Kristen Taylor

Law 410: Criminal Law – Professor Silver

W2021

C RIME F RAMEWORK – W INTER

S E XUAL ASS AUL T ...............................................................................................................................................1

A CTUS R EUS OF S EXUAL A SSAULT .......................................................................................................................................2
Step 1: Touching................................................................................................................................................................................................2
Step 2: Sexual Nature of the Contact................................................................................................................................................................2
Step 3: Absence of Consent...............................................................................................................................................................................2
M ENS R EA OF S EXUAL A SSAULT ...........................................................................................................................................5
Step 1: Touching................................................................................................................................................................................................5
Step 2: Knowledge of Non-Consent..................................................................................................................................................................6
H ONEST BUT M ISTAKEN B ELIEF IN C OMMUNICATED C ONSENT .......................................................................................7
Air of Reality.....................................................................................................................................................................................................8
Reasonable Steps...............................................................................................................................................................................................9
Review Evidence & Instruct Jury....................................................................................................................................................................10
Limitations on HMBCC Defence.....................................................................................................................................................................11

RE G UL AT O RY O FFE NCES ...........................................................................................................................11

Classifying the Offence....................................................................................................................................................................................12
S TRICT L IABILITY O FFENCES ...............................................................................................................................................13
A BSOLUTE L IABILITY O FFENCES .........................................................................................................................................13
MURDE R .................................................................................................................................................................14
A CTUS R EUS FOR M URDER ...................................................................................................................................................15
Causation & Intervening Causes....................................................................................................................................................................15
M ENS R EA FOR M URDER ...................................................................................................................................................... 16
s. 229(a)(i) Mens Rea......................................................................................................................................................................................17
S . 229( A )( II ) M ENS R EA .............................................................................................................................................................17
F IRST D EGREE M URDER ........................................................................................................................................................18
s. 231(2) – Planned & Deliberate...................................................................................................................................................................18
1st˚ Murder Without ‘Planned & Deliberate’..................................................................................................................................................19

C A P A C I T Y D E F E N C E S .......................................................................................................................................19
M ENTAL D ISORDER ............................................................................................................................................................... 20
A UTOMATISM .............................................................................................................................................................................23
#1 Evidentiary Burden / Air of Reality............................................................................................................................................................24
#2 Type of Automatism....................................................................................................................................................................................25
I NTOXICATION ........................................................................................................................................................................27
JUS T IFICAT IO NS & E XCUSE S ...................................................................................................................29
Justifications...................................................................................................................................................................................................29
Excuses............................................................................................................................................................................................................30
A IR OF R EALITY FOR D EFENCES .........................................................................................................................................30
D EFENCE OF THE P ERSON .....................................................................................................................................................31

S E XUAL A SS AULT
Sections 265-268, ss. 271-273, 273.1, 273.2 of the Criminal Code

Definition OF SEXUAL an accused will have committed sexual assault when, without
ASSAULT from s. 265(1) + s. the consent (as defined by s. 273.1(1)) of the other person, they
273.1(1) apply force intentionally to that person, directly or indirectly, or
otherwise assault them pursuant to s. 265(1)
 A C T U S R E U S OF S E X U A L A S S A U LT
The actus reus of sexual assault = touching another person in a sexual way without their consent
R v A(J)

The AR is established by proof of 3 elements that the Crown must prove BRD: (i) touching, (ii) the
sexual nature of the contact, & (iii) the absence of consent R v Ewanchuk
• First 2 elements are OBJECTIVE  sufficient for Crown to prove accused’s actions were
voluntary
• Absence of consent is SUBJECTIVE  determined by reference to the complainant's subjective
internal state of mind towards the touching at the time that it occurred

Step 1: Touching
ASK: was there an intentional touching that occurred between the accused and the victim?
• This element is OBJECTIVELY VIEWED R v Ewanchuk

If YES  continue
If NO  not sexual assault***
• ***touching is not always necessary (source: PPT)

Step 2: Sexual Nature of the Contact

ASK: was the contact of a sexual nature such that the sexual integrity of the victim was violated?
R v Chase
• This element is viewed OBJECTIVELY R v Ewanchuk

DEFINITION OF ‘SEXUAL’ = contextual approach, factors to consider: R v Chase

• Part of body touched
• Nature of the contact
• Situation in which occurred
• Words and gestures at time of act
• All other circumstances (threats)
• Intent / purpose / motive (if the motive is sexual gratification, may indicate sexual) page 626

If YES  continue
If NO  not sexual assault, check assault

Step 3: Absence of Consent

ASK: was the victim subjectively consenting in their mind or was consent vitiated in light of the whole of
the evidence?

 3 pathways to a finding of no consent:

A. s. 273.1(1) – consent was not given
B. s. 273.1(2) – consent cannot be obtained
C. s. 265(3) – consent is vitiated

ACTUS REUS CONSENT:

 1
DEFINITION OF voluntary agreement of the complainant to engage in the 2sexual
CONSENT from s. activity in question
273.1(1)
1
VOLUNTARY must be (a) freely & consciously given by a capable mind, (b) present at
AGREEMENT the time the sexual activity takes place and ongoing throughout the act
R v J(A)
2
SEXUAL ACTIVITY complainant must voluntarily agree to (a) the specific physical sex act
IN QUESTION itself, (b) the nature of the activity as sexual, and (c) the specific identity
(Content of the voluntary of the partner R v Hutchinson
agreement)

S. 273.1(1) – NO CONSENT GIVEN

The Crown must prove there was no consent pursuant to s. 273.1(1), it must show a lack of subjective
voluntary agreement to the specific physical sex act R v Hutchinson
 2 components: SUBJECTIVE + CONSENTING

SUBJECTIVE:
At this step, consent is determined by reference to the complainant’s subjective internal state of mind
toward the touching at the time it occurred (Ewanchuk)
• Actus reus consent is viewed SUBJECTIVELY (Ewanchuk)
• Focus is NOT on accused’s perception of that state of mind (Barton)

CONSENT:
Voluntariness – for the agreement to be voluntary, it must be: (a) freely and consciously given by a
capable mind, AND (b) present at the time the sexual activity takes place and (c) ongoing throughout the
act R v J(A)
• NEED UNEQUIVOCAL "YES" – ONLY YES MEANS YES Ewanchuk
– “No” is not the only way to not consent  the complainant is NOT required to express their
lack of consent or revocation of consent for the AR to be established R v J(A)
• These will never give rise to a positive finding of subjective consent:
– Implied consent : Ewanchuk
· This concept does not exist in Canadian law
· To assume that unless and until a woman says “no”, she has implicitly given her
consent is an error in law
– Broad advance consent : R v A(J)
· BAC = the legally erroneous notion that the complainant agreed to future sexual
activity of an undefined scope
– Propensity to consent :
· An accused’s belief that the complainant’s prior sexual activities, by reason of their
sexual nature, made it more likely that she was consenting to the sexual activity in
question is a mistake of law
– Silence, passivity or ambiguous conduct
· a belief that silence, passivity or ambiguous conduct is consent is a mistake of law

Sexual activity in question – the agreement to the sexual activity in question must include: (a) the
specific physical sex act, (b) the sexual nature of the activity, AND (c) the specific identity of the partner
R v Hutchinson
 • To determine ^this / ‘sexual activity in question’, must look to the whole of the evidence, both
direct and circumstantial R v Barton
– ^this is particularly important where the complainant is deceased
• This inquiry does NOT include conditions or qualities of the physical act, such as birth control
measures or the presence of sexually transmitted diseases
– May vitiate consent under 263(3)(c) – fraud

If there IS consent  go to 2nd stage

If there is NOT consent  AR met, go to MR

273.1(2) – CONSENT CANNOT BE OBTAINED

Per s. 273.1(2) – NO consent is obtained if*:
(a) the agreement is expressed by the words or conduct of a person other than the complainant
(a.1) the complainant is unconscious
(b) the complainant is incapable of consenting to the activity for any reason other than the one
referred to in paragraph (a.1)
(c) the accused induces the complainant to engage in the activity by abusing a position of trust,
power or authority
– this is DIFFERENT than s. 265(3)(d) – this is abusing a position of authority (ex. teacher-
student relationship)
(d) the complainant expresses, by words or conduct, a lack of agreement to engage in the activity
(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

*s. 273.1(3) says that the reasons in (2) are not exhaustive, there may be other circumstances where the
common law will find an absence of consent

