CRIME

POSSESSION OFFENCES
Section 4(3) of Criminal Code
• In personal possession (personal possession), or
• Knowingly has it in the actual possession or custody of another person (constructive possession), or
• Has it in any place, whether that place belongs to or is occupied by him, for the use or benefit of himself
or another person (constructive possession), and
• Where one of two or more persons, with knowledge and consent of the rest, has anything in his custody
or possession, it shall be deemed to be in the custody and possession of each and all of them (joint
possession).
The legal concept of possession is the same for all possession offences  look at s4(3) every time
Overarching Principles
• Crown must prove beyond a reasonable doubt:
o Knowledge of the nature of the item (mens rea),
o Consent (choice)(Actus Reus), and
o Control – exercises some measure of control as an aspect of consent (Terrence, SCC, 1983).
• All must co-exist together (Morelli).
• Innocent possession (Chalk)
o “A brief handling og items (control) with full knowledge of their character exclusively fot the
purpose of immediately destroying the illegal item or permanently beyond that person’s ability
to exercise any control over the item does not constitute possession.
 No intent to exercise control
o Public duty defence – taking it to the authorities.
Three Types
• Personal
o “An accused person exercises physical control over a prohibited object with full knowledge of its
character, however brief the physical contact may be, and where there is some evidence to show
the accused person took custody of the object willingly with intent to deal with it in some
prohibited manner.” (R v York).
• Constructive
o Knowledge of the character of the object.
o Knowingly puts or keeps an object in place whether ot not that place belongs to him (consent).
• Joint

PERSONAL POSSESSION
• Accused holds contraband in their hand or keeps it on their person.
• Depends on the facts and how the Courts read the facts.
o The actual physical possession might be momentary but that is sufficient; there was actual
control of the item
• A clear jar can be possession, a wrapped parcel might not be possession and they don’t have knowledge.
o If it is in plain view it can be perfectly reasonable that someone opens it.
Possession and Public Duty
• Does the purpose for which one has control over the item matter?
 o “innocent” possession  someone has a brief handling of items with full knowledge of the
character solely for the purpose of getting rid of them and this does not constitute possession.
• Why?
o There is knowledge of the presence and character of the item but there is no mens rea because
the MR would be the intention to deal with the object in some deliberately personal manner and
therefore no intent to exercise control (Chalk).
 Innocent possession where person takes control to exclusively for the purpose of
immediately destroying or placing it permanently beyond the person’s ability to
exercise control. Intention solely to divest oneself of control.

R V MORELLI 2010 SCC

Rule: For s. 4(3)  possession includes personal possession, constructive possession, and joint possession.
• Must have knowledge and control. For personal possession
• Knowledge: must be aware that they have physical custody of the thing in question and must be aware of
what that thing is. Must co-exist with an act of control (Beaver).
o Knowledge must be of the nature and character, not the legal characteristic of the item.
• Control: the above must coexist with an act of control (outside of public duty).
• Consent? Implied once you have the control and knowledge.

JOINT POSSESSION
The Hot Potato Defence (r v hm)
• If one person wasn’t intending to use something and they take it just to throw it out of the window.
• Control excludes a casual or hasty manual handling of the subject-matter under circumstances, as in the
evidence here, not consistent with one’s own purposes or use for a ‘fix’.
• Just passing and is not there for the legal exchange.
• Can you prove possession.

MARSHALL V THE QUEEN 1969 ABQB

Facts: Five guys are driving home from Vancouver. There is a kilo of weed in the car, but the appellant did not
know about the weed until they left Vancouver. He didn’t smoke the weed. They get pulled over; the cop arrests
the driver but doesn’t find the weed because it was thrown out of the window. The four boys grabbed the weed
and proceed. They get pulled over in Calgary and the officer finds the weed this time and arrests them all. The
appellant said he had not known the weed was in the car, and once he found out he couldn’t do anything because
he had no money and needed the ride home. No doubt in credibly, and he did nothing to take control of the
marijuana.
Issue: Did Marshall have constructive possession of the marijuana per 4(3)(b)? Was there control?
Analysis:
• No doubt he had knowledge of the item, but question is whether he consented to having it there.
• Look up consent in the dictionary  voluntary agreement, acquiescence, compliance, concurrence,
permission.
o He did not have control or consent.
o Yes, he should have left the car, but he was 16 and staying in the car does not lead to the
conclusion that he consented.
o No control over the item.
• Although he did not smoke, he did pass it on though  knowledge and control.
o This could almost be a reflex action.
o Could be a voluntariness, actus rea, thing OR a mens rea action.
Rule:
 • Need consent or control  the section does not say control, this is the first case where the court clearly
adds this.
• “knowledge and consent”

R V TERRENCE 1983 SCC

Facts: Accused pulled over in a stolen car. He said he did not know it was stolen; his friend offered him a ride in his
“brother-in-law’s car. Trial judge doesn’t believe him and concludes that even if he didn’t have control, if he had
knowledge and consent it could constitute constructive possession. Control was not proven beyond a reasonable
doubt.
Rule: Knowledge and consent cannot exist without the co-existence of some measure of control over the subject
matter. If there is power to consent, there is power to refuse and vice versa

R V CHALK 2007 ONCA

Facts: Accused was found with child pornography on his hard drive, he said he was aware of it but that he denied
intentionally downloading it.
Issue: Can the instruction to delete constitute control consistent with a finding of intention to possess.
Rule:
• Possession requires knowledge of the criminal character of the item in issue.
• Crown must also prove that the accused with the requisite knowledge had a measure of control over the
item in issue.
o Control is power or authority over the item whether exercised or not (Mohammad).
• Criminal liability should not attach to brief “innocent possession” whereby someone comes into
possession just to destroy the contents.
Analysis:
• Crown has to prove accused has knowledge of the contents of the video at issue.
• Not necessary for the accused to have viewed the images, it is the element of control that is essential.
• This was not “innocent possession”  he knew the images were on there.
o He had it for several months, used the computer and had control over the images (could have
deleted them).
• His instructions to delete was a manifestation of his longstanding power of authority over the material.

CONSTRUCTIVE POSSESSION
There is a distinction between viewing something and being in possession of the digital files.
• The area of digital images is evolving and will change with technology.

R V MORELLI 2010 SCC

Facts: Accused was charged with possession of child pornography after a warrant to search the home. There were
browser ‘favourites’ as well as a tripod and video recorder.
Issue: What constitutes possession in the context of digital information? What does it mean to possess an image in
a computer? Can the court prove on knowledge, consent, and control.
Rules:
• Viewing photos online does not constitute possession and would relate to a different charge.
• Possession of illegal photos requires possession of the underlying data files in some way.
• Need knowledge and control for personal possession.
 • Constructive possession is complete where the accused: 1) has knowledge of the character of the object,
2) knowingly puts or keeps the object in a particular place, whether or not that thing belonged to him, 3)
intends to have the object in the particular place for his “use or benefit” or that of another person.
• Viewing a digital file is not possession because there is no control over the ‘object’.
• Previous access and the possibility of accessing again a web site that contains digital images, located on a
distant server over which the viewer has no control, does not constitute constructive possession.
• Might not be enough to just have viewed the file, this is accessing not possessing.
Analysis:
• In the case of digital images, there are two parts that can be possessed; the image file and its decoded
visual representation on screen.
• There is also statutory interpretation happening in this case.
• Historically – possession is tangible, the real character of these files is data. If someone possesses the
data, they have control over it.
• Jurisprudence on the matter points to only considering “possession” to be about the underlying data file,
not its visual depiction.
o This is because Parliament made viewing child pornography a separate crime.
 Also, because viewing and possessing are conceptually different.
o Viewing the image does not have the required control of the item whereas the data file is
something that can be transferred, stored, possessed.
• Automatic caching is not possession either because the user does not have the mental element (mens
rea) of control over this.
• Must be knowingly stored and retained through the cache.
Notes:
• Dissent  Too narrow, to have control over the websites visited should be enough control.

MENS REA REVIEW

What is the objective standard of liability?
• Trier of fact is not concerned with the viewpoint of the accused but the viewpoint of the reasonable
person.
• Based on what a reasonably prudent person would have done in the circumstances and/or refers to a
required standard of reasonable care.
• No personal characteristics of an accused are taken into account except for capacity (age, mental
disorder) but this position is controversial and debated.
What it the subjective standard of liability?
• Trier of fact must decide what was in the mind of this particular accused when the offence was
committed.
• Trier of fact takes into account ALL personal characteristics of the particular accused, such as personality,
age, race, gender, experience.
• Subjective MR Question: Was this accused actually aware if the risk? Or did this accused intend the
consequences of his or her actions?
• “where the offence is criminal, the Crown must establish a mental element, namely, that the accused who
committed the prohibited act did so intentionally or recklessly, with knowledge of the facts constituting
the offence, or with willful blindness toward them.” – Sault St. Marie.
What are the two forms of subjective liability and how do they differ?
• Requiring full knowledge and high level of intention.
o “A person who consciously performs an act knowing the consequences that will (with some
degree of certainty) flow from it “intends” these consequences or causes them on purpose”
(Hibbert).
• Requiring a lower level of intention of recklessness.
 o foresee the risk conduct will produce the prohibited results but proceeds despite that risk
(Sansregret).
o Recklessness imports foresight (knowledge/awareness).
o Recklessness cannot exist “in the air” – it must have reference to the consequences of a
particular act.
o However, no case has suggested the degree of risk needed.
o **Some offences require proof of full knowledge and intention only- therefore proof of
recklessness is not enough**
• Doctrine of willful blindness – included in high level.
o 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 (Sansregret).
o Deliberate ignorance where the accused “almost” knows but deliberately refrains from final
confirmation.
o In these cases, the court ascribes knowledge to the accused.
• How far does the accused have to go in making inquiries?
o If the accused makes inquiries then the question is whether the accused harboured real
suspicions after that inquiry and deliberately refrained from making further inquiries (Lagace).
What is the presumption for mens rea?
• Per ADH:
o Presumption of subjective fault requirement, even if the section does not use the words
signifying subjective MR.
o Presumption can be displaced by CLEAR words used in statue – parliamentary intent.
o Presumption must be considered in light ogf statutory interpretation where MR unclear.
How do you determine whether an offence requires a high level of MR?
• High level:
o Means to cause death (s. 229(a)(i)).
o With intent/intentionally.
o Puposely.
o Wilfully (s. 319) – sometimes.
• Lower level:
o Slightly relaxed intention – recklessness (s.229(a)(ii)).
o General form of recklessness (s. 229©).
o Recklessness (may include wilfully ie. s. 429).

MENS REA AND S. 7 OF THE CHARTER

S.7 Charter
“Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in
accordance with the principles of fundamental justice.”
• Parliament has the power to define elements of a crime, but courts have a duty to review those elements
to ensure in accordance with principles of fundamental justice – s.7 Charter.
• Charter, through s. 7, has constitutionally protected the mens rea requirement for offences (re BC Motor
Vehicle Reference & Vaillancourt) where a loss of liberty is possible.
Charter and Mens Rea: Subjective or Objective
• What type of MR is constitutionally required for a particular offence?
o Vaillancourt – something less than subjective mens rea may be constitutionally sufficient for a
crime.
o “though very few in number” certain crimes, due to special stigma attached to conviction and/or
penalties, s.7 requires mens rea “reflecting the particular nature of that crime.”
 o Stigma – societal views, how society would view someone who is convicted or placed in a certain
position.
• As a result of s. 7, courts have found that serious crimes (murder/theft) require proof of subjective mens
rea.
o Theft – “intent” high level.
• A principle of fundamental justice that we punish intentional acts more severely than unintentional acts –
proportionality (Martinueau).
Examples of s. 7 requiring subjective mens rea
• Murder (Martineau) – 229
• Attempted murder (Logan)
• War crimes (Finta)
• Organized crime (Venneri).
Examples of s. 7 requiring objective mens rea – consisitent with s. 7.
• s. 269 unlawfully causing bodily harm (DeSousa) – not assault causing bodily harm.
• s. 249 dangerous driving (Hundal).
• s. 222(5)(a) unlawful act manslaughter (Creighton).
• s. 86 careless use of a firearm (Gosset).
• s. 215 failing to provide the necessaries of life (Nagik).
Examples of offences requiring subjective fault due to presumption
• s. 380 Fraud (Theroux)
• s. 264.1 Uttering threats (Clemente)
• s. 243 Concealing body of a child (Levkovic)
• 2. 218 Child abandonment (ADH)

MENS
REA
FOR

MURDER
Elements of Homicide (MR is always 229, AR is 222(5))
• 222 (1) A person commits homicide when, directly or indirectly, by any means, he causes the death of a
human being.
o (4) Culpable homicide is murder or manslaughter or infanticide.
o (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;
o (Actus Reus)
Mens Rea for Manslaughter: case law (objective).
Subjective Awareness
• Subjective mens rea is only constitutionally required for certain offences, including murder, attempted
murder, etc
• Does not displace the common law presumption that all crimes have a subjective mens rea unless
Parliament has clearly expressed a contrary intention.
• It means that for those certain offences, even if Parliament does express a contrary intention, the offence
must have a subjective fault nonetheless.

HIGH LEVEL OF SUBJECTIVE MENS REA FOR MURDER: 229(A)(I)

• Section 229(a)(i) – where the person who causes the death of a human being means to cause death:
o Accused has actual subjective foresight of the likelihood of causing death by his/her actions
coupled with the intention to cause death
• Subjective foresight of death and an intention to kill.
o Foresight is the ability to predict what will happen in the future.
o Likely means “probable, not merely possible” (Shand).
• “most morally blameworthy state of mind in our system” (Valliancourt).
o Example would be shooting someone point blank in the head.
o Attempted murder.

SLIGHT RELAXATION OF SUBJECTIVE FAULT: 229(A)(II)

• Section 229(a)(ii) – where the person who causes the death of a human being means to cause bodily
harm that he/she knows is likely to cause death and is reckless whether death ensues:
o Requires recklessness – lesser form of subjective mens rea.
o 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.
o Crown must still prove accused intended to cause bodily harm (Nygaard; Schimmens).
• Still subjective foreseeability of death.
o Very little difference and the reckless part doesn’t add much to the mens rea requirement of the
section.
o Form of recklessness but special only to murder.
o Foresight meaning the ability to predict what will happen in the future.
o Likely means “probable, not merely possible” (Shand).

TRANSFERRED INTENT: 229(B)

• Meant to kill A but accidentally kills B (because A moved, B looked like A, etc.).
• Section 229(b) – murder section partly codifies common law principle:
o The mens rea (from 229(a)(i) and 229(a)(ii)) of intentionally causing death to one person is
transferred to the accidental or mistaken killing of another person.
 Does apply to first degree murder (R v Droste, 1984, SCC)
• Section 244 (1) - Discharging firearm with intent
o Every person commits an offence who discharges a firearm at a person with intent to wound,
maim or disfigure, to endanger the life of or to prevent the arrest or detention of any person —
whether or not that person is the one at whom the firearm is discharged.
• Other Transferred Intent Offences from the Common Law
o Some courts have approved of transferring intent in cases other than murder as long as they are
‘like’ offences (such as assault of the wrong person) – Deakin.
o Transferred “malice” occurs when injury if intended for one falls on another by accident.
  Or accused intends a certain consequence but the act takes effect upon object not
intended.
 “malice” transferred by legal fiction.
o Transfer of intent by mistake of identity occurs when A shoots B believing him to be C.
o Mistake of bullet occurs when accused aims at X but by chance hits Y (Gordon).
 Transferred intent does not apply to attempted murder.
 “kill zone” distinction – intent to kill may be found if the accused desired to kill not only
a particular target but others within ‘kill zone’.
 Examples of Kill Zones – passengers on a plane who are not the target but will
be killed by a bomb, persons accompanying a target who are killed by a
weapon fire or a device devastating enough to kill everyone in the group
 Always need to bring it back to the high level subjective mens rea.
• Transferring First Degree Murder under 231(2) – Droste
o He tries to kill his wife but ends up killing his children.
o “The legal evaluation of the magnitude of the crime should not be affected by the fact the
accused is a poor marksman, hitting and killing B rather than A” – para 27.
o Identity of victim is irrelevant for determining whether the murder is first degree.
o Planning and deliberate murder related to the intention to take human life .

MENS REA FOR MURDER AND THE CHARTER

R V VAILLANCOURT 1987 SCC

Facts: Accused was robbing someone in a pool hall and gun was discharged accidentally. He had insisted his
accomplice not bring the gun and made him remove the bullets. It went off anyway and he was charged with first
degree murder (culpable homicide is murder during commission of 230(d) carrying a weapon) because he was
committing a crime. He argued that this was inconsistent with s.7 and s.11 (d) of the Charter.
Issue: Appellant argued that the principles of fundamental justice require that, before Parliament can impose any
criminal liability for causing a particular result, there must be some degree of subjective mens rea in respect of
that result.
Law:
• Principle of fundamental justice: conviction for murder cannot rest on anything less than proof without a
reasonable doubt of subjective foresight (likelihood of death).
• Section 230(d) failed the Oakes test and cannot be justified under s. 1.

