1. Harm principle is not a principle of fundamental justice (R. v. Malmo-Levin; R.v.

Caine 2003)
2. Criminal Code, s.9 – no person shall be convicted or discharged of an offence at common law
3. Criminal Code, s.8 – common law defence still applies
4. Doctrine of Strict construction: statute should be applied in such a manner as to favour the the
accused
1. Interpretation of 'while commiting'( R v Paré)-no real ambiguities
2. what is a real ambiguities?
1. real ambiguities means that two or more plausible readings each equally in accordance
with the intentions of the statues, that courts need to resort to external interpretive aids;
that court need to undertake contextual and purposive approach
2. Purposeful/intent of parliament=Broad vs. Narrow= different interpretation by courts
that doesn’t mean there is a real ambiguities in the statues
3. narrow approach leads to absurd results=so its not a valuable/or valid interpretation;
3. Two models of criminal process: truth (crime control) vs. Fairness (due process)
1. sometimes this is a false paradox/distinction; sometimes fairness==>truth
2. Charter meant at protecting due process; limit police powers
3. Issues with governing the admissibility of evidence is the tension btw judicial
supremacy (more “progessive” focused on due process etc) vs. Legislative supremacy
which entrails crime control values of common law
Charter s10 --Everyone has the right on arrest or detention
1. be informed promptly of the reasons therefor;
2. to retain and instruct counsel without delay and to be informed of that right;
and
3. to have the validity of the detention determined by way of habeas corpus and to be
released if the detention is not lawful
4. requires police to 1) inform of the right 2) give reasonable opportunity to exercise it without
delay—duty to stop questioning until have opp to retain counsel (R. v. Manninen )
1. Answering police's questions isn’t a implicit waive of rights; Accused also had right to
not be asked questions
5. Exception: there may be circumstances that police must continue with an investigation
before it is possible to facilitate a detainee's communication with counsel.
6. Must be given the right information and then waive it properly (R v. Brydges)
 1. standard for implicit waiver of right to counsel: carefully considered and decide to
waive; to be aware of consequences of the waive; it must be clear and unequivocal that
person is waiving; full knowledge of the extent and nature of the rights;
7. Speaking to whom he believed is a fellow prisoner is not waiving right to remain silence
from the police
5. Right to remain silent only has to do when talking to police authorities who represent them
selves are police authorities after detention
1. Police can make observations, over hear conversation. Police use of undercover officers
valid – so long as no trickery of person to give statement (no eliciting?? ) – mere
observations valid
Charter s. 7 Principle of Fundamental justice-right to silence;
2. purpose of confession rule considers the possibilities that :
1. statement may be untrue
2. obtained in a manner offensive to 'community standards'
3. trying to control improper police practices
4. protect the accused against self incrimination
6. confession can be involuntary:
1. threats or promises that induce the confession
2. due to atmosphere of oppression compels suspect to bring their ordeal to an end
3. suspect lacked an operating mind
4. police engaged in trickery that appalling to shock the community
If cant prove BARD voluntariness---> confession not admissible: Lack operating mind (truth and
fairness considerations is one)
5. Intoxicated confession – dont know whats at stake, dont have clear consciousness to speak
(Clarkson v. The Queen)
7. if can established volutnary confession BARD-->right to remain silence is not violated
8. if right to remain silence is violated (On balance of probabilities)-->Crown cannot establish
Voluntary confession BARD
1. (R.v Singh) sets out charter s.7 right to remain silent doesn’t trump valid voluntary
confession rule/test
9. admissible confession and waiver of RTRSilence both requires operating mind mental
capacity requirement/necessary to make choice..
10. police can keep questioning-but its dangerous; bcuz can lead to an undermining of an accused
 persons right to make meaningful choice btw silence and talking to police (R.v Singh)
11. police can continue questioning accused after counsel leaves
12. 2nd consultation required when new development (new procedure such as line ups, changes
in jeopardy(a different charge), or confused abt his rights) make it 'necessary' for accused to get
(free legal aid) legal advice again, because initial advice is no longer adequate. ( R v Sinclair )
1. implication: request, without more, is not sufficient to retrigger the s. 10(b) right to counsel

Charter s.8) right to be secure against unreasonable search or seizure

1. reasonable search/seizure requires 1) 'strong reason to believe', 'reasonable ground to believe',
probable cause'
2. search warrant
3. reasonable suspicion (a reasonable officer, having relevant info/knowledge/observation, with
his experience/expertise/ to suspect that that person is engaging in criminal
activity/constellation of factors'
4. no reasonable expectation of privacy
there is reasonable privacy is framed broadly as “behind hotel room door” (R. v Wong)
1. court rejects narrow frame: whether a person who (invites the public to participate) and
engage in illegal activity behind the locked door of a hotel room have REOP?
1. Illegality of activities have no bearing on whether a person should have REOP.
2. Whether it public or private place shouldn’t affect REOP in the case of police
videotaping, wiretapping without authorization.
1. Its reasonable for police to overhear convos in public place-but videotaping,
wiretapping is another type of intrusion
2. Totality of circumstances taken in to account, including accused's subjective
expectations of privacy and whether it is objectively reasonable.
3. informational privacy claims under s. 8 have a few factors (R v. Plant ):
1. the nature of information
2. nature of relationship btw party releasing the info and the party asserting
confidentiality
3. the place where the information was obtained
4. the manner in which info was obtained
5. seriousness of the crime being investigate
 4. Territorial privacy claims (R. v. Edwards)
1. depends on totality of circumstances..factors:
2. presence at time of search
3. possession/control of property searched
4. ownership of property
5. historical use of property
6. ability to regulate access, including the right to admit/exclude others from the place
7. existence of subjected EOP
8. objective reasonable of the expectation
5. Based on facts: FLIR tech doesn’t touch a biographical core of personal info, nor does it
intend to reveal intimate details of his lifestyle' (R v. Tessling, 2004)
6. based on opinion of court (student didn’t testify) there is REOP for student's locker content (R v
AM)
Context/circumstances/facts determines the standard; use facts to argue higher or lower standard is
appropriate- ie. TOTALITY OF CIRCUMSTANCES->determine if pre-authorization warrant is needed
2. if there an imminent danger of the loss removal destruction or disappearance
1. of the evidence, if the search/seizure is delayed in order to obtain a warrant. ==this is the
exigency exception to the warrant requirement ( R v Grant)
CC codified two standards a judicial officer can issue a warrant (justice of the peace, provincial court
judge, or superior court judge)
1) reasonable and probably ground to believe the proposed search/seizure would produce evidence of a
crime
2) reasonable suspicion standard, bcuz some of these is less intrusive: electronic tracking
device warrant, dial number recorder warrant
3)

Common law test: R v Collins test

3. Reasonable search or seizure must satisfy 3 essential preconditions
1. must be authorized by law (ie. Police can apply warrant under CC)
2. law itself must be reasonable (but the CC/statute must be reasonable)
3. it must be carried out in a reasonable manner (depends on the circumstances: police entering
private home vs. Entering gangsta places where ppl have guns)
Sniffer dog search without warrant ( minimally intrusive, narrowly targeted and high accuracy)
 1. reasonable suspicion is an objective test (must be assessed in the context of a specific case) :
requires
1. addresses the possibility of uncovering criminality,
2. a reasonable officer,
3. dogs with high success rates,
4. observation/ knowledge/information/expertise
What is enough
1. “constellation of factors' that raises suspicion to a reasonable person/officer (R.
v. Chehil 2013)
1. what is sufficient: buying one way ticket and claiming driving is cheaper when
its not—saying something untruthful raises reasonable suspicion;
2. objectively verifiable evidence supporting reasonable suspicion.
3. When the accused spotted the police and the dog, he stopped abruptly, looked
behind, looked up and began muttering to himself. He continued and passed five to
seven feet in front of the officers, who heard him mutter —fuck, fuck, fuck, fuck—
to himself (R. v. McCarthy)
Whats not enough to justify reasonable suspicion
1. in R v Kang Brown 2008, everyone is sniffed at bus terminal-its random, broad and
speculative;
1. Speculation is not enough
2. nervous or “antsy” when confronted by the RCMP officer is not enough
3. mere suspicion is not enough
4. eye contact or lack of eye contract can't by itself establish reasonable suspicion
(neutral factors)
2. Also R v AM happens @ school-a public place as well.- its random, broad and
speculative
3. Exception: Airports -sniffer dog always justified;