S. 265(3) – CONSENT IS VITIATED

The CC defines conditions under which the law will deem consent in SA cases to be voided R v Ewanchuk
• Where ^these apply, the court is concerned with the complainant’s reasons for choosing to
participate in / ostensibly consenting to the touching in question &/or whether the complainant
freely made up their mind about the conduct in question R v Ewanchuk
• This is a question of LAW
– So even if there is a jury trial for a SA offence, the judge will decide if consent was vitiated
or not obtained (not the jury)

Per s. 265(3) – consent is VITIATED 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
– Per R v Hutchinson – Conditions or qualities of the physical act, such as birth control
measures or the presence of sexually transmitted diseases may vitiate consent under s.
263(3)(c) / fraud
(d) the exercise of authority

Sexual assault causing BODILY HARM: in a case of alleged sexual assault causing bodily harm,
consent to sexual activity should be vitiated on public policy grounds where the accused (1) subjectively
intended to cause bodily harm and (2) did in fact cause bodily harm
Consent given in FEAR: (R v Ewanchuk)
• The circumstances of a case may call into question what prompted apparent consent – even if the
complainant consented, or their conduct raises a reasonable doubt about their non-consent
• The trier of fact MUST find that the complainant did NOT want to be touched sexually and made
their decision to permit / participate as a result of an honestly held fear
– This approach is SUBJECTIVE
– The fear need NOT be reasonable nor communicated to the accused in order for consent to
be vitiated

If consent is NOT obtained / is vitiated  AR met, go to MR

If consent IS obtained / is NOT vitiated  go to 2nd stage

M E N S R E A O F SE X UA L A S SA U L T
The mens rea of sexual assault contains 2 elements: (i) intention to touch, & (ii) knowing of, or
being reckless of or wilfully blind to, a lack of consent on the part of the person touched R v
Ewanchuk
• This is because SA is a crime of general intent & only becomes a crime in the absence of consent

Consent for AR: Focus on the state of mind of the complainant, whether the complainant, in her
mind, wanted sexual touching

Consent for Focus on state of mind of the accused, whether the complainant had affirmatively
MR: communicated by words or conduct agreement to engage in sexual touching

Step 1: Touching
Was the touching intentional?
• This is straightforward, only requires that the accused be subjectively aware or had subjective
knowledge of the touching
– This would pretty much only fail if the accused had completely accidentally brushed past
someone on the street or something

If YES  continue to step 2

If NO  not sexual assault

Step 2: Knowledge of Non-Consent

Sexual assault is a crime of general intent / low level subjective mens rea,  the MR requires that the
accused be aware that certain results may arise; does not require intent to create the result, only that they
are reckless as to the consequence of their actions

Must consider all 3 levels of knowledge for low SMR – reckless, wilfully blind, & intentional

1. RECKLESS?
ASK: was the accused reckless to the lack of consent on the part of the person being touched?
LOW LEVEL SMR:
Definition: requires that the accused be aware that certain results may arise; does not require intent to
create the result, only that they are reckless as to the consequence of their actions
• RECKLESSNESS = the attitude of one who, aware that there is a danger that his conduct could
bring about the result prohibited by the criminal law, nevertheless persists despite the risk
Sansregret

TEST – Low SMR:

Did the defendant know of an unjustifiable risk and decide to proceed in the course of conduct
anyways? (R v Ewanchuk)

How do we prove this / apply test:

• Must show the accused subjectively appreciated the lack of consent / consequences at least as a
possibility
¬ This analysis looks to intention and facts as the accused believed them to be
¬ May also take into account all personal characteristics of the particular accused – ex.
personality, age, race, gender, socio-economic status, experience…
¬ Mens rea may be inferred from solid evidence
• Do NOT need to show:
¬ Precisely what was in the accused’s mind at the time of the impugned act
¬ Whether or not the accused believed they did nothing wrong

If YES  recklessness met, go to step 3

If NO  go to wilfully blind

2. WILFULLY BLIND?
ASK: was the defendant deliberately ignorant to the victim’s lack of consent?

Willful Blindness IS part of high level SMR:

• WB = deliberate ignorance – conscious decision to refrain from making inquiries because the
accused does not wish to know the truth Sansregret; Briscoe
¬ WB is equated to full knowledge – is a branch of high SMR intention
• Willful blindness requires:
¬ Awareness of the risk
¬ Available means to clarify the matter
¬ Refrain from clarifying the matter because they do not want to know
¬ Proceeding with act regardless

If YES  wilful blindness met, go to step 3

If NO  go to intentional

3. INTENTIONAL?
ASK: did the accused have full knowledge of the victim’s lack of consent?

TEST – high SMR:

Did the accused (i) have full knowledge of the risk & foresee the consequence, & (ii) intend the
consequence of their actions? (Buzzanga and Durocher)
How to prove the accused knew or intended / apply the test:
 • Mens rea often has to be proved by inference (direct evidence of intent is hard to get)
– Common sense inference = a person intends the natural consequences of their actions
– Don’t NEED to do this, but it can be a useful tool
• Take into account all personal characteristics of the particular accused – ex. personality, age, race,
gender, socio-economic status, experience…
• Do NOT need to show:
– Precisely what was in the accused’s mind at the time of the impugned act
– Whether or not the accused believed they did nothing wrong

If YES  intent met, go to step 3

If NO  not sexual assault

H O N E S T B U T M I S T A K E N B E LI E F I N C O M M U N I C A TE D
CONSENT
IF: (a) it has been determined that the victim did NOT consent, & (b) the accused honestly but mistakenly
believed that the victim HAD communicated consent  THEN: the HMBCC may be raised

The HMBCC defence = the accused honestly and reasonably believed in a state of facts, which if true,
would render the defendant innocent
• This is a mens rea issue – the accused may challenge the Crown’s evidence of MR by asserting an
honest but mistaken belief in consent:
– The accused must be able to explain and evidence how and why, in the circumstances, he
honestly but mistakenly believed the victim communicated consent to the sexual activity
– To successfully raise the defence, the accused must show that they believed the complainant
effectively said “yes” through their words and/or actions

The defence asks: did the accused honestly but mistakenly believe the complainant communicated
voluntary agreement to the sexual activity in question through their words and/or actions? Ewanchuk

The defence is a 2-step analysis: (1) AIR OF REALITY , & (2) REVIEW EVIDENCE + INSTRUCT
JURY
• Air of reality is a threshold test & is  required BEFORE the HMBCC defence can be raised

Air of Reality
An accused who seeks to rely on the defence of HMBCC must first demonstrate that there is an air of
reality to the defence – accused bears the onus of showing air of reality; trial judge decides yes/no

TEST – Air of Reality:

Whether there is any evidence on the record containing sufficient factual foundation upon which a
properly instructed jury, acting reasonably and judicially, could give effect to the defence & acquit
(Barton)
How to prove the accused knew or intended / apply the test:
• The accused must be able to explain and evidence that they HONESTLY BELIEVED the
complainant communicated consent (Barton)
– Must be evidence of an honest belief as opposed to merely a belief in consent
• @ this stage, there is NO weighing of the evidence – assume the evidence is true
– ASK: in the circumstances of the case, is there any reality / plausibility to the defence?
 – The mistake does not need to be reasonable, there just need to be an air of reality as to its
honesty

The effect of prior sexual activities between victim & accused:

• Prior sexual activities may establish legitimate expectations about how consent is communicated
between the parties
– This may shape the accused's perception of communicated consent to the sexual activity in
question at the time it occurred
• BUT – it is false logic that prior sexual activities made victim more likely to have consented, and
on this basis accused believed victim consented (prohibited under s. 276(1)(a) of the Code)

LIMITATIONS TO AIR OF REALITY

NO air of reality (and  no HMBCC defence) if:
• The air of reality assertion is baseless
– Counsel asserts the defence without a foundation in the evidence
– Accused makes a "bald assertion" with nothing more
• If accused speculates about what is going on in the mind of the complainant  WILFULLY
BLIND & RECKLESSNESS
– If consent is not communicated
– If accused believed victim wanted to be touched but they did not express this desire
• Anything under s. 273.2 – air of reality test CANNOT be satisfied if one of the exclusions to the
defence of honest belief in consent is present
– Where no consent is obtained, or consent is vitiated under s. 265(3) & 273.1(2)***

s. 273.2 – where belief in consent is not a defence:

273.2  It is not a defence to a charge under section 271, 272 or 273 that the accused believed that
the complainant consented to the activity that forms the subject-matter of the charge, where
(a) the accused’s belief arose from
(i) the accused’s self-induced intoxication,
(ii) the accused’s recklessness or wilful blindness , or
(iii) any circumstance referred to in subsection 265(3) or 273.1(2) or (3) in which no
consent is obtained;***
(b) the accused did not take reasonable steps , in the circumstances known to the accused at the
time, to ascertain that the complainant was consenting; or
(c) there is no evidence that the complainant’s voluntary agreement to the activity was
affirmatively expressed by words or actively expressed by conduct.