Ratio: Murder requires a special mental element; its punishment is most severe, and it carries the greatest stigma.
Therefore, it requires a special mental element to reflect the moral blameworthiness. “Cannot rest upon anything
less than proof beyond a reasonable doubt of subjective foresight. If stigma is significant enough with a particular
crime, then subjective fault is required  ignoring this may bring up s. 7 Charter issues. There are very few crimes
where this special stigma is attached to conviction or available penalties, POFJ requires MR that reflects the crime:
ex. theft & murder.

R V MARTINEAU 1990 SCC

Rule:
• Conviction for murder, as the most serious crime with the most serious penalty and most serious stigma
attached to it, cannot rest on anything less than proof beyond a reasonable doubt of subjective foresight
(of likelihood of death).
• Murder requires proof of subjective mens rea.
 • Principle that punishment is proportionate to moral blameworthiness  subjective foresight of death
required for murder.

Subjective foreseeability of death for murder according to s.7 of the Charter (Vaillancourt, (1987) S.C.C. Lamer, J.;
Martineau (1990) Lamer, CJC.)

FIRST DEGREE MURDER

• Section 231 is for sentencing classification
o Does not create a distinct substantive offence.
o Crown must still prove the subjective mens rea for murder under s.229 before classified as first
degree (Martineau).
• Lesser and included charges  second degree, manslaughter.
o Doesn’t have to be specifically charged with manslaughter.
o Tactically the Crown might say “this is murder” the accused might say “this is manslaughter” 
the judge has to charge the jury on all charges, if there is evidence to support it.
o s. 662(2) & (3)
• Planned and Deliberate s. 231(2):
o Murder is the most reprehensible of crimes (Nygaard).
o Both must be proved – separately.
o Planned means (Smith):
 Arranged beforehand.
 Given natural and ordinary meaning.
 Need not be complicated but carefully thought out.
 Occurs after the intent to murder is formed.
 Killing is the implementation of a scheme or design.
o Deliberate means:
 Considered, not impulsive.
 Taken time to weight the advantaged or disadvantages.
 Separate from and in addition to intention.
 Deliberation before the act of murder.
o See page 465 for McLachlin’s charge to the jury.
o Harsher penalty imposes due to the added moral culpability of planning and deliberation
(Nygaard).
• Using 229(a)(ii) to prove planned and deliberate:
o The essential element is that of intending to cause bodily harm of such a grave and serious
nature that it was likely to result in the death of the victim. The aspect of recklessness is almost
an afterthought in so far as the basic intent is concerned (Nygaard).
o The planning and deliberation to cause the bodily harm which is likely to be fatal must of
necessity include the planning and deliberating to continue and to persist in that conduct despite
the knowledge of the risk.
 The element of recklessness does not exist in a vacuum as a sole MR requirement, but
rather it must act in conjunction with the intentional infliction of terrible bodily harm.
• Air of Reality
o Whether there is evidence the murder is planned and deliberate is a question of law and if there
is no evidence it should not be left with the jury (Smith).
• 231(3) – still planned and deliberate.
o Includes an agreement where money or a benefit changes hands or is promised – contract killing
or murder for hire.
o “Pursuant to an arrangement” means arrangement in place at the time of the killing – needs not
be sole motivation.
  Arrangement: requires some value paid or promised in exchange for the killings.
 Value, consideration, and conduct (Petrin).
• 231(4) – NOT necessarily planned and deliberate, based on victim’s occupation:
o Crown must prove BARD that:
 AR: The accused killed the victim;
 MR: The accused intended to cause death (229(a)(i)) or intended to cause bodily harm
that he knew was likely to cause death and was reckless whether death ensued or not
(229(a)(ii) (subjective fault element).
 MR: The accused believed that the victim was a police officer (subjective awareness –
the accused, not a reasonable person).
 The victim was in fact a police officer or etc., and
 The victim was in fact acting in the course of his duties when killed.
• 231(5) – NOT necessarily planned and deliberate, murder while committing a listed offence:
o First degree if kill while committing certain offences such as hijacking, kidnapping, and sexual
assault (Arkell).
o This is a classification only, still need subjective foresight of death – which makes the punishment
proportionate to the crime  this isn’t unintentional killing, still have to prove the MR to kill.
o Objective to punish more severely offences that involve unlawful killing.
• In a fact situation where the accused is charged with first degree murder:
• first analyze the AR (causes death – 222(5) – causation, voluntariness, automatism, etc, then analyze the
MR for murder under 229 (subjective foresight of death and an intention to kill OR intention to cause
bodily harm that is likely to cause death and recklessness as to whether death occurs) and discuss
manslaughter as an alternative if the MR for murder cannot be proven. If the MR for murder can be
proven, then you can move on to determine whether the elements under s. 231 are proven (ie. planned
and deliberate comes after the intent to kill/cause bodily harm likely to cause death etc.)  not a linear
analysis (need MR for murder before you can get to 231).

R V SMITH 1979 SCC

Facts:
• Smith, Darryl, and Massier were friends who partied and hunted together.
Issue: Whether or not there was planning and deliberation upon which the jury could properly find the appellant
guilty of first degree murder.
Law:
• In More, the court made it clear that the accused could not be found guilty if first degree murder unless it
was proven BARD, not only that the murder was planned, but it was also deliberate.
o Planned = arranged beforehand.
o Deliberate = considered, not impulsive; oxf. dictionary – “slow in deciding”, “not hasty in
decision.”
 McLachlan in Banwait – Considered, not impulsive. Carefully thought out, not hasty or
rash. Slow in deciding, cautious.
• In determining whether an accused committed the crime of capital murder int hat it was ‘planned and
deliberate’, the jury should have available and should be directed to consider all the circumstances
including not only the evidence of the accused’s actions but of his condition, state of mind as affected by
real or imagines insults, and provoking actions of the victim and by the accused’s consumption of alcohol
(Mitchell, McMartin, More).
• In Widdifield - “planned” is to be assigned its natural meaning of a calculated scheme or design which has
been carefully thought out, and the nature and consequences have been considered and weighed.
o Plan does not have to be complicated – might be simple.
• Planning must not be confused with intention because the intent must be formed first.
 • There must be some evidence that the killing was the result of a scheme or design previously formulated
by the accused and that the killing was an implementation of that scheme or design.
o Murder committed on impulse and without prior consideration would not constitute a planned
murder.
Analysis:
• No evidence that they were the result of implementation of a previously determined design or scheme –
they were sudden impulse.
• Might have been deliberate but can only have a verdict of first degree murder if the evidence established
that the murder was planned.
• Whether it was planned is a question of law for the judge – no finding that there was so the TJ should not
have charged the jury with first degree murder.
Held:
• Conviction of first degree murder set aside and substituted with second degree murder.
Ratio:
 Planned = arranged beforehand, not on sudden impulse (More). 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. It does not have to be complicated as long as it was planned after the intent to kill was
formed. It must not be confused with intent, intent must be proven separately.
 Deliberate = considered, not impulsive. Carefully thought out, not hasty or rash, slow in deciding, cautious
(Banwait). It is a deliberate act that is one the actor has taken the time to weight the advantages and
disadvantages of. It must take place before the act of murder. Separate from intention.

R V NYGAARD AND SCHIMMENS

Facts: A cheque bounced so they went to a motel and beat up the deceased with a baseball bat.
Issue: Whether the murder was planned and deliberate.
Law:
• The Crown must prove that the accused meant to cause the victim such bodily harm that that he knew it
was likely to cause the death of the victim and was reckless whether death ensued or not as a result of
causing that bodily harm. The essential element is that of intending to cause bodily harm of such a grave
and serious nature that the accused knew that it was likely to result in the death of the victim.
Recklessness is almost an afterthought.
• Recklessness is defined in Sansregret as being the attitude of one who was aware of the danger the
prohibited conduct could bring about and yet nevertheless persisted in that conduct despite the
knowledge of that risk.
o Means the accused must have intended to cause bodily harm so dangerous and serious that he
knows it is likely to cause death and to persist in that conduct despite knowledge of that risk.
o Nothing is added to the planning and deliberation by the requirement that the fatal assault be
carried out in a reckless manner  planning and deliberation includes continuing to persist
despite the knowledge of the risk.
Ratio:
• 229(a)(ii) - The vital element of the requisite intent is that of causing such bodily harm that the
perpetrator knows that it is likely to cause death and yet persists in the assault. The planning and
deliberation to cause the bodily harm which is likely to be fatal must of necessity include the planning and
deliberating to continue and to persist despite the knowledge of that risk. Recklessness acts in
conjunction with the intentional infliction of terrible bodily harm. Slight relaxation of the subjective
foresight because the accused does not have to have intention to kill.
R V ARKELL 1990 SCC
Facts: Accused was convicted of s. 231(5) for killing the victim while he was sexually assaulting her. He argued
against his conviction on the basis that 231(5) was arbitrary and irrational and offends s. 7 of the Charter because it
results in the punishment of individuals that is not proportionate to the seriousness of the offences giving rise to
the sentences.
Law:
• Per Martineau, 231(5) does not have the potential to classify intentional killings as first degree murder – a
conviction for murder requires proof BARD of subjective foresight of death – NOT unintentional killings.
o Therefore, when we reach the stage of classifying murders as either first or second degree, we
are dealing with people who have committed the most serious crime and who have been proven
to have done so with the highest level of moral culpability, subjective foresight.
• The section is based on an organizing principle that treats murders committed while the perpetrator is
illegally dominating another person as more serious than other murders.

OBJECTIVE MENS REA

OBJECTIVE MENS
REA

CRIMINAL PREDICATE
NEGLIGENCE DANGEROUS DRIVING & OFFENCES (i.e.
FIREARMS & DUTIES manslaughter)

Marked Objective
Departure No marked limit
Foreseeability
of Bodily Harm used – unless
underlying
offence is a
No Individual
negligence
factors except
Marked and based offence
No Individual capacity
Substantial Factors No individual
Departure except factors except
Capacity capacity

5 MAIN TYPES OF OBJECTIVE FAULT OFFENCES IN CODE (ADH):

1. Offences defined in terms of dangerous conduct – i.e. dangerous driving under s. 320.13 (marked
departure)
2. Offences expressed in terms of careless conduct – i.e. careless storage of firearms under s. 86 (marked
departure)
3. Predicate offences – i.e. unlawful act manslaughter s. 222(5)(a) (objective foreseeability of bodily harm)
 4. Offences based on criminal negligence – i.e. criminal negligence under s. 219 (marked and substantial
departure)
a. Objective mens rea defence and it requires a marked departure from the conduct of a reasonable
person.
b. S. 219 needs marked and substantial because it is a more serious defence.
c. Who is the reasonable person and to which degree to we need to depart from the reasonable
person standard? Proportionate to the crime.
5. Duty-based Offences - failure to provide necessaries under s.215 (marked departure)

INTRO TO OBJECTIVE FAULT

Typically, objective mens rea offences are:
• Licensed activities like driving and firearms
• Legal duties
• Offences based upon a predicate or underlying offence like manslaughter
Words that suggest that Parliament intends objective as opposed to subjective (rebut the presumption):
 Negligently
 Failing in a duty to
 Carelessly
 Ought to
How the trier of fact determines MR:
 The trier of fact infers intention through conduct.
 The blameworthy state of mind is found in assessing the accused’s conduct on an objective standard.
 Big concern that traditionally, criminal law is about subjective mens rea  how to ensure we don’t
convict the morally innocent?
o The court wants to contextualize but not personalize.
o If it is criminal negligence and it happens at a party for 18 year olds, how can you not be
cognizant of the context.
o The court says the reasonable person will not look like the accused, but the circumstances are
how the accused would have acted in the situation.
 Not the reasonable youth, but how a reasonable person would have acted in that
situation.

“CRIMINAL” NEGLIGENC
• The objective standard is called “criminal” negligence (not to be confused with the charge).
• There are two questions to ask
o 1. Who is the reasonable person?
 The SCC historically has not agreed on what constitutes a reasonable person.
 Viewed objectively and does not have the attributes of the accused.
 Not the torts reasonable person!
 We do not personalize the reasonable person, we contextualize the person and the
event.
 If you personalize the person, it becomes subjective.
o 2. What is the degree or level of negligence?
 Marked departure or marked and substantial departure (for criminal negligence under s.
219 only).
• s. 219 Criminal Negligence
• s. 220 Causing Death by Criminal Negligence,
• s. 221 Causing Bodily Harm by Criminal Negligence.
APPLYING THE STEPS TO AN EXAMPLE BASED ON CRIMINAL NEGLIGENCE CAUSING DEATH where the facts do not
involve driving.
1. Analyze the underlying offence of criminal negligence (s.219) per Tutton and Tutton/Beatty/Javinmardi
to ensure the Crown can prove the AR and MR of the offence.
a. The AR is whether the conduct, as described in the words of the section, objectively viewed
shows a wanton and reckless disregard for the lives and safety of another.
b. The MR of s. 219 requires a marked and substantial departure from the standard of behaviour of
the reasonable person in similar circumstances. The trier of fact will infer MR from the conduct
(AR).
i. If the activity requires a de facto higher standard as it is an activity that requires special
skill and care, then also apply Javinmardi as follows:
1. An accused undertaking such an activity may be found to have breached the
reasonable person standard if he or she is not qualified to provide the special
care that the activity requires, or
2. negligently failed to exercise such care while engaged in the activity
3. Therefore, person must be both qualified and exercise the special care that the
activity requires
4. The accused’s training and experience is relevant as may be used to rebut an
allegation of being unqualified to engage in an activity and may also be used to
show how a reasonable person would have performed the activity in the
circumstances.
c. Determine if any exculpatory defences apply which would negate the MR by raising a reasonable
doubt as discussed in Beatty such as whether the accused in the circumstances had an honest
and reasonable mistaken belief in the existence of facts such that a reasonable person in those
circumstances would not have been aware of the risks.
d. To sum up the MR component: Would the reasonable person foreseen the risk and taken steps
to avoid the risks and whether the accused’s failure to foresee the risk and take steps to avoid it
was a marked and substantial departure from the standard of care required.
2. Analyze the rest of the AR elements of the offence of criminal negligence causing death (s.220) by
applying the Nette test and the Maybin test, if applicable to determine whether there is a causative link
between the criminal negligence and the death. Also ensure that factually there is a death.
3. Analyze the overall MR requirement for the entire offence of criminal negligence causing death (s.220)
which will provide the linkage between the underlying offence and the consequence. This MR is based on
an objective foreseeability of bodily harm. This will require that in doing the underlying offence, it is
objectively foreseeable that bodily harm will result or is likely to result. This MR is the same whether the
actual consequence is bodily harm or death.
4. Finally, as we will discuss later in the course, determine if there are any other justifications or excuses
defences or capacity defences available to the accused.
NOTE: All of the above must be analyzed in the context of the facts and the section requirements.
ALSO NOTE: That if the criminal negligence charge is based on operating a mode of transportation like motor
vehicle, airplane or boat then you must also consider the lesser and included offence of dangerous driving.

TUTTON V TUTTON 1989 SCC

Charges: Section 222(5)(b), criminal negligence 219, failure of a duty 215(2)
Criminal negligence causing death through omitting to provide necessaries of life.
Facts:
 • The accused were charged with manslaughter respecting the death of their 5 year old son
• The charge alleged that they had caused the death of their son by criminal negligence through omitting
to provide him necessaries of life.
• 5yo son diagnosed with diabetes. Parents gave him insulin for a little while, but they were part of a
religious organization that discouraged it. She gave it to him for a bit and then has a religious vision that
tells her not to give the insulin to the child and he ends up dying.
• Have to go through the code for the analysis – from the AR side.
• Convicted at trial, ONCA set aside conviction and ordered new trial.
Issue:
• Whether or not the TJ erred in their charge to the jury on the MR requirement for criminal negligence?
Rule:
• Criminal Negligence mens rea is an objective mens rea – it is the conduct of the accused, as opposed to
the intention or mental state, which is examined in this category.
• Conduct Based:
o Focus on the conduct and its result.
o “the objective test must, therefore, be employed where criminal negligence is considered, for it
is the conduct of the accused, as opposed to the mental state, which is examined in this inquiry.”
o Criminal negligence attempts to restrain conduct and the subsequent results.
o Punishes ‘consequences of mindless action’ not the state of mind.
o Precludes the existence of a positive intent to achieve a given result.
o Within the conduct is found the state of mindlessness.
• Statutory Interpretation:
o Shows wanton or reckless disregard – meaning of recklessness in this context defines conduct
(AR) not intention (MR)  “conduct which amounts to ‘negligence’ in a criminal context.
• Dividing Line:
o The importance of the subjective/objective distinction or the purpose of the section.
 In criminal cases, generally, the act coupled with the mental state or intent is punished.
 In negligence, the act which exhibits the requisite degree of negligence is punished.
 If this is not kept clear, the difference between a traditional MR offence and negligence
becomes unclear.
o If subjectively viewed, then it would not distinguish from other crimes.
 For example, the difference between murder and manslaughter is one of intent; if intent
had to be considered than the purpose of the section would be defeated.
• The Test:
o Reasonableness and proof of conduct which reveals a marked and significant (substantial)
departure from the standard expected of a reasonably prudent person in the circumstances.
• Application of the Test:
o May not be made in a vacuum – msut be made in the context of the surrounding circumstances.
o Considered on the basis of facts existing at the time and ‘in relation to the accused’s perception
of those facts’
 To assist in determining the reasonableness of the accused’s actions.
o The accused’s perception of the facts is not to be considered for the purpose of assessing malice
or intention, but only to form the basis for a conclusion as to whether or not the accused’s
conduct was reasonable.
o Mistaken belief for criminal negligence must be reasonably held.
Cautionary Note on Lamer’s decision:
• His comment on manslaughter with a subjective mens rea is wrong (p. 516).
• Subjective element in manslaughter but in the case will not decide whether manslaughter by crim neg is
constitutional.
• Not the law!
 RATIO:
 Criminal Negligence  Objective Test.
 The TEST: reasonableness AND proof of conduct which reveals a marked and significant (later substantial)
departure from the standard which could be expected of a reasonably prudent person in the circumstances.
 The objective test under criminal negligence may not be made in a vacuum – analysis must be made in the
context of surrounding circumstances. MR is considered on the basis of facts existing at the time and ‘in
relation to the accused’s perception of those facts. o assist in the reasonableness of the accused’s actions.