Debate on constitutional competence of creating ancillary police powers

5. Lebel J favours reasonable and probable cause, with or without judicial preauthorization
depending on the exigency of the circumstances
1. argues for leaving it parliament to create such power
6. Binnie J favours the ancillary power, esp sniffer dog because they are so helpful-
 functions as confirmatory evidence of a dog
1. but maintains that after-the-fact judicial scrutiny of the grounds for the alleged
“reasonable suspicion” must be rigorous

2 part test for creating new powers- ancillary powers doctrine. Waterfield 2 stage tests
Cost benefit analysis
1. whether the impugned action of a police fall within the scope of his broad duties
2. weighing public safety interest (=benefit )against interference with individual liberty
interests (=cost)
These powers are created with this doctrine:
1. power to briefly detain motorists at sobriety check stops (R v. Dedman)
2. power to enter premises in response to disconnected 911 calls (R v. Godoy)
3. power to detain individuals whoa re reasonably suspected of involvement in a recently
committed or unfolding criminal activities, and to conduct protective weapons search of such
individuals where officer his well founded safety concerns (R v. Mann)
4. power to ask driver questions abt alcohol consumptions and request their participation in
sobriety tests without complying with s. 10(b) (R v. Orbanksi; R v. Elias)
5. power to conduct criminal investigative roadblock stops where stop is tailored to the
information possessed by police, (R v. Clayton)

Detention and Arrest and Charter s.9 -every one has right to not be arbitrarily detained or
imprisoned.
4. detention is when a reasonable person (objective standard) would concluded he/she was being
deprived (subjective) of the right to choose how to act; he had no choice but to comply.
1. Youth, inexperience + police actions makes him believe he is detained/no choice (R v Grant)
2. Investigative detentions triggers Charter rights to counsel and remain silence
3. delays that involve no significant physical or psychological restraint are not 'detentions'
5. “Wait a minute.  I need to talk to you before you go anywhere” is not significant physical and
psychological constraint (R v. Suberu 2009)
1. Not every police-public interaction is detention. Interrogative/ explorative questioning is
not detention.
2. Preliminary/explorative questioning/ general inquiry/ of bystanders-no obligation to comply
6. 1) power of search (incidental) to 2) investigative detention exist at common law ( R v Mann)
 1. patt down is justified by ancillary power doctrine-security of officer/unsafe/uncertain
circumstances/protective purposes.
1. Search incidental to ID: cannot be justified on the basis of a vague or non-existent
concern for safety, nor can the search be premised upon hunches or mere intuition
2. search must be grounded in objectively discernible facts to prevent “fishing expeditions” on
the basis of irrelevant or discriminatory factor
1. dissent in Mann: the objective of discovering (as opposed to preserving) evidence of a
crime could not be used to justify a search incidental to investigative detention.  Such
searches may only be conducted with a warrant, or pursuant to the common law power
of search incidental to arrest
2. only safety concerns/ie probable weapon posession is the only justifiable reason for
search to ID.
3. Search must be 'reasonably necessary'
1. reasonably necessary to preseve non-conscriptive evidence of crime , prevent escape
of criminals, preserve safety/prevent endangerment to police and public (Deschamp
J dissenting in Mann. )
2. but not for DISCOVERY of evidence
4. vague area where there is a package that could have some weapons, so police jusitifed,
under safety reasons, to search the package?-Probably not.

2. But searching in pockets (where there is REOP)=violate charter s. 8 rights bcuz its intrusive
therefore unreasonable without warrant==>evidence excluded.
3. Investigative detention; under wakefield 2 stage common law cost benefit ancillary power test
must reasonably necessary : clear nexus btw the individual to be detained and a recent or
ongoing criminal offence
1. The detention must be viewed as reasonably necessary on an objective view of the totality
of the circumstances, informing the officer’s suspicion that there is a clear nexus between
the individual to be detained and a recent or on-going criminal offence (R v Mann)
2. reasonable grounds to suspect (reasonable suspicion) is required for Investigative detention.

Arrest powers without warrant

7. it must objectively established that
1. those reasonable and probable grounds did in fact exists
 2. a reasonable person, standing in the shoes of the police officer would believe have believed that
reasonable and probable grounds ( that a crime is committed by that person) existed to make the
arrest
3. objective reasonable/probable grounds can be justified by evidence, records,
4. cant be justified by bias towards a person of a diff race, nationality or color or personal enmity
When search INCIDENTAL to arrest (Cloutier v Langlois)
1. search must be for a valid objective in pursuit of criminal justice
1. justifying objective: ensure accused would be brought to court; collect evidence to prove
guilt
2. there must be some reasonable prospects of securing evidence for the offence the accused is
arrested.
3. Subjective valid purpose, objectively reasonable purpose/reasonable basis;
2. search must not be conducted in abusive manner
8. taking samples of hair without authorization violate right to security (R v. Stillman)
1. need warrant for DNA samples
9. Strip search: must establish SEPARATE reasonable and probable grounds justifying strip search in
addition to reasonable and probable grounds justifying arrest

The test for excluding evidence is found in s. 24 of Charter

1. should be excluded if it is established that having regard to all the circumstances, the admission
of it in the proceedings would bring the administration of justice into dispute (societal, long
term impact focus).
2. 3 factors:
1) whether evidence will undermine the fairness of trial by effectively conscripting the accuse against
himself of herself
2) the seriousness of the charter breach
3) the effect of excluding the evidence on the long term repute of the administration of justice
1. (this has a public confidence dimension, integrity of justice system) A breach is already
an injury to the justice system, dont want further damage it.
2. conscriptive evidence( bodily sample, statements that used compelled to incriminate
himself) non discoverable evidence
1. ----(straight jacket)---->inadmissible (R v Stillman)
2. this is challenged/not followed/questioned by future cases.
 2. The s. 24 test in R v Grant: a court must assess and balance the effect of admitting the
evidence on society’s confidence in the justice system having regard to:
1. the seriousness of the Charter-infringing state conduct (admission may send the message
the justice system condones serious state misconduct)
1. deliberate violation by police/ bad faith/deliberate disregard
2. prejudice/racial profiling?
2. the impact of the breach on the Charter-protected interests of the accused (admission
may send the message that individual rights count for little),
1. protection of privacy and dignity
3. society’s interest in the adjudication of the case on its merits.
1. Reliability of evidence
2. public's interest in truth
3. Statement of accused obtained by violation of C is usually inadmissble
4. where an intrusion on bodily integrity is deliberately inflicted and the impact on the accused’s
privacy, bodily integrity and dignity is high, bodily evidence will be excluded, notwithstanding
its relevance and reliability.
5. Non bodily physical evidence is likely/usually admitted (but human dignity issues,
although very reliable)
6. derivative evidence: physical evidence discovered as a result of an unlawfully obtained
statement
1. where reliable evidence is discovered as a result of a good faith infringement that did not
greatly undermine the accused’s protected interests, the trial judge may conclude that it
should be admitted under s. 24(2)
7. Evidence in R v Grant (marijuana and firearm): public interest in the adjudication of the case
on its merits was said to weigh strong in favour of its admission
1. bcuz police were operating in circumstances of considerable legal uncertainty, this tipped
the balance in favour of admission
2. not in bad faith