Reasonable Steps
*this is all from Barton
273.2(b) the accused did not take reasonable steps, in the circumstances known to the accused at the
time, to ascertain that the complainant was consenting

REASONABLE STEPS = the accused must have taken reasonable steps to ascertain consent (Barton;
Ewanchuk)
To successfully raise the defence, there must be evidence upon which a reasonable trier of fact acting
judicially could find that the accused took reasonable steps to ascertain consent
• IF: no air of reality to reasonable steps  THEN: accused CANNOT rely on HMBCC defence (s.
273)
 • Purpose of the requirement:
– Rejects the idea that women can be taken to be consenting unless they say “no” & keeps from the jury
defences that lack sufficient evidentiary foundation, thereby avoiding the risk that the jury might
improperly give effect to a defective defence

Burden of proof = on Crown to prove BRD that accused did NOT take reasonable steps
• IF: Crown fails to prove ^this  *it does NOT lead automatically to an acquittal*  THEN: still
must consider whether Crown has nonetheless proven BRD that accused did not have an HMBCC
– IF: Crown fails to disprove the entire defence BRD  THEN: accused is entitled to acquittal

HOW TO DETERMINE WHETHER REASONABLE STEPS WERE TAKEN:

MAIN APPROACH – whether reasonable steps were taken, look to:
A. The victim’s actual communicative behaviour
&
B. The totality of admissible & relevant evidence explaining how accused perceived that behaviour
to communicate consent

Elevated Threshold – circumstances where threshold for satisfying reasonable steps is elevated:
• More invasive the sexual activity in question
• Greater health and safety risk to those involved
• Accused and complainant are unfamiliar with each other (raises risk of miscommunication /
misunderstanding / mistakes)

APPLICATION OF MAIN APPROACH:

• Highly fact-specific & purposive approach
– Purpose: preserve bodily integrity, sexual autonomy, and human dignity
– Reasonableness of steps must be assessed in light of the circumstances known to the accused
at the time / what the accused subjectively knows at the time
–  reasonableness will depend on the circumstances of the case
• Reasonable steps combine SUBJECTIVE and OBJECTIVE elements
– Subjective = accused’s obligation to take reasonable steps based on what he subjectively
knows at the time
– Objective = accused must act as a reasonable person would in those circumstances
• Accused is NOT required to take ALL reasonable steps (not held to standard of perfection)

The effect of prior sexual activities between victim & accused:

• Prior sexual activities may establish legitimate expectations about how consent is communicated
between the parties
– This may shape the accused's perception of communicated consent to the sexual activity in
question at the time it occurred
• BUT – it is false logic that prior sexual activities made victim more likely to have consented, and
on this basis accused believed victim consented (prohibited under s. 276(1)(a) of the Code)

What is NOT reasonable:

• The complainant’s silence, passivity, or ambiguous conduct
• Steps based on rape myths or stereotypical assumptions about women and consent CANNOT
constitute reasonable steps

Reasonable Steps versus Reasonable Grounds:

• Reasonable steps = failure to take them is fatal to the defence of HMBCC by virtue of s. 273.2(b)
 • Reasonable grounds = a factor to be considered in assessing the honesty of the accused’s asserted
belief in consent in accordance with s. 265(4)

Review Evidence & Instruct Jury

IF: there is an air of reality  ONLY THEN: can you move on to this step

Trial judge instructs the jury on the law:

• Honest belief need not be reasonably held but in deciding on honesty of belief may consider the
presence or absence of reasonable grounds for such belief – s. 265(4)

Relevant evidence is reviewed

• Evidence of honest belief can come from any of the following:
– The evidential foundation from the examination in chief or cross examination of the accused,
of defence witnesses, or of Crown witnesses
– From the factual circumstances of the case or
– From any other evidential source on the record
· There is no requirement that the evidence be adduced by the accused

Leave issue of guilt or innocence to jury

• Jury to consider all the evidence
• ACQUIT  where find consent or honest belief in consent or if they have a doubt

Limitations on HMBCC Defence

Mistakes @ law are generally NO DEFENCE Barton
• If accused’s HMBCC defence rests on a mistake of law (including what counts as consent from a
legal perspective) rather than mistake of fact  defence FAILS
– Implied consent : Ewanchuk
· This concept does not exist in Canadian law
· To assume that unless and until a woman says “no”, she has implicitly given her
consent is an error in law
– Broad advance consent : R v A(J)
· BAC = the legally erroneous notion that the complainant agreed to future sexual
activity of an undefined scope
– Propensity to consent :
· An accused’s belief that the complainant’s prior sexual activities, by reason of their
sexual nature, made it more likely that she was consenting to the sexual activity in
question is a mistake of law
– Silence, passivity or ambiguous conduct
· a belief that silence, passivity or ambiguous conduct is consent is a mistake of law

Mens rea consent is limited by common law – the defence CANNOT be successfully raised where:
• Accused submits "no meant yes " Ewanchuk
– accused believed the complainant's expressed lack of agreement was an invitation to more
persistent conduct
• Accused submits “no communication meant yes ” Ewanchuk
– accused believed the complainant's silence, passivity or ambiguous conduct constituted
consent – this is a mistake of law
– accused believed the complainant wanted to be touched but they did not express this desire
• Accused submits consent was implied
 – accused speculates what is going on in the mind of the complainant
• Also, NO defence where:
– Cannot rely on a mere lapse of time
– Cannot "test the waters " Ewanchuk
– Cannot be reckless or willfully blind towards consent

NEED UNEQUIVOCAL "YES" – ONLY YES MEANS YES Ewanchuk

R EGULATORY O FF ENCES
Regulatory offences = enforce a regulatory scheme & are targeted towards inherently legitimate or
desirable activities done improperly or without due care
• Also called public welfare offences or quasi-criminal offences
• Can be created by all levels of government (fed, prov, municipal)
– Reg offences created by municipalities are bylaws, and municipalities get their legislative
authority from provincial statutes
• INDIVIDUALS and CORPORATIONS are subject to reg offences

REGULATOR
Y OFFENCES

SUBJECTIVE ABOLUTE LIABILITY

STRICT LIABILITY
LIABILITY No fault requirement
(presumed)
Express fault requirement Negligence-based
1
1
Full subjective mens rea No jail
2
or recklessness Actus reus issues only
2
All mens rea & actus
reus defences available
3
Defendant need only
raise reasonable doubt
4
Penalty serious, involving 1
No marked departure,
possibility of jail conduct based
2
Due diligence & mistake
of fact defences available
3
Classifying the Offence Defendant must prove
defence on BOP
The court in Sault St Marie established 3 types of offences:
1. FULL MR: offences in which mens rea must be proved by the prosecution (all criminal offences)
2. STRICT LIABILITY OFFENCES: offences in which no necessity for the prosecution to prove
MR
3. ABSOLUTE LIABILITY OFFNECES: where it is not open to the defendant to exculpate himself
by showing that he was free of fault

Classifying the offence is a question of statutory interpretation subject to the presumption for strict
liability (R v Sault Ste. Marie)
• We presume strict liability because it provides some form of defences, but is still a stricter form of
liability that will protect the public
SUBJECTIVE LIABILITY / FULL MR
**These offences operate the same as a criminal offence that requires subjective liability
Mens rea consists of some positive state of mind such as intent, knowledge, or recklessness
• To be a subjective liability offence the wording must REBUT THE PRESUMPTION of strict
liability
• Must be words present in section to indicate they are full mens rea offences:
– "intent”
– "purposely" or
– "willfully”

ABSOLUTE LIABILITY
To rebut the strict liability presumption – must look to (Sault Ste Marie):
• Language used in the offence section – most important: Levis case
• Subject-matter of the statute or the objective of the regulation
• Penalty
• Over-all regulatory scheme of the statute

NOTE THAT  absolute liability is “an exception requiring clear proof of legislative intent” Levis
(Ville) c. Tetreault

