 says that ignorance of the law is no excuse
 The Test:
1. Prove mistake of law.
2. Show that you received legal advice regarding the mistake of law.
3. The advice must come from an appropriate official.
4. The advice was reasonable.

149
  The problem is that in the regulatory area we know who the official party is, it is the person that
takes the money for the license or that comes to regulate. However in the case of crime who do
we turn to? Judges (no access)? Prosecution (won’t talk to you)? Cops (questionable authority)?
Defense Lawyer (are paid and bias)?
 Lamer defines this as what the reasonable person in the individual’s position would rely on. This
does not specify government.
 It seems Lamer has thought this out and realized that Defense Lawyers are the real source of this
information.
 Lamer sees this as being an excuse but conflicts himself, he sees it leading to a stay of
proceedings.
 As such it becomes a procedural defense. It is a non-exculpatory procedural defense. The
persuasive burden lies with the accused.
IMPLICATIONS:
 Some have argued that this is like Hutt and prostitution. That no charge can now be placed.
However, we could walk into the store; alert the owner that there was exploitation according to
Bulter then leave. By leaving a reasonable time after that if the material is not removed the
owner/retailer is fixed with knowledge and there is willful blindness. This won’t happen often.
 We could also look at price, location.
 We also want to look at other material, hence the seizing of materials to see what was ordered,
and email, and so forth to see if we can achieve a subjective knowledge and awareness

8.1.5 R. V. CAMPBELL (1972)

 very strange result of ignorance of the law is no excuse

 she is clearly innocent
 the ignorance of law rule is seen as being very harsh
FACTS:
 Campbell was a paid bottomless dancer at a restaurant.
 The restaurant held its doors open to the public, but did not allow minors.
 There was a $3 cover charge to enter.
 It was not a strip club.
 Campbell was under the notion that due to a recent judgment bottomless dancing was legal in
Calgary.
ISSUE: Was the club open to the public? Does Campbell have a defense of mistake of law that will excuse
her actions?
DECSION: The accused is found guilty.
REASONING:
 Her mistake, if any, was in concluding that the statement expressed by the Judge in the recent
judgment was in fact the law, which it isn’t.
 It is a mistake of law to think that a judgment of any Judge is a statement of law.
 This is not a mistake of fact, or a mistake of fact mixed with law, it is a pure mistake of law.
 s.19 says is read as saying that any mistake of law will not be a barrier to prosecution.
 Regardless of s.15, which allows a defence of mistake of law in certain situations, the accused
cannot avail herself of the defence.
IMPLICATIONS:

150
  It would appear that mistake of fact or fact + law will ground an excuse, but pure law mistakes
will be much more difficult hurdles.
 How can we find her guilty if a judge themselves made a mistake of the law.
 “The irony is this, that the people of the nation are expected to know the law better than the
judges”. The judge sees this as funny, bit it’s a serious problem.

8.1.6 R. V. MOLIS (1980)

 a sneaky law is specifically designed to catch Molis

 again we see a break down of s.19 and that ignorance is no defence
FACTS:
 Caught manufacturing and trafficking in MDMA
 Has a company that was manufacturing the drug legally, then the law changed in 1976 by a
special request that was fastracked.
 Changes were published according to law in a special edition of the Gazette.
 Defendant argues a difference between ignorance of the law and mistake in its interpretation.
 Argues that ignorance of the law, if one performs due diligence to determine the law, should be
an excuse.
ISSUE: Is there a difference between ignorance and mistake in law?
DECISION: Conviction upheld. Being reasonably diligent in trying to follow the law is no excuse. This
applies equally to subordinate legislation.
REASONING:
 The wording of s.19 specifically states that ignorance or mistake will be a bar to a defense so long
as the law was correctly disseminated, which it was.
 Due diligence or not, the appellants were not aware of the law, and that is not defense.

8.1.7 R. V. LADUE (1965)

 Here we see that a mistake of fact doesn’t really change the outcome of the case.
 If we believe his concept of the events he is still guilty of a crime, albeit a different one.
FACTS:
 A drunk man has sex with a dead woman.
 Claims he did not know she was dead.
ISSUE: Is “dead” a critical aspect of the crime?
DECISION: No, conviction.
REASONING:
 Essentially the Judge imports the accused guilt from the inferred charge of rape.
 Assuming the accused did not know she was dead, then she was unconscious, and could not have
provided consent. So at the very least he is guilty of rape.
 The actus reus of rape and the mens rea are similar to the actual charge at hand, so the guilty
mens rea is simply grafted onto the charge.
IMPLICATIONS:

151
  It is very unlikely this would work today, as we have turned away from such importation of the
mens rea in our intoxication cases. We would be unlikely to allow it here, but this case occurred
before those developments.

MURDER

MURDER CHECKLIST

1) Homicide s.222 Definition: “when directly or indirectly, by any means, causes the death of a
human being”

 Did someone die?

 Causation:

 Whenever there is a crime with a consequence built into the actus

reus (result crime) you must address causation

 In a homicide trial, the question is not what caused the death or who
caused the death of the victim but rather did the accused cause the
victim's death

 Homicide is committed upon proof of causation

2)  Culpable or non-culpable?
Manslaughter
 Only culpable homicide is a criminal offence of manslaughter

 before you prove murder, you must prove manslaughter

 s.222(5) - Four ways for homicide to be culpable:

 (a) by means of an unlawful act (e.g. assault, firearms) – at minimum

 Need to do the entire element checklist for the unlawful act

 (b) by criminal negligence - s.219, s. 220 is criminal neg causing

death

 (c) by causing that human being, by threats or fear of violence or by

deception, to do anything that causes his death, causing another

152
 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.

 Note s.220 (Criminal negligence causing death) is the same as culpable homicide
by criminal negligence

 Discuss issue of voluntariness here

NOTE:

For every act, you can find an omission and you can quickly apply Crim Neg test
(Tutton) for extra points in reference to the omission – apply Test from Creighton,
Desousa, and Tutton – but don’t analyze

 In dealing with predicate offences like manslaughter before you get

to murder, you might have to deal with an unlawful act.

 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 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 struck out, as it calls for an objective standard – read
out to avoid constitutional infringement of s.7]

 this proves 2nd degree murder. Parole standard at 10 years (can be set up to 25

153
 years by judge).

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 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

154
 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

part of a person, murder is first degree murder when the death is caused while
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

part of a person, murder is first degree murder when the death is caused while
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

 Intoxication – negates mens rea (not a true defence) – defence argues Daviault
and Crown argues Leary/S.33.1/Sopinka.

Capacity – Mental Disorder – Insane Automatism

 s.16(1) No person is criminally responsible for an act committed or an omission

made while suffering from a mental disorder that rendered the person incapable of
appreciating the nature and quality of the act or omission or of knowing that it

155
 was wrong.

 s.16(2) - Every person is presumed not to suffer from a mental disorder so as to

be exempt from criminal responsibility by virtue of subsection (1), until the
contrary is proved on the balance of probabilities.

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

 Non-insane automatism

 Complete defences may have been discussed earlier: when analyzing the unlawful
act:

Once mens rea is proven, defence could still raise

 Duress/Normative involuntariness - Justification and Excuses – necessity and

duress

156