ACTUS REUS
1) Contemporaneity 2)Voluntarinesss 3) Action and Ommission 4) Causation of prohibited
consequence 5) Consent
1. Contemporaneity
1. a continuous act where at some point AR and MR overlap for some time
1. drove on foot of police by accident, turn off engine, let car sit on his foot-(Fagan v
Commissioner of Metropolitan Police)
2. Squatter unintentinally lit up mattress, then intentially moved to another room-let it
burn (R v Miller)
2. unintentional act + intentional omission => guilty conduct/prohibited act
3. when it cannot be proved BARD that AR and MR overlappped (R v Williams 2003)
1. T1-when no knowledge+ action--->no MR
2. T2-knowledge + action-->not certain about endangerment bcuz she may have
already contracted HIV-->no AR
2. or a complete act where AR and MR occur at the same time
2. Voluntariness -if there is choice- at least (valid legit real legal) 2 options—and you chose
one---it is assumed you are voluntary. -conduct is a will of the accused; accused have conscious
control of action; attributed to the accused's free choice; agency relies on a close relationship
btw moral blame and free choice-meaningful choice
1. The prohibited act/omission/ was not caused in a way/in circumstances where there was
some other course of action open to him (omitting to display warrant of fitness of car-
absolute liability traffic offence (Kilbride v Lake)
2. Principle of voluntariness is given constitutional status- charter s. 7
1. CL Defence of Duress be available to an accused even when they were not under
immediate threat of bodily harm at the time the offence was committed (someone
threatening her and her mother's safety from another country-threatens her to carry
drugs-R v Ruzic)
3. no AR unless it is a result of a willing mind at liberty to make a definite choice or decision-
requires will power (dentist injected him with drug so that he suddenly fell unconscious-
charged with impaired driving-R v King)
4. voluntariness can be a problem where no proof of MR is required by the crime
1. if MR proved-->necessarily voluntariness of AR is proved
2. involuntary conduct accompany a heart attack, epileptic seizure, deteached retina, a bee
sting
3. defense of autonomaism
4. extreme intoxication could negate mental element of assault..maybe..by logic can
 prevent voluntary formation of actus reus
5. involuntary conduct inconsistent w/ subjective forms of fault/MR.
3. Action and Omission
1. specific omission offences: failure to report treason; failure to assist a peace officer
attempting to arrest a person after having reasonable notice that he is required to do so;
failure to stop your vehicle, identity yourself and render assistance after an accident
2. failure to perform a legal duty: provide necessaries of life etc; common law duty;
3. section 50--treason; 129—wilfully obstruction of police/officer duty/omits arrest to assist w/
notice, 252(1)--failure to stop scene of vehicle accident,
4. section180—common nuisance-endangers live/safety of public; cause physical injury to any
person,
5. section 215-217.1—provide necessaries of life as legal duty as parent, guardian, provide to
child, spouse, or a person under his charge who's unable due to age, detention, illness,
mental disorder, unable to provide necessaries of life
1. also, dutys of persons undertaking acts dangerous to life-administer surgical/medical
treatment
2. duty of person undertaking acts
1. have to be commiting and intending to be binding.
3. duty of person who has authority to directing work/supervise under a legal duty to take
reasonable steps to prevent bodily harm to that person
4. unlawfully abandoning child -life is likely to be endangered/permanently injured
6. Section 219-221—criminal negligence causing death or bodily harm
1. shows wanton or reckless disregard for the lives or safety of other persons
7. section 263-whoever caused opening on ice has duty to safeguard opening in ice thats
frequented by the public to prevent persons from falling it
1. excavation on land he owns
8. Case Law interpretations of CC; purposive, purposeful, broad, liberal interpretaton
first, then strict construction favourable to the accused if there is real ambiguities—2
or more reasonable interpretations;
1. 'undertaking to do an act'- mere expression of words indicating a willingness to do an act
cannot trigger the legal duty; there must be something in the nature of a commitment
upon which reliance can reasonably be said to have placed (consume large amount of
cocain, partner tried to save her by calling cab-not legal undertaking- R v Browne)
 1. stricter interpretation of 'undertaking a duty' in general
2. common law duty of an HIV positive person (R v Thornton)
1. common law duty for HIV carriers to refrain from harming others they can
reasonably foresee—guilty of common nuisance
1. If HIV blood donor knew personally the danger to which the public was
subjected by his donation of blood then he clearly had mens reas
2. duty of disclosure in some circumstances (when safe sex is not practiced)
1. non-disclosure by accused of his HIV positive status foreclosed any possibility
of a valid consent to sexual intercourse with that person (R v Curerrir)
1. person only had a duty to disclose if the failure to dislocse present a
significant risk of serious bodily harm-dont have disclose common cold;
2. also need to prove that complainant would have refused to have unprotected
sex if the accused HIV status was disclosed;
2. charged with aggravated assault of 2 women he had unprotected sex with
1. no consent to unprotected sex with an HIV positive person-bcuz he's HIV
positive and they didnt know-failure to disclose HIV status constituted fraud
—so should convicted of aggravated assault—new trial
2. The accused's actions must be assessed objectively to determine whether a
reasonable person would find them to be dishonest
3. Crown needs to prove that the dishonest act had the effect of exposing the
person consenting to a significant risk of serious bodily harm-cant consent
to serious bodily harm anyways
4. No significant risk of serious harm when low viral low + use condom;
3. only if the breach of civil duty is an unlawful act when it causes a result that is
prohibited by the criminal law—ie. Death or serious bodily harm
1. the jury may infer knowledge from the circumstantial evidence
2. parent may be criminally negligent in permitting a child to remain in an environment
where, to the knowledge of the parent, it is subject to brutal treatment by the other
parent or a third person with whom the parent is living, and may be convicted of
manslaughter where the death of the child has been caused by such brutal treatment
4. duty or responsibility of taking care of elderly parent or person who is within the
exercise of element of control by one person dependency on part of other (R. v
Peterson, 2005 Ont CA)
 1. In interpreting s. 215 (failing to provide necessities of life) as a whole, “under his
charge” means the exercise of an element of control by one person and a dependency
on the part of another. One must also consider the existence of a relationship of trust
and the relative capabilities of the two parties.
2. Criteria for “under his charge”: + marked departure from the behaviour of the
reasonable person
1. Dependency: Element of trust must be present
2. Awareness: person taking care must be aware the person is dependant
3. Control: control over the other’s living conditions
4. Consciousness of parties: if the person under one’s charge will not cooperate the
person taking care must obtain help from a community agency.
5. Responsibility: if the person takes legal or public responsibility for the
dependant person
3. children, elderly parent, or elderly relative who lives under the same roof
9. Consequence and CAUSATION
1. Code, ss. 224: causes death of a person that can be prevented by proper means
2. 225: person causes a bodily injury that is dangerous nature and result in death
notwithstanding from treatment of injury
3. 226:person causes bodily injury results in death, accelerating his death from a
disease
4. 228: no person commits culpable homicide where he causes death of a human being
by any influence on mind alone; or by disorder/disease result from influence of mind
2. Test for manslaughter: contributing cause thats not insignificant/significant
contributing cause
1. R v Smither: kicking causing vomiting--> aspiration-->death
1. crown need to prove Smither intended kicking
2. intend to kick=mens rea=objective foresight; foresee risk of bodily harm=MR
for manslaughter.
3. thin skull rule operates here;
3. Test for 1st degree: substantial causation test (R v Harbottle)
1. require accused play very active role; physical role in the killing; action of the
accused must form an essential, substantial and integral cause of the death/part of the
killing of the victim
 2. death was caused while committing the offence of domination as part of the same
series of events.
4. Test for 2nd degree: significant contributing cause
1. Nette tied up old lady during a robbery and left her to die of asphyxiation (R v Nette)
1. Legal causation is concerned with the question of whether accused person should
be held responsible in law for the death that occurred
5. An act done in performance of a legal duty is a non-voluntary conduct that
DOESNT break the causal chain
1. accused use pregnant girlfriend to shield him from police, police shoots and killers
her; accused guilty of homicide bcuz directly caused death of girl, police conduct is
in chain of causation instigated by the accused. (Pagett v The Queen)
6. Failed Resuscitation efforts by others caused victim death is significant intervening
act
1. Reid & Stratton kicked, punched victim, victim died after some other ppl tried to
perform CPR—manslaughter charges (R. v. Reid)
1. that judge is obliged to give jury clear and specific instruction to jury abt it
whether it can be an independent cause of death
2. initial injury may not be a significant contributing cause of death bcuz the
intervening act
3. conviction quashed and retrial
7. Abandonment=intervening act---NEGATE causation element of criminal negligence
causing death (R v. Menezes)
1. A incites B in race: B crashes--A and B joint cause of injury or death, A would be
guilty of crim neg causing death
2. but intervening act=A withdraw/abandons race before crash and B knows this
abandonment and doesn't slow down--> A not liable
8. Each shooter induced the other to engage in a gun fight on a crowded street, killing
bystander, should be tried for homicide 2nd degree. (R v JSR)
1. would meet the high degree of moral blameworthiness required to justify the
stigma of a murder conviction and the consequences flowing from it
9. AR for Impaired driving causing bodily harm or death
1. crown show accused impariment was contribuitng cause outside deminimis range to
the bodily harm or death
 10. Consent (policy reasons/elements for legal consent)
1. no one can consent to serious bodily harm; may 'consent' to a fight, or dangerous
sports, or stunt exhibition that thave social values (R v Jobidon)
1. Consent is vitiated if there is bodily harm whether or not there was intent to cause
bodily harm
2. 'consent' or “without consent” is an element of actus reus but it is not a defence
3. consent-->assault-->death=manslaughter (if consent is missing actus reus of assault
can't be established)
4. common law idea of 'consent' taken into consideration—CL jurisprudence limits
what one can 'consent' to
5. common law policy: fist fight --willingly cause harm to one another without a good
reason is-- not conductive to public peace;
2. consent in sexual intercourse is subjective and depends on idiosyncratic perceptions of
the victim/complainant
1. non-disclosure by accused of his HIV positive status foreclosed any possibility
of a valid consent to sexual intercourse with that person (R v Curerrir)