S T R I C T L I A B I L I T Y OF F E N C E S
Strict liability offence = offences in which the doing of the prohibited act prima facie imports the offence,
there is no necessity for the prosecution to prove MR, leaving it open to the defendant to avoid liability by
proving that they took all reasonable care
Actus reus Crown only must prove commission of prohibited ACT / actus reus BRD
Mens rea No necessity for the Crown to prove MR, look to defences
Defences Only AR defences are available to the defendant  due diligence or mistake of fact

DEFENCES:
1. Due Diligence:
・ Open to the defendant, on BOP, to prove they 1acted reasonably in all of the circumstances
and 2took all reasonable steps required to avoid the harm or took all reasonable care
· Defendant has the evidential burden to prove, on BOP, that they acted with all due
diligence or has an honest and reasonable belief in mistake of fact
· this is an OBJECTIVE test – what would the reasonable person do in like
circumstances?
· “passive ignorance is NOT a valid defence”  the D must show that they actively
avoided the harm / actively took all reasonable care – Levis (Ville) c. Tetreault, p 405

2. Honest & Reasonable Belief / Mistake of Fact:

・ Defendant may be acquitted if honestly and reasonably believed in a state of facts, which if
true would render the defendant innocent
· It’s honest and reasonable because we’re now looking at an objective form of liability

*Mistake of law is NOT a defence

• In general, mistake of law is no defence
 • BUT there are some very specific defences – ex. officially induced error
– For the purposes of this class, just ignore this

Strict liability & the Charter :

• Wholesale Travel Group case (SCC, 1991):
– Strict liability offences ARE constitutional
– Defence of due diligence CANNOT be “restricted” by statute
• Strict liability is the minimum permissible level of liability where an accused may go to jail
– SO, if a penalty for a regulation is jail, the minimum level of liability is strict liability
• Negligence is a constitutionally sufficient fault element for all regulatory offences

ABSOLUTE LIABILITY OFFENCES

For absolute liability offences – if the actus reus is proved, the defendant is guilty
• Prosecutor must prove actus reus beyond a reasonable doubt

Defences:
• Still have actus reus defences  such as voluntary act issues and capacity issues
• BUT no mens rea defences:
– No due diligence defence
– No defence of honest or even reasonable belief in a set of facts

Absolute liability & the Charter :

• Absolute liability offences ARE constitutional IF the penalty does NOT include the possibility of
jail or probation (restricting someone’s liberty)
– See Re Reference Re Section 94(2) of the Motor Vehicle Act (B.C.), S.C.C. 1985 (this is the
same as BC Motor Vehicle Act)
• Absolute liability, fundamental justice & s. 7 Charter
– It is a principle of fundamental justice that the innocent not be punished
· Cannot convict unless mens rea
• Absolute liability offends principle of fundamental justice if the liberty interest is restricted through
the potential sanction, upon conviction, of jail or probation   absolute liability offences cannot
require a penalty of jail or probation, they must be panelized by fine only

M URDER
If accused caused death by way of anything under s. 222(5)(a) – (d)  accused committed culpable
homicide  culpable homicide will rise to the level of murder if s. 229(a)(i) or (ii), (b), or (c) applies 
murder will rise to 1st˚ murder if it was PLANNED & DELIBERATE

Homicide, per s. 222 :

 222 (4)  Culpable homicide is murder or manslaughter or infanticide.
(5)  A person commits culpable homicide when he causes the death of a human being,
(a)  by means of an unlawful act;
(b)  by criminal negligence;
(c)  by causing that human being, by threats or fear of violence or by deception, to do
anything that causes his death; or
(d)  by wilfully frightening that human being, in the case of a child or sick person.

Definition of murder per s. 229(a):

229 Culpable homicide is murder
(a)  where the person who causes the death of a human being
(i)  means to cause his death, or
(ii)  means to cause him bodily harm that he knows is likely to cause his death, and is
reckless whether death ensues or not;

s. 229(b): “Transferred intent” :

Culpable homicide is murder where the intention was to kill someone other than the deceased

s. 229(c): No “objective harm” :

Culpable homicide is murder where a person does anything that they know is likely to cause death, and by
doing so causes the death of a human being

ACTUS REUS FOR MURDER

The actus reus requires the Crown to prove that the accused committed an unlawful act and that the
unlawful act caused death (Javanmardi)

AR = ACT OF DOING UNDERLYING UNLAWFUL OFFENCE + DEATH CAUSED BY

UNLAWFUL ACT

Look to s. 222(5)(a)  find the predicate offence that applies to the circumstances, establish that it has
been made out & establish death (this should probably be obvious)

Causation & Intervening Causes

Causation analysis involves the examination of both FACTUAL and LEGAL causation, with
consideration of whether there was any intervening act which could have broken causation chain

1. FACTUAL CAUSATION
Factual causation = an analysis of the specific facts of the case & the evidence heard at trial to determine
whether the accused is a cause

TEST – but for the accused’s act, would the harm/death have occurred? (R v Smithers)
• If YES = no causation
• If NO = continue, potential causation

How to answer the but for test:

 • Factual causation is an inquiry into how the victim came to their death, in medical, mechanical, or
physical sense, and how the accused contributed to that result
• Very BROAD investigation into the factors at play in the circumstances of the case

What factual causation does NOT look into:

• It is not concerned with how significant of a cause the accused’s act was, it only looks at whether
or not they were a cause
• It does not look at intention, foresight, or risk

2. LEGAL CAUSATION
Legal causation = seeks to find whether the accused should be held criminally responsible for the
consequences that occurred, to what extent is the impugned conduct “imputable” or “blamable”

TEST – were the accused’s actions are a significant contributing cause of the death? (R v Nette)
• If YES = continue, probable causation
• If NO = no causation

Legal causation principles to note:

• DE MINIMIS principle: the law does not take notice of very small, trifling, or insignificant
matters, (R v Smithers)
• THIN SKULL RULE:
– Accused can be found criminally liable even if the victim has an unforeseen vulnerability;
“you take your victim as you found them” (R v Smithers)
– Includes religious and moral beliefs (R v Smithers)
• ‘Chain of events’ & causation:
– Accused can be found criminally liable if they set off chain of events that ends in unlawful
consequence – even if their conduct is not an ‘immediate cause’

Test applies to all offences with a causation requirement EXCEPT for 1st degree murder under s. 231(5) –
which requires the accused’s actions to be a substantial and integral cause of death

INTERVENING CAUSES
Intervening causes may sever the chain of causation and reduce the scope of acts that may generate
criminal liability
TEST – Intervening acts:
Answers when an intervening act sever the causal connection: (R v Maybin)
1. Was the act objectively or reasonably foreseeable from the accused’s actions?
・ What qualifies as reasonably foreseeable?
· Accused need only foresee the general nature of intervening acts
· Connection MUST be established – intervening acts (and the unlawful consequence) must
reasonably flow from the accused’s conduct
· Must only assess reasonable foreseeability at the time of the initial unlawful act, not at the
time of the intervening act
・ If YES = then the intervening cause does NOT break the chain
・ If NO = continue
2. Was the intervening act independent of the accused’s actions?
・ If YES = intervening cause DID BREAK THE CHAIN  accused is probably NOT
LIABLE
・ If NO = intervening cause did NOT BREAK THE CHAIN  accused IS probably
LIABLE
What does NOT break the chain?
• Medical treatment applied in good faith
• Arguing that the victim would have avoided harm by taking better care of themselves – this argument fails
via Thin Skull principle (ex. Jehovah’s is assaulted, won’t take blood transfusion, they die – accused IS
LIABLE)
• Ordinary operation of natural forces (R v Maybin)

What DOES break the chain?

• A natural event may break the chain if it's extraordinary – but NOT if it is the ordinary operation of natural
forces (R v Maybin)

M E N S R E A F O R M UR D E R
It is a principle of fundamental justice that a conviction for murder cannot rest on anything less than proof
beyond a reasonable doubt of a SUBJECTIVE foresight Valliancourt
• Murder ALWAYS requires subjective foresight of death Martineau
• Any offence that eliminates subjective foresight of death for a murder conviction will be
unconstitutional Martineau

s. 229(a)(i) Mens Rea

S. 229(a)(i) MR = SUBJECTIVE FORESEEABILITY OF DEATH + INTENTION TO CAUSE
DEATH
s. 229(a)(i): where the person who causes the death of a human being means to cause death:
• Accused has actual subjective foresight of the likelihood* of causing death by their actions coupled
with the intention to cause death
• Subjective foresight of death and an intention to kill
– “most morally blameworthy state of mind in our system” (Valliancourt)

s. 229(a)(i) – HIGH LEVEL SMR:

Definition = accused foresees that a consequence is certain, or substantially certain, to result from an act
which they do knowingly, AND they intend that consequence (Buzzanga and Durocher)

TEST – High SMR:

1. Did the accused have full knowledge of the risk & foresee the consequence?
2. Did the accused intend the consequence of their actions?