R V JAVANMARDI, SCC 2019 // CRIMINAL NEGLIGENCE CAUSING DEATH

Facts:
• ND that had relevant education, had seen between 4 – 5,000 patients, and had administered IV
treatments to patients approx. 10x per week since 1992.
• IV treatments however are illegal in Quebec.
• Mr. Matern was old and sick and went to Javanmardi’s clinic to try something new – he insisted on IV
treatment that day despite her recommendation to wait until the next visit.
• She administered nutrients from a contaminated vial – he had a negative reaction almost immediately, so
she stopped the injections.
• She recommended he eat sugar since he didn’t feel good yet all his vital signs were normal.
• Javanmardi advised he go to the hospital if he didn’t feel well, he refused.
• That night he was taken to the hospital and showed signs of toxic shock – he died some hours later.
• One of the vials she injected was contaminated.
• Javanmardi was charged with criminal negligence causing death and manslaughter.
• Findings of fact at trial:
o Nutrients were benign and potentially helpful.
o She had the required skills and experience to administer IV treatments.
o She aligned her professional standards with the regulations in other provinces.
o She purchased her ingredients from a reputable pharmacy the complied with regulations.
o She had taken sufficient precautionary measures to prevent contamination.
o Mr. Matern new that she was not a physician and consented to the procedure.
o Mr. Matern’s death was inevitable from the moment he was given the injection.
• She was acquitted of both charges at trial based on the findings of fact.
• Crim Neg: TJ concluded that her conduct did not show a marked and substantial departure from the
standard of care that a reasonable person in her circumstances would have exercised.
o Crown did not prove BARD that she showed wonton or reckless disregard for his life or safety.
• Court of Appeal set aside acquittals and ordered new trial on the crim neg charge.
Issue: Did Ms. Javanmardi’s conduct constitute a marked and substantial departure from the reasonable person
standard? Did the TJ misapply the “reasonable person” standard by referring to her training and experience?
Held: Appeal allowed, and acquittals restored.
Law:
• Relevant provisions:
o 219 (1) Every one is criminally negligent who
 (a)   in doing anything, or
 (b) in omitting to do anything that it is his duty to do,
o shows wanton or reckless disregard for the lives or safety of other persons.
o (2) For the purposes of this section, duty means a duty imposed by law.
o 220 Every person who by criminal negligence causes death to another person is guilty of an
indictable offence and liable 
  (a) where a firearm is used in the commission of the offence, to imprisonment for life
and to a minimum punishment of imprisonment for a term of four years; and
 (b) in any other case, to imprisonment for life.
• Actus Reus:
o Requires that the accused undertook an act – or omitted to do anything that it was his or her
legal duty to do – and that the act or omission caused someone’s death.
• Mens Rea:
o That the accused’s act or omission shows wanton or reckless disregard for the lives or safety of
other persons.
 Neither “wonton” or “reckless” is defined in the Criminal Code.
 The offence of criminal negligence causing death imposes a modified objective
standard of fault – the objective “reasonable person” standard (Tutton).
 Assessed by measuring the degree to which the accused’s conduct departed from that
of a reasonable person in the circumstances.
 The requisite degree of departure in criminal negligence causing death is an elevated
one – marked and substantial (Tutton).
 These standards ask whether the accused’s actions created a risk to others, and
whether a “reasonable person would have foreseen the risk and taken steps to avoid it
if possible”
 Marked and substantial are adjectives used to paraphrase or interpret
“wonton or reckless disregard” – but it is entirely contextual (Fontaine).
 A conviction for criminal negligence causing death requires the Crown to prove beyond
a reasonable doubt that the accused undertook an act, or omitted to do anything that it
was her legal duty to do, and that the act or omission caused the death of the other
person (AR). The Crown must also establish that the accused’s conduct constituted a
marked and substantial departure from the conduct of a reasonable person in the
accused’s circumstances (MR).
Analysis:
• Did the TJ err in referring to her training and experience?
o The modified objective standard is that of a reasonable person in all circumstances of the case
and is necessary in order to maintain a uniform standard for all persons regardless of their
background, education, or psychological disposition (Creighton).
 However, greater care may be expected of the reasonable person on the basis of the
nature and circumstances of the activity.
 An undertaking of an activity requiring special attention or skill may be found to
have breached the reasonable person standard if he or she was not qualified to
provide the special care that the activity requires, or negligently fails to
exercise such care while engaged in the activity.
 The law maintains a “constant minimum standard” for every person who
engages in an activity requiring special skill  they must be both qualified and
exercise the special care that the activity requires.
o While the standard is not determined by the accused’s personal characteristics, it is informed by
the activity.
 In this case the activity is administering an IV injection  the standard is that of a
reasonably prudent naturopath in the circumstances.
o The TJ was obligated to consider prior training, experience, and qualifications as a naturopath.
 The accused activity specific knowledge and experience are clearly relevant to
determining whether the applicable standard of care was met.
 Evidence might be used to rebut an allegation of being unqualified to engage in the
activity or useful to show how a reasonable person would have performed the activity.
• Did her behaviour markedly depart from that of a reasonable person?
o Based on the findings of fact, TJ concluded that she was properly qualified, etc. etc.
 o Appellate court should not find their own findings of fact – not open to them to reweigh the
evidence.
• Two ways an accused can fall below the standard (marked and substantial)
o 1. an accused is not qualified to provide the special care required
o 2. negligently failed to exercise such care while undertaking the activity.
• There was an error – the judges articulation of the articulation of criminal negligence.
o She said it was marked departure but it should’ve been a marked and substantial departure.
• The standard is being informed by the activity – the reasonable naturopath. Certain activities require
special attention and skill. Greater care than the reasonable person on the basis of the nature and
circumstances of the activity.
o Driving
o Hunting
o Parenting
• Do not focus on the accused – focus on the activities – certain activities have a higher de facto standard,
for example, brain surgeon.
Note: This is a bad decision, makes the law unclear.

“MODIFIED” OBJECTIVE TEST & MARKED DEPARTURE

RANGE OF DRIVING OFFENCES

Speeding (Provincial / Municipal) Careless Driving (Provincial) Dangerous Driving/Criminal
• Least Serious • Problem: when does negligence Negligence (Federal)
• Regulatory Offence become criminal? • Most Serious
• Morally Wrong

HUNDAL SCC 1993 // DANGEROUS DRIVING CAUSING DEATH

Facts:
• The accused was driving an overloaded dump truck in busy Vancouver traffic in wet conditions.
• He drove through an intersection after the light had turned red, honking his car to indicate he was doing
so, and struck a car that was proceeding legally – the driver was killed instantly.
• A witness testified that this was the second red light the accused had driven through, and estimated that
he was going 50-60kmph when he struck the other vehicle.
Issue:
• What was the appropriate fault element for dangerous driving causing death?
Analysis:
• Dangerous driving requires objective mens rea or a ‘modified’ objective test.
o An objective test is necessary because:
 Licensing Requirement  driving can only be undertaken by those that have a licence.
 Demonstrates that those who drive are mentally and physically capable of
doing so.
 Those who drive are familiar with the standard of care.
 Licensed drivers choose to engage in the regulated activity of driving, placing
themselves in a position of responsibility to other members of the public who
use the roads.
 Unnecessary for a court to establish that the particular accused intended or
was aware of the consequences of his or her driving.
  As a general rule, a consideration of the personal factors, so essential to
determining subjective intent, is simply not necessary in light of the fixed
standards that must be met by licensed drivers.
 Automatic and Reflexive Nature of Driving  driving is so routine that it is almost
impossible to determine a particular state of mind of a driver at any given moment.
 A great deal of driving is done with little conscious thought – primarily reactive
and not contemplative.
 It would be a denial of common sense for a driver, whose conduct was
objectively dangerous, to escape liability on the grounds that he was not
thinking about his manner of driving at the time of the accident.
 The Wording of Section  “in a manner that is dangerous to the public, having regard
to all circumstances”
 Can only refer to a standard of reasonable conduct.
 The basis for liability is negligence – must ask whether the accused exercised
the appropriate standard of care.
 Statistics  demonstrate that there are too many deaths and injuries that need to be
controlled.
 Compelling need for effective legislation which strives to regulate the manner
of driving vehicles and thereby lessen the carnage on the highways.
 Not only appropriate but essential to control dangerous driving.
• Application of the test may not be made in a vacuum (Tutton).
o The accused’s perception of the facts is not to be considered for the purpose of assessing
intention, but the accused’s perception of the facts can be used to assist in determining
whether or not the accused’s conduct was reasonable in considering the mistake of fact
defence.
 On a defence side - honest and reasonable belief in the existence of facts – if the
accused honestly and reasonably held belief in the existence of such facts, it may be a
relevant consideration in assessing the reasonableness of his conduct.
 ONLY if reasonably held – no defence to say “I was being careful.”
• No personal factors should be taken into account such as skill level, intelligence, etc.
o Particularly where it is a licensed activity such as driving.
o Still open to the accused to cause a reasonable doubt that a reasonable person, in a similar
circumstance od the accused, would not have been aware of the risks.
• Modified to allow for sudden and unexpected onset of disease and similar human frailties.

Ratio: The test for dangerous driving is an OBJECTIVE test judged on a modified objective standard – test is
whether there was a marked departure from the standard of care of a reasonable person, taking into account all
relevant circumstances in the events surrounding the alleged offence and give the accused an opportunity to
raise a reasonable doubt as to what a reasonable person would have though in the particular situation in which
the accused found him or herself.
• ”the test must be applied with some measure of flexibility. That is to say the objective test should not be
applied in a vacuum but rather in the context of the events surrounding the incident”
• Context for reasonable standard – licensing, professional standards, physical context

BEATTY 2008 // DANGEROUS DRIVING

Facts:
• The accused was charged with three counts of dangerous operation of a vehicle causing death under
s.249(4).
 • The accused’s truck crossed the solid centre line into oncoming traffic and killed the three occupants.
• The driver was unsure why he crossed the line, and as intoxicants and mechanical failure were not an
issue, concluded that he must have lost consciousness or fallen asleep due to heat stroke from working in
the sun all day.
Rule:
• The underlying premise for finding fault based on objectively dangerous conduct that constitutes a
marked departure from the norm is that a reasonable person in the circumstances of the accused would
have been aware of the risks posed by the manner of driving and would not have undertaken the activity.
• Dangerous driving was an objective fault crime for four reasons: driving requires a license, it is an
automatic and reflexive activity that doesn’t require subjective thought, the language section suggests
objective fault, urgent need to curb conduct that is dangerous (Hundal).
• Two modifications: Marked departure from civil norm and allowance for exculpatory defences.
• Marked Departure:
o The requisite mens rea may only be found when there is a “marked departure” from the
standard of care expected of a reasonable person in the circumstance of the accused – it is only
when there is a marked departure that conduct demonstrated sufficient blameworthiness to
support a finding of a penal sanction.
o Why is this a modification?
 Higher standard than the civil negligence required for criminal.
 Marked departure from the civil norm.
 Consistent with s, 7 and principles of fundamental justice.
 Because driving is so automatic and reflexive we do not want to criminalize people who
have momentary lapses of attention.
o Drivers conduct should be measured against that of a reasonable prudent driver to find the
mens rea.
o Because driving involves is little conscious thought and it is so automatic – some departures from
the standard should be expected – momentary lapses of attention are expected.
o If every departure from the civil norm is to be criminalized, we risk branding as criminals people
who are not morally blameworthy  risks violating the principle of fundamental justice that the
morally innocent not be deprived of liberty.
o The objective test requires proof of a marked departure from the standard of care that a
reasonable person would observe in all the circumstances.
o Underlying premise is that a reasonable person would have been aware of the risk and would not
have undertaken the activity.
• Allowance for Exculpatory Evidence:
o There will be circumstances when the underlying premise cannot be sustained because a
reasonable person in the position of the accused would not have been aware of the risk, or
alternatively would not have been able to avoid creating the danger.
o It is not open for the driver to simply say that they gave no thought to the manner of driving
because the fault lies in the failure to bring the expected degree of thought and attention to it.
o However, because the accused’s mental state is relevant ina. criminal setting, the objective test
must be modified to give the accused the benefit of any reasonable doubt about whether a
reasonable person would have appreciated the risk or could have done something to avoid
creating the danger.
o A reasonably held mistake of fact may provide a complete defence if based on the accused’s
reasonable perception of the facts.
• Restatement of the Test:
o The Actus Reus:
 TOF must be satisfied BARD that, viewed objectively, the accused was, in the words of
the section, driving in a manner that was “dangerous to the public, having regard to all
the circumstances, including the nature, condition, and use of the place at which the
 motor vehicle is being operated and the amount of traffic that at the time is or might
reasonably be expected to be at that place.”
 Words of legislative provision not by the common law for civil negligence.
 Not all negligent driving will constitute dangerous operation of a motor vehicle, must be
within the meaning of s. 249.
 It is the manner of driving that is the issue, not the consequences.
 Consequence has no bearing on whether the offence of dangerous driving of a
motor vehicle was made out or not.
o The Mens Rea:
 TOF must also be satisfied BARD that the accused’s objectively dangerous conduct was
accompanied by the required MR.
 The TOF should be satisfied on the basis of all the evidence, including evidence about
the accused’s actual state of mind, if any, that the conduct amounted to a marked
departure from the standard of care that a reasonable person would observe in the
accused’s circumstances.
 TOF must be satisfied that a reasonable person in similar circumstances ought to have
been aware of the risk and of the danger involved in the conduct manifested by the
accused.
 Must consider the totality of evidence including evidence about the accused’s state of
mind.
 Satisfied by applying the modified objective test  not necessary that the Crown prove
a positive state of mind, such as intent, recklessness, or wilful blindness; but the actual
state of mind is not irrelevant.
 Ex. if there is proof that a driver intentionally drove onto a sidewalk to scare
passengers, the MR will be easily met.
 What constitutes a marked departure is a “matter of degree.” – lack of care must be
seriousness to warrant punishment.
Analysis:
• There was no evidence of any deliberate intention to create a danger suggestive of a marked departure
from the norm. 
• Rather, the limited evidence adduced at trial about the accused’s actual state of mind suggested that the
dangerous conduct was due to a momentary lapse of attention. 
• There was no evidence of improper driving before the accused’s vehicle momentarily crossed the centre
line. 
• Viewed from an objective basis, this momentary act of negligence was insufficient evidence to support a
finding of a marked departure from the standard of care of a prudent driver.
• Permitted AR Defences:
o “without prior warning” “sudden onset” “suddenly and unexpectedly”  no choice, not
voluntary, if you had prior warning then you did have a choice and need moral culpability,
• The actus reus requires a marked departure from the normal manner of driving.  The mens rea is generally
inferred from the marked departure in the nature of driving, although the evidence in a particular case
may negate or cast a reasonable doubt on this inference.
Note: The consequence is not what should drive us to the end decision. This standard is marked departure because
it is dangerous driving. If it was criminal negligence it needs marked and substantial. Majority disapproves of
Lamer’s position of importing personal characteristics.