MENS REA -MR must exists in relation to certain prohibited consequence/circumstance-AR; intend
the consequence; symmetry btw MR and prohibited consequence-policy of fairness s. 7 justice. ;
Intent is different from motive or desire;
4 types of Mens Rea requirement
1. subjective --->murder, theft
2. subjective w/ objective feature: sexual assault/fraud
1. view their subjective mind state in an objective way to determine: whether their
subjective state of mind is reasonable
3. objective w/ subjective feature: criminal negligence—driving
1. view MR with a objective reasonable person standard but make adjustment/taken
into account individual consideration---modified objective test; individual
features may be: inexperience driving, to avoid another car; circumstances
surrounding the offence;
4. no MR--->regulatory offence 1) can have MR elements if parliament/prov govnt
wants to 2) strict liability (accused prove due diligence 3) aboslute liability—no
imprisonment, no defence.
2. Disctinctin btw general and specific intent has to do w/ availablilty of intoxication
defence: can use intoxicate to defend against specific intent crimes
1. General intent=intend to commit the act, apart from the purpose/no
consideration of consequence
1. manslaughter, assault, sexual assault, assualt causing bodily harm, mischief
2. Specific intent=intend to achieve the consequences, considered the
purpose/consequence b4 commting the act –proof of ulterior objective beside the
prohibited Act.
1. murder, theft, robbery, aiding/abetting a crime, attempted crime,
3. Posession requires knowledge and control as MR for this offence. (R v Beaver)
1. sold drugs thinking it was powder milk sugar; possession conviction dropped bcuz
no knowledge and no control; but selling charges upheld.
2. Posession requires knowledge and control
1. knowledge can be imputed by wilful blindness;
2. wilful blindness can be infered from circumstancial evidence;
4. SCC held that even though the statute was silent on MR, the MR must be read in as an
element of the offence; Parliament must be explicit to remove mens rea (Gaunt and
Watts v. The Queen)
5. Common law assumption that there must be some form of subjective MR in every
criminal offence—subjective MR in relation to all aspect of AR, unless Parliament
 clearly indicate other wise (Sault ste Marie)
6. Strict Liability offences dont need mens rea, but can use due diligence (wasn't negligent)
as defence
1. This involves consideration of what a reasonable man would have done in the
circumstances. The defence will be available if the accused reasonably believed in a
mistake set of facts which, if true, would render the act or omission innocent, or if he
took all reasonable steps to avoid the particular event.
2. Most provincial offences, and regulatory offences will normally fall into this
category
3. No clear indication of needing MR, no words such as “knowingly” or “wilfully” or
''deliberately'', ''intentionally''; and no clear indication that liability is absolute
7. Absolute liability: offences of absolute liability where it is not open to the accused to
exculpate him/himself by showing that she/he was not free of fault.
1. In order for an offence to fall into this third category the Legislature must make it
clear that a person will be automatically guilty following mere proof of the
proscribed act (the actus reus).
1. For example, a person charged with speeding.
8. Strict liability (negligence) + imprisonment = doesn’t violate s. 7
9. penal negligence—criminal liability (MR is marked departure of standard of reasonable
person)
10. non penal regulatory negligence—MR/proof is carelessness; no due diligence; breached
standard of reasonable person
11. Lamer J: Absolute liability + possible imprisonment => violates s. 7
12. The moral blameworthiness of the accused must be proportional to the punishment; thus
there must be proof beyond a reasonable doubt of subjective foresight (stigma should be
proportional to punishment)
1. Offence of culpable homicide test: subjective foresight of likelihood causing
death.
1. that he can subjectively foresee death would happen at the scene when his
accomplice went it.
2. Robbery with friend, accused standing outside, accomplice goes in and kills
someone; accused made sure the gun wasn’t loaded. ( Vaillancourt v R; R v
Martineau)
 1. CC code was such that robbery + death=murder, even if no knowledge and no
intent
2. This cant be upheld. That section of CC was unconstitutional. MR for murder
need intention specific to murder. Substitution of proof beyond a reasonable
doubt of objective foreseeability is unconstitutional for murder
3. necessary intent to kill= subjective foresight (foresee that victim is likely to
die); this subjective MR requirement for murder is given constitutional status?
4. unnecessarily stigmatization AND excessive punishment w/ it being proprtionate
to the required MR violates s. 7