How to prove the accused knew or intended / apply the test:

• Mens rea often has to be proved by inference (direct evidence of intent is hard to get)
• Common sense inference = a person intends the natural consequences of their actions
¬ Don’t NEED to do this, but it can be a useful tool
• Take into account all personal characteristics of the particular accused – ex. personality, age, race,
gender, socio-economic status, experience…
• Do NOT need to show:
¬ Precisely what was in the accused’s mind at the time of the impugned act
¬ Whether or not the accused believed they did nothing wrong

Willful Blindness IS part of high level SMR:

 • WB = deliberate ignorance – conscious decision to refrain from making inquiries because the
accused does not wish to know the truth (Sansregret; Briscoe)
¬ WB is equated to full knowledge – is a branch of high SMR intention
• Willful blindness requires:
¬ Awareness of the risk
¬ Available means to clarify the matter
¬ Refrain from clarifying the matter because they do not want to know
¬ Proceeding with act regardless

s. 229(a)(ii) Mens Rea

S. 229(a)(ii) MR = SUBJECTIVE FORESEEABILITY OF DEATH + RECKLESSNESS
s. 229(a)(ii): where the person who causes the death of a human being means to cause bodily harm that
they know is likely* to cause death and is reckless whether death ensues:
• Requires RECKLESSNESS
– A slight relaxation as the Crown no longer needs to prove intention to cause death but only
that accused was reckless whether death ensued or not
– Crown must still prove accused intended to cause bodily harm (Nygaard and Schimmens)
• Still subjective foreseeability of death
• *definition of likely = probable, NOT merely possible (Shand)

s. 229(a)(ii) – LOW LEVEL SMR:

Definition: requires that the accused be aware that certain results may arise; does not require intent to
create the result, only that they are reckless as to the consequence of their actions
• RECKLESSNESS = the attitude of one who, aware that there is a danger that his conduct could
bring about the result prohibited by the criminal law, nevertheless persists despite the risk
Sansregret

TEST – Low SMR:

1. Did the accused subjectively appreciate the risk created by their actions? Theroux

How do we prove this / apply test:

• Must show the accused subjectively appreciated the consequences at least as a possibility
• This analysis looks to intention and facts as the accused believed them to be
• May also take into account all personal characteristics of the particular accused – ex. personality,
age, race, gender, socio-economic status, experience…
• Mens rea may be inferred from solid evidence

Do NOT need to show:

• Precisely what was in the accused’s mind at the time of the impugned act
• Whether or not the accused believed they did nothing wrong

F I R S T DE G R E E M UR D E R
Per s. 231(1), murder is either 1st˚ murder or 2nd˚ murder – after establishing SMR, you have to classify
the type of murder, i.e., whether it rises to 1 st˚ or stays @ 2nd˚

Murder under s. 229(a)(i) OR (ii) (Nygaard and Schimmens) may rise to the level of 1st˚ murder if the case
satisfies the enumerated conditions under s. 231(2), (3), (4), or (5)
• Crown must still prove SMR for murder under s. 229 before classified as 1st˚
s. 231(2) – Planned & Deliberate
s. 231(2): murder is 1st˚ murder when it is planned & deliberate  BOTH must be proven BRD & they
are to be viewed SEPERATELY R v Smith

PLANNED
‘planned’, for the purposes of 1st˚ murder, means some scheme or design arranged beforehand R v Smith
• There must be some evidence the killing was the result of a scheme or design previously
formulated and the killing was the implementation of that scheme or design
– The calculated scheme need not be complicated but must have been carefully thought out
• Occurs AFTER intent to murder is formed
–  planned ≠ intention

DELIBERATE
‘deliberate’, for the purposes of 1st˚ murder, means considered, not impulsive, hasty nor rash R v Smith
• A deliberate act is one that the actor has taken time to weigh the advantages and disadvantages of
– “carefully thought out, not hasty or rash”, “slow in deciding”, “cautious”
• The deliberation must take place BEFORE the act of murder
– Note that deliberate ≠ intention; it is in addition to intent

1 st ˚ Murder Without ‘Planned & Deliberate’

Irrespective of whether a murder is planned & deliberate on the part of any person, murder will be 1 st˚
murder under circumstances laid out in s. 231(3), (4), and (5), & (6):

s. 231(3) – Contracted murder

(3) Without limiting the generality of subsection (2), murder is planned and deliberate when it is
committed pursuant to an arrangement under which money or anything of value passes or is
intended to pass from one person to another, or is promised by one person to another, as
consideration for that other’s causing or assisting in causing the death of anyone or counselling
another person to do any act causing or assisting in causing that death.

s. 231(4) – Murder of peace officer, etc

• Irrespective of whether a murder is planned and deliberate on the part of any person, murder is first
degree murder when the victim is
(a)  a police officer, police constable, constable, sheriff, deputy sheriff, sheriff’s officer or
other person employed for the preservation and maintenance of the public peace, acting in
the course of his duties;
(b)  a warden, deputy warden, instructor, keeper, jailer, guard or other officer or a
permanent employee of a prison, acting in the course of his duties; or
(c)  a person working in a prison with the permission of the prison authorities and acting in
the course of his work therein

s. 231(5) – Hijacking, sexual assault or kidnapping

• Murder will be 1st˚ if the accused caused the death while committing any of the following offences:
 (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).

C AP ACITY D EFENCES
Capacity = whether a person is capable of forming the mental intent (or the MR) of the offence
• Not concerned with whether or not the accused has the intention to do so

PRESUMPTION  it is presumed that individuals have mental capacity and can form MR for an offence
• Based on the idea that: 1people are acting voluntarily as the result of a conscious choice and 2with
cognitive capacity & an operating mind

Mental capacity “defence”:

• Mental capacity defences are treated differently than standard voluntariness or mens rea defences
because:
1. The law assumes that the accused is likely to be at fault for the condition – they have put
themselves in this position of intoxication or non-mental disorder automatism
· **this may be problematic  think of an alcoholic, are they consciously putting
themselves in that position? No, not 100% in control, suffering from addiction
2. Possible continuing danger when an individual is in an incapacitated state
· Dangerousness becomes relevant as a public policy consideration for these defences

M E N T A L D I S O R DE R
s. 16 CC – test for whether an accused person is not criminally responsible for an offence by reason of
mental disorder (NCRMD)

Defence of mental disorder:

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 was wrong .

Presumption (evidentiary presumption):

(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.

Burden of proof
(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.
 TEST – raising NCRMD:
1. Rebut the presumption of NO mental disorder per s. 16(2)
・ Defence must prove on BOP
2. Prove that the accused, by reason of the established mental disorder:
a. Could not appreciate the nature & quality of the act or omission (Cooper)
OR
b. Was incapable of knowing that the act or omission was wrong (Chaulk)

1 st Step – Mental DIsorder

From s. 16(2) – must rebut presumption & prove on BOP that the accused DOES have a mental disorder

 As a question of mixed fact and law, TJ must determine whether the condition of the accused satisfies
the legal test of disease of the mind:

LEGAL TEST FOR DISEASE OF THE MIND = HOLISTIC APPROACH = COOPER

DEFINITION + STONE

HOLISTIC APPROACH:
Holistic approach (Stone)  [looks at all the evidence] and [considers the Stone factors + policy] to
determine [whether there is a legally recognizable disease of the mind as defined in Cooper]
• This approach is an inquiry of mixed fact and law that is HIGHLY policy driven
– Involves an assessment of the particular evidence
– Policy reasons, more than medical, drive a finding of disease of the mind

COOPER DEFINITION OF MENTAL DISORDER:

Mental disorder = disease of the mind, per s. 2 (Cooper)
• This is a LEGAL TERM, not medical (Cooper)