DANGEROUS DRIVING REVIEW

How to apply Hundal Test:
• What is the difference between objectively dangerous driving and a market departure from the standard
of care? When is evidence of the accused’s state of mind relevant?
• Majority  “objectively dangerous driving” = AR, “marked departure” = MR
 • Evidence of state of mind of accused may be relevant to a MR determination.
• “The trier of fact must be satisfied BARD, that viewed objectively, the accused was, in the words of the
section, driving in a manner that was dangerous to the public, having regard to all the circumstances,
including the nature, condition… “
• The difference between careless driving, dangerous driving, and criminal negligence is
ACTUS REUS (Beaty)
• s. 249 describes the conduct that will fall below the expected standard of a reasonably prudent driver.
• However, not all negligent driving will be dangerous driving in accordance with s. 249.
• Focus on the manner of the driving, not the result  conduct based not consequence based.
• Objectively dangerous driving.
MENS REA (Beaty)
• Did the objectively dangerous driving from that section amount to a marked departure from the standard
of care that a reasonable person would observe in the accused’s circumstances?
• Marked departure – “matter of degree” from a reasonable person.
o Must be serious lack of care to attract penal sanction.
o Conduct occurring in a few seconds can amount to a marked departure but brief period
Application to the facts of Beatty
• AR was there because it was objectively dangerous driving but fails at mens rea because it wasn’t a
marked departure.
• Not involuntary – not in a state of non-insane autonomism.
Lesser and included offences
• Careless driving – momentary lapses in attention is enough.
• Dangerous driving – marked departure.
• Criminal negligence – marked and substantial departure.
How to prove criminal negligence
• Did the accused to or fail to do something which the accused has a legal duty to do? (AR)
• In doing the act or in failing to do the legal duty, did the conduct, objectively viewed, show a wonton or
reckless disregard for the lives and safety of others? (AR)
• In assessing #2 for MR purposes, the court asks whether that #2 conduct is a marked and substantial
departure from the standard of the reasonable person in the circumstances.
Does intent matter?
• It is a factor.
• If there is evidence, it might be considered and might matter.
What is marked departure?
• Factual decision – Beaty tells us what may not be a marked departure (momentary lack of attention
without more or conduct that happens very quickly) but it all depends on the circumstances.
• Matter of degree.

CREIGHTON 1993 SCC // MANSLAUGHTER AS CONSEQUENCE OF ILLEGAL ACT

Facts:
• Charged with manslaughter by an unlawful act – trafficking of cocaine – 222(5)
• They were injecting it into people and by administering the cocaine into the body it was deemed
trafficking which was the unlawful act.
• There was also an issue of whether or not the manslaughter could have been criminal negligence.
• Unlawful act at issue here is the trafficking of cocaine by injecting it in a person.
• Statutory context: manslaughter by unlawful act under s. 222(5)(a) (have to prove all elements of
unlawful act (cocaine in body for trafficking) AND also that some element of serious bodily injury was
objectively foreseeable).

Issue: What test should be used for predicate offences?

Held: Marked departure test governs.
Rule:
• The Crown bears the burden of proving beyond a reasonable doubt that a reasonable person in the
context of the offence would have foreseen the risk of death created by his or her conduct.
• R v Gosset: The reasonable person will be invested with any advanced foresight the accused may have
enjoyed as virtue of his or her membership in a group with special experience or knowledge related to the
conduct giving rise to the offence.
o In this case, the reasonable person should be deemed to possess Mr. Creighton’s considerable
experience in drug use.
o The objective test cannot relieve the accused of criminal liability simply b/c he or she did not
foresee creating the risk of death.
• Once the Crown has proven BARD that a reasonable person in the context of the offence would have
foreseen the risk of death created by his or her conduct, the focus shifts to whether a reasonable person
in the position of the accused would have been capable of foreseeing such a risk.
o Cannot relieve the accused of criminal liability simply because he or she did not, in fact, foresee
creating the risk of death.
o Must demonstrate a marked departure from the standard of care of a reasonable person, with
the skill and expertice of the accused.
o Marked departure test must be applied with "a uniform legal standard of care, subject to one
exception: the incapacity to appreciate the nature of the risk which the activity in question
entails" - were not taking into account all individual characteristics, just if for some reason the
person can’t even appreciate the risk associated with the behavior then they won’t meet the
standard.
• Underlying principles from McLachlin:
o The notion that the criminal law may properly hold those who engage in risky activities to a
minimum standard of care, judged by what a reasonable person in all the circumstances would
have done.
o The morally innocent should not be punished – must have the guilty mind.
o Does not require consideration of personal factors short of incapacity
 We are all rich and poor, wise and naïve, held to the minimum standards of conduct
prescribed by the criminal law.
o Should not be looked at in a factual vacuum – consideration of the circumstances in the case.
MODIFIED OBJECTIVE TEST: where the accused is charged with the offence of unlawful act manslaughter, the trier
of fact must ask:
1. Would a reasonable person in the same circumstances been aware that the likely consequences of his
or her unlawful conduct create the risk of death?
 If no, then the accused must be acquitted
 If yes, then the trier must sk:
2. Was the accused unaware:
 because he or she did not turn his or her mind to the consequences of the conduct and thus
to the risk of death likely to result, or
i. if this is the answer = convicted - the absence of awareness cannot be an excuse  an
important distinction between the capacity to decide to turn one’s mind to a risk, and
the decision not to turn one’s mind to it.
 As long as attention is directed to the individuals own capabilities,
fault can be made on the ground that there was a fair opportunity to
have recognized the risks and harm of conduct.
 One must be morally – and criminally – responsible to act in
accordance with his or her capacities not to inflict harm, even
unintentional harm.
ii. If no = continue to b)
  By contrast, the inability to control a particular frailty (see frailty
below) which resulted in the creation of risk may offer a moral excuse
for having brought about the risk, therefore a final stage of the inquiry
is needed.
 because he or she lacked the capacity to turn his or her mind to the consequences of the
conduct and thus to the risk of death likely to result, due to human frailties?
i. If this is the answer = go to 3.
ii. If no = acquitted
 Key element of objective test is that of the control an accused could
have exercised over the frailty which rendered him or her incapable of
acting as the reasonable person would in the same circumstances
 Control is related to moral responsibility – if one is to act prudently
and not endanger the life of others, one will be held liable for failing to
do so.
3. In the context of the particular offence, would the reasonable person with the capacities of the accused
have made him or herself aware of the likely consequences of the unlawful conduct and the resulting
risk of death?
i. Did the accused fail to take those precautions which any reasonable man with normal
capacities would in the circumstances have taken?
ii. Could the accused, given his mental and physical capacities, have taken those precautions?
 This is not a subjective test – if a reasonable person with the frailties
of the accused would nevertheless have appreciated the risk, and the
accused did not appreciate the risk, the accused must be convicted.
 Human frailties which may affect the capacity of an accused to
recognize the risks of unlawful conduct must be considered, however,
not because the accused believed in an incorrect set of facts, but
because they render the accused incapable of perceiving the correct
set of facts.
4. What human frailties may factor into the objective test?
 Intoxication and impairment through drug use which occurs as a result of voluntary
consumption cannot serve to vitiate liability for risks created by the negligent acts of the
accused.
 A sudden and temporary incapacity to appreciate the risks due to exigent circumstances
(an emergency which diverts one’s attention from an activity for example) is not
properly considered under the third part of the test, but may result in an acquittal in the
first part of the test  would a reasonable person’s attention in the same circumstances
of the accused have been diverted from that activity.
 Human frailties encompass personal characteristics habitually affecting an accused’s
awareness of the circumstances which create risk (e.g. illiteracy (relevant in certain
circumstances - i.e. failure to take care with a hazardous substance but doesn’t excuse
carelessness with firearm)).
 The reasonable person is expected to compensate for his or her frailties, to the extent
he or she is conscious of them and able to do so
i. Must be traits which the accused is unable to control or manage in the
circumstances.
 This is groundwork for examining the different factual contexts which may arise; two
criteria are  1. gravity of the offence, and 2. the purposefulness of the conduct
involved.
i. 1. difference between failing to safely store a prescription bottle and failing to
safely store a firearm  the behaviour of a reasonable person who possesses
all of the accused’s limitations may be very different, therefore the answer to
the third question may be very different as well.
Objective Fault Summary
I. What is the actus reus? Look to statutory language.
o Examples:
 Criminal negligence (s. 219):
1. Breach of some other statutory duty through act or omission (such as duty to provide
necessaries under s. 215)
 Look for statutory duties from somewhere in the code or in provincial regulatory
offences
 Ex. Dangerous driving (s. 249): Driving that is dangerous to the public
2. The actions showed wanton or reckless regard for the safety of others
II. What is the mens rea? Look to case law
o Regulatory offences: At least simple negligence (i.e., due diligence defence) if:
 Prison results (Re BC Motor Vehicle Act)
 Parliament does not clearly specify otherwise (Sault Ste-Marie)
o Other objective fault crimes, such as dangerous driving (s. 249): "marked departure" from norm 
also applies to other vehicles in 249
 Not individuated inquiry (Creighton) - not with the characteristics of the accused - purely
objective norm
 UNLESS accused is incapable of apprehending risk the activity entails (Creighton) or if
reasonably unforeseen problems such as disease are involved (Hundal)
 BUT if subjective fault can be shown, may factor into objective to objective test (Beatty)
 In dangerous driving cases momentary inattention will NOT constitute a "marked departure"
(Beatty)
 [Furthermore, appellate courts have been much more liberal than the test requires in looking
at individual factors]  not actually the law, but this is how its been applied - lower courts
have been taking into account the individual features of the accused
 Would still make argument based on individuated standard, but you could mention this
is the way the courts are moving
Criminal negligence (s. 219) (can, where relevant, manslaughter): "marked and substantial
departure" from norm. (R v F(J))  highest level of objective fault
Analysis applicable to objective fault crimes should apply, but doctrine is still settling
Defences

- Reasonable person would not have appreciated the risk or done anything to avoid creating the danger
- Reasonable mistake of fact
- Note: lower courts have taken individual traits and circumstances into account in determining whether
defences were reasonable
PREDICATE OFFENCES
Steps to Analyze De Sousa/Creighton Type Offence For Exam
1. De Sousa/Creighton Type Offences are:
a. assault causing bodily harm,
b. criminal negligence causing bodily harm/death,
c. dangerous driving causing b.h./death,
d. impaired causing b.h./death;
e. sexual assault causing b.h.,
f. aggravated assault or aggravated sexual assault
g. unlawfully causing bodily harm
h. 222(a) or (b) manslaughter

2. Analyze the underlying offence

a. Ensure the Crown can prove the AR and MR elements of that offence beyond a reasonable
doubt.
b. Ensure that there is a voluntary act for purposes of the AR.
c. Ensure that the MR is constitutionally valid.
i. If the underlying offence is absolute liability, even if it is a constitutionally valid
regulatory offence, it cannot form the basis of the “unlawful” act requirement.
ii. If the underlying offence is a regulatory, strict liability offence then assess the MR on the
basis of a marked departure from the standard of the reasonable person.
d. Determine if any exculpatory defences apply which would negate the MR by raising a reasonable
doubt.

3. Analyze the rest of the AR elements of the entire offence involving causation and consequence – this
means applying Nette test and Maybin test (if there is an intervening act) and ensuring that there is, in
fact, “bodily harm” (per Moquin and s.2) or death.

4. Analyze the overall MR requirement for the entire offence which will provide the linkage between the
underlying offence and the consequence.

a. MR is based on an objective foreseeability of bodily harm.

i. This will require that in doing the underlying offence, it is objectively foreseeable that
bodily harm will result or is likely to result.
ii. This MR is the same whether the actual consequence is bodily harm or death.

5. Finally, as we will discuss later in the course, determine if there are any other justifications or excuses
defences available such as duress, necessity or defence of the person. Also determine if there are any
capacity defences such as mental disorder, automatism, and/or intoxication.

Predicate Offences (can have underlying offence) After DeSousa/Creighton

  In certain cases, an offence may be defined based on a predicate offence PLUS consequences, with much-
reduced mens rea requirement regarding the consequence
 Underlying offence may not be absolute liability and must be either federal or provincial, NOT municipal etc.
 Section 269 -Unlawfully causing bodily harm: bodily harm need only be objectively foreseeable (DeSousa)
 Section 222(5)(a) - Unlawful Act Manslaughter: bodily harm (not death) need only be objectively
foreseeable (Creighton)
 Section 268 - Aggravated Assault: bodily harm (not wounding/maiming/disfiguring) need only be objectively
foreseeable (Godin)
 Section 267(b) - Assault Causing Bodily Harm: Disputed among Courts of Appeal. (Sask. Does not even
require bodily harm to be objectively foreseeable; Alta/ and Ontario do)
Predicate Offence
 When you have an element of an offence that says that any other crime can fit into the offence
 Some predicate offence provisions:
o Unlawful act manslaughter (s. 222)
o Unlawful act causing harm (s. 269)
o Aggravated assault (s. 268)
 REQUIREMENT for all underlying offences: all of the elements of underlying offence + objective
foreseeability of bodily harm
 For unlawful act causing harm & unlawful act manslaughter: predicate offence used has to be at least
provincial level offence – can’t be municipal offence or lesser

DE SOUSA 1992 // UNLAWFUL ACT BODILY HARM

Facts:
• NYE in Toronto, there is a fight, the accused throws a bottle, it hits the wall and then hits a girl in the
forearm. Charge is s. 269.
• Question of whether the charge violates s. 7 or s. 11(d) of the Charter.
• Unlawful act is mischief.
Issue:
 What is the mens rea of s. 269 and does it violate the Charter?
Rule:
• S. 269 – Everyone who unlawfully causes bodily harm to any person…
o 1. Must commit an underlying unlawful offence (predicate offence) and by committing the
predicate offence
o 2. The accused caused bodily harm to another.
 Underlying offence must have sufficient causal connection to harm caused.
• The Mental Element of s. 269:
o The mental element is comprised if two separate requirements
 The mental element of the underlying offence must be satisfied, and
 The additional fault requirement supplied by the wording of s. 269 must also be satisfied
– meaning od ‘unlawful’.
o The mental element of the underlying offence
 To be convicted of s. 269, the prosecution must first satisfy the MR of the underlying
offence.
 The concept of “unlawful” as it is used in 269 does not include any underlying offence of
absolute liability.
 The inclusion of such offences would be contrary to the general canons of
criminal interpretation.
 The mental element of the underlying offence must also be constitutionally sufficient in
its own right.
 o The meaning of “unlawful” in s. 269
 The most principled approach to the meaning of “unlawful” in the context of s. 269 is to
require that the unlawful act be at least objectively dangerous.
 The test is one of objective foresight of bodily harm for all underlying offences – the act
must be both unlawful and one that is likely to subject another person to danger of
harm or injury.
 This bodily harm must be more than merely trivial or transitory in nature and in
most cases involve an act of violence done deliberately to another person.
 In determining what constitutes an objectively dangerous act, the courts should
avoid attaching consequences to mere inadvertence.
• Constitutional Sufficiency:
o The mental element required by s. 269 passes constitutional muster unless s. 269 is one of those
few offences which due to its stigma and penalty require fault based on a subjective standard.
o S. 269 has neither the stigma nor the criminal sanction to require a more demanding mental
element than is already required.
Ratio:
 On a proper interpretation of s. 269, the concept of an unlawful act as it is used in that section includes
only federal and provincial offences  does NOT include absolute liability offences.
Mens Rea Requirement:
 Test: Objective foresight of bodily harm for all underlying offences.
o The term “unlawfully” is meant to require an act that both unlawful and one that is accompanied
by the objective foresight of the risk of bodily harm that is more than merely trivial or transitory
and is an objectively dangerous act (Javanmardi).
 Bottom Line: Act must be both unlawful AND one which is likely to subject another to danger or injury.
o Objectively foreseeable.
NOTE: Per Javanmardi, if the offence is a strict liability offence, the MR for the underlying offence must be a
marked departure from the standard of the reasonable person in the circumstances.

CREIGHTON // UNLAWFUL ACT MANSLAUGHTER

Issue: Whether the objective test for unlawful act manslaughter required reasonable foresight of death or
reasonable foresight of bodily harm.
Rule:
 Manslaughter requires two things:
o Conduct causing the death of another person, and
o Fault short of intention to kill.
 The fault may consist of either committing another unlawful act which causes death or
criminal negligence, coupled with homicide.
 Predicate offence of unlawful act requirement:
o If an offence depends on a predicate offence (222(5)(a) or criminal negligence 225(5)(b))
 1. MR if the underlying offence (apply DeSousa/Javanmardi):
 222 5(a)  unlawful act, no absolute liability, constitutionally valid MR.
 222(5)(b)  marked departure from the standard of reasonable person
 219  marked and substantial departure.
 2. Objective foreseeability of the risk of bodily harm in doing the unlawful act.
 In addition to the AR and MR, all that is required to support a manslaughter
conviction is reasonable foreseeability of bodily harm (DeSousa).
 The unlawful act must be objectively dangerous and likely to injure another
person.
 Does not require foreseeability of death.
JAVANMARDI // UNLAWFUL ACT MANSLAUGHTER
Facts: Naturopath gave a man an injection and he later died. Majority characterizes her as having done it hundreds
of times and that she had a background in this. the minority points out that she was actually performing something
that was illegal in Quebec. Better facts above.
Issue: Would a reasonable person in Ms. Javanmardi’s circumstances have foreseen that intravenously
administering a benign solution, in accordance with proper procedures, would create a risk of harm?
Held: No. Appeal allowed and acquittals restored.
Rule:
• Unlawful Act Manslaughter – section 222(1) (4) (5) & 234.
• AR of manslaughter under s. 222(5)(a):
o Requires the Crown to prove that the accused committed an unlawful act and that the unlawful
act caused death (Creighton).
o The underlying unlawful act is described as the “predicate” offence (DeSousa).
 In this case, administering the intravenous injection contrary to s. 31.
 The underlying unlawful act required by its manslaughter offence requires proof that
the unlawful act was “likely to injure another person” or in other words put the bodily
integrity of others at risk.
o Satisfied by proof BARD that the accused committed an unlawful act that caused death – there is
no independent requirement of objective dangerousness.
• MR of unlawful act manslaughter:
o Objective foreseeability of the risk of bodily harm that is neither trivial not trivial nor transitory,
coupled with the fault element for the predicate offence (Creighton).
o Where the predicate offence is one of strict liability, the fault element for that offence must be
read as a marked departure from the standard expected of a reasonable person in the
circumstances (Beaty).
o In this case both charges required her conduct to be measured against the standard of a
reasonable person in her circumstances – as part of the fault element of both criminal negligence
and the predicate offence for unlawful act manslaughter.