SUBJECTIVE MENS REA required to prevent punishment of the morally innocent; Subjective
MR=positive state of mind;
1. related to issue of POLICY
1. stigma
2. punishment proportionate to moral blameworthiness
3. intentional must be punished more several than unintentional;
Required for: murder, attempted murder, war crimes,
Not requred for: unlawful causing bodily harm, dangerous driving, unlawful act manslaughter, careless
use of firearm, failing to provide necessaries of life.
1. To prove intention: assume people always intend the natural/probable consequence of the
act;
1. this can be rebutted/proven contrary by evidence;
2. Subjective intent: what reasonable man ought to have anticipated is merely evidence from
which conclusion may be drawn that the accused anticipated the same consequences.
3. to determine subjective MR, trier of fact must consider 'fraities and experiences' more
seriously. -the accused may not have the knowledge and foresight a reasonable person have.
4. What accused anticipated/foresee/know is the key to prove MR; what he 'ought' to
anticipate is less important
5. Intent is different from 'desire'
1. one can intend to aid the enemy without desire for enemy to succeed.
2. Intent must be proven BARD , cannot be inffered from action (R v Steanne)
6. Word “purpose”='intend” (R v Hibbert)
2. Knowledge is a slightly lower form of subjective MR; CC: person can have knowledge/or
 subjective foresight that his victim will die w/o intending to cause death; ie. Can have
knowledge of consequence but no intention to cause the consequence
1. Knowledge helps to determine foresight; knows/aware of the probable consequence of act;
2. wilful blindness and recklessness can help impute knowledge:
1. Test for Wilful blindness: if circumstances ---> accused should (ought to have) have
knowledge/suspicion--->but accused wilful blindness/deliberate ignorance/deliberately
chose to not inquire
2. Test for recklessness—>aware/recognized the danger/risk but still proceed to do
1. reckleness imports foresight;
3. There is a difference btw 'know' and 'ought to know' ( R v. Tennant and Naccarato)
1. actual know + actual intent =subjective MR = required for murder
2. ''ought to know''=objective =required for manslaughter
1. where liability is imposed on objective basis, what a reasonable man should have
anticipated constitutes basis of liability.
2. reasonable person, with knowledge of the surrounding circumstances which make
conduct dangerous to life, should have foreseen was likely to cause death
4. “Wilfully promote hatred”=intend to promote hatred ( R v Buzzanga)
1. There could only be willful promotion of hatred if: (a) the conscious purpose of the
pamphlet was to promote hatred;
2. OR (b) if they foresaw the promotion of hatred was certain to result but nevertheless
distributed it as a means of achieving their objective of obtaining the French school.
3. Intend the consequence/ not the act.
4. “A person who foresees that a consequence is certain or substantially certain to result from
an act which he does in order to achieve some other purpose, intends that consequence”.
5. the MR of fraud is established by proof of: (R v Theroux)
1. Subjective knowledge of the prohibited act; and know that he is doing deceit, falsehood,
or some other dishonest act.
2. Subjective knowledge that the prohibited act could have as a consequence the deprivation
of another (which deprivation may consist in knowledge that the victim’s pecuniary interests
are put at risk).
1. 'could have'=whether the accused subjectively appreciated those consequences at
least as a possibility
3. “dishonest act”= objective features: acts reasonable people consider to be dishonest
 1. should not escape criminal responsibility merely because, according to his moral or her
personal code, he or she was doing nothing wrong or because of a sanguine belief that
all will come out right in the end
6. The Actus Reas for Fraud
1. The prohibited act, be it an act of deceit, a falsehood or some other fraudulent means;
2. Deprivation caused by the prohibited act, which may consist in actual loss or the placing of
the victim’s pecuniary interests at risk.
7. Recklessness and wilful blindness can be MR for sexual assault (R v Sansregret)
1. recklessness is an (conscious/choice of) ATTITUDE of one who, aware that there is danger
that his conduct could bring about the result prohibited by the criminal law, nevertheless
persists, despite the risk.
1. Recklessness is subjective MR: awareness of the risk created by him doing the
prohibited act and proceed despite the awareness of risk; awareness=knowledge
2. but doesnt subjectively know the need to inquire?
3. recklessness imports foresight; subjective foresight?
4. If found recklessness—mistake of fact defense available: mere honesty of the belief will
support the “mistake of fact” defence, even where it is unreasonable
2. If find Willfully blind---mistake of fact defense no longer available;
8. 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. ( R v
Briscoe)
1. knows the need to know/find out the truth; but doesnt know the truth;
2. Wilful blindness imputes knowledge
3. Mistake of fact defense not available bcuz choice not to inquire, even if knows there is an
need to inquire;
4. accused’s fault in deliberately failing to inquire when he knows there is reason for inquiry
5. Purpose =intent and knowledge ( R v Briscoe)
1. in order to have the intention to assist in the commission of an offence, the aider must
know that the principal intends to commit the crime
2. It is sufficient that he or she, armed with knowledge (can also impute this knowledge
with WB) of the principal's intention to commit the crime, acts with the intention of
assisting the principal in its commission.
1. Wilful blindness imputes knowledge
 2. He had a strong, well-founded suspicion that someone would be killed at the golf
course and that he may have been wilfully blind to the kidnapping and prospect of
sexual assault.( R v Briscoe)

OBJECTIVE MENS REUS

1. MR Criminal negligence: for failing to provide necessaries of life (R v Tutton)
1. Objective standard MR : marked departure from standard of reasonable prudent person
1. inferred from circumstances;
2. Subjective features: surrounding circumstances and the accused's perception of those facts
must be considered
1. must make generous allowance for factors particular to the accused such as youth,
mental development, and education (Lamer J in Tutton )
2. jury should consider respondents' belief that their son had been cured by Divine
intervention in light of the whole background of the case in order to determine if it was
honest and reasonable. (McIntyre J in Tutton; really split decision in TUTTON)
3. Actus Reus Crim negligence: Conduct that displays a wanton or reckless disregard for
the lives or safety of others
2. MR unlawful act manslaughter is objective foreseeability of the risk of bodily harm which
is neither trivial nor transitory, in the context of a dangerous act.(Accused Injection cocaine in
victime, cardiac arrest, wiped their finger prints-R v. Creighton )
1. disagreement over whether risk of death need to be foreseen. Majority says no need to
foresee death as MR.
2. includes consideration of any human frailties which might have rendered accused incapable
of having foreseen what reasonable person would have foreseen
1. the reasonable person is constructed to account for the accused's particular
(extreme) capacities and resulting inability/incapability to perceive and address
certain risks.
2. Illiteracy is a factor; but age, education, experience may not be; (Lamer J want these
factors to be considered when considering the standard to which the accused is
measured)
3. MR operating motor vehicle causing death (found only momentary lapse of attention not
enough to satisfy inferred MR of marked departure -R v. Beatty)
1. Actus Reas of the offence : driving in a manner dangerous to the public; AR requires a
 marked departure from the normal manner of driving
2. Subjective modification: Short of incapacity, personal traits are not relevant, but the
reasonable person must be in the context of the accused
3. modified objective test for penal negligence cannot ignore the actual mental state of the
accused
1. MR is generally inferred from the AR of marked departure in the nature of driving
2. MR will be inferred from the driving pattern, absent excuses presented by the accused
3. proving that the accused's manner of driving, viewed as a whole, constituted a marked
departure from the standard of care of a reasonably prudent driver
1. additional evidence may show that a momentary lapse is part of a larger pattern that,
considered as a whole, establishes the marked departure from the norm required for
the offence of dangerous driving
4. and reasonably prudent driver, in the same position, would been able to be aware of the
risk and/or avoid creating that risk;
4. negligence based crim offences used objective test to various degress
1. manslaughter by criminal negligence requires marked and substantial departure
2. manslaughter by unlawful act requires marked departure
3. failure to provide necessaires of life requires marked departure
4. criminal negligence causing death or bodily harm requires marked and substantial departure
5. and w/ subjective modificiation
1. accused's own perception of circumstances; and accused sudden incapacity