Disease of the mind = any illness, disorder or abnormal condition which impairs the human mind and its
functioning (Cooper)
• Contains a substantial medical component as well as a legal or policy component – but policy is the
stronger driving force in finding a disease of the mind
• Disease of the mind EXCLUDES:
– Self-induced states caused by alcohol or drugs
– Transitory mental states such as hysteria or concussion
• Disease of the mind is a legal concept, although it includes a medical component, and what fits
within the term is a question of law for the judge (Cooper)
– Role of a medical expert = to describe the accused's mental condition and how it is
considered from the medical point of view
– Role of the judge = to decide whether the condition described is comprehended by the term
"disease of the mind”
• Court will consider medical & non-medical evidence – psychiatric evidence, while relevant, is not
determinative of whether an alleged mental disorder should be recognized at law (Cooper)

STONE TEST:
2 approaches to evaluating danger (just two tools to use, not mutually exclusive) (Stone):
 1. Internal cause theory: personal psychological makeup of accused
・ What triggered the mental state? Was it an external or internal cause?
· Compare with “normal” person – would a normal person have acted in the same way?
· Is it connected to the “subjective make-up” of this person?
· If the cause was external more likely not mental disorder but does not preclude it

2. Continuing danger: what is the likelihood of recurring danger to others?

・ Greater the possible recurrence = greater risk to public = greater likelihood disease of the
mind
・ Recurring, here, means likely to arise again independently of the will of the accused
・ Look to:
· psychiatric history of the accused
· likelihood that the alleged trigger will recur
· internal or external trigger / stimulus
・ Absence of continuing danger does NOT preclude disease of the mind

POLICY CONSIDERATIONS:
2 main policy considerations are recurrence & the need to protect society from the accused
• Effectively, is this someone we want to set free without an individualized inquiry into
dangerousness?
• Key question framing the policy inquiry:
– Whether society needs protection from the accused, and consequently, whether the accused
should be subject to evaluation under the regime in Part XX.1 of the C
• Open list, whatever is relevant may be considered

Examples of disease of the mind: NOT disease of the mind:

• Congenital brain damage • Sleepwalking (even though
• Fetal alcohol syndrome internal cause)
• Permanent conditions due to alcohol or drugs • Transitory states
– Ex. delirium tremens (alcohol withdrawal) and • Extraordinary external
cocaine toxic psychosis events – witnessing or being
• Psychopathy (Simpson, Ont CA) – usually first step only involved in a traumatic event
– will NOT always afford an exemption (see • Diabetic coma caused by not
Kjeldsen) taking insulin/not eating
• Diabetic coma may if internal (external)
• Psychomotor epilepsy
• episodic dyscontrol
• Sever mental disabilities
• Epilepsy
• Arteriosclerosis (UK)

 Conclude here on whether or not the accused has met the test for disease of the mind

2 nd Step – incapacity by Mental Disorder

Must show that the established mental disorder rendered the accused incapable of either (a) appreciating
the nature and quality of the act, or (b) knowing that the act was wrong

INCAPABLE OF APPRECIATING THE NATURE AND QUALITY OF THE ACT

An accused who by reason of disease of the mind has no real understanding of the nature, character, and
consequences of the act at the time of its commission will, per s. 16(2), be exempt from liability
(Kjeldsen)
• Nature = the act itself
– were you aware of your actions at the time?
• Quality = what physically results from the act
– Do you appreciate what it means?
• Appreciate = estimates, understands, and perceive the consequences, impact and results of the act
(Cooper)
– Appreciating ≠ knowing
– Physical consequences, not lack of emotional feelings as in psychopathy (Kjeldsen)
– Does not include inability to appreciate the penal consequences – Abbey

INCAPABLE OF KNOWING THAT THE ACT WAS WRONG

Was the accused was deprived, by reason of the mental disorder, of the capacity to know that the
particular act is right or wrong having regard to the everyday standards of reasonable people? (Oommen)
• Capacity to know and make a choice (Campione)
• An accused is entitled to rely on the insanity defence is available where cannot appreciate whether
it is morally wrong: (Chaulk)
– MORALLY WRONG – accused because, by reason of mental disorder, lacks the capacity to
rationally decide whether the act is right or wrong and hence to make a rational choice
· This does not protect those who subjectively believed their act was right, it means
protection will be afforded if they had no ability to assess moral merits of their actions
· if they retained the capacity to know that it was regarded as wrong on a societal
standard then have not proven second step and  no NCRMD
– It is not necessary that accused knows that a particular act is contrary to LAW

IF: accused held NCRMD  then: absolute discharge, conditional discharge, or detention in a hospital

 Once the TJ has decided whether the accused has passed the NCRMD test / successfully provided an
evidentiary foundation on BOP, the issue moves to the trier of fact to decide whether the offender
actually suffered from a "mental illness" at the time of the commission of the act with which he is charged

A U T OM A TI S M
Automatism = a specific kind of involuntary conduct that is the product of a mental state of impaired
consciousness where the accused has no control over their actions (Luedecke)

The defence of automatism amounts to a denial of the voluntariness component of the actus reus
  voluntariness is the key legal element of automatistic behaviour
• Law assumes people act voluntarily – must rebut this presumption to rely on the defence (Stone)

There are 2 types of automatism – the main difference between them is their cause
1. Mental disorder automatism / insane:
・ Where impaired consciousness is caused by a mental disorder (Luedecke)
・ No voluntary control cause by INTERNAL factors
・ Then must determine if the accused should be found NCRMD
 ·Leads to discharged absolutely, discharged conditionally, or detained in a hospital
(Stone)
2. Non-mental disorder automatism / sane:
・ Caused by something other than MD (i.e., concussion)
・ No voluntary control caused by EXTERNAL factors (Leudeke)
・ Leads to absolute acquittal (Stone)

TEST – raising automatism defence:

1. Accused bears the evidentiary burden to prove involuntariness on BOP, & the judge determines
whether there is air of reality to defence
・ If YES  go to #2
・ If NO  the presumption of voluntariness will be effective
2. Judge must apply holistic approach (Cooper + Stone) to determine what kind of automatism to
leave with factfinder
a. Start with presumption of insane automatism / NCR under s. 16
b. Determine whether the facts rebut the presumption – apply holistic approach
i. Internal cause factor
ii. Continuing danger factor
iii. Policy considerations
· If rebuttal  go to c.
· If no rebuttal  go to NCRMD framework
c. Determine if requirements for non-mental disorder automatism have been met
i. Is it more likely than not that accused was in a state of automatism at the time
of the act (or omission)?  apply factors
ii. Did accused foresee, or should they have foreseen, that they would enter a
state of automatism?

#1 Evidentiary Burden / Air of Reality

Accused bears the evidentiary burden to prove their alleged involuntariness on a BOP, this burden will be
met where the trial judge concludes that there is evidence upon which a properly instructed jury could
find that the accused acted involuntarily on a BOP (Stone). There is a reverse onus because the law
assumes people act voluntarily.

STEPS:
A. Accused must make the assertion that they acted involuntarily (Stone)
B. Accused must show qualified expert evidence supporting their assertion (Stone)
・ Show foundation & nature of expert opinion
C. Must show all other evidence available
・ Relevant factors (not closed):
· Severity and nature of the triggering stimulus
- “equivalent to a “shock”” per Rabey
· Evidence of bystanders
· Medical history of automatic-like dissociative states
· Evidence of a motive for the crime and
· Whether the person who allegedly triggered the automatism is also the victim

Trial Judge to “weigh all of the evidence available on a case-by-case basis and to determine whether a
properly instructed jury could find that the accused acted involuntarily on a BOP” (Stone)

If TJ DOES find an air of reality  go to #2

If NO finding of air of reality:
A. the presumption of voluntariness will be effective & the matter of automatism will NOT be left
with the jury
B. the accused may raise an independent NCRMD defence under s. 16

#2 Type of Automatism
If the accused has laid a proper evidential foundation for the claim that his or her actions were involuntary
THEN the trial judge must determine which type of automatism, mental disorder automatism or non-
mental disorder automatism, is to be left with the jury. This is a question of law and a question of mixed
law & fact.

STEPS:
A. Judge must start with the idea that there IS a disease of the mind / mental disorder automatism
within s. 16
B. Determine whether the facts take the matter outside of mental disorder – apply holistic approach
(Cooper + Stone test)
・ IF mental disorder automatism  go to mental disorder steps
・ IF non-mental disorder automatism  see C. / steps below
C. Can non-mental disorder automatism be proven?
・ If YES  instruct jury as such
・ If NO  defence fails, BUT still use the evidence in the MR analysis

A. & B. MD OR NON-MD  HOLISTIC APPROACH (COOPER & STONE TEST):

Distinction between mental and non-mental disorder automatism is based on whether the cause of
automatism is rooted in a disease of the mind as per s. 16 of the CC (Luedecke).