REGULATORY OFFENCES
• Enforce a regulatory scheme
• Inherently legitimate or desirable activities done improperly or without due care.
• AKA public welfare offences, quasi criminal offences.
• Can be created by:
o Provinces
o Federal
o Municipalities
• Individuals and corporations are subject to them.
• The purpose is to punish people or corporations for creating dangers.
• Protection of the public from risk of harm.
• Mens Rea Historically
o Absolute liability
 Fault based on conduct – no mens rea element at all.
 Problem with this is there is a debate on whether it is right – convicting the morally
innocent, still has a penalty and can involve jail.
o Subjective liability offences
 Sault Ste Marie – very difficult, especially with a corporation – how do you get in the
mind of a corporation.
  Subjective liability is not always effective because you will not be capturing behaviour if
you cannot prove the high level of mens rea.
o To only have these two did not seem to fit.
o Another liability option – Strict Liability:
 Objective, negligence based.
• According to SSM – three levels of liability regulatory offences (PRESUMED STRICT unless clear words to
rebut presumption).
o Express or subjective liability:
 MR consists of a positive state of mind such as intent, knowledge, or recklessness
 Must be words present in the section to indicate they are full mens rea offences:
 “intent”
 “purposely”, or
 “willfully”
 Proof of subjective awareness must be proved by the prosecution BARD.
 Defendant may raise any AR or MR defences.
 Def need only raise a reasonable doubt.
o Strict Liability:
 No necessity for the prosecution to prove the MR as the doing of the prohibited act
gives rise to an inference that the required mental element is present.
 Type of negligence is not criminal – no marked departure required.
 The Crown need only prove the AR beyond a reasonable doubt.
 Once the Crown has proven the AR the burden shifts to the defendant and they
have to discharge that burden by proving on a BOP that he/she/it has acted
with due diligence.
 Burden on defendant because they have the best position to bring the evidence
forward.
 BOP because it is no longer a criminal case, need higher standard than raising a
reasonable doubt to ensure protection of the public against dangerous
activities.
o You are not branded a criminal, this is not criminal law, stigma is less.
o In regulatory world, we are putting the burden on the people who did
the wrong to bring the evidence.
 Due Diligence Defence:
o Open to the defendant, on a BOP, to prove they acted responsibly in
all of the circumstances and took all reasonable steps required to
avoid the harm or took all reasonable care.
 Honest and Reasonable Belief Defence:
o May also be acquitted if honestly and reasonably believed in a state of
facts, which if true would render the defendant innocent.
 Again, PUBLIC HARM – protection of the public – different focus from the criminal law.
o Absolute Liability:
 Only AR defences, no MR  if the AR is proved, the defendant is guilty.
 Must prove AR beyond a reasonable doubt.
 Defences?
 AR defences such as voluntariness but NO MR defence.
• Classifying the offence:
o Must look to (Sault St Marie):
 Language used in the offence section – most important (Levis).
 Subject Matter of the statute or the objective of the regulation.
 Penalty
 Over-all regulatory scheme of the statute.
o Absolute liability is “an exception requiring clear proof of legislative intent.” (Tetreault).
  Not supposed to have enforcement that is based on all absolute liability because it can
be so harsh.

SAULT ST MARIE THROUGH THE CHARTER LENS

• Licensing justification
o you are making the choice to participate in an activity that requires a responsible relationship
with the public (wholesale Travel).
• Vulnerability justification
o public policy of protecting the vulnerable through the Charter.
o Regulatory offences are to protect vulnerable people – workplace legislation, labourers,
disadvantaged, and powerless members of society.

STRICT LIABILITY AND THE CHARTER

• Strict liability offences are constitutional – defence of due diligence can be restricted by statute (WTG).
o Minimum permissible liability where an accused may go to jail.
o Negligence is a constitutional sufficient fault element for all regulatory offences.

ABSOLUTE LIABILITY AND THE CHARTER

• Absolute liability offences are constitutional if the penalty does not include the possibility of jail or
probation.
o See ref section 94(2) of the Motor Vehicle Act.
 Principle of fundamental justice that innocent not punished – not convicted unless mens
rea.
o Absolute liability offends principle of fundamental justice. ‘
• Only contrary to s. 7 if by breaching this fundamental justice principle it deprives someone of life, liberty,
security of the person.
o Absolute liability does this is there is a potential to deprive a person of liberty due to possible
imprisonment, including probation orders.
• Absolute liability and time in default.
o Provincial courts are divided in whether this extends to offences where an accused might go to
jail in default of paying a fine.
o In Alberta, regulatory offences that are absolute liability punish by fine only and have no default
time in custody.
• Administrative expediency under section 1
o Strict measures are okay in cases of natural disasters, outbreak, epidemics, etc.
o The liberty of the person should not be “sacrificed for administrative expediency except on
exceptional cases of natural disasters, outbreak of war, epidemics (BC Motor Vehicle Reference).

REGULATORY BOTTOM LINE

1. Regulatory offences are treated differently than criminal offences.
2. Presumption that regulatory requires strict liability unless there is a clear Parliament intention.
3. Where possible loss of liberty Charter requires, at minimum, strict liability.
4. Absolute liability, unusual, but not unconstitutional as long as no possible loss of liberty.
5. Due diligence defence to be proven by the defendant on BOP – constitutional in the regulatory context.

MISTAKE OF LAW
 S. 19 of CCC says that mistake of law is no excuse
 however, there are exceptions:
  Common law defence of officially induced error of law (new, arises out of regulatory offences) AND
 Statutory defence of color of right for property offences
Colour of Right – legal statutory offence
 Colour of right applies in two major sections of CCC
1. Theft (s. 322)
 Without colour of right = without some belief that you are legally entitled to something
 It’s a form of mistake of law, but it’s a specific exception
 Affirmative element that Crown needs to show - mens rea element
 Used as an AFFIRMATIVE element here that needs to be proved by the Crown
2. Wilful and Forbidden Acts in Respect of Certain Property (Part XI)
 S.429(2)
 No person shall be convicted of an offence under s. 430 to 446 where he proves that
he acted with legal justification or excuse OR with color of right
 Gives definition of colour of right: where he prove where he acted with legal justification or
excuse or colour of right ***THERE IS A DRAFTING ERROR IN THE CODE HERE - CHANGE AND
TO OR (before colour of right)***
 Used as a DEFENCE here
 Does not apply to fraud under s.380
Mistake of Mixed Fact and law VS Mistake of Law
 Sometimes hat looks like mistake of law is really mistake of fact or mistake or mixed law and fact
 A mistake of mixed law and fact is treated as a mistake of fact (Campbell)
 Example:
o Speeding Ticket: if defendant argues not guilty as unaware of speed limit then mistake of law
o If argues he saw a speed sign posted with a higher speed than what was permitted than this is
mistake of fact
 Mistake of fact: an accused has no knowledge of a matter and no actual belief as to the true state of the
matter
 Mistake of law: the mistake to the legal effect of the facts- existence, meaning, scope or interpretation of
the law
Chapin
 Mistake of Fact: Chapin acquitted of hunting in close proximity to bait, because she did not realize there
was bait in the area. That was found to be a mistake of fact.
 Mistake of Law: If Chapin had known there was bait in the area, but did not know that hunting near bait
was illegal, she would have been operating under a mistake of law

R V CAMPBELL (1972) (ALTA DIST CT)

Facts:
• On Feb. 9, 1972 and Feb. 21 1972, the accused was go gp dancing on stage before an audience.
• At the start of her performance she was wearing some clothes, but at the end she was not.
• The performance came within the meaning of s. 167(2) of the CCC (obscenity clause).
• Parliament declared that being nude in a public place was a breach of a moral standard in Canada,
therefore, to dance in the nude was an immoral act.
• Mens Rea argument that she didn’t want to do the dance but was told that the SCC had declared that
bottomless dancing was okay – it was from R v Johnson.
o This judgment was overturned on appeal - the dancer didn’t know this at the time because the
new judgment had not been publicized.
Issue:
• Is there a defense of mistake of law?
Held:
• NO. She can have her charge reduced given the circumstance.
• Given absolute discharge (doesn’t serve any time, gets a criminal record temporarily - removed in a year).
Analysis:
• Mistake of fact is a defense to a criminal charge where if the facts believed by the accused are true,
would afford a defense
o No mistake of fact by accused here.
o Her mistake was concluding that a statement of law was the law.
o Not a mistake of fact, it is a mistake of law.
• A mix of law and fact is a defence
• A mistake of law is to misunderstand the significance of a decision of a judge, or his reasons.
• A mistake of law to conclude that a decision of any particular judge correctly states the law, unless that
judge speaks on behalf of the ultimate CA.
• Where the law requires that a person willfully, maliciously or knowingly does something wrong, it could
be a defence as negating intention to show that b/c of the mistake in the understanding of the law, there
was no willful intent or malice.
o This is about colour of right.
o This is not one of those situations b/c there is no special intention required for this offence.
o Only mens rea here is that the accused intended to do what she did.
o No suggestion that she lacked the mens rea in this charge.
• S. 19 of the CC says “ignorance of the law by a person who commits an offence is not an excuse for
committing that offence.”  defence is not available when a person has made a mistake as to whether or
not the act is excused by another law or authorized law.
• The defence of mistake of law should not be allowed as a matter of public policy and effectiveness of our
court system - would place a premium on ignorance.
o Not a matter of fairness, a matter of justice – efficient and effective justice.
o It would lead to an absurdity – would not be about what the accused did, but rather whether or
not the accused had a sufficiently sophisticated understanding of the law.
o Problem is that it requires people to know the law better than judges - in this case, the dancer
would've had to 'predict' that the law was going to be bad law.
o Not justified because it is fair, but because it is necessary – even though it will sometimes
product an anomalous result.
• The only relevance is in sentencing – milder punishment – is this a fair case?
• Might work into inflicting on him milder punishment.

Ratio: Mistake of law is no defence as per s. 19 of the CCC

 may be a defense if the provision requires a special intention for the offence – could negate intention
can’t be used as a defense but can be used to give the lowest possible sentence (absolute discharge )

COLOUR OF RIGHT FOR PROPERTY OFFENCES

• The defence of colour of right is expressly a defence to theft under s. 322.
• The allows, for those accused of offences in that Part, the defence of proving they acted “with legal
justification or excuse with the colour of right”
• Theft – the accused must be acting fraudulently and without colour of right.
• Most of the part 11 offences, and 429.
o Burden of disproof is on the Crown.
R V DOROSH (2004) (SASK CA)
Facts: Accused was charged with stealing a trailer contrary to s. 334(b) of the CCC. Defendant purchased a Van and
cleaning unit from Mr. Zayshley with no warranty. As consideration, the defendant gave Mr. Zayshley a cargo
trailer, a roto tiller and a power plant with a payment of 1200 cash and 1300 in 30 days. The defendant delivered
all three items to Mr. Zayshley and paid him 1200; had not been paid the remaining 1300. Shortly after the
defendant acquired the van/cleaning unit, defendant said cleaning unit was not operational – Mr. Zayshley had
said that van and unit were operational. Defendant was suspicious and hired lawyer who concluded that there
were liens against the van. Defendant took this to conclude that the deal was dead (believed the K to be null and
void ) – he went to Mr. Zyshley’s home and picked up the trailer that was part of consideration for the van. He then
advertised the trailer for sale and sold it. The police arranged to have the trailer returned to Mr. Zayshley and
charged the defendant with theft.

Issue: did the Provincial Court judge err in his interpretation of the phrase “without colour of right” in s. 322 of the
CCC and in his application of the law embodied by that phrase to the facts of this case?
Held: Yes – colour of right defence available here. New trial directed.

Analysis: The trial judge neither properly interpreted the phrase “without colour of right” nor properly applied the
law embodied by that phrase to the facts of this case. The actus reus of the offence charged was the taking by the
defendant of the trailer. For mens rea, Crown needed to prove:
1) A fraudulent intent on the part of the defendant at the time of the taking of the trailer;
2) An absence of any colour of right asserted by the defendant; and
3) An intent on the part of the defendant to deprive, temporarily or absolutely, the owner, Mr. Z,
of the trailer
 NOTE: focus here was on the second of these requirements and made no reference to the first or third

R v DeMarco, 1973, stated that the term colour of right refers to a situation where there is an assertion of a
proprietary or possessory right to the thing which is the subject matter of the alleged theft - One who is honestly
asserting what he believes to be an honest claim cannot be said to act “without colour of right”. Term “colour of
right” is also used to denote an honest belief in a state of fact which, if actually existed would at law justify or
excuse the act done

A colour of right can have its basis in either a mistake of civil law or a mistake in a state of facts. The mistake in
each case must give rise to either an honest belief in a proprietary or possessory right to the thing which is the
subject matter of the alleged theft or an honest belief in the state of facts which if actually existed would at law
justify or excuse the act done. Colour of Right is a specific defence to a couple of crimes - Big one is theft – s. 322,
also Part 11 of the Code it creates Colour of Right for a specific list of itemized defences. Colour of right is a form of
claim to ownership - it is a belief that you have some kind of legal entitlement to whatever the thing is.
Trial judge erred when he found that a colour of right can have a basis only in a mistake in a state of facts (he
didn’t acknowledge mistake of law). The accused has a mistaken belief in the status of these things.

Ratio: Mistake of fact is always a defence where mistake of fact can negate the mens rea. When the Code
suggests that colour of right can provide a defence, it may be used.
 Colour of Right Defence: A mistake that gives rise to either an honest belief in a proprietary or possessory right
to the thing which is the subject matter of the alleged theft, OR an honest belief in the state of facts which if
actually existed would at law justify or excuse the act done - can have its basis in either a mistake of civil law or a
mistake in a state of facts.
-Where there is an honest belief in a proprietary right in something, that if true, would negate the
criminal offence
 Mistake does NOT have to be reasonable, it just has to be honest
 Think about this if there is a property crime!
  Color or right (Dorosh):
o can be honest mistake as to facts or honest mistaken belief in a legal right or claim to a thing
(usually property), even if unfounded in law or in fact (DeMarco, 1973, Ont CA)
 Need not be reasonably held – goes to credibility
o Part of the mens rea when part of the offence
 Seems like the crown must only prove it beyond a reasonable doubt when there is an air
of reality to the defense

THREE CONDITIONS TO APPLICATION OF COLOUR OF RIGHT DEFENCE:

1. Accused must be mistaken as to state of a law or legal right, not a moral right
2. That law or legal right if existed would provide a legal justification or excuse
3. The mistaken belief must be honestly held
 Reasonableness goes to credibility assessment

Must be a legal right, cannot be an honestly belief in a moral right to the property (Drainville)
 “moral convictions though deeply and honestly held cannot transform illegal actions into legal actions;
only the “rule of law” must prevail”

R V SIMPSON (2015) (SCC) (PARAS 1-6; 29-35)

Facts: Simpson and Farrell had a lease for an apartment on the second floor of the building, but were
given eviction on Nov. 10, 2010. Landlord found that respondents had vacated apartment, but believed
that they had relocated to the commercial units on the ground floor (had been evicted but continued to
live there). If ground floor was being used as residence, this would be in contravention of municipal
bylaws. Inspection took place on Feb. 1, 2011. Shortly after police entered building, Farrell exited
through another door. Found Simpson living inside. Respondents were both arrested for assault. Police
discovered ecstasy and methamphetamine on their arrests. Respondents argued colour of right because the
landlords father had said they could live there.
Issue: Was there an air of reality to the colour of right defense?
Held: No. allow appeal, set aside acquittals and order a new trial on the charges.
Analysis: Trial judge found that there was an air of reality to the respondents’ colour of right defense and
the Crown failed to disprove it – the respondents were acquitted on breaking and entering charges. CA
saw no reason to interfere with trial judge’s finding.
BUT TJ’s finding that there was air of reality to the colour of right defence is tainted by her improper reliance on
evidence that did not support the existence of a colour of right. To put the defense of colour of right into play, an
accused bears the onus of showing that there is an ‘air of reality’ to the asserted defence - whether there is some
evidence upon which a trier of fact, properly instructed and acting reasonably, could be left in a state of reasonable
doubt about colour of right. Once the hurdle is met, burden falls on the Crown to disprove a defence beyond a
reasonable doubt

The TJ relied on 2 pieces of evidence for colour of right defence: 1) Possibility that father of landlord gave
respondents permission to live in commercial space; and 2) evidence that respondents had been lured into
agreement of business under false pretenses. Only evidence they had regarding landlords father is the son’s
concession that it was possible that the grandfather made this statement - this isn’t enough evidence to make the
colour of right defence (not sufficiently probative that there was enough evidence). There was no air of reality

Ratio: Colour of right requires an air of reality - “there is some evidence upon which a trier of fact, properly
instructed and acting reasonably, could be left in a state of reasonable doubt about colour of right” (para. 32);
requires some evidence (as do ALL affirmative defences)
here – can’t prove that it wasn’t true but couldn’t prove that it was true - this was more of a speculation by
defense counsel that was ultimately not adopted by the witness.
 Approves of DeMarco
 Defence “appears” to apply to other property related offences such as break and enter
(Break enter and theft or mischief)

LEVIS V TETRAULT (2006) (SCC)

 officially induced error of law
Facts: Accused charged with driving a commercial motor vehicle without valid driver’s license contrary
to s. 93.1 of Highway Safety Code. Accused raised defense of due diligence, saying he was unaware that
the date appearing on his license was the date of expiry and not the date of payment. He was supposed to
get a reminder in the mail but it never arrived. At SCC, found that the offences were strict liability but
due diligence had not been established. Accused wanted to rely on defense of officially induced error.
Issue: Can accused rely on officially induced error as a defense?
Held: No.
Rule: Defense of officially induced error is a valid defense, but ignorance of the law is no defence. The
inflexibility of this rule (ignorance of law) is cause for concern where the error in law of the accused
arises out of an error of an authorized representative of the state and the state then demands that the
criminal law be applied strictly to punish the conduct of the accused
In R v Jorgenson, the court proposed to recognize the defence of officially induced error and attempted to define
the conditions under which the defence would be allowed. Defence constituted a limited but necessary exception
to the rule that ignorance of the law cannot excuse the commission of a criminal offence.