MISTAKE OF FACT defense (All defences come after crown has proved both AR and MR; Mistake
of fact has to do w/ MR-guilty mind; culpable mind; s.7 fundamental P of J. )
Sexual assault:
Mistake of fact defense can be instructed to the jury if, there is evidence that it is
1. honest (accused testimony)
2. accused has taken reasonable steps in cirumcstances known to accused at time, to
ascertain that complainant was consenting
3. Reasonableness of mistake of fact of consent is weight to evidence/prove honest
mistaken belief of fact
4. jury is to consider the presence or absence of reasonable grounds for that belief
5. Air of reality=evidential threshold; air reality is to be applied to every element of
defense (ie if self defense have 3 elemens, A of R must be applied to all 3, must be
satisifed in all 3)
1. test: whether there is (1) evidence (2) upon which a properly instructed jury
acting reasonably could acquit if it believed the evidence to be true
2. first part “no evidence”, “some evidence” or “any evidence” can be used to describe
the applicable evidential standard, 
3. second part of this question can be rendered by asking whether the evidence put
forth is reasonably capable of supporting the inferences required to acquit the
accused
4. if this threshold met, judge must instruct jury to consider this defense.
2. Cannot be instructed to jury if found reckless or wilfulblind—circumstances inferred
MR (CC s. 273.2)
3. what kind of evidence is allowed
1. sexual reputation of the complainant is not allowed (CC s. 277 )
2. rebuttal evidence, evidence going to identity, and evidence relating to consent to sexual
activity on the same occasion as the trial incident is allowed
3. sexual acts performed by the complainant at some other time or place is allowable
evidence for mistaken belief fact defense.
1. sexual acts performed by the complainant at some other time or place is not allowed
to support inference of 'consent' or show that victim is less credible/less of value
2. admissible when sexual history have probative value that ouweights unfair prejudice
of the trial process;
6. Definition of sexual assault: Viewed in the light of all the circumstances, is the sexual or
carnal context of the assault visible to a reasonable observer"
1. The part of the body touched, the nature of the contact, the situation in which it occurred,
 the words and gestures accompanying the act, and all other circumstances surrounding the
conduct, including threats which may or may not be accompanied by force, will be relevant
2. A conviction for sexual assault requires proof beyond reasonable doubt of two basic
elements, that the accused committed the actus reus and that he had the necessary mens rea
1. The actus reus of assault is unwanted sexual touching
1. touching----objective
1. It is sufficient for the Crown to prove that the accused’s actions were voluntary
2. sexual nature of touching------objective
1. It is sufficient for the Crown to prove that the accused’s actions were voluntary
3. no consent ------subjective to the victim, her internal state of mind
1. implied consent is not consent (R v Ewanchuk)
2. submission by reason of force, fear, threats, fraud or the exercise of authority is
not consent :: if she subjectively felt fear=no subjective consent;
2. The mens rea is the intention to touch, knowing of, or being reckless of or wilfully blind
to, a lack of consent, either by words or actions, from the person being touched.
1. Intent to touch
2. knowledge/reckless/WB/lack of reasonable steps to ensure/inquire consent

MISTAKE OF LAW defence (comes after crown proves both AR and MR)
1. Although hard to distinguish from mistake of fact, Mof Law defence doesn't exist
1. “Ignorance of the law by a person who commits an offence is not an excuse for committing
that offence”
2. The standard for mistake of law is subjective, though a court may consider all factors,
including the unreasonableness of the belief (R. v Howson), in determining whether or not
the accused held an honest mistaken belief.
3. A colour of right mistake must be an honest belief -subjective-only apply to property
offences –technically a MR requirement, but can work as a defence bcuz evidentiary burden
2. lack of knowledge of liscence suspension is a mistake of fact , not law (R v. Pontes SCC)
3. Exception is OFFICIALLY induced error, lead to stay of proceeding, not an acquital; crown
just can't proceed, have to let accused go: 6 elements necessary to be estbalished
1. that an error of law or of mixed law and fact was made (so distinction not as important);
2. that the person who committed the act considered the legal consequences of his or her
actions;
 3. that the advice obtained came from an appropriate official;
1. having a phone call but no idea of the name is not sufficient;
4. that the advice was objectively reasonable;
5. that the advice was erroneous; and
6. That the person relied on the advice in committing the act.
1. This reliance must be objectively reasonable.

SELF DEFENCE-accused act in morally involuntary manner;

1. bcuz circumstances are so exigent;there is no realistic choice but to commit the crime
-->conviction offends s. 7 Charter;
2. usually self defence can shed reasonable doubt on whether the accused has fault element;
usually be possible for high subjective MR offences
3. CC provisions of self defence (prev jurisprudence interpretation still applies)
1. 34 (1) : a) accused believes on reasonable grounds force is being used against them/threats
against him or another person; both objectively verified and subjectively held;
1. b) act constitutue offence is commited for purpose of defending/protecting themsevles
from use/threat of force; solely subjective
2. c) act committed is reasonable; solely objective;
2. 34(2) factors to consider in determining whether act committed is reasonable in the
circumstances---consider relevant circumstances (in the situation of the accused) including
but not limited to these factors: a) nature of force or threat-proportionality may help to
determine reasonableness; b) extent to which use of force was imminent (no other
alternative?-Lavallee) ; c) accused role in the incident d) use or threatened use of weapon; e)
size, age gender, physical capability of parties in the incident f) nature, duration, history of
relationship/interaction/communication between parties, prior use of force/threat of force;
(battered wife situation)
1. codification of list of factors signifies new law is not meant to displace prev
jurisprudence; standard is more flexible?
3. s.34 SD is not a defence if force used by another person for purpose of doing something
they are authorized to do in law, unless person who commits act believes on reasonabel
grounds the other person is acting unlawfully
2. no requirement that self defence acts need to be proportionate to the original assault/threat of
assault ; proportionatliy is just one of the factors taken into consideration;
 1. “Section 34(2)(b) the phrase “under the circumstances” recognizes the fact that when a
man’s life is in the balance he cannot be expected to make the same decision as he would on
sober reflection.”
3. force used by the accused cannot intend to cause death/grevious bodily harm; and no more than
necessary to enable to defend himself, but dont need to measure with nicety (prev. s.34(1) SD)
4. (Prev s. 34(2) -when accused provoked the assault and/or intended to cause death/bodily
harm
1. 3 elements of self defence, when the victim has died, must all have air of reality/sufficient
evidential threshold; all 3 must be subjective-objective mix
1. the existence of an unlawful assault; -subjective w/ objective modification
2. a reasonable apprehension of a risk of death or serious bodily harm;
3. a reasonable belief that it is not possible to preserve oneself from the harm/no possible
alternative except by killing the adversary.
5. it was established in PETEL, that the existence of an actual assault is not a prerequisite for a
defense under s. 34(2); rather, the question is whether the accused reasonably believed, under
the circumstances, that he was being unlawfully assaulted
6. (Prev. s34(2)-when there is intent)-Accused is required to believe on reasonable grounds that
there is no alternative course of action open to him -rule out every other possible course of
action and reject them all for a reasonably good reason= is the standard for “reasonably
conclude there is no alternative but to kill” -when deciding self defence to kill others. ( R v
Cinous; Cinous could have fled instead of shooting his partner at gas station)
7. For battered women, apprehended danger need not be imminent for a legitimate claim of
self-defense to be available. ( R v Lavallee)
1. MODIFIED OBJECTIVE STANDARD for assessing whether the accused had
alternatives to killing the victim – this accommodates the situation of battered women
1. modified objective standard: factor in charactersitics/experience of the accused to
determine whether an act is reasonable
1. reasonableness of a batter women's perception and action
2. but factor in it to what extent..is always a policy problem: how should the objective
standard be tailor to accused's circumstances and characteristics;
3. factors relevant that affect accused ability to perceive risk/harm; affect ability to
respond to harm
4. age, gender, strength, past experience all affect perception-->also make certain
 perceptions reasonable
2. The court finds that the attack on the accused does not need to be imminent (Lavellee).
8. past threats (and the pattern of terror) should also be taken into account to assess whether the
accused had a reasonable belief that (2) there was a threat, and (3) that there was no other
possibility of the escape. ( R v. Petel)
9. if jury has reasonable doubt that accused acted in self defence, or under duress and necessity,
jury must acquit;

MENTOR DISORDER (Many Pros and Cons to raising this defence)