The holistic approach from Stone is used to distinguish between MD or non-MD automatism. This is an
inquiry of mixed fact and law, considering the legal parameters of disease of the mind concurrently with
the particular context and facts in question. It is also highly policy driven, the risk of recurrence and threat
posed to others by the condition of the accused will inform the analysis.

 start from the proposition that the condition of involuntariness asserted by the accused is caused by a
disease of the mind – apply holistic approach to see if the presumption is rebutted

HOLISTIC APPROACH :
• Assess ALL the evidence in making the determination of MD or non-MD automatism
• This approach is an inquiry of mixed fact and law that is HIGHLY policy driven
– Involves an assessment of the particular evidence
– Policy reasons, more than medical, drive a finding of disease of the mind

 COOPER DEFINITION:
• Mental disorder = disease of the mind, per s. 2  this is a LEGAL TERM, not medical (Cooper)
• Disease of the mind = any illness, disorder or abnormal condition which impairs the human mind
and its functioning (Cooper)
– Contains a substantial medical component as well as a legal or policy component – but
policy is the stronger driving force in finding a disease of the mind
– EXCLUDES self-induced states caused by alcohol or drugs, as well as transitory mental
states such as hysteria or concussion
 • Disease of the mind is a legal concept, although it includes a medical component, and what fits
within the term is a question of law for the judge (Cooper)
– Role of a medical expert = to describe the accused's mental condition and how it is
considered from the medical point of view
– Role of the judge = to decide whether the condition described is comprehended by the term
"disease of the mind”
• Court will consider medical & non-medical evidence – psychiatric evidence, while relevant, is not
determinative of whether an alleged mental disorder should be recognized at law (Cooper)

 STONE TEST: MD vs Non-MD

1. “Internal or external cause factor”: compare accused with a normal person
・ whether a normal person in the same circumstances might have reacted to the alleged trigger
by entering an automatistic state as the accused claims to have done *OBJECTIVE +
psychiatric evidence* (Leudeke; Bouchard-Lebrun)
· If YES  external cause, potentially non-mental disorder automatism
· If NO  internal cause, likely mental disorder automatism

2. “Continuing danger”: what is the likelihood of recurring danger to others? Higher probability of
recurrence suggests a court would regard the accused’s condition as disease of the mind (Leudeke;
Bouchard-Lebrun)
・ Danger will be recurring ONLY IF it is likely to arise again independently of the will of the
accused
・ Look to: psychiatric history of the accused & likelihood that the alleged trigger will recur
· If more likely to recur  likely mental disorder automatism
· If not likely to recur  potentially non-mental disorder automatism

 Policy considerations
• The main policy consideration is the need to protect society from the accused
– Effectively, is this someone we want to set free without an individualized inquiry into
dangerousness?
• Key question framing the policy inquiry:
– Whether society needs protection from the accused, and consequently, whether the accused
should be subject to evaluation under the regime in Part XX.1 of the C
• If condition does not require treatment and accused not a threat, then not disease of the mind
• Open list, whatever is relevant may be considered

Conclude:
• IF facts support mental disorder automatism  go to the NCRMD framework
• IF facts support non-mental disorder automatism  go to C., still have to prove it actually is non-
mental disorder automatism

C. TO PROVE NON-MENTAL DISORDER AUTOMATISM:

To decide whether the accused is not guilty by reason of automatism, ask yourselves the following
question(s):
1. Is it more likely than not that accused was in a state of automatism at the time of the act (or
omission)?
 review factors:
a. The severity of the triggering stimulus
b. Evidence of bystanders (Stone)
c. Medical history of automatic-like dissociative states
 d. Evidence of a motive for the crime – someone doing something out of character speaks to
automatism (Stone)
e. Whether the person who allegedly triggered the automatism is also the victim
f. Expert testimony – someone who has examined client specifically or speaks to the effects
of someone in that state more generally (Stone)
g. Post-crime behaviour – e.g. fleeing the country isn’t a great look (Stone)

2. Did accused foresee, or should they have foreseen, that they would enter a state of automatism?
*this second question should be posed ONLY IF there is evidence that the accused foresaw or should
have foreseen that they would enter a state of automatism*
– the defence of automatism does not apply when a person knows or should have known that
he or she would enter a state of automatism

Once the trial judge has made the determination, the trier of fact is instructed on either the non-
mental disorder automatism or mental disorder based on s. 16
• Result INSANE  accused held as NOT CRIMINALLY RESPONSIBLE, can lead to absolute
discharge, conditional discharge, or detention in a hospital
• Result NON-INSANE  ACQUITTAL
• IF a defence is NOT made out  must still consider the evidence relating to automatism along
with all the other evidence when you determine whether the Crown proved the intent

I N T OX I C A TI O N
When defence not available – AB COURT HAS JUST HELD THIS UNCONSTITUTIONAL
33.1 (1) It is not a defence to an offence referred to in subsection (3) that the accused, by reason of self-
induced intoxication, lacked the general intent or the voluntariness required to commit the offence, where
the accused departed markedly from the standard of care as described in subsection (2).

Criminal fault by reason of intoxication

(2) For the purposes of this section, a person departs markedly from the standard of reasonable care
generally recognized in Canadian society and is thereby criminally at fault where the person, while in a
state of self-induced intoxication that renders the person unaware of, or incapable of consciously
controlling, their behaviour, voluntarily or involuntarily interferes or threatens to interfere with the
bodily integrity of another person.

Application
(3) This section applies in respect of an offence under this Act or any other Act of Parliament that
includes as an element an assault or any other interference or threat of interference by a person with the
bodily integrity of another person.
 TEST – raising intoxication defence:
1. Was the intoxication voluntary?
2. What was the level of intoxication?
a. Mild  no defence
b. Advanced  no defence to general, defence to specific
c. Extreme  defence to general & specific
3. What is the mental element of the crime?
a. General?
b. Specific?
4. Does s. 33.1 apply? Oh wait it can’t because it’s unconstitutional

#1 VOLUNTARY?
Voluntary intoxication = the consuming of a substance where the person knew or had reasonable grounds
for believing such might cause him to be impaired

#2 LEVEL OF INTOXICATION
There are 3 legally relevant degrees of intoxication: Daley
• EVIDENCING INTOXICATION – accused bears the burden to prove level of intoxication on
BOP, & would be required to produce expert evidence to support

‘MILD’ INTOXICATION:
Where there is alcohol induced relaxation of both inhibitions and socially acceptable behaviour
• NOT a defence to ANY offence
– this has never been accepted as a factor or excuse in determining whether the accused
possessed the requisite mens rea

‘ADVANCED’ INTOXICATION:
Where there is intoxication to the point where the accused lacks specific intent, to the extent of an
impairment of the accused’s foresight of the consequences of their act sufficient to raise reasonable doubt
about the requisite mens rea
• A defence on this level of intoxication applies ONLY to specific intent offences
– While it is a defence to specific intent offences, its availability may vary depending on the
nature of the offence
– Extent varies with offence – i.e., intent to kill s. 229(a)(i) need “particularly advanced”
– Will not work for general intent crimes

‘EXTREME’ INTOXICATION :
Akin to automatism, negates voluntariness and is a complete defence to criminal responsibility (defence to
general and specific intent offences)
• Automatism is a COMPLETE defence because you can't even prove the actus reus element
Daviault
– This defence is extremely rare
– High evidentiary burden on accused & proven on BOP

#3 MENTAL ELEMENT OF THE OFFENCE

The importance of the mental element = the complexity of the thought and reasoning process that make
up the mental elements of a particular offence

For GENERAL INTENT crimes :

The mental element relates solely to the performance of the act in question with NO further ulterior intent
or purpose  i.e., did you intend to do the thing?
• These offences do NOT require intent to bring around certain consequences that are external to the
AR nor do they require actual knowledge of certain circumstances / consequences
• The thought process and reasoning are relatively straightforward
• Manslaughter, assault, sexual assault (Bernard), assault causing bodily harm, mischief, arson
(Tatton)

For SPECIFIC INTENT crimes :

Involves the performance of the actus reus, coupled with an intent / purpose going beyond the mere
performance of the act  i.e., did you intend to do the thing with some specific outcome in mind?
• The accused must not only intend to do the act that constitutes the AR, but must also act with a
heightened mental element
– Indication of a specific intent offence – things that require a more sophisticated thought
process (if could you do it 5 beers deep it’s probably not specific because you’re a
lightweight champ thanks covid xoxo)
• Murder, theft, robbery, aiding & abetting a crime, and attempted crimes