KEY TEST: To use this defence, accused must prove 6 elements

1. That an error of law or of mixed law and fact was made
2. That the person who committed the act considered the legal consequences of his/her actions - active
engagement on part of the accused
3. That the advice obtained came from an appropriate official
4. That the advice was reasonable - this is an objective element
5. That the advice was erroneous, and
6. That the person relied on the advice in committing the act (causation element here)

Other factors will be taken into consideration, including the efforts made by the accused to obtain the information,
the clarity or obscurity of the law, the position and role of the official who gave the information or opinion, and the
clarity, definitiveness and reasonableness of the information or opinion.
Analysis: In this case, all the elements of officially induced error have NOT been met. Both accused had
been passive rather than inquiring to determine their legal obligations - did not go out and receive advice.
They were also aware of when the registration fees were due. They failed to meet 2 of the 6 elements
(number 2 & number 6).

Ratio:
TEST: To use defence of officially induced error, accused must prove 6 elements
1. That an error of law or of mixed law and fact was made
2. That the person who committed the act considered the legal consequences of his/her actions - active
engagement on part of the accused
3. That the advice obtained came from an appropriate official (up to the Judges discretion)
 Authorized representatives of the state- Levis
 Pea case- not include duty counsel – think of the refuse to blow example
4. That the advice was objectively reasonable - this is an objective element
5. That the advice was erroneous, and
 This is different than Campbell because that case involved an intermediary – can’t rely on the advice of the
intermediary (somebody who is stating the law vs somebody who is implementing the law). If she had relied on the
actual court case rather than her manager’s word, her situation could have been different. Here, the source of
advise is the official entity that is now charging them - more precise relationship between government entity and
the accused.

Effect of the Defence:

 Act contrary to law but due to circumstances should not be held liable
 Excuse & accused entitled to judicial stay not acquittal
 Stay given only in the “clearest of cases”

Objective Reasonabless Factors:

 Advice and reliance on advice must be objectively reasonable (reasonable person in circumstances of
accused)
Factors:
o Efforts by accused to obtain info
o Clarity or obscurity of law
o Position or role of official giving opinion/advice
o Definitiveness, clarity of opinion

Does enforcement matter?

 failure of government to enforce the law in the past does not give rise to the defense of officially induced
error – Shiner

Burden of Proof
Accused/defendant to prove on balance of probabilities
MENTAL CAPACITY ISSUES
• Is this person capable of forming an intent and committing the voluntary acts.
• It is before even getting to AR or MR.
Presumption
• Legal presumption of mental capacity:
o Voluntary & product of conscious choice.
o Cognitive capacity and operating mind.
Mental Capacity Defence
• Treated differently than standard voluntariness or MR defences
o Accused may be at fault for the condition – intoxication or non-mental disorder automatism
o Possible contributing danger.
Fitness to stand trial
• Possible mental disorder continuing at time of trial or accused becomes mentally unfit.
• s. 672.23: court or party can raise fitness.
• Presumed fit – must prove on balance of probabilities – s. 672.22.
Unfit to Stand Trial
• Means unable on account of mental disorder to conduct a defence at any stage of the proceedings before
a verdict is rendered or to instruct counsel to do so and in particular unable on account of the metnal
disorder to
o understand the nature or object of the proceedings,
o understand the possible consequences of the proceedings,
o communicate with counsel.
Can the Crown raise NCR over the objections of the accused?
• Crown can raise it, but only after a verdict of guilty but not convicted.
o The Crown has to prove the crime beyond a reasonable doubt.
o Only if the accused puts mental capacity into question, Crown is entitled to lead evidence of NCR.
• May not want to raise NCR if it is an offence that is not very serious.
o If they are found NCR they could spend years in a mental health facility.
M’Naughten’s Rules 1843
• At time of offence accused “labouring under such a defect of reason, from disease of the mind, as not to
know the nature and quality of the act he was doing: or, if he did know if, that he did not know he was
doing what was wrong.

MENTAL DISORDER
S.2 defines  Mental disorder means a disease of the mind.
Note: If you can’t prove mental disorder to the level that is required under s.16 it is still possible it can raise a
doubt towards mens rea (Swain).
• Important where there is the high level MR such as murder etc.
• Can be used to determine whether it is planned and deliberate (Jaquard).

• Step One: Disease of the mind.

o Quite broad and generally easily satisfied.
 Question of law, question of mixed law and fact, then question of fact (Stone)  Stone
says precedent fails to apply whole legal test required
 Step 1 has 3 questions:
 Question of Law by Trial Judge: What mental conditions are included in disease
of the mind  may consider psychiatric evidence but not bound by it
 Question of Mixed Law and Fact by Trial Judge: whether the condition of the
accused satisfies the legal test of disease of the mind  assess evidence on
issue and apply Stone criteria. Aka. Evidence accused fits the test.
  Question of Fact by Trier of Fact (Jury): whether the accused actually suffered
from a disease of the mind at the time of the offence.

COOPER V R
Facts: The accused was charged with murder of a patient at a psychiatric facility. After an unsuccessful attempt to
have intercourse, the accused strangled the deceased.
Issue: What is disease of the mind and how is it applied?
Rule:
 The accused is not legally responsible for acts resulting from mental disease or mental defect.
 The term disease of the mind is a legal concept, although it includes a medical component, and what is
meant by that term is a question of law for the judge.
o It is for the psychiatrist to describe the accused’s mental condition and how it is considered from
the medical point of view.
o It is for the judge to decide whether the condition described is comprehended by the term
“disease of the mind”.
o If there is evidence that the accused did suffer from such a disease, in legal terms, the question
of fact must be left with the jury (Rabey).
 Personality disorder has been recognized as being capable of constituting a disease of the mind  no
reason to give a narrow or limited interpretation of the term (Simpson).
 Dickson J: “any illness, disorder or abnormal condition which impairs the human mind and its functioning,
excluding however, self-induced states caused by alcohol or drugs, as well as transitory mental states
such as hysteria or concussion” (but hysteria and concussion attributes to voluntariness).
 In order to support a defence of insanity, the disease must, of course, be of such intensity as to render the
accused incapable of appreciating the nature and quality if the violent act or of knowing that it was
wrong.
 Section 16 – “appreciating the. nature and quality of the act or omission.”
o Significant difference between know/knowledge and appreciate.
 o To appreciate involves an estimation and understanding of the consequences of that act.
o Ex. Accused may have known the nature and quality of the physical act of choking, but it is
different to suggest that in chocking he was able to appreciate its nature and quality in the sense
of being aware it could lead to her death.
o Need to have more than knowledge of the act, but a capacity to appreciate the nature of the act,
and its consequences.
o Was the accused person, by reason of disease of the mind, deprived of the mental capacity to
foresee and measure the consequences of the act? (Schwartz)
o S. 16 exempts from liability an accused who, due to disease of the mind, has no real
understanding of the nature, character, and consequences of the act at the time of its
commission (Simpson).
o Appreciating imports additional requirement to mere knowledge of the physical quality of the act
– it requires a an ability to perceive the consequences, impact and results of a physical act.
Incapable of APPRECIATING the nature and quality of the act (Cooper).
 Appreciate vs know
 Knowledge is not the same as appreciation.
 Capacity to measure and foresee those consequences.
 Pg. 792
 Appreciate – nature and quality that it would lead to death.
 Know – know that he is choking her but not appreciate that it would lead to her death.
 Need more than knowing or recognizing the commission of the act
 Emotional and intellectual awareness.
 “perceive the full force of”
 “estimation and understanding”/ “measure and foresee” the nature and consequences of the act

Appreciate Definition
 Appreciate = perceive the “consequences, impact and results” of a physical act – Cooper
 Physical consequences not lack of emotional feelings as in psychopathy – Kjeldsen, 1981, SCC
 Not appreciate if it had moral consequences or was morally wrong (2nd prong)
 The fact that he can’t experience emotions has nothing to do with the first prong.
Someone who lacks remorse or guilt still can appreciate the nature and quality of the
act and is not exempted from the charges under s. 16.
 Does not include inability to appreciate the penal consequences – Abbey, 1982, SCC
Incapable of Knowing that the Act is morally wrong.
 Chaulk, 1990, SCC:
o Incapable of knowing the act was morally wrong, even if capable of knowing act was legally
wrong – Lamer CJ for majority.
o About CAPACITY to know that you are doing something morally wrong.
 Morally wrong not on personal standards but societal standards.
 Having regard to the everyday standards of reasonable people: R. v. Oommen, SCC, 1994
 BOTTOM LINE – Capacity to know and make a choice
 not NCR, even if he believed that he had no choice but to act, or that his acts were justified
 Dobson
o An accused who, through the distorted lens of his mental illness, sees his conduct as justified,
not only according to his own view, but also according to the norms of society, lacks the
capacity to know that his act is wrong.
o Similarly, an accused who, on account of mental disorder, lacks the capacity to assess the
wrongness of his conduct against societal norms lacks the capacity to know his act is wrong and
is entitled to an NCR defence.
 o Not just the persons own moral code – has to render them incapable of making the choice
necessary to act in accordance with societal standards.

KJELDSEN 1981 SCC

Rule:
 Emotional disturbance caused by disease of the mind may be so severe as to deprive the accused of the
use of his understanding at the time of the act, rendering him incapable of appreciating the nature and
quality of the act or of knowing it was wrong and thus exempting him from liability under s. 16(2) of the
code (Simpson).
 Exemption does not extend to one who has the necessary understanding of the nature, quality, and
consequences of the act, but merely lacks appropriate feelings for the victim or lacks feelings of remorse
or guilt for what he has done, even though the lack of such feelings stems from ‘disease of the mind’.
STEP TWO: MENTAL
DISORDER RENDERED THE
PERSON INCAPABLE OF

KNOWING THE
APPRECIATING THE NATURE AND ACT WAS
QUALITY OF THE ACT WRONG

PERCEIVE
PHYSICAL LEGAL
CONSEQUE NOT AND/OR
NCESIMPAC MORAL MORALLY
T & RESULTS WRONG

R V CHAULK 1990 SCC

Rule:
 In considering the capacity of a person to know when an act is wrong – the inquiry cannot terminate with
the discovery that the accused knew that the act was contrary to the formal law – a person may be well
aware that the act is illegal, but by reason of disease of the mind, is incapable of knowing the act is
morally wrong in the circumstances according to the moral standards of society.
o Ex. Knows its illegal to kill but kills in the belief that it is in response to a divine order.
 Under s. 16(1) - The focus is not on general capacity to know right from wrong but rather on the ability to
know that a particular act was wrong in the circumstances.
o Does the accused have the capacity present in the ordinary person to know that the act was
wrong having regard to everyday standards of the ordinary person?

R V CHAMPIONE 2015 SCC

Facts:
 The accused was a young woman with a history of mental illness who killed her two young children by
drowning them. She placed them in bed with rosary beads around their interlocked hands and then tried
to kill herself. At trial she raised s. 16 unsuccessfully and was convicted of two counts of first-degree
murder.
 Claimed the killings were an altruistic act by her driven by her psychotic delusions and she believed the
only way to save her children was to send them to heaven where they would be safe. Crown’s theory was
that the killings were acts of vengeance against her estranged husband and family in the middle of a
custody battle.
  She was capable of appreciating the nature and quality of her acts, and she understood the killings were
legally wrong – question of whether she had the capacity to understand the acts were morally wrong.
Issue: Whether the accused was incapable of knowing that her acts were morally wrong.
Rule:
 Focus, per Chaulk is on whether the accused is deprived – by reason of mental disorder – of the capacity
to know that the particular act is right or wrong having regard to the everyday standards of reasonable
people.
 Moral wrongfulness is a subjective test – an accused who honestly believes that his or her actions are
morally justifiable in line with normal standards, still qualifies for NCR no matter how unreasonable that
belief may be.
o The appellants honest belief is not measured against what a reasonable person, suffering the
same delusions, would have done in the circumstances, but “whether the accuses delusions so
affected her perception of reality that she honestly believed killing was the right thing to do,
according to societal standards.”
 A subjective, but honest belief in the justifiability is not enough to ground an NCR defence, because the
accused’s personal sense of justifiability is not sufficient. The mental disorder must render the accused
incapable of knowing that the acts in question are morally wrong as measured against societal standards.

MENTAL DISORDER NEGATIVING MENS REA

 Common law rule that the only allows the Crown to independently raise the issue of insanity after the
trier of fact had concluded that the accused was guilty otherwise  after finding of guilt but before
conviction.
 The Crown can adduce evidence of insanity during trial, only if the accused had put his or her mental state
in issue.
o Evidence of mental disorder short of a full-blown defence under s. 16 may be admitted on the
issue of Mens Rea.