1. 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
2. incapable of appreciating the nature and quality of the act or omission at the very time of the
offence or
1. An accused may be aware of the physical character of his action (ie choking) without
necessarily having the capacity to appreciate that, in nature and quality, that act will result in
the death of a human being
2. unable to foresee and measure the consequences (this is MR of murder)
1. goes into MR of murder offence; but if raise MD-->intrusive intrusive review rather
than acquital; means murders won't likely use this MD defence
3. incapable of knowing that it was (morally) wrong: doesn't know that society think its wrong;.
1. morally wrong in the circumstances according to ordinary moral standards of reasonable
members of society
2. doesn't apply to psychopath following a deviate moral code
3. doesn't apply to a delusional accused who knows that society deems this as wrong
4. judged by his/her awareness whether he/she aware that society regards the act as wrong
5. Generally absence of moral appreciation is no excuse for criminal conduct, it must be linked
to disease of mind (R v. Chaulk and Morrissette; R v. Abbey)
6. An accused should thus be exempted from criminal liability where, at the time of the act, a
mental disorder deprived him of the capacity for rational perception and hence rational
choice about the rightness or wrongness of the act.” (R v. Oommen )
1. Crux of inquiry is whether accused lacks capacity to rationally decide whether act
is right or wrong, hence make rational choice about whether to do it or not
4. Presumption : person not suffering from mental disorder unless contrary proved on
balance of probabilities
5. Burden of proof : accused was suffering from a mental disorder so as to be exempt from
criminal responsibility is on the party that raises the issue.
6. Mental disorder defined in s. 2 ->“ disease of the mind”
1. expertise testimony/evidence need to meet threshold of disease of mind/science
change/evolve all the time; create new diseases...
2. Personality disorders or psychopathic personality are capable of constitution a ‘disease of
the mind ( R v. Simpson)
3. any illness, disorder or abnormal condition which impairs the human mind and its
functioning (Cooper v. The Queen)
1. Excludes self-induced states caused by alcohol/drugs, and transitory mental states
(hysteria or concussion)
1. people who self induce w/ drugs/alcohol ---> act involuntarily n assault someone--
>MD defence will likely fail; but can challenge extreme intoxication vitiates general
intent?--debatable;
2. one time mental disturbance/emotional blow/trauma--->heavily relying on extradinary
external factors-->shouldn't be labled MD--> shouldn't be subject to indeterminate
detention
7. s.672.1(1) : "verdict of not criminally responsible on account of mental disorder" means a
verdict that the accused committed the act or made the omission that formed the basis of the
offence with which the accused is charged but is not criminally responsible on account of
mental disorder.
8. Important preliminary procedural issues affect mental disorder defence:
1. Fitness to stand trial;
1. test requires limited cognitive capacity to understand the process and to communicate
with counsel.”; must be proven on B of P
2. if found unfit to stand trial--->disposition hearing: crown has to establish prima facie
case every 2 years or accused is acquited; or stay of proceeding (new)
2. Restrictions on Crown’s ability to raise mental disorder issue;
1. Swain requirements for Crown raising the issue:
1. Once trier of Fact has made a finding of guilt (s. 7->let accused have control over his
own defence)
 2. Once Accused has put his own mental capacity for forming relevant intent in issue
1. ie when accused raised autonomatism non-MD, Crown's best 'strategy' is to
raise MD and say he should be detained/treated bcuz danger to public
3. Burden of proof on proponent of mental disorder issue;
1. balance of probability that accused has mental disorder renders 1 or 2 consequences in s
16.
2. must have 'air of reality' for the MD defence to be put to jury
4. Consequences of defence being accepted
1. Part XX.1 diverts those not criminally responsible b/c of mental disorder to special
stream → Review Board decides whether person should be kept in a secure
institution, released on conditions, or unconditionally discharged
1. Assess if no significant threat to society = absolute discharge
2. Goal is to protect accused (assessment-treatment model fairer than common law)
and society (addresses cause of offending behaviour, mental illness) (Winko)
3. but reality is that indeterminate detention ; or indeterminate conditional restraints on
liberty-->no idea what review board is gonna decide; and how long.
AUTOMATISM-persuasive burden on accused to satisfy air of reality
1. MD-automatism: need proof of MD, and involuntariness--->NCR-->possible mental
institution/unconditional discharge
2. Non MD-automatism: pure involuntariness without “disease of mind”-->full acquital
3. Holistic approach of Canadian court uses guiding factor to determine which one:
1. Continuing danger theory : Is the accused likely to repeat this kind of conduct on account of
the trigger?
1. If more likely to repeat this kind of conduct on account of trigger-->it's more likely to be
found as mental disorder)
2. External/internal cause dichotomy? If the trigger is internal, then there is a suggestion that
the condition is the result of a mental disorder. If it’s external, then likely not.
3. Policy considerations (feign-ability, floodgates, risk of recurrence) + medical evidence?
1. Contuing danger usually associated w/ internal cause-->should be labled MD
2. anticipated high frequency strigger of violence
4. on the issue of sleepwalking: Parks: uncontradicted medical evidence indicate sleepwalking
is not MD; not a psychiatric illness; therefore full acquital
5. after Stone, use policy reasons to determine whether one has MD; if MD-->review
 board to review dangers to public safety etc. (sleepwalking involuntarily sexual assault
charges-R v. Luedecke)
1. If an accused establishes that he or she acted involuntarily while in a disassociative
state, he or she will almost always be found NCR

6. Voluntariness, rather than consciousness, is the key legal element of automatistic behavior
since a defence of automatism amounts to a denial of the voluntariness component of the
actus reus.
4. Need to prove involuntariness on B of P--->burden on accussed to show this;
5. Where it is established on BoP that A acted involuntarily, it is presumed that he acted in a
state of MD automatism
1. Accused/defendant need to un-prove MD on B of P
2. proof is objective/objective modified;
3. psychological blow automatism, evidence of an extremely shocking trigger will be
required to establish that a normal person might have reacted to the trigger by
entering an automatistic state, as the accused claims to have done (Stone)
4. if normal ppl will be triggered into automatistic state-->accused non-MD on B of P.
5. Sleep walking-autonomatism but no disease of mind-->non MD automatism-->acquital
6. evaluating the risk of repetition and hence the danger to the public
1. trial judges must examine the risk of the recurrence of the factors or events that triggered
the accused's automatistic state
2. if many factor/event can trigger the automatistic state-->can legally a condition as disease of
mind?
7. Where that personalized assessment does not demonstrate the requisite significant risk to
public/reoccurence, the NCR accused must receive an absolute discharge.
8. There are policy reasons that certain condition should be classified legally as a disease of the
mind-, even if not medically MD->protect the public; proper treatment for the disease (R v.
Luedecke)
INTOXICATION (not available for assault, and offences and departs markedly from standard of
care)
1. only available for specific intent crimes: requires ulterior objective beyond the immediate

act

2. dichotomy could be drive by policy concerns/dispositions

 1. specific: intention as applied to acts considered in relation to their purpose

1. murder, intent to resist arrest (assault for purpose of escaping); attempt crimes; aiding

and abetting;

2. general: intention as applied to acts apart from the purpose

1. manslaughter, assault; assault causing bodily harm;

9. CC273.2: intoxication not defense for sexual assault

10. S.33.1(1) – defence of self-induced intoxication not available where accused lacks general

intent or voluntariness required to commit the offence where accused departs markedly from

standard of care

1. Subs (2) standard of care: person departs markedly from standard of reasonable care

generally recognized in Canadian society and thereby criminally at fault where person,

while in state of self-induced intoxication that renders the person unaware of, or incapable

of consciously controlling their behaviour, voluntarily or involuntarily interferes or

threatens to interfere with bodily integrity of another person (like manslaughter?