#4 S. 33.1
s. 33.1 restricted the defence of extreme intoxication to those general intent offences that do not interfere
with the bodily integrity of the person
• BUT  R v Sullivan; R v Chan, ONCA & R v Brown, ABQB 2020 all found s. 33.1
unconstitutional

Section 33.1 violates sections 7 and 11(d) of the Charter because it allows people to be convicted and
imprisoned for something they did involuntarily. The principles of fundamental justice require that
voluntariness is an element of every criminal offence. To remove the voluntariness element from an
offence is therefore contrary to fundamental justice

Section 33.1 runs afoul of this rule because it replaces the burden to prove the actus reus and mens rea
requirements of violent offences with proof off another action: which is the consumption of intoxicating
substances

Section 33.1 breaches s. 7 of the Charter because people can be imprisoned for an act even when they do
not have the minimum mens rea that reflects the nature of the crime

J UST IF I CATIONS & E XCUS ES

Justifications
Justification challenges the wrongfulness of an action that technically constitutes a crime  the actions
is rightful, not wrongful (Perka)
• Would exculpate actors whose conduct could reasonably be viewed as “necessary” to prevent a
greater evil than that resulting from the violation of the law – “choice of evils”
 • In the circumstances “the values of society, indeed of the criminal law itself, are better promoted
by disobeying a given statute than by observing it”

Examples of justifications (& self-defence) from Perka:

• Self-defence cases
• The police officer who shoots the hostage-taker
• The innocent object of an assault who uses force to defend himself against his assailant
– Technically a crime has been committed but the conduct is not wrong as accused was
justified in using force

Excuses
Excuses concede the wrongfulness of the action but assert that the circumstances under which it was
done are such that the wrongfulness ought not be attributed to the accused & they ought not be punished
• ex. intoxication, automatism, mistake of fact

A I R OF R E A LI T Y F OR D E F E N C E S
*this is all Cinous
It is a longstanding principle that a defence should be put to a jury if and only if it has an evidential
foundation, to allow otherwise would risk verdicts that lack evidentiary support. The air of reality defence
is the threshold question for putting defences to the jury, it asks: whether there is evidence on the record
upon which a properly instructed jury acting reasonably could acquit.

TEST – air of reality: whether there is evidence on the record upon which a properly instructed jury
acting reasonably could acquit

Basically, a defence should only be put to the jury ONLY IF there is an evidential foundation for it
• The air of reality test is concerned only with whether or not a putative defence should be put in
play / submit it to the jury for consideration

The air of reality test is NOT intended to assess to what degree the defence is likely to succeed
• the question it asks and imposes on the trial judge is whether the evidence discloses a real issue to
be decided by the jury, NOT how the juries should ultimately decide the issue

Features of the test:

• Whether or not there is an air of reality to a defence is a question of LAW and  decided by the
judge alone
– it is  an error of law to put to the jury a defence lacking an air of reality, and likewise, it is
an error of law to withhold from a jury a defence that has an air of reality
• 2 main duties of the trial judge – the requirement for an evidential foundation for defences gives
rise to two well established principles
– #1 TJ must put to the jury all the defences that arise on the facts, whether or not they TJ been
specifically raised by an accused
· If there is an air of reality to a defence  it should go to the jury
– #2 TJ has a positive duty to keep from the jury defence is lacking evidential foundation
· If the defence lacks an air of reality it should be kept from the jury – this is true even if
it would be the accused’s only chance for an acquittal
• APPLIES TO ALL DEFENCES (R v Cinous)
 – EXCEPT MD, Automatism & Extreme Intoxication for general intent offences that do not
engage s. 33.1  this is because they have their own threshold requirements

The air of reality test imposes a burden on the accused that is merely evidential, rather than persuasive
• The persuasive burden is the burden of establishing a case
• The evidential burden is the burden of putting an issue in play
– Burden is “merely” evidential NOT the “primary” or “persuasive” or “legal” burden
·  constitutional

APPLYING THE AIR OF REALITY TEST :

TJ must consider the totality of the evidence & assumes the evidence relied upon by accused to be true
• Must have evidence on all elements of the defence in order for it to be left to trier of fact
• Such evidence can come from the examination in chief for cross examination of the accused, of
defence witnesses, or of Crown witnesses
– It can also rest upon the factual circumstances of the case or from any other evidential source
on the record
– There is no requirement that the evidence be adduced by the accused
• TJ does not consider the substantive merits of the defence – aka, to what degree the defence is
likely to succeed
– This question is reserved for the jury
–  the trial judge does not make determinations about the credibility of witnesses, weigh the
evidence, make findings of fact, or draw determinant factual inferences
• Rather, the question it asks and imposes on the trial judge is whether the evidence discloses a real
issue to be decided by the jury, NOT how the juries should ultimately decide the issue

D E F E N C E O F T HE P E R S O N
If there is an air of reality to self-defence  no offence is committed UNLESS the Crown disproves AT
LEAST ONE of s. 34(1)(a), (b) or (c) (Cormier citing Leavy)

34  (1)  A person is not guilty of an offence if

(a)  they believe on reasonable grounds that force is being used against them or another person
or that a threat of force is being made against them or another person;
(b)  the act that constitutes the offence is committed for the purpose of defending or protecting
themselves or the other person from that use or threat of force; and
(c)  the act committed is reasonable in the circumstances.

s. 34 enumerates 3 criteria, ALL 3 of which must be present for defence of the person to be available
(Cormier)
• In other words, self-defence is not applicable if the prosecution proves BRD that one of these
criteria has not been met
They are: (Cormier)
1. REASONABLE BELIEF: the accused must reasonably believe that force or threat of force is being
used against him or someone else (the subjective perception is objectively verified)
・ Note that  assault is NOT required, just the reasonable perception of force or threat of
force
2. DEFENSIVE PURPOSE: the subjective purpose for responding to the threat must be to protect
oneself or others (this is a subjective state of mind)
&
 3. REASONABLE RESPONSE: the act committed must be reasonable in the circumstances (objective)
・ Whether an action is reasonable is now assessed via the 9 non-exhaustive factors set out in s.
34(2)

Factors:
2 In determining whether the act committed is reasonable in the circumstances, the court shall
consider the relevant circumstances of the person, the other parties and the act, including, but not
limited to, the following factors:
a) the nature of the force or threat
b) the extent to which the use of force was imminent and whether there were other means
available to respond to the potential use of force
· The imminence of the attack is not a rigid requirement in order for the defence to
succeed, but is a factor to be considered when assessing the reasonableness of an
accused’s response (Cormier)
c) the person’s role in the incident
d) whether any party to the incident used or threatened to use a weapon
e) the size, age, gender and physical capabilities of the parties to the incident
f) the nature, duration and history of any relationship between the parties to the incident,
including any prior use or threat of force and the nature of that force or threat
· The nature of the abusive relationship between the accused and the victim is a factor
when assessing reasonableness of accused’s actions (Cormier)
f.1) any history of interaction or communication between the parties to the incident
g) the nature and proportionality of the person’s response to the use or threat of force
h) whether the act committed was in response to a use or threat of force that the person
knew was lawful

Defendant must go on the stand to bring up a self-defence defence (Cormier citing Leavy)
• Credibility of their story will be tested  this limits the number of people who actually use this
defence

THE ISSUE OF “RETREAT”

There is NO obligation on to retreat
• Instead, the issue of retreat may be a relevant consideration in determining whether the defendant
reasonably believed that he could not otherwise preserve himself from death or grievous bodily
harm
• The possibility of retreat is relevance evidence for the jury to consider in deciding whether the
accused:
– had reasonable apprehension of death or grievous bodily harm from the victim's assaultive
conduct
AND
– had a reasonable belief that it was not otherwise possible to save themselves from death /
grievous bodily harm except by killing or seriously harming the victim
• Failure to retreat will not be an issue if the accused had no real opportunity to do so

s. 35 of the Citizen’s Arrest and Self-Defence Act

• One is legally entitled to use force to remove an intruder
• ^this right extends to someone lawfully assisting a person who they believe on create reasonable
grounds is in peaceful possession of the property

NO DEFENCE:
34 (3) Subsection (1) does not apply if the force is used or threatened by another person for the purpose
of doing something that they are required or authorized by law to do in the administration or
enforcement of the law, unless the person who commits the act that constitutes the offence believes on
reasonable grounds that the other person is acting unlawfully.