R V STONE 1999 SCC

Rule:
 The question of what mental conditions are included in the term disease of the mind is a question of law.
 TJ must also determine whether the condition the accused claims to have suffered from satisfies the legal
test for disease of the mind.
o This involves an assessment of the particular evidence in the case rather than a general principle
of law and is a question of mixed law and fact (Southam).
 The question of whether the accused in fact suffered from a disease of the mind is a question of fact to be
determined by the trier of fact.
 Only rare cases that automatism is not caused by mental disorder.
o Rule that TJ starts from the proposition that the condition the accused claims to have suffered
from results from a disease of the mind – then they determine if the evidence takes the
condition out of the disease of the mind category.
 Holistic approach to disease of the mind inquiry – informed by the internal cause factor, the continuing
danger factor, and policy concerns.
o Rather than looking at whether the accused is likely to exhibit violent behaviour if they were to
encounter the alleged trigger again, the more appropriate question to ask is whether the alleged
trigger is likely to recur.
 No way of predicting whether violence will actually occur.
 The likelihood of recurrence of the circumstances which are alleged to have given rise to
the automatism is more easily predicted.
 o There may be cases where consideration of the internal cause and continuing danger factors
alone do not permit a conclusive answer to the disease of mind question – accordingly a holistic
approach permits judges to consider other policy concerns.
 Any such policy concern can be considered by the TJ to determine if the condition the
accused claims to have suffered from is a disease of the minf.
 Policy helps judges answer question of whether society requires protection from the
accused and, consequently, whether the accused should be subject to evaluation under
the regime contained in the Code.
Transitory states:
 Most important when dealing with self-induced intoxication such as drugs and alcohol
 Tend not to find mental disorder in those circumstances – Bouchard-Lebrun
 Connected to recurrence
 One-time mental states due to external factors – automatism or “extraordinary external events”
 Also includes not permanent mental condition like hysteria or concussion
Disease of the Mind Bottom Line:
 Legal finding not medical
 Broad: “evolving with the advance of medical knowledge” – Simpson, Ont CA
 Includes mental disorders which have organic or physical causes and purely functional disorders which
have no physical cause
 Only first step in s.16 determination
Examples of Disease of the Mind:
 These are not precedent – they still have to go through the process.
 Congenital brain damage
 Fetal alcohol syndrome
 Permanent conditions due to alcohol or drugs such as delirium tremens (alcohol withdrawal) and cocaine
toxic psychosis
 Psychopathy (Simpson, Ont CA) – usually first step only
 Diabetic coma may if internal
 Psychomotor epilepsy
 episodic dyscontrol
 Sever mental disabilities
 Epilepsy
 Arteriosclerosis (UK)
Examples: NOT disease of the mind:
 Sleepwalking (even though internal cause) – sometimes a sexual offence during sleepwalking has been
considered a mental disorder.
 Transitory states
 Extraordinary external events –witnessing or being involved in a traumatic event
 Diabetic coma caused by not taking insulin/not eating (external)

LESANN (2014)
Facts: He killed the victim thinking she was Satan and stabbed her. Stabbing her was right, it was only her or me.
First step: IS this a disease of the mind? Question of law, medical component, but applying cooper and other
factors.
 The root cause – if it is self-induced intoxication we might have a problem
 Public policy – what kind of factors go into it.
o Was he drinking? Does that matter?
o Is chronic alcoholism a disease of the mind?
 o Is it for this person?
o Is prison effective?
 Check one works
Step Two: is he capable or incapable as part of that mental disorder to appreciate or not appreciate the mental
quality.
 He made a statement that it was clear, so not prong one.
 Prong two -

AUTOMATISM
Automatism = involuntary conduct that is the product of a mental state in which the conscious mind is
disassociated from the part of the mind that controls action.
 This is a legal definition; cannot be proven conclusively through psych testimony of any kind.
 Key is involuntariness.
 The burden is on the accused (to show automatistic state) by a balance of probabilities.
 Unlike intoxication and mental disorder, when we’re talking about automatism, we are talking about a
sub-set of VOLUNTARINESS.
o “very rare” “one- off cases” (Luedecke).
What is Automatism?
• a “state of impaired consciousness” where accused has no control over actions – Rabey.
• “one specific kind of involuntary action” Luedecke.
• Dissociative state (Luedecke, p. 829):
 Denial of the commission of the actus reus.
 but involuntary acts due to mental disorder is s. 16.
• Not a “synonym for voluntariness” (R v Fontaine, 2017 SKCA)
 i.e. does not include reflex actions

Mental Disorder v Non-mental Disorder Automatism:

• Mental disorder automatism:
 Impaired consciousness is caused (Luedecke) by a mental disorder.
 Then must determine if the accused should be found NCR.
OR
• Non-mental disorder automatism:
 caused by something other than MD (i.e. concussion).
 Leads to acquittal
 Broader definition of mental disorder, the narrower the range of non-mental disorder
automatism.
 Automatism is rare (Stone and Luedecke).
Chronology of Automatism Defence
1. Accused asserts automatism defence to negate voluntariness of actus reus
2. Judge determines whether there is air of reality to defence (can accused adduce some evidence of
automatism)
o Air of reality = Accused can show some evidence
3. If yes, judge must use Stone test to determine what kind of automatism to leave with factfinder:
 o Presumption of NCR under s. 16 ("insane automatism")  if accepted by factfinder on balance-
of-probabilities standard, results in s. 672.54 hearing/possible civil incarceration
o If Stone test met, court may instead instruct on "sane" automatism  if accepted by factfinder
on balance-of-probabilities standard, results in acquittal
 UNLESS sane automatism is caused by voluntary intoxication. In which case s. 33.1 bars
defence in cases of violent crime
  use this order of operations when considering automatism
2 step approach to Automatism
1. Evidential foundation or “air of reality”:
• Stone at page 838: Evidential burden 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
balance of probabilities”
• Basis for the “air of reality”
• assertion that accused acted involuntarily, and
• support that assertion with confirming evidence of a qualified psychiatric expert, and
• “all other available evidence”
• What kind of “other” evidence can satisfy evidential burden?
• 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
• Evidential burden requires weighing?
• 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 balance of probabilities” (Stone p. 839)
2. Mental disorder or non- mental disorder
• 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 whether mental disorder automatism or non-
mental disorder automatism left with the jury.
• This is a question of law and a question of mixed law & fact
• Begin with the premise that disease of the mind – mental disorder.
• Determine whether or not the facts take the matter outside of mental disorder
• Is it a mental disorder?
• Review the evidence further to the “holistic” approach
• Cooper definition.
• Continuing danger: risk of recurrence of the factors that triggered the automatic state
Luedecke.
• Internal vs external causes and
• policy considerations.
• Or is it outside of a mental disorder?
• “determine whether a normal person might have reacted to the alleged trigger by
entering an automatistic state as the accused claims to have done.”
• contextual objective test.
• Mental Disorder or non-mental disorder automatism
• Once Trial Judge decides then trier of fact is instructed on either the non – mental
disorder automatism or mental disorder based on s.16
 3. Instruction on Automatism to Jury
• 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)- these factors aren’t closed.
1. The severity of the triggering stimulus;
2. Evidence of bystanders;
3. Medical history of automatic-like dissociative states;
4. Evidence of a motive for the crime; and
5. Whether the person who allegedly triggered the automatism is also
the victim.
• (The second question should be posed only if there is evidence that the accused foresaw or
should have foreseen that s/he would enter a state of automatism.)
 2.   Did the accused foresee or should s/he have foreseen that s/he 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.

R V STONE 1999 SCC

Facts:
 Husband got in a fight with his wife, and then felt a “wooshing” sensation.
 When he awoke, he saw his wife slumped over and knew she was dead – he had a hunting knife in his
hand.
 He hid her body, sold a car, and fled to Mexico.
 In Mexico he remembered stabbing his wife twice in the chest and then returned to Canada and
surrendered to police.
 He claimed insane automatism, non-insane automatism, lack of intent, provocation.
 TJ charged the jury on insane automatism, intention in relation to second degree murder, and
provocation.
 Found guilty of manslaughter at trial.
Issue: Whether sane automatism should have been left with the jury? How can the accused demonstrate that
mere words caused him to enter an automatistic state such that his actions were involuntary and thus do not
attract criminal law sanction?
Rule:
 Fundamental principle that only voluntary actions will attract findings of guilt (Rabey).
o Voluntariness requirement is a principle of fundamental justice protected by s. 7 and s. 11(d) of
the Charter (Davieault).
 Automatism is a subset of the voluntariness requirement which is part of the AR requirement.
 Defence of automatism amounts to a denial if the voluntariness component of the AR.
 Accused must rebut the presumption of voluntariness.
o Historically an accused claiming automatism need only raise evidence sufficient to raise a
reasonable doubt as to voluntariness to rebut the presumption of voluntariness and then the
crown has to prove it BARD  stone changes that for automatism.
o Presumption because genuine cases of automatism are rare and it would be an onerous burden
to put on the Crown.
 Legal burden in cases involving claims of automatism must be on the defence to prove involuntariness on
a balance of probabilities to the trier of fact.
 o Although this limits 11(d) rights, it is justified under s. 01.
 To satisfy the evidentiary burden in cases involving claims of automatism, the defence must make the
assertion of involuntariness and call expert psychiatric or psychological evidence confirming the assertion.
o Burden is only met when the trial judge concludes that there is evidence upon which a properly
instructed jury could find that the accused acted involuntarily on a balance of probabilities.
 TJ will examine expert evidence and inquire into the foundation and nature of expert
opinion.
 TJ will examine other evidence including severity of triggering stimulus, corroborating
evidence of bystanders, corroborating medical history of automatistic-like disassociated
states, whether there is evidence of motive for the crime, and whether the alleged
trigger of automatism is also the victim of automatism  no single factor is
determinative.
o Discretion of TJ to weigh all 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 balance of
probabilities.
 The question of what mental conditions are included in the term disease of the mind is a question of law.
 TJ must also determine whether the condition the accused claims to have suffered from satisfies the legal
test for disease of the mind.
o This involves an assessment of the particular evidence in the case rather than a general principle
of law and is a question of mixed law and fact (Southam).
 The question of whether the accused in fact suffered from a disease of the mind is a question of fact to
be determined by the trier of fact.
 Only rare cases that automatism is not caused by mental disorder.
o Rule that TJ starts from the proposition that the condition the accused claims to have suffered
from results from a disease of the mind – then they determine if the evidence takes the
condition out of the disease of the mind category.
 Holistic approach to disease of the mind inquiry – informed by the internal cause factor, the continuing
danger factor, and policy concerns.
o Rather than looking at whether the accused is likely to exhibit violent behaviour if they were to
encounter the alleged trigger again, the more appropriate question to ask is whether the alleged
trigger is likely to recur.
 No way of predicting whether violence will actually occur.
 The likelihood of recurrence of the circumstances which are alleged to have given rise to
the automatism is more easily predicted.
o There may be cases where consideration of the internal cause and continuing danger factors
alone do not permit a conclusive answer to the disease of mind question – accordingly a holistic
approach permits judges to consider other policy concerns.
 Any such policy concern can be considered by the TJ to determine if the condition the
accused claims to have suffered from is a disease of the mind.
 Policy helps judges answer question of whether society requires protection from the
accused and, consequently, whether the accused should be subject to evaluation under
the regime contained in the Code.
 Ratio:
 There is a presumption of voluntariness (that peoples’ actions are done voluntarily).
o automatism is when a person lacks this voluntariness (cant establish actus reus).
o Accused has the legal burden to prove, on a balance of probabilities, an involuntary act
from non-mental disorder automatism.
o Legal burden on accused because of presumption of voluntariness  because genuine
cases of automatism are rare and would be onerous burden to put on Crown to prove
BARD.
o Balance of Probabilities because evidentiary burden on accused limits 11(d) rights, but is
justified under s. 01  because can be easily feigned and all knowledge rests with the
accused BoP is necessary rather than raising reasonable doubt.
 Defence of mental disorder automatism will result in a verdict of not criminally responsible on
account of mental disorder under s. 672.34 of the CCC - may be discharged absolutely, conditionally
or detained in the hospital -presumption that you start here
o TJ to look for evidence to determine whether it convinces them that the condition is not a
“disease of the mind”
 Defence of non-mental disorder automatism will always result in an absolute acquittal.
TEST to decide if we should be instructing about mental disorder automatism or sane automatism (“holistic
approach”):
1) “internal cause” – does the psychiatric evidence suggest that a normal person, not suffering
from a disease of the mind, would have been susceptible to such a state? Usually relevant in
cases involving a “psychological blow.”
a) If yes = potentially sane automatism
b) If no = likely mental disorder automatism
2) “continuing danger” – does the state of mind pose a continuing threat to others, beyond
the will of the accused, more likely to be characterized as mental disorder? Is there a risk of
recurrence of the factors or events that triggered the automatistic state?
a) If yes = likely mental disorder automatism
b) If no = potentially sane automatism
3) “Policy factors” – helps judges answer question of whether society requires protection from
the accused and, consequently, whether the accused should be subject to evaluation under
the regime in section xx.i of the Code.
Evidence of sane automatism:
 Expert testimony – someone who has examined client specifically or speak to the effects of someone
in that state more generally
 Bystanders
 Blood alcohol
 Absence of motive – someone doing something totally out of character
 Post-crime behaviour – e.g. fleeing the country isn’t a good move
 Prior history of a certain condition – lends to mental disorder automatism

R V LUEDECKE (843 – 848, 853 (STOP AT 93 AND THEN 115 – 118)).

Facts:
 A girl woke up at a party to a guy having intercourse with her.
 He looked dazed and grabbed her belongings.
 When she went back to retrieve her keys he was still standing in the living room.
 When she asked who he was he identified himself as “jan”.
  The accused said that he had been drinking and eating magic mushrooms the day before.
 He had had a lot to drink at the party and hadn’t slept from the night before.
 The next thing he remembered was being pushed off the couch by a woman.
 He drove home, fell asleep, woke up and realized he was wearing a condom.
 He fell asleep and woke up again with a vague recollection of what had happened.
 He advanced the defence of non-insane automatism.
 The defence sleep expert diagnosed the accused with parasomnia and the accused testified that there
had been four previous occasions where “sexsomnia” had occurred.
 The defence expert testified that physical activity, sleep deprivation, alcohol, and stress increase the
likelihood of triggering an episode.
 There is no cure, but it can be limited with good sleep habits, limiting alcohol consumption, and
medication.
 The Crown argued that this was not in a state of automatism when he removed the clothes, put on the
condom, and sexually assaulted the complainant.
 Accused was acquitted at trial.
Issue: Was there evidence of involuntary non-insane automatism?
Rule:
 Automatism is the legal term to describe one specific kind of involuntary action (Bratty).
 Automatism refers to involuntary conduct that is the product of a mental state in which the conscious
mind is disassociated from the part of the mind that controls action.
o A person in the state of automatism will perform acts, sometimes complicated and apparently
purposeful, but have no control over the actions.
o Many things incl. disease, mental illness, concussion, drugs, and parasomnia can cause
disassociated state.
o Cause of automatism is an important consideration in characterizing the nature of the
automatism.
 Not a defence in the true sense, but a denial of the Actus Reus.
o Absent the prohibited act, there can be no crime and hence no criminal liability.
 Not appropriate to convict people based on conduct of which they have no control
(Stone).
 Automatism claims, which by their nature assert that the accused acted while in an abnormal and
impaired mental state, inevitably bring into play the exemption to criminal liability created by s. 16 of the
Criminal Code.
o A person whose conduct is involuntary due to mental disorder falls exclusively under the insanity
defence (Stone).
o In this case an accused would will not be acquitted but will be found under NCRMD.
 The distinction between non-mental disorder automatism and mental disorder automatism depends on
whether the automatistic state is the product of a mental disorder  defined by s. 2 of Code “disease of
the mind” (legal not medical, carefully crafted with a view to a policy of controlling persons thought to be
dangerous – Rabey).
o Embraces any illness, disorder, or abnormal condition which impairs the human mind and its
functioning, excluding however, self-induced states caused by alcohol or drugs, as well as
transitionary mental states such as hysteria or concussion (Cooper).
 Only rare cases that automatism is not caused by mental disorder  always start with the presumption
that the condition constitutes disease of the mind and then TJ looks to evidence to determine whether
that presumption has been rebutted (Stone).
o Many argue that successful claims on non-mental automatism will be limited to those rare cases
where an accused suffers a single incident of automatism, and where the accused can point to
some specific external event that precipitated the event, can demonstrate that is likely not to
occur, and can show that the event could have produced a dissociated state in an otherwise
“normal” person.
  NCR-MD has stigma and in this case is not close to the accused’s state – labelling people with parasomnia
as mentally ill would ne inappropriate.
o Proper labelling is important to maintaining the integrity of the criminal justice process.
o Unfortunately this is the state of the law and in this case he was NCR-MD.

Ratio: Steps to determine non-mental disorder automatism (Luedecke)

1. Presumption that automatism is caused by mental disorder (accused bears burden of proving non-
mental automatism).
2. Holistic approach considers “internal cause” factor and “continuing danger” factor (from Stone)
3. Consideration of policy reasons: effectively, is this someone we want to set free without an
individualized inquiry into dangerousness?

R V BOUCHARD-LEBRUN (855 – 859 (STOP AT PARA 78)).

Facts:
 The accused and another man took pills and then, for real or imagined reasons, decided to beat up L
because he wore an upside-down cross.
 While they were beating up L, D stepped in to go to L’s aid.
 The accused and his friend threw D down the steps and stomped on his head, leaving him disabled.
 The TJ accepted evidence that the accused was suffering from toxic psychosis from the voluntary
consumption of the pills.
 He had never experienced a psychotic evidence before and was not an addict.
 TJ acquitted on B&E charges because of the state of extreme intoxication but convicted on assault
because the Code states there can be no defence of self-induced intoxication for an offence against the
bodily integrity of another person.
 Accused appealed on NCR-MD.
Issue: Whether a toxic psychosis caused exclusively by a single episode of intoxication constitutes a mental
disorder within the meaning of s. 16 of the Code?
Rule:
 Disease of the mind is, per the Criminal Code, a legal term with a medical dimension – whether a
particular mental condition can be characterized as a “mental disorder” is a question of law to be
determined by the TJ (not jury). TJ is thus not bound by medical evidence and can take into account policy
considerations or s. 16 analysis.
o Psychiatrist describes the accused mental condition from a medical point of view – TJ decides
whether the condition described is comprehended by the term “disease of the mind” – jury (or
trier of fact) to decide whether, on the facts, the accused was suffering from such a mental
disorder at the time of the offence (Simpson, Stone).
 When confronted with a difficult fact situation involving toxic psychosis that emerged while the accused
was intoxicated, the court should always start with the general principle that temp psychosis is covered by
the exclusion from Cooper.
o Dickson J: “any illness, disorder or abnormal condition which impairs the human mind and its
functioning, excluding however, self-induced states caused by alcohol or drugs, as well as
transitory mental states such as hysteria or concussion” (but hysteria and concussion attributes
to voluntariness).
o The accused can rebut the presumption by showing that, at the time, they were suffering from a
disease of the mind that was unrelated to the intoxication-related symptoms.
o Court must use the holistic approach from Stone to determine whether the mental state
constitutes a “mental disorder” under s. 16.
  Internal Cause Factor – the TJ must consider the nature of the trigger and determine whether a normal
person in the same circumstances might have reacted to it by entering into the automatistic state 
objective and based on psychiatric evidence.
o If a normal person is susceptible to the same state, the more justified the court is in finding that
the trigger is external and exclude it from scope of s. 16.
o Although the trigger associated with the internal cause factor involves a psychological blow,
there is no reason why it can’t consist of alcohol or drug use – what must be determined is what
state a normal person might have entered after consuming the same substances in the same
quantities as the accused.
o If a normal person might have also reacted in a similar way, it will be easier to find that the
mental disorder of the accused was purely external in origin and was not a disease of the mind
within the meaning of the Code.
 Continuing Danger Factor – directly related to the need to ensure public safety assessing likelihood of
recurring danger to others.
o Where a condition is likely to present a recurring danger, the more likely it is to be regarded as a
disease of the mind.
o Danger will be recurring only if it is likely to arise again independently of the exercise of the will
of the accused – a danger that might be voluntarily created by the accused in the future by
consuming drugs would not be the result of a mental disorder for the purposes of s. 16.
 Policy Concerns – Need to protect society from the accused through the special procedure set out in Part
XX.I of the Code.
o If a pre-existing condition of the accused does not require any particular treatment and is not a
threat to others, the court should more easily hold that the accused was not suffering from a
disease of the mind.
 Individualized analysis that takes into account the specific circumstances of each case.
Note: In the analysis of the case at bar, the fact that the psychosis went away at the same rate that the drug wore
off leant to a finding that it was drug induced and not due to the accused’s mental state  no DOM before the
crimes and none after.
 “not intended to apply to accused persons whose temp madness was induced artificially by a state of
intoxication.”

R V FONTAINE (861 – 864)

Facts:
 The accused was woken up by the complainant aggressively who grabbed his leg and asked him to leave.
 The accused got out of bed quickly and struck the complainant in the face and threw her on the bed.
 The complainant then punched the accused several times.
 TJ acquitted on the basis that the accused’s act was an automatic and unthinking response to being
punched.
 No evidence that the accused came to a state of alertness or consciousness, no words exchanged, and it
all happened in mere moments.
 Crown appealed on the basis that, per Stone, the accused bore the burden of proving he had struck the
complainant involuntarily in which case he was required to call expert evidence.
Issue: Did the accused lack the requisite AR by means of involuntariness?
Rule:
 Defence bears the burden of proving involuntariness on a balance of probabilities  must be an assertion
of involuntariness and confirming psychiatric evidence.
 Automatism is not a synonym for voluntariness.
o “state of impaired consciousness” – does not describe involuntary actions such as reflex
responses.
  Automatism is best seen as a particular sort of involuntary action – reflexes do not fall within the
category.
 Policy reasons for treating dissociative states where the accused does not know what he or she is doing
differently than involuntary actions that are the result of reflex.
o Automatism has special concerns because it is easily feigned and knowledge rests with the
accused. In addition, the characteristics and nature of dissociative states are well beyond the
ordinary experience of a judge and jury – important that the accused relies on expert evidence
and carries the burden to prove involuntariness.
o Reflex actions are a common part of human experience and something that will rarely arise in
criminal proceedings  can be understood without the need for expert evidence.
 Stone should not be read any more broadly because the onus is reversed.
 Stone is not aimed at ALL involuntary acts, included reflexive ones.

Ratio: An accused whose mental condition at the material time can be attributed exclusively to a state of
temporary self-induced intoxication and who poses no threat to others is not suffering from a mental disorder for
the purposes of s. 16 of the CCC – addicts might be able to make a s. 16 claim (sort of a “permanent disease of
the mind” – no cause law currently)

INTOXICATION
 The problem is that historically intoxication was not considered a defence because it would permit
offenders who commit serious criminal offences to escape criminal liability due to self-induced
intoxication.
o Strong public interest as to why intoxication has been an issue.
 But, if the accused is intoxicated, they may not actually have the blameworthy intent that is required
under the Criminal Code.
o They may not be acting voluntary – core concept in AR principles.
 In crimes where intoxication is an element of the offence, such as impaired driving, means intoxication
cannot be a defence.

R V DAVIAULT
 Court discusses intoxication as a defence to GENERAL intent defences.
Facts: The accused got really drunk and sexually assaulted a lady in a wheelchair. According to the expert, he might
have been in a state of ‘blackout.’ TJ acquitted because he had reasonable doubt as to whether the accused had
the minimal intent necessary. CA substituted a conviction on the basis that self-induced intoxication was not a
defence to sexual assault.
Issue: Can a state of drunkenness which is so extreme that an accused is in a condition that closely resembles
automatism or disease of the mind as defined in s. 16 constitute a basis for defending a crime which requires not a
specific but rather a general intent?
Held: Yes, but only in cases where the level of intoxication is extreme. Allow appeal and order new trial.
Rule:
 Leary rule is unconstitutional to the extent that it does not permit extreme intoxication to be a defence to
a general intent offence: Rule was  even in a situation where the level of intoxication reached by the
accused is sufficient to raise a reasonable doubt as to his capacity to form the minimal mental element
required for a general intent offence for which he is being tried, he still cannot be acquitted.
o Majority accepts the flexible approach from the Barnard decision.
 Self-induced intoxication is substituted for the mental element of a crime - the intentional act of the
accused to voluntarily become intoxicated is substituted for the intention to commit the sexual assault or
for the recklessness of the accused w/ regard to assault.
  The requisite mental element or mens rea cannot necessarily be inferred from the physical act or actus
reus when the very voluntariness or consciousness of that act may be put in question by the extreme
intoxication of the accused.
 The consumption of alcohol cannot lead inexorably to the conclusion that the accused possessed the
requisite mental element to commit a sexual assault (here, Crown can’t even show intent to the core
actus reus – not enough to infer mens rea for serious offences just from intention to get drunk).
 The defence of intoxication will only be put forward in rare circumstances of extreme intoxication for
general intent offences where it is shown to be akin to automatism or insanity.
 If the crown can’t show any time of intention and that the accused was in a state of automatism, then the
accused can use this defence b/c otherwise it’ll be a charter violation.
 Accused bears the burden of proving this on a balance of probabilities. Will require the testimony of an
expert.
Dissenting:
 To allow an accused who is not afflicted by a disease of the mind to plead absence of mens rea where he
has voluntarily caused himself to be incapable of mens rea would be to undermine and negate the
principle of moral responsibility which the requirement of mens rea is intended to give effect to.
 Punishment must be proportionate to the moral blameworthiness of the offender - those convicted of
sexual assault are rightfully submitted to a significant degree of moral condemnation.
 An act must be the voluntary act of an accused in order for the actus reus to exist, but the rules of
fundamental justice are satisfied by a showing that the drunken state was attained through the accused’s
own blameworthy conduct.
 Best course of action if for court to reaffirm the traditional rule that voluntary intoxication does not
constitute a defence to an offence of general intent.
 He has no sympathy for the voluntary intoxicant – would be to negate the principle of moral
responsibility that mens rea is meant to give effect to.
Note:
 In response to this case, Parliament passed s. 33.1(1) in CCC – cannot use any degree of intoxication as
defence in a general intent case if the offence in question is a bodily interference of some sort (Rule in
Daviault remains for non-bodily offences).
 ON EXAM: Respond to the question of s. 33.1 with a constitutionality question – both possible outcomes.
 In these cases, extreme intoxication, NCR, automatism  they straddle the line between MR and AR.

Ratio: The defence of intoxication will be put forward for GENERAL INTENT offences in rare circumstances of
EXTREME intoxication where it is shown to be akin to automatism or insanity.
 The Accused must bear the burden of establishing, on a BoP, that he was in an extreme state of
intoxication – requires testimony of an expert.
 This would mean the minimal mental element required by general intent offences had not been
established.
 To permit this RARE and limited offence is required so that the common law principles of intoxication
can comply with the Charter.
 Would not ‘open the floodgates’ as seen by studies in Australia and NZ.

R V DALEY
 Court discusses the three levels of intoxication and where they may be a defence.
Analysis:
 Our case law suggests there are three relevant levels of intoxication:
 o Mild Intoxication:
 where there is alcohol-induced relaxation of both inhibitions and socially acceptable
behaviour.
 Never been accepted as a factor or excuse in determining whether the accused
possessed the requisite mens rea (Daviault). - NOT a defence to ANY offence.
o 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 his or her act
sufficient to raise reasonable doubt about the requisite mens rea – capacity to create
that ulterior motive (Robinson).
 Only specific intent offences.
 The extent of the intoxication required to advance a successful intoxication
defence may vary, depending on the type of offence involved – ex. in a case
where an accused points a shotgun within a few inches of someone’s head and
pulls the trigger, it is difficult to conceive of a successful intoxication defence
unless the accused was so drunk they lacked the intention to kill.
o Extreme Intoxication:
 akin to automatism, which 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.
 Such a defence is extremely rare - high evidentiary burden on accused, proven
on a balance of probabilities and limited to non-violent types of offences (as
per s. 33.1).
 Example – an accused charged with a property offence can plead extreme
intoxication.

Ratio: Degrees of intoxication:

1) Mild – NOT a defence to anything (Daviault).
2) Advanced – defence to SPECIFIC intent offences (Robinson).
3) Extreme – defence to NON-VIOLENT (per s. 33.1) GENERAL and SPECIFIC intent offence. Involuntary
conduct.

R V BOUCHARD-LEBRUN
 Court discusses s. 33.1 limitation on defence of extreme intoxication and applies it to a case involving a violent
crime.
Analysis:
 S. 33.1 applies when three conditions have been met (Vikberg, Chaulk):
o 1. The accused was intoxicated at the material time.
o 2. The intoxication was self-induced.
o 3. The accused departed from the standard of reasonable care generally recognized in Canadian
society by interfering with or threatening the bodily integrity of another person.
 Self-induced intoxication is limited in time and corresponds to the period during which the substance
consumed by the accused produced its effects.
 Intended to prevent the accused from avoiding criminal liability on the basis that they lacked the required
mental element or the voluntariness required to commit the offence.
  Applies to ANY mental condition that is a direct extension of a state of intoxication – no threshold beyond
which s. 33.1 does not apply.
 If the root cause is intoxication, than s. 33.1 is going to apply.
o BUT in Turcotte – the court suggested that self-induced intoxication does not in itself preclude
the defence of NCR except where a single episode as in Bouchard-Lebrun.
 But NCR should not turn into an intoxication defence, the source (root cause) of the
mental incapacity must truly be NCR.
 Parliament wanted to overrule Daviault so they passed s. 33.1

R V TATTON
 Court clarifies the distinction between specific and general intent and applies it to s. 434..
Facts:
 The accused was living at his ex gf’s house and was upset over their break-up.
 He got drunk, went to bed, woke up and decided to make bacon.
 He left the oil on high and then went to Tim Hortons – the house burned down.
 He was charged with s. 434 arson, which the TJ held was a specific intent crime.
Issue: Is self-induced intoxication a defence to the charge of arson? Is it general or specific?
Rule:
 Classifying specific and general intent offences:
o Analysis must start with a determination of the mental element of the offence in question –
statutory interpretation NOT dependant on the facts of the case.
o After the mental element is determined, the next question is whether the crime is one of general
or specific intent.
 Logic, intuition, and policy all play a part.
 Begin with jurisprudence – if it has already determined the appropriate classification the
task is complete. If not, court must examine Daviault factors.
o 1. Importance of the Mental Element:
 The nature of the mental element and its “relative importance” form the basis for the
analysis.
 General Intent  mental element related to the performance of an illegal act.
 Do not require the intent to bring about certain consequences that are external
to the AR (Bernard).
o ex. Assault – only need the intention to apply force, not to intend to
cause injury.
 Do not require actual knowledge of certain circumstances or consequences, to
the extent that such knowledge is the product of a complex thought and
reasoning process.
 Specific Intent  Involve a heightened mental element.
 Crimes involving an ulterior purpose (Daviault), must not only intend to do the
act that constitutes the AR but also to act with an ulterior purpose.
o Ex. Assault with the intent to resist arrest.
 Ulterior purpose is not always required – could take the form of a requirement
that the accused intended to bring about certain consequences, if that
formation involves more complex and thoughtful reasoning process.
o Ex. Murder.
 Could take the form of a rewuirement that the accused have actual knowledge
of certain circumstances or consequences, where the knowledge is the product
of more complex and thoughtful reasoning.
 o Ex. Possession of stolen property – accused must have actual
knowledge or be willfully blind to the fact that the goods they possess
are stolen.
 The knowledge component renders the mental element more acute. Therefore,
intoxication is an offence for these crimes.
 In Summary:
 Specific intent offences contain a heightened mental element. The element
may take the form of an ulterior purpose or it may entail actual knowledge of
certain circumstances or consequences, where the knowledge is the product of
a more complex thought and reasoning process. Alternatively, it may involve
intent to bring about certain consequences, if the formation of that intent
involves more complex and thought and reasoning process. General intent
offences require very little mental activity.
o 2. The Role of Policy:
 Only when examining the nature of the mental element fails to yield a clear answer
should you turn to policy considerations.
 An assessment will first focus on whether alcohol is usually associated with the crime in
question.
 If it is, then allowing an accused to rely on it as a defence would be
counterintuitive (ex. sexual assault).
 If it is not, preventing an accused from relying on it would not make sense from
a policy perspective.
 Makes little sense to use it in crimes in which people or property are harmed or
endangered (Daviault).
o Except murder, etc.
 The presence of a lesser included general intent offence might be relevant.
 If there is a lesser and included than it is generally a specific intent offence
because then the accused can be convicted of something.
o Lesser and included is usually a general offence.
 For ex. Murder is a specific intent offence and therefore advanced intoxication
is a defence – but if the intoxication defence works such that the MR cannot be
proven, there is still that lesser and included manslaughter which is general
intent and the accused can not rely on it as an offence.
 The presence of judicial sentencing discretion may be a factor to consider.
 if a sentence is harsh, it might be unfair to preclude the defence of intoxication.
 Application to s. 434 arson.
o The courts have been divided on whether it is specific or general intent.
o The AR is damaging property by fire, the MR is the intentional or reckless performance of the
illegal act – the causing of damage to property.
 No additional knowledge or purpose is required.
 Recklessness always requires a subjective inquiry but does not involve sophisticated
reasoning.
o Difficulty seeing how intoxication short of automatism would prevent an accused from foreseeing
the risk of causing damage to someone else’s house by fire.
Ratio: How to determine whether an offence requires specific or general intent:
A. Determined by Jurisprudence
a. Leary found sexual assault causing bodily harm is a general intent offence.
B. If Jurisprudence Unclear - Determine the “importance of the mental element”
a. Mental Element determination – is there minimal (general) or complex mental element?
i. If subjective MR (recklessness) than it is likely to be a general intent offence.
ii. If an offence requires a high level of mens rea it is likely a specific intent offence.
1. Crimes of an ulterior purpose (robbery), or
2. Also includes Crimes that require actual knowledge of certain circumstances
or consequences, where the knowledge is a product of more complex
reasoning and thought” (murder but not manslaughter).
iii. If there is an objective MR it will require minimal intent and will be considered a
general intent offence and intoxication will not be a defence.
b. If Mental Element is unclear turn to policy consideration:
i. Is the offence habitually connected to the use of the intoxicant?
1. If yes, more likely general.
ii. Is there a Lesser and included offence to this offence?
1. If yes, more likely specific because then they would be convicted of
something/still punished.
2. Usually the lesser and included is general intent offence.
iii. Is there judicial sentencing discretion?
1. Suggests intoxication doesn’t apply to whether the offence has been made
out but may apply in sentencing.
2. More likely general.

Case Law examples of Specific Intent from Jurisprudence.

• Robbery
• have the lesser and included offence of assault (general) because theft is specific intent and has
no lesser and included – if you are charged with theft you can use intoxication.
• Murder
• Breaking and entering with intent
• But not B&E while committing mischief because mischief is a general intent offence.
• Theft
• Aiding and abetting a crime
• Possession offences.
• High level of mens rea required – recklessness not enough.

Case Law Examples of General Intent

• Rape
• sexual assault, sexual assault causing bodily harm, aggravated sexual assault
• Assault, assault causing bodily harm, aggravated assault
• Manslaughter
• Breaking and entering and committing an assault or committing mischief
• Arson
• Mischief
• Criminal negligence (causing bodily harm or causing death)
• Dangerous driving (causing bodily harm, causing death)
• Recklessness is enough or requires objective form of mens rea