Crim negligent causing death/bodily harm;)

2. Subs (3) – section applies in respect of Act that includes as an element an assault or any

other interference or threat of interference by a person with the bodily integrity of another

person

3. this is essentially the Leary Rule-which was found to be inconsistent w/ charter ss. 7, 11d in

Daviault

4. key difference from Leary rule is that: s. 33.1 only abt crimes that involves violence;

doesn't involve other general intent crimes-like mischief?

11. Before this section is enacted, lots happend

1. Difference between “incapacity to form intent” and “absence of intent”

 1. D.P.P. v. Beard (1920) HL

1. jury instructed to look at Evidence of drunkenness which renders accused incapable

of forming specific intent essential to constitute crime

2. intoxication linked to capacity, not actual intent

2. R v. Robinson (1996) SCC-Beard is inconsistent w/ charter

1. new rule- must be satisfied that effect of intoxication was such that its effect might

have impaired accused’s foresight of consequences sufficient to raise reasonable

doubt

2. intoxication linked to absence of ACTUAL intent, whether requisite intent in fact

formed; not just capacity;

3. instruct jury: whether Crown has satisfied them beyond reasonable doubt that

accused had requisite intent;

12. R v. Lemky (1996) : there must be evidence sufficient to permit a reasonable inference that

accused did not in fact foresee those consequences

1. air of reality is directed at actual intent, not capacity;

2. threshold “drunkness was sufficient for a reasonable inference, that accused may not

have foreseen that his act of firing the gun at the deceased wold cause her death';

3. blood alcohol above legal limit not enough to satisfy this air of reality threshold;

13. R v. George (1960) :successful defence of drunkness: not guilty of robbery

1. theft is specific intent; assault is general intent; can't establish robbery if can't establish

specific intent of theft

14. Leary rule, that intoxication not defence for general intent offence can be unconstitutional bcuz

AR and MR don't coincide at the same time; under Leary rule:

1. MR is substituted with the 'fault' of drinking/getting intoxicated before the prohibited

act/offence—ie. Reckless of voluntary intoxication = MR for general intent offence

 2. but INVOLUNTARY intoxication can be defense for general intent offense

1. unanticipated consumption/unanticipated effect of (self induced/self consumed) drugs

15. distinction of specific vs. General intent, mandated by Leary, can be made based on policy

rather than principle,

16. criticism of Leary rule: To deny that even a very minimal mental element is required fro sexual

assault offends the principles of fundamental justice under s.7 of the Charter and cannot be

justified under s.1==general intent offence becomes absolute liability on intoxicated offenders;

no blameworthy state of mind w/ imprisonment violates s. 7.

17. Rv. Daviault: Those who can demonstrate that they were in such a extreme degree of

intoxication that they were in a state akin to automatism or insanity

1. can raise reasonable doubt as to ability/capacity to form minimal mental element required

for a general intent offence And raise doubts to the voluntariness (AR part of the

offence)

1. in this sense, if no voluntariness---> intoxication can act as defence for absolute and

strict liability offences too

2. But accussed bears burden of proof of extreme intoxication—ie. Alcohol level that can kill

most people ; and need expert evidence

3. Strict application of Leary rule in cases of extreme intoxication offends ss.7, 11(d) of

Charter

4. mental aspect of offence, or mens rea, long recognized as integral part of crime,

5. but generally: Given minimal nature of mental element for general intent crimes, even those

who are significantly drunk will usually be able to form requisite mens rea and be found to

have acted voluntarily

6. Will be rare that evidence of extreme state of intoxication will be successfully advanced

18. in defence of extreme intoxication – if negates voluntariness of offence, leads to acquittal;

 requires expert evidence and clear evidence of alcohol consumption at relevant time

NECESSITY: an excuse to do something illegal; not justification

1. Difference between justification and excuse: justification challenges wrongfulness of action which

technically constitutes a crime; excuse concedes wrongfulness of action but asserts that the

circumstances under which it was done are such that it ought not to be attributed to the actor

2. Defence of necessity to be viewed as excuse – recognizes assessment of human weaknesses where

human instincts impel disobedience

1. Dissent in Perka, Wilson J. (dissenting) can necessity be conceived as a justification for an

otherwise illegal act?

2. Consider the circumstances where someone serves/fulfulls a legal duty (ie: meeting this

obligation compels criminal act).

3. necessity as a defence is related to the concept of “moral voluntariness” as a tenet of criminal

liability: the act and the mind directing the act have to be voluntary to be blameworthy;

1. necessity acts are morally involuntary acts

2. as opposed to deliberate and planned acts

3. can still apply to situations that came up when doing illegal things

4. but dont apply when reasonable person can foresee the necessitous situation/contemplate tht his

action would give rise to an emergency requiring the breaking of the law;

4. Three requirements for the operation of the necessity defense:

 1. Situation of urgency, with imminent, immediate, direct peril-modified objective-consider

situation/circumstances of the particular accused

1. can't be deliberate and planned acts

2. even if self defence and duress defence don't need strict 'immediate danger' requirement,

necessity still do;

3. possible to psychological disease to argue analogous to battered women that the

father's perception is reasonable given his circumstances/past experiences.

2. No “legal way out”/no reasonable legal alternative to avoid the peril -modified objective-

consider situation/circumstances of the particular accused

1. legal way out must be pursued even if its demand, sad, unappealing;

2. if really no legal way out--->don't need immediate danger/immediate attack to take place

3. Many indicia will be relevant to this determination of avoidability, including location,

atmosphere, nature of the threat, imminence of danger, and actual use.

3. Proportionality between harm done and harm avoided-Objective: to reflect society's values;

what is appropriate

1. the harm that is objectively foreseeable

2. Application of the test in LATIMER

1. Tracy's acute suffering did not constitute imminent peril, ongoing pain is not emergency;

2. There was a legal alternative to killing her (namely, letting her live); he could have struggled

on, with a difficult situation by helping Tracy to live and by minimizing her pain as much as

possible

3. and death could not objectively be said to be a relief proportionate to her suffering; even if

surgery can be considered 'mutilation', it is still death vs. Multilation; and reasonable person

would choose mutilation.

2. "[t]he defence of necessity is narrow and of limited application in criminal law.

1. R v Kerr (killer an inmate in prison, acquited at trial for 2nd degree murder, CoA didn't dispute, but

upheld the possession weapon charge)

1. necessity defence applied on the basis that Kerr had reasonable belief that the circumstances

afford him no legal way out and that the harm he sought to avoid a lethal attack outweighed

the breach of s. 88(1): possession of a weapon for a purpose dangerous to the public peace 

1. the Crown must establish (1) that the accused possessed a weapon; and (2) that the purpose

of that possession was one dangerous to the public peace.; to prove 'purpose'- use

subjective-objective hybrid; 'purpose dangerous to the public peace' must be subjective, and

reasonable given the circumstances

2. Where an accused is found to have possessed a weapon for a defensive purpose, it is only

where the attack is completely inescapable that possession of a weapon to thwart the attack

is not possession for a purpose dangerous to the public peace.

3. Or 'purpose' is purely subjective MR.

1. Under s. 88(1), an accused’s subjective purpose must be one that is dangerous to the

public peace.  To avoid importing an objective element into a purely subjective

approach, the concept of a “purpose dangerous to the public peace” needs to be given

concrete content. 

2. Within the meaning of s. 88(1), it is the possession of a weapon with the intention of

doing harm to persons or property, or showing reckless disregard for harm to persons or

property.  Section 88(1) does not require actual use of the weapon, but does require

possession of a weapon coupled with an additional intention.

4. An accused can be excused from criminal liability under s. 88(1) where possession of a

weapon is necessary for defending himself.

5.  That is precisely what the trial judge did. Taking all of the evidence into account, he

concluded that the accused had the weapon in his possession “to deter first strike and defend
 against it should it become necessary”.

6. Dissent: he had 2 purposes: defend AND dangering